By: Lauren Mellinger
On June 20, 2016, NBC Universal (Universal Cable Productions) filed a lawsuit in a California federal court against its insurer, Atlantic Specialty Insurance Company. At first glance the case appears to be a typical dispute over a contract – a Hollywood production company is suing its insurer for failure to pay the expenses incurred due to last minute decisions made by the production company in response to the last round of fighting between Hamas and Israel during the summer of 2014. Yet, at the centre of the case lies the question: Whether Hamas’s rocket attacks during that conflict should be classified as a war between sovereign nations, or as the militant acts of a terrorist group.
Summer 2014: A Brief Overview of Operation Protective Edge
On June 12, 2014, three Israeli teenagers were kidnapped and murdered in the West Bank. Hamas would later claim responsibility for the attack but in the ensuing weeks, Israel cracked down on Hamas operatives in the West Bank, and Hamas in Gaza responded with a barrage of rocket fire. On July 7, over 85 rockets were fired from the Gaza Strip into Israel, for which Hamas claimed responsibility. The next day, the Israel Defense Forces launched Operation Protective Edge. Neither Israel nor Hamas wanted the conflict to escalate – becoming the third in a series of rounds in a war of attrition that has existed between the two sides since Hamas took control of Gaza in June 2007. The operation lasted seven weeks, ending in a cease-fire on August 26.
Now for the obvious question – Why is the operation suddenly being featured in The Hollywood Reporter?
In the summer of 2015, USA network aired the miniseries Dig, the television show at the centre of this lawsuit. When production began the previous summer, the plan was for the mystery-conspiracy-thriller which is set in Jerusalem to film on location in Israel – the location shoot being integral to the creative process. Indeed at a panel at that summer’s annual Comic-Con, Dig’s creators boasted that “[s]hooting there [in Jerusalem] is paramount to the story in capturing the vividness and emphasizing the characters of the show.”
But when the violence broke out that June, only the pilot episode had been filmed. Following a week-long unplanned hiatus (an expensive undertaking for a production company, especially on an overseas location shoot), Universal opted to relocate filming to New Mexico and Croatia for the duration of production for that season. Due to the unanticipated relocation, Universal incurred $6.9 million in unforeseen costs. When Universal submitted a claim to its insurer, Atlantic, for reimbursement, the company denied the claim.
So far – a typical contractual dispute. But now for the added twist:
According to Universal Cable Productions, of which USA Network is a subsidiary, after the violence broke out, the U.S. State Department attributed the rocket attacks to Hamas. At that point, Universal argues, it submitted a claim to Atlantic, which then denied coverage.
In their complaint, Universal maintains that Atlantic’s rationale for failing to reimburse the production company contravenes the official policy of the U.S. government, which to date has not recognised Hamas as a sovereign government. Indeed according to the documents filed with the court, Universal argues that:
“[t]he United States government has officially designated Hamas as a terrorist organisation. Nevertheless, Atlantic has ignored the United States government position and applicable law. It claims Hamas is a sovereign or quasi-sovereign government over the Gaza Strip (even though Atlantic admits the Gaza Strip is not a recognized sovereign nation), in a self-serving attempt to invoke the war exclusion and avoid its coverage obligations.”
Atlantic maintains that the company denied Universal’s claim on the grounds that, per the terms of the contract, coverage is excluded for war or warlike actions. According to documents filed with the court, Atlantic stated that the company informed Universal in a letter dated July 28, 2014 that at the time “the terrorism coverage should not apply” to the events of July 2014, as Hamas’s actions did not target either the United States or its policies, and that “the U.S. Secretary of the Treasury has not certified the [Hamas/Israel] events as acts of terrorism.”
Barring any issue of justiciability per U.S. law, should the case proceed, the California federal court will be forced to confront an issue that has seemingly confounded policymakers and international jurists since January 2006: How to define Hamas.
