On Sept. 9, Israel mounted “Operation Summit of Fire,” in which the Israeli Air Force (IAF) struck a residential and office compound in Doha, Qatar, used by senior Hamas leaders involved in ongoing ceasefire talks with Israel that were being brokered by the United States, Qatar, and Egypt. The five individuals targeted in the attack held positions of both political and military significance in the organization (see here, here, here, and here). Khalil al-Hayya, Hamas’s chief negotiator and acting leader of Hamas, was the most important of them. He serves on the group’s Political Bureau, the executive arm of Hamas responsible for day-to-day decision-making. Since the deaths of most Gaza-based Hamas leaders, al-Hayya has played the central role in Hamas’s political and military strategy, including by setting tactical priorities for, and providing strategic direction to, the al-Qassam Brigades (Hamas’s military wing). Internal documents show Al-Hayya also helped in the planning of Hamas’s October 2023 attack on Israel.
The other targets were likewise high-level members of Hamas. Of note in the context of the strike’s lawfulness, Zaher Jabarin was apparently the key figure in Hamas’s West Bank military operations and a founder of the al-Qassam Brigades in the West Bank; Muhammad Darwish served as head of Hamas’s Shura Council and acted as the internal coordinator between the organization’s military and political wings; Nizar Awadallan, a senior strategist, shouldered responsibility for the survivability of external Hamas armed operations; and Khaled Mashaal oversaw Hamas relations with armed factions across the Middle East. Objectively, there is no question that they represented valuable targets to Israel.
Israel justified the Doha strike on multiple grounds. On the one hand, officials stated that specific security concerns prompted Operation Summit of Fire. Along these lines, Prime Minister Netanyahu declared, “Over are the days when leaders of terror enjoy immunity anywhere,” warned other States to expel terrorists, and accused Qatar of funding Hamas and providing them “luxurious villas and safe haven.” But somewhat paradoxically, he also claimed that the strike, which effectively scuttled the ongoing talks, “can open the door to an end of the war.” And Netanyahu publicly announced that Israel conducted the strike in part as retaliation for a deadly terrorist attack by Hamas on a bus stop in Jerusalem the previous day.
Although the dust has yet to settle, and the results of the strike are not entirely clear, it seems as if Operation Summit of Fire was a tactical failure and a strategic blunder. At the tactical level, the IAF killed five lower-level Hamas affiliates and a member of the Qatari security forces, but seemingly none of its intended targets (this has not been confirmed at the time of writing). Strategically, the operation is unlikely to enhance the ongoing peace negotiations and has further isolated Israel internationally. UN Secretary General António Guterres, for instance, “strongly condemn[ed]” the attack, labeling it “a clear violation of the country’s sovereignty & territorial integrity.” He also observed that “Qatar has played a positive role to achieve a cease-fire & the release of all hostages.” In a press statement, the Security Council “condemned” the attack and “underlined their support for the sovereignty and territorial integrity of Qatar.” (Significantly, the United States supported the statement.)
Individual States were likewise highly critical, even those that are often supportive of Israel. German Chancellor Friedrich Merz, for instance, echoed the Secretary-General’s characterization of the IAF operation as a violation of Qatar’s territorial sovereignty, as did UK Prime Minister Keir Starmer. Most significantly, President Donald Trump cautioned, “Unilaterally bombing inside Qatar, a Sovereign Nation and close Ally of the United States, that is working very hard and bravely taking risks with us to broker Peace, does not advance Israel or America’s goals.” Qatar hosts Al Udeid Air Base, which Iran had previously attacked following the U.S. strikes on Iranian nuclear sites in June. It is the largest U.S. military base in the Middle East and serves as the forward headquarters for U.S. Central Command.
