By Louis Rene Beres
A core misunderstanding surrounds Israel’s counterterrorism strike in Qatar. It suggests that a state’s sovereignty is always absolute, and that any intrusion on this “highest authority” is automatically a crime. In fact, any notion of absolute sovereignty is a contradiction in terms.
If it were otherwise, states could never be meaningfully bound by international law. And the law could never represent anything more than a passive reflection of military power.
Today, it’s the particulars that matter most. In a world legal order that mandates punishment of terror crimes — “No crime without a punishment” is Principle 1 of the 1950 Nuremberg Principles — each state is obliged to cooperate against such offenses.
Accordingly, no state is ever entitled to grant safe haven to terrorists on its territory.
Where this prohibition is disregarded, as in the case of Qatar and Hamas, all normal prerogatives of sovereignty would be removed ipso facto and the terror-offended state — in this case, Israel — would be entitled to mounting corrective interventions.
To be sure, such a remediating attack would still have to conform to expectations of the law of war (i.e., humanitarian international law), rules concerning “distinction,” “proportionality” and “military necessity.” Prima facie, by its conspicuously precise attacks in Qatar, Israel complied fully with these binding expectations.
The fact that Hamas leaders had sought safe harbor in a friendly state did not mean they were no longer subject to law-mandated punishment or that the coinciding principle of sovereignty immunized Qatar, the terror-protecting state, from Israeli law enforcement.
Jerusalem’s “long-arm” counterterrorism operation was consistent with codified and customary international law, including, as per Article 38 of the U.N. Statute of the International Court of Justice, “the general principles of law recognized by civilized nations.”
Terrorists, like pirates, are “common enemies of humankind” and thereby subject to punishment anywhere. Regarding Israel’s defensive actions in Qatar, Hamas terrorists represented international outlaws (hostes humani generis) whose defilements lay well within the punishment scope of “universal jurisdiction.”
Inter alia, this means that any country — whether or not directly imperiled by terror-violence — can claim a valid right to target such outlaws if the normal obligations of criminal extradition would be disregarded. Wherever a specific state has already been victimized, that state has a special and primary right to impose adequate punishments; Israel is this “specific state.”
On its face, the international legal system remains a “self-help” system of justice. Since the 1648 Treaty of Westphalia, it is within a background of global anarchy that terror-beleaguered states must identify counter-terrorism options. If Israel had not acted against jihadi terrorists being wrongfully protected in Qatar, the obligations of law would have been trumped by crude calculations of raw power. Here, recalling the classical argument of Thrasymachus in Plato’s “Republic,” “Right is the interest of the stronger.”
There is more. Responding to intentionally indiscriminate Hamas violence, harms inflicted with “criminal intent” or mens rea, Israel’s precise airstrikes in Qatar were a life-saving operation. Faced with a persistent threat of Palestinian terrorism that could eventually escalate to mass destruction operations, Israel has no humane choice but to eliminate Hamas leadership elements wherever they might be located.
Abandoning such authoritative legal reasoning would pose a major threat to all states, not just Israel. Ominously, any such forfeiture would undermine regional and global security in general. An example would be jihadi terror attacks that could escalate into wider war. In a worst-case scenario, this escalation, whether sudden or incremental, would become nuclear.
In law, there can be no reasonable comparisons of the deliberate mass murder of Israeli noncombatants by terrorists with the unintended civilian harms suffered collateral to Israeli law enforcement. Under the law of war, even where an insurgent employs force with “just cause,” that combatant is required to fight with “just means.” The phrase “One man’s terrorist is another’s freedom fighter” is never anything more than a propagandistic contrivance.
Ordinarily, targeted killings are a crime under international law. Yet under certain recognizable conditions, the discriminatory elimination of terrorist leaders could express a valuable form of life-preservation. In our self-defense structured world-legal system, the only alternative to states launching precise targeting actions against terrorist leaderships would be to allow deliberate terrorist targeting of innocent populations.
International law is not a suicide pact. It would be best if the state of Israel never had to plan targeted killings of its terrorist adversaries; however, a beleaguered country smaller than America’s Lake Michigan has no reasonable choice.
Under various guiding principles governing insurgencies, ends can never justify means. In law — all law — there is never an excuse for inflicting or ignoring premeditated violence against the innocent. ■
Louis Rene Beres is emeritus professor of international law at Purdue University.