The Challenge of Defining Hamas
While it is too early in the proceedings to state with certainty, the likelihood is that Atlantic is not taking a stand on political grounds. Rather, it is more likely that they saw the amount incurred by Universal when production was moved at the eleventh hour, and looked for a loophole that would allow them to avoid payment. The fact that Atlantic can even ask the court to entertain its argument is due to what has amounted over the past decade, if not longer, to an “accepted ambiguity” in international law and policymaking regarding Hamas.
This “accepted ambiguity” with respect to accurately classifying Hamas is primarily the result of two factors: first, the fact that the organisation’s victory in the 2006 elections caught Israel and the international community off guard, and many government officials, academics and foreign policy experts found it difficult to explain how an entity, regarded by many as a terrorist organisation, could ascend to power through a democratic process without first having relinquished its armed strategy. (This element of surprise certainly applied to the Bush administration, which had invested in the Palestinian Authority as part of a larger effort to promote democratic governance in the region, and at the time, had encouraged the Palestinians to proceed with the elections.) The second factor has been the subsequent intellectual inertia of policymakers who have failed to adequately respond to the threat posed by the Hamas’s transformation from a terrorist organisation, to a democratically elected terrorist organisation, now with actual governing responsibilities and access to state budgets and other resources.
On January 25, 2006, Hamas won the Palestinian Legislative Council elections, when its Change and Reform party list won 74 out of 132 seats. In the wake of the results, some counterterrorism analysts and Middle East specialists argued that participating in democratic elections, and subsequently serving in a government, would result in the group’s eventual moderation. Yet, notwithstanding the periodic moderate statements made by some members of their leadership, Hamas’s actions since the election wholly contradict the assertion that participation in politics will ultimately tame them. Hamas, since coming to power and becoming the de facto government in Gaza, has implemented a system of government that largely adheres to the movement’s core principles – espoused in a founding document the organisation has yet to officially renounce. This includes adhering to the use of violence, and refusing to recognise Israel. Hence, serving in the capacity of a democratically elected government has not impeded Hamas’s efforts to further its militant ideological goals.
Is Hamas a terrorist organisation? Yes.
Is Hamas a government? Yes.
Is Hamas currently in de facto control of the Gaza Strip? Yes, for the time being, in light of their takeover of the coastal enclave in June 2007, and until such time as the Palestinians hold new legislative elections (or the Fatah-dominated Palestinian Authority manages to reclaim control over Gaza.)
The challenge for policymakers is to understand the nature of the adversary they are confronting and formulate policies to mitigate the threat posed. It is long overdue for policymakers (and academics) to embrace a new paradigm with respect to Hamas – that of the hybrid terrorist organisation.
In his latest book Global Alert, Israeli counterterrorism scholar Boaz Ganor has proposed a definition for hybrid terrorist organisations. Ganor’s model consists of a single organisation comprised of three interrelated wings: first, the terrorist or guerrilla wing, per the classic definitions. To this a second wing is added – a political wing, that enables the organisation to participate in institutional politics, where it can gain legitimacy, albeit gradually. Lastly, such groups often maintain a robust social-welfare network, the purpose of which is to ensure a steady stream of new recruits to the organisation over time.
That an organisation can exist as a “hybrid” challenges the theory, widely accepted in both academia and among policymakers, that an armed group’s decision to participate in electoral politics is an automatic indication of its eventual transition into a “legitimate” political actor (i.e., a political party that has abandoned its armed strategy.) Yet, groups like Hamas are challenging the conventional wisdom. In her study of Islamist terrorist and guerrilla groups in transition in the Middle East, scholar Krista Wiegand found that an organisation’s existence as a hybrid or a “dual-status” group does not presuppose the group’s eventual transition to a non-violent political party. Rather, it reflects a rational choice. According to Wiegand, for armed groups that embody a hybrid status, “the use of political violence is a strategic rational choice under certain conditions, while under other conditions, non-violent political participation is more rational . . . violence and non-violence are not mutually exclusive choices.”
In other words, a hybrid group has the best of both worlds – the opportunity to slowly gain international legitimacy while obtaining access to state resources, without ever having to forsake the use of violence.