Putting aside the lack of tactical or strategic wisdom, this essay assesses the lawfulness of the Operation Summit of Fire. As I will explain, the only remotely plausible justification for such an operation is the controversial “unwilling or unable” doctrine. It is an approach that finds its scholarly roots in the 2nd edition (1994) of Yoram Dinstein’s classic work, “War, Aggression and Self-Defence” (p. 338; see also 6th ed., pp. 288-95; see also Jordon, Deeks, Hakimi, Gill, and Tibori-Szabó).
I have been a vocal advocate of the doctrine for over two decades (e.g., see my early pieces here and here) and have often found justified actions on its basis, including those by Israel (e.g., here and here). Still, I am not convinced that Israel conducted the operation in a manner that would satisfy the limitations set by the doctrine. In this essay, I explain why.
The Unwilling or Unable Doctrine
The “unwilling or unable” doctrine is an interpretation of the right of self-defense resident in customary international law and Article 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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.” It applies in situations in which an organized armed group (OAG) located in one State is about to launch an “armed attack” against another State, or one is already underway. It does not apply if the OAG is acting “on behalf” or with the “substantial involvement” of the territorial State, for in such cases the victim State may treat the territorial State as the attacker, opening the door to the use of force against both the territorial State and its non-State proxy (Paramilitary Activities, ¶ 195). Assuming these conditions are met, the victim State may rely on the right of self-defense to enter the territorial State and put an end to (or hinder) the OAG’s activities related to the armed attack, so long as the latter State is unwilling or unable to put an end to the attacker’s activities emanating from its territory.
The foundational premise of the doctrine is that international law is not a fully cohesive body of law. It develops in an ad hoc fashion through treaty and customary law rules that are responsive to differing concerns, varied objectives, and evolving threats. Accordingly, it should come as no surprise that there are normative voids, frequent interpretive confusion, and even conflicting rules. This is the case with regard to scenarios that raise the “unwilling or unable” question. The victim State has a right to forcibly defend itself in the face of an armed attack, and the territorial State enjoys a right of territorial integrity and inviolability. But sometimes, a State will not be able to defend itself effectively against an imminent or ongoing armed attack if it cannot pierce the veil of another State’s sovereignty, at least not in the absence of consent (Articles on State Responsibility, art. 20) or authorization under Chapter VII of the UN Charter.
Proponents of the unwilling or unable doctrine argue that in such cases, international law should seek a resolution that best preserves the underlying object and purpose of the conflicting rules rather than treating the situation as one that demands a binary choice. This means that both rules need to give a bit. Thus, by the doctrine, the victim State may enter the territorial State to exercise its right of self-defense, but only pursuant to stringent limitations that respect, to the extent feasible, the territorial State’s sovereignty. As a “circumstance precluding wrongfulness” under the law of State responsibility, self-defense would preclude the wrongfulness of what would otherwise be a breach of the latter’s sovereignty (Articles on State Responsibility, art. 21). (If the legal issue is the use of force in another state’s territory (not just sovereignty), the rules are circumscribed by jus ad bellum. More on that below.)
It must be emphasized that the unwilling or unable doctrine is not universally accepted and reasonable arguments have been proffered against it (e.g., Martin, Haque, Heller). Indeed, as Adil Haque observed, States are “all over the map.” But the United States, Israel, and, to a lesser extent, Qatar have explicitly or implicitly endorsed the doctrine, as have a number of other militarily significant States. And, as a proponent of the doctrine, I will proceed for the sake of analysis as if the doctrine is extant law to see whether the Israeli action can be deemed lawful even under my somewhat permissive approach.
The Conditions Precedent
As is self-evident from the text of Article 51, the threshold condition precedent for self-defense is an “armed attack.” Although there is some disagreement about whether the right attaches to an armed attack by a non-State group, I have been in the camp that it does since the 9/11 terrorist attacks (e.g., see here; see also DoD Law of War Manual, §1.11.5.4; but see Armed Activities, ¶ 146; Wall, ¶ 139). And, as I have explained elsewhere, the attacks on Israel by Hamas, Hezbollah, and other OAGs that began on October 7, 2023, triggered that right. The right remains exercisable so long as Hamas holds Israeli hostages and continues to use unlawful force against Israel, as illustrated by ongoing hostilities in Gaza and the recent bus stop attack.
