The Nuremberg Principles (1950), the UN’s guidelines for determining war crimes, begin with a fundamental reassertion: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” In other words, there is no crime without a punishment.
Accordingly, the fact that Hamas terrorist leaders sought safe harbor in a sovereign state does not mean they were no longer subject to law-mandated punishment or that the principle of sovereignty immunized the terror-protecting state from “long-arm” law enforcement.
Contrary to various uninformed or deliberately contrived condemnations of Israel’s self-protective actions in Qatar, those operations were consistent with codified and customary international law, including (per Article 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. Ipso facto, where a state has already been directly victimized, that state (here, Israel) has a special and primary right to impose adequate punishments.
No reasonable comparison of mass murder of Israeli
In law, all law, context is pertinent. Prima facie, 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 always identify counter-terrorism options.
Responding to intentionally indiscriminate Hamas violence – violence inflicted with “criminal intent” – Israel’s intentionally precise airstrikes in Qatar were launched as life-saving operations. Among other things, Israel, faced with a persistent threat of Palestinian terrorism that could at some point escalate to mass destruction, has no humane choice but to eliminate Hamas leadership elements wherever they might surface.
There is more. Abandoning this core legal obligation would pose a major threat to more states than just Israel. In both foreseeable and unforeseeable ways, it would also threaten regional and global security. An example of such a threat would be jihadi terror attacks on Israel that escalate into a wider area war. In a worst-case scenario, this escalation (whether sudden or incremental) could become “unconventional.”
IN LAW, there can be no reasonable comparison of the deliberate mass murder of Israeli noncombatants by terrorists and unintended civilian harms suffered collaterally to Israeli law enforcement. Under the law of war, even where an insurgent employs force with arguably “just cause,” it is still required to fight with “just means.” The phrase “One man’s terrorist is another’s freedom fighter” is nothing more than propagandistic contrivance. At best, it is an empty witticism.
Ordinarily, targeted killings, like terrorism, are a crime under international law. Under certain readily recognizable conditions, however, the discriminate elimination of terrorist leaders can represent an indispensable form of life preservation. In our self-defense-structured world legal system, the only alternative to states launching precise targeted actions against terrorist leaderships must be to allow intentional terrorist targeting of the innocent.
At first glance, to accept counterterrorist targeting might seem to disregard usual justice obligations of “due process.” Nonetheless, international legal relations are never overseen by the same civil protections offered by national governments (more or less), and leaving terrorist leaders in presumptive safe havens like Qatar would only impair needed acts of self-defense.
As I’ve often written, international law is not a suicide pact. To be sure, it would be best if Israel didn’t have to resort to targeted killings of terrorist adversaries, but in the present system of world law, a beleaguered country smaller than America’s Lake Michigan has no meaningful choice.
Under the authoritative international law principles governing insurgencies, ends can never justify the means. In essence, there is never an excuse for inflicting or ignoring premeditated violence against the innocent.
Predictably, Israel’s recent targeted killings of terror criminals in Qatar have elicited visceral indignation across the world, but the argument that Israel did not act correctly because it offended a terrorist-protecting state’s sovereignty lacks legal merit.
For now, at least, the optimistic promise of centralized world law remains elusive, and continuously imperiled states such as Israel still need to rely on selective measures of self-help. Inevitably, in facing stark self-defense limitations, these states will discover that all viable alternatives to targeted killing include violence and that these alternatives would ultimately exact a far more grievous human toll.
In Qatar, Israel – much as was the case of the United States targeting Osama bin Laden in Pakistan – subordinated narrowly technical issues of sovereignty to broadly overriding issues of justice. For anyone who values life over death, it was the singularly lawful choice.
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism, including Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).