What Happens Next?
Given the international community’s glacially slow response to understanding the threat posed by hybrid organisations, it is likely that the immediate effect of Universal’s lawsuit will be on Israel’s relationship with Hollywood. In 2014, Dig was not the only Hollywood production filming in Israel that opted to relocate due to the ongoing violence in Gaza. Indeed, one day before USA pulled production from Israel, the FX series Tyrant also decided to move production for season one to Turkey due to the hostilities. Production on The Dovekeepers, a new biblical miniseries that CBS originally intended to film on location in Israel, was relocated to Malta. That decisions such as defining Hamas may be subject to the ad hoc rulings of lower courts may hamper Israel’s efforts to entice foreign production companies to consider Israel when looking for suitable foreign locales for film and television projects.
Still, the growing challenge that hybrid organisations such as Hamas pose to Israel is by no means exclusively a challenge for Israel. Modern history is replete with examples of armed groups that have eventually transitioned to non-violent political parties. At present, what sets Hamas (and for that matter, groups such as the Lebanese Hizballah) apart from other armed organisations that have undergone some form of transition is an issue that lies at the heart of this lawsuit – are these organisations in fact in the process of transitioning? Or rather, do they embody a new type of security challenge for democratic states?
The latter is more likely in the case of Hamas. Therefore, those states that opt to designate only the militant wing of an organisation such as Hamas as a terrorist organisation, excluding the political arm of the organisation, are doing little more than creating an artificial distinction. By effectively enshrining a false dichotomy into law – that an organisation can either be a “terrorist organisation” or “the political wing of an armed group” – the state fails to account for the organisational and operational reality of hybrid groups, namely, that existence as a hybrid is a rational choice, not to be misconstrued with the initial phase in an eventual transition a legitimate political party. Only with an appropriate understanding of such groups can states begin to devise adequate policies to mitigate the threat such groups pose to their security.
Lauren Mellinger is a doctoral candidate in War Studies at King’s College London and a senior editor of Strife’s blog and journal. Her research specializes in Israeli counterterrorism, foreign policy, and national security decision-making, and the Israeli-Palestinian conflict. You can follow her on Twitter @Lauren_M04
 For a more in depth understanding of the emerging concept of the “hybrid” organisation see: Boaz Ganor, Global Alert: The Rationality of Modern Islamist Terrorism and the Challenge to the Liberal Democratic World (New York: Columbia University Press), p. 73-83; Amichai Magen, “Hybrid War and the ‘Gulliverization’ of Israel,” Israel Journal of Foreign Affairs, 5(1) (2011): 59-72; Benedetta Berti, Armed Political Organizations: From Conflict to Integration (Baltimore: The Johns Hopkins University Press, 2013); Jeroen de Zeeuw, “Understanding the Political Transformation of Rebel Movements,” in ed. Jeroen de Zeeuw, From Soldiers to Politicians: Transforming Rebel Movements After Civil War (Boulder, CO: Lynne Rienner Publishers, Inc., 2008); Krista E. Wiegand, Bombs Over Ballots: Governance by Islamist Terrorist and Guerrilla Groups (Farnham, Surrey, England: Ashgate, 2010).
 Ganor, Global Alert, p. 74.
 See Leonard Weinberg, Ami Pedahzur, and Arie Perliger, Political Parties and Terrorist Groups (London: Routledge, 2003); Marina Ottoway, “Islamists and Democracy: Keep the Faith,” The New Republic, June 6 and 13, 2005.
 Wiegand, Bombs Over Ballots, p. 75-76.
Lauren Mellinger is a doctoral candidate in War Studies at King’s College London and a 2018-19 Israel Institute Doctoral Fellow. She is also a former senior editor of Strife’s blog and journal. Her research specializes in Israeli counterterrorism, foreign policy, and national security decision-making, as well as the Israeli-Palestinian conflict. You can follow her on Twitter @Lauren_M04.