Every exercise of self-defense is subject to the universally accepted conditions of necessity and proportionality (see, e.g., Paramilitary Activities, paras. 194, 237; Nuclear Weapons, para. 41; Oil Platforms, paras. 43, 73-74, 76; DoD Law of War Manual, § 1.11.1.2 and 1.11.1.3). The necessity criterion simply asks whether non-forcible measures standing alone are likely to address the situation. As the hostilities continue, this condition is met. The fact that negotiations are underway does not preclude the use of force until those negotiations are sure to prevail in the immediate future.
Proportionality in the jus ad bellum, as distinct from law of armed conflict (LOAC) proportionality, limits defensive force to that required to defend against an imminent or ongoing armed attack. Thus, while necessity addresses whether force may be used, proportionality concerns the degree of force permitted in the exercise of self-defense. In my view, attacking a small group of individuals in an effort to disrupt the adversary’s command and control is a reasonable amount of force in light of the impact that disruption of command and control through a decapitation strike is likely to have on the enemy force’s ability to continue its operations.
A third precondition is that the territorial State must be in default of its own obligation to put an end to activity on its territory. As John Basset Moore observed, in the 1927 Lotus case, “it is well settled that a State is bound to use due diligence to prevent commission within its dominions of criminal acts against another nation or its people” (PCIJ, p. 269; see also, e.g., Corfu Channel, p. 22; Armed Activities, ¶ 162; Declaration on Friendly Relations; Declaration on Measures to Eliminate International Terrorism).
Although only an unwillingness, and not inability, to exercise “due diligence” qualifies as an internationally wrongful act (see Tallinn Manual 2.0, rule 7), advocates of the unwilling or unable doctrine suggest that when balancing sovereignty and self-defense rights, it makes sense to include situations where a State cannot effectively police its territory. In other words, failure to act in an “unable” situation may not violate international law, but that does not mean it is irrelevant when balancing conflicting rights.
Qatar could, as a practical matter, have easily put an end to the presence of Hamas personnel on its territory. It is “able.” But reference to the doctrine as justification for the Doha strike stumbles over the “unwilling” prong. There is little question that Israel has demanded that Qatar and other States expel Hamas personnel from their territory in the past, and that Qatar, inter alia, has not complied. But the “unwillingness” that undergirds application of the doctrine must be manifest at the time the victim State penetrates the unwilling State’s territory in self-defense.
Relatedly, as I have explained before, penetration of the territorial State may only occur if no “viable alternatives to the prospective military operation exist, and that the force finally used [must] be limited to that necessary to accomplish the defensive objectives. In such cases, the exhaustion of
remedies component of self-defense [the ‘necessity’ criterion] translates into a requirement that the potential victim State issue a demand that the sanctuary State comply with its obligation to prevent its territory from being improperly used.”
Here, as far as the public record is concerned, that does not seem to be the case. Israel has not (at least not yet) claimed that it had made a recent demand that Qatar take action, and nothing in Qatari or U.S. reactions up to this point has indicated that Israel had done so. And it is not as if Qatar would necessarily have brushed aside such demands; Qatar is not, for instance, Syria or Iran, where Israeli demands would likely prove fruitless. On the contrary, despite an often fraught and always complicated relationship, there is an extensive history of both open and behind-the-scenes talks between the two countries, directly and through intermediaries. Indeed, the very fact that ceasefire negotiations were underway in Qatar illustrates that the lines of communication were still open in the days leading up to Sept. 9.
Also note that Israeli officials have claimed that the gathering offered “a rare operational opportunity given the gathering of senior leaders.” Perhaps Israel assessed that if it were to clearly communicate its intention to strike Hamas’s leaders in Qatar if the government failed to arrest or expel them, that information would be leaked. Under the unwilling or unable doctrine, a State need not undermine its ability to act in self-defense by seeking consent that, in the language of the Bethlehem Principles, “would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to future attacks.”
