Legality of Targeting Terrorists in Qatar

A legal clarification: Targeting Hamas terrorist leaders in Qatar

The fact that Hamas terrorist leaders sought safe harbor in a friendly sovereign state did not mean they were no longer subject to law-mandated punishment or that the principle of sovereignty immunized the terror-protecting state (Qatar) from Israeli law-enforcement.

A core misunderstanding surrounds Israel’s counter-terrorism strike in Qatar. It is that a state’s sovereignty is always absolute, and that any intrusion of this “highest authority” is always a crime. As jurisprudential axiom, any notion of absolute sovereignty is a contradiction in terms. If it were otherwise, states could never be meaningfully bound by international law. If it were otherwise, law would represent nothing more than a reflection of relative 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 entitled to grant safe-haven to terrorists on its territory. Where this prohibition is disregarded, as was the case of Qatar and Hamas, all normal prerogatives of sovereignty are removed ipso facto and the terror-offended state, here Israel, is entitled to launch corrective interventions.

To be sure, such a remediating attack must still conform to expectations of the law of war (i.e., humanitarian international law), rules concerning “distinction,” “proportionality” and “military necessity. Prima facie, however, by its conspicuously precise attacks in Qatar, Israel did in fact comply fully with these binding expectations.

Accordingly, the fact that Hamas terrorist leaders sought safe harbor in a friendly sovereign state did not mean they were no longer subject to law-mandated punishment or that the principle of sovereignty immunized the terror-protecting state (Qatar) from Israeli law-enforcement. In essence, Jerusalem’s “long-arm” counter-terrorist operation was consistent with codified and customary international law, including (per art. 38 of the UN 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 subject to punishment anywhere on earth. Regarding Israel’s defensive actions in Qatar, Hamas terrorists represent international outlaws (hostes humani generis) whose defilements lie well within the punishment scope of "universal jurisdiction." This means that any country, whether or not directly imperiled by terror-violence, can claim a valid right to target such outlaws if normal obligations of criminal extradition would be disregarded. Where a state has already been directly victimized, that state (here, Israel) has a special and primary right to impose adequate punishments.

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 protected in Qatar, law would have been trumped by crude considerations of raw power.

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. Israel - faced with a persistent threat of Palestinian Arab terrorism that could eventually escalate to mass destruction operations - 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. Such forfeiture would undermine regional and global security in general. An example would be jihadi terror attacks that escalate into a wider war. In a worst-case scenario, this escalation, whether sudden or incremental, would become nuclear.

There is more. In law, there can be no reasonable comparisons of the deliberate mass murder of Israeli noncombatants by terrorists with the unintended civilian harms suffered incidental to Israeli law-enforcement. Under the law of war, even where an insurgent employs force with "just cause," that combatant is still required to fight with "just means."

The phrase “One man’s terrorist is another’s freedom fighter” is never anything more than propagandistic contrivance.

Ordinarily, targeted killings, like terrorism, are a crime under international law. Under certain recognizable conditions, however, the discriminate 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 Israel didn’t have to plan targeted killings of terrorist adversaries, but in our continuously self-help system of world law, a beleaguered country smaller than America’s Lake Michigan has no reasonable choice. Under authoritative principles governing insurgencies, ends can never justify means. In law, there is never an excuse for either inflicting or ignoring premeditated violence against the innocent.

In Qatar - much as in the case of the United States targeting Osama Ben-Laden in Pakistan - Israel subordinated normally protective elements of sovereignty to exceptionally primary elements of justice.

written by LOUIS RENÉ BERES

Emeritus Professor of International Law at Purdue

https://www.israelnationalnews.com/news/414972