SEPT 13 — Territorial sovereignty is paramount in international law.

After Article 1 of the United Nations (UN) Charter sets out the purposes of the UN, Article 2 states explicitly that the UN and its Members must act in accordance with the seven principles of the Charter.

The fourth principle prohibits the use of force against the “territorial integrity or political independence” of a Member State.

Notwithstanding the prohibition, the Charter recognises the inherent right of self-defence. Article 51 states that the inherent right of individual or collective self-defence is not impaired “if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. 

But measures taken in the exercise of the right of self-defence must be immediately reported” to the UN Security Council (UNSC).

Self-defence is therefore an exception to the principle of the prohibition of the use of force. It is further restricted to armed attacks that can be attributable to a state.

After the September 11 or 911 terror attacks in 2001, the United States and other countries claimed they could use force in self-defence against non-state actors (such as terrorist groups) that are sheltering and operating from another state’s territory, even if that state was not directly involved.

In response to the claim, Sir Daniel Bethlehem, an expert in international law and who was the principal Legal Adviser of the U.K. Foreign & Commonwealth Office (FCO) – now the Foreign, Commonwealth and Development Office (FCDO) – proposed several principles aimed at curtailing the justification within the intent of Article 51.

In his “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors”, Bethlehem argues that while Article 51 can cover actual or imminent attacks by terrorist groups, the requirements of necessity – the use of force in self-defence being a last resort – and proportionality must be satisfied, besides the rule that force against non-state actors on another state’s soil requires the consent of that state. 

The only exception is when there is a reasonable and objective belief that the state hosting the non-state actors is colluding with the group or is unable or unwilling to stop it – and no other reasonable option short of force exists.

So, what can one say of Israel’s strike on Hamas in Qatar?

First, it violates the sovereignty of a Member State of the UN and Article 2 of the UN Charter.

Second, it violates Article 51 of the UN Charter. Any use of force requires either the authorisation of the UNSC, or a justification that force is being used strictly in self-defence.

Even if Israel claims that it can use force in self-defence against Hamas that is sheltering and operating in Qatar, the requirements of necessity and proportionality were not met to justify the strike.

Israel Prime Minister Benjamin Netanyahu said the strike was a part of Israel’s oft-stated mission to avenge the Hamas-led October 2023 attack, towards ensuring that it would never be repeated.

“The days in which terrorist chiefs enjoy immunity anywhere have ended,” Netanyahu said on Tuesday night, hours after the strikes. On Wednesday, he expanded on his reasoning, condemning Qatar for giving “safe haven” to Hamas.

Qatar “harbours terrorists,” he said in a statement. “It finances Hamas. It gives its terrorist chieftains sumptuous villas.”

By Netanyahu’s own admission, the strike was retaliatory and not in self-defence.

Even in self-defence, Israel would need to demonstrate that Qatar was either colluding with or was unable or unwilling to stop Hamas, and that there was no other effective or reasonable way to respond to the situation.

Qatari officials, however, have said they hosted Hamas officials at the request of the US government, so as to facilitate channels of communication with the group. Qatar has played an important mediation role since the October 7 attacks.

Prime Minister Datuk Seri Anwar Ibrahim has rightly said Israel’s strike is “a blatant violation of Qatar’s sovereignty and a grave breach of international law.”

The international community must act.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.