Yet, those same principles observe that such an assessment must be based on a “strong, reasonable, and objective basis.” The strike into Qatar cannot be compared to the U.S. attack on Osama bin Laden in Pakistan, which was conducted without warning against an elusive figure sure to fade into the shadows if alerted by a leak from Pakistan’s security forces. These Hamas leaders were not in hiding; this was not a situation in which the window of opportunity to act was about to close.
But even more to the point, Israel cannot have it both ways. It had objected to Hamas’s presence in Qatar for years, but the fact that it was negotiating through Qatar with Hamas representatives in that country can be interpreted as de facto acquiescence to their presence there while those talks were underway. Indeed, according to CNN, al-Hayya and Qatar’s Prime Minister had discussed the U.S. ceasefire proposal the evening before the attack. Qatari officials then contacted their Israeli counterparts (who were not in Qatar) and briefed them into the early morning hours of Sept. 9. Hamas reportedly indicated it would respond to Qatar within 12 hours. The strike occurred during that window. Israel can hardly argue that this was the point at which Qatar’s failure to expel the targeted individuals had crossed the line. The very fact that the discussions of the ceasefire proposal were underway with Hamas representatives based in Qatar through Qatari officials points in the opposite direction.
The most reasonable conclusion seems to be that Israel did not exhaust its options, for it could have simply terminated the negotiations and then made the demand, allowing Qatar the opportunity to comply. And if Israel did in fact seek Qatari action through confidential channels before unilaterally acting, surely it is Israel that shoulders the burden of bringing that fact to light in order to support the lawfulness of the Doha strike.
Finally, to tie up loose ends, I note that some are of the view that such an action also amounts to a use of force against the territorial State in violation of Article 2(4) of the UN Charter and customary law. That is not my view, but it is not unreasonable. For me, forcible action must be directed at a State to qualify as a use of force. For instance, if a State acting in self-defense targets the territorial State’s air defenses to enable safe penetration to the unwilling or unable targets, it would have used force against the latter. In such a case, the requirements of self-defense would not be satisfied, for that State had not employed force at the armed attack level, and the relationship between it and the OAG would not have satisfied the “on behalf or with the substantial involvement” criterion mentioned above. Whatever the right answer, the operation was an internationally wrongful act.
Execution of the Operation
Operation Summit of Fire implicates two conditions applicable to the execution of an “unwilling or unable” strike. The first derives from the balancing that underpins the doctrine. Since such operations must respect the territorial State’s sovereignty rights to the extent feasible, a State acting in self-defense is strictly limited to measures that directly affect the OAG’s ability to mount the imminent armed attack or defeat an ongoing one. For instance, the mere presence of personnel or assets on the territory does not automatically open the door to attacking them unless there is a nexus between them and the armed attack in question. The IAF’s strike would appear to satisfy this criterion. Assuming reports about the roles the targeted individuals played are accurate, there is a very direct nexus to their activities and ongoing Hamas operations. Indeed, one could say that Hamas’s offensive operations are being launched – by planning, authorizations, orders, and the like – from Qatar. Moreover, the extremely surgical nature of the strike is further testament to planning consistent with this limitation (that said, Qatar told the UN, “Several civilians and members of the Qatari Internal Security Force assigned to protect the compound were also injured”).
A second condition is that an unwilling or unable operation may only be directed at persons or objects that qualify as military objectives under LOAC. Although the classification of the conflict between Hamas and Israel is the subject of much discussion, in my view, it is clear that it is a non-international armed conflict (NIAC). This is so even if the premise of Palestinian Statehood is accepted, for in such a case, the situation would be a “horizontal conflict” (Dinstein, p. 40) in which the Hamas-Israel NIAC is occurring in parallel with an international armed conflict (IAC) between Israel and the Palestinian State. The distinction is not of particular significance on the issue of whether the individuals concerned were targetable as such, but it does bear on their possible status as “parlementaires,” a topic examined in the next section.
Under both NIAC and IAC targeting rules, the targeted Hamas members either qualified as “direct participants in the hostilities” or “organized armed group” members (see vol. 42:3 of the NYU Journal of International Law and Policy). The former category would encompass those with political functions, but who nevertheless engage in activities directly supporting Hamas’s military operations (see DoD Law of War Manual, § 5.8.3.1 for examples). The latter applies to any of them who are members of Hamas’s fighting wing, including the al-Qassam Brigades and other components of its security apparatus. While an in-depth legal analysis of their status is beyond the scope of this essay and fact-dependent, I believe it’s clear that all five are encompassed in one or the other category and either renders them lawfully targetable.
Direct participants may be attacked only for such time as they are participating in the hostilities (Customary International Humanitarian Law study, rule 6). However, if they participate on a recurring basis, as all five almost certainly do, they remain targetable throughout the period of their participation (DoD Law of War Manual, § 5.8.4; but see ICRC, Interpretive Guidance, p. 70, on the “revolving door”). Timing is not an issue vis-à-vis OAG members, for they are lawfully targetable around the clock, regardless of the role they play in the group (DoD Law of War Manual, § 5.8.2.1; but see ICRC Interpretive Guidance, pp. 33-35, on “continuous combat function”).
So, if the reports of what the targeted individuals were doing are accurate, they would normally be targetable in a military strike. However, there is one more aspect that must be considered. These individuals were part of the Hamas negotiating team, a fact that raises the question of whether they qualified as “parlementaires.”
Parlementaires in Doha?
Article 32 of the Regulations annexed to the 1899 Hague Convention II and 1907 Hague Convention IV provides that “[a] person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.” It is indisputable that the rule now reflects customary law, as the ICRC asserts in Rule 67 of its Customary International Humanitarian Law study. It is equally well-established that, as noted in Rule 69, “Parlementaires taking advantage of their privileged position to commit an act contrary to international law and detrimental to the adversary lose their inviolability.” According to the ICRC, these rules apply in both IACs and NIACs.
There are two possibilities regarding application of the rules to the Hamas negotiators. By the first, they do not qualify as parlementaires because the rule is limited to battlefield scenarios. This is a position that the DoD Law of War Manual appears to have adopted: “Parlementaires ordinarily are agents employed by commanders of belligerent forces in the field, to go in person within the enemy lines, for the purpose of communicating or negotiating openly and directly with the enemy commander” (§ 12.5.1). As an example, it would apply to negotiations between members of the al-Qassam brigades and the IDF in Gaza City when negotiating a ceasefire to permit civilian evacuation of an area, an exchange of the dead, or entry of humanitarian assistance. But, by this interpretation, they are not rules meant to encompass negotiations between senior leaders far from the battlefield on matters of strategic importance. This is a reasonable interpretation, one supported by both textual analysis and the historical context of the Hague Regulations.
In my view, however, there is an interpretation that better captures the rules’ object and purpose. They are rules intended to facilitate communications of a humanitarian character and to afford the opportunity to negotiate a pause or an end to the hostilities. In this case, the Hamas-Israel negotiations involved both the exchange of hostages for prisoners, a humanitarian purpose, and at least a temporary cessation of hostilities. In other words, the objectives of the talks fall squarely within the four corners of the object and purpose of the respective rules. For me, this is the stronger interpretation, especially in the contemporary context where communications are ubiquitous.
The fact that Hamas’ negotiators could, in principle, qualify as “parlementaires” does not necessarily lead to the conclusion that they enjoyed immunity in the specific circumstances of the Doha strike. One may question if members of Hamas’s leadership, who are normally based in Qatar and have not traveled there specifically for negotiations, enjoy this tailored immunity during internal deliberations on, inter alia, the substance of a proposed ceasefire agreement. More importantly, the Hamas negotiators were entitled to immