The United Nations Security Council has issued a statement condemning Israel’s strike last week against the leaders of Hamas in Qatar. The statement only highlights how the international conversation surrounding the mission has been predictably loud and legally uninformed. While critics reflexively cry “aggression,” or “violation of sovereignty,” actual international law tells a very different story. Far from being outlawed conduct, the justification for the operation rests on the very framework the international community itself created after the attacks on September 11, 2001. Ironically, that framework is enshrined in a binding UN Security Council Resolution.

Here’s the point: harboring a terrorist organization is an outright violation of binding international law and any State that does so should expect an appropriate response. 

For decades, the prevailing orthodoxy held that only States could commit “armed attacks” that would trigger the right to self-defense under Article 51 of the UN Charter. That might have made sense in 1945, when only governments fielded armies capable of the destruction envisioned by the Charter. Yet even then international law acknowledged something crucial: if irregular forces caused destruction on a scale comparable to that of a regular army, those acts could be considered armed attacks. This became known as the “scale and effects” test.

The Hamas of today is not a ragtag insurgency. It is a heavily armed, organized, and entrenched militant army that governs territory, fields thousands of fighters, employs rockets, drones, and tunnels, and has repeatedly demonstrated the ability to inflict destruction on a massive scale. Its October 7, 2023 massacre of Israeli civilians, its ongoing rocket fire, its continued holding of Israeli hostages, and its declared intent to repeat such attacks all plainly qualify under the “scale and effects” test. By any reasonable military or legal standard, Israel has the right to target those directing such operations wherever they are located.

In truth, however, this analysis is almost unnecessary, because the narrow legal interpretation requiring State action effectively died on 9/11. After the World Trade Center attacks, the entire world saw that terrorist groups could inflict devastation matching or exceeding many States. The United States invoked Article 51, and the UN Security Council responded, explicitly acknowledging that terrorist groups can carry out armed attacks, and that States have the right under the Charter to respond in self-defense — even when the perpetrators are non-State actors operating abroad.

Resolution 1368 (2001), adopted the day after 9/11, declared:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Just a few weeks later, the Council passed another Resolution (1373), which reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001).”

It also imposed additional obligations: States must “refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts” and must “deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens.”

This second Resolution, which included the harboring doctrine, explicitly invoked the authority given to the Security Council under Chapter VII of the UN Charter. Under Article 25 of the Charter, such Chapter VII decisions are binding on all UN Member States and create enforceable international law.

Nor is this practice controversial. Countries around the world consistently rely on the harboring doctrine to go after terrorists. Turkey has conducted operations in Iraq to go after the PKK (Kurdistan Worker’s Party), while Russia used it to pursue Chechen militants in Georgia. India cited it to justify surgical strikes within Pakistan to go after groups like Jaish-e-Mohammed and Lashkar-e-Taiba, and France applied it to conduct operations against violent jihadist groups in Mali, Niger, and Chad.

After 9/11, the U.S. framed the Taliban’s harboring of Osama bin Laden and al-Qaeda as grounds for self-defense under international law. As President Bush stated: “We will make no distinction between the terrorists who committed these acts and those who harbor them.”

In the early 2000s and again in the 2010s, U.S. officials invoked the harboring doctrine against al-Qaeda in the Arabian Peninsula; Yemen was described as a “safe haven” where terrorists were harbored, justifying U.S. drone strikes and special forces operations. The same rationale guided U.S. policy in Somalia, justifying actions when Somali authorities were unable to restrain al-Shabaab or lacked capacity to prevent its attacks. In fact, President Obama repeatedly invoked the notion of denying terrorist groups safe havens when he was reinforcing the legal and moral justification for U.S. strikes and operations in regions such as Afghanistan, Pakistan, Syria, and Iraq.

Of course, self-defense is not a blank check. International law requires necessity and proportionality. Here, necessity is obvious because Qatar is not detaining Hamas leaders or halting their activities. Proportionality is likewise satisfied. These are precise, intelligence-driven strikes aimed not at Qatari civilians or infrastructure, but at individuals orchestrating terrorist campaigns. In modern military terms, this is a textbook example of how a State can apply force in a manner that is both lawful and restrained, targeting the enemy while minimizing civilian harm.

Wars are decided not only on battlefields but also in the decisions to act, or to refrain from acting, against threats that originate abroad. History shows that when States allow terrorist sanctuaries to fester, violence metastasizes. Israel’s strike in Qatar is part of a long-established, legally grounded, and militarily necessary practice: denying safe haven to those who would continue to massacre innocents if left untouched.

The right to self-defense includes the right to eliminate a threat, even when that threat is being illegally harbored by a so-called ‘neutral’ party.

If the United States lawfully struck and killed Bin Laden in Pakistan, then Israel lawfully struck and killed Hamas leaders in Qatar. That is not bending international law. It is applying it correctly, even when it comes to Israel.

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Mark Goldfeder is CEO of the National Jewish Advocacy Center and a law professor at Touro University.

John Spencer is the executive director of the Urban Warfare Institute. He is the coauthor of “Understanding Urban Warfare.”

The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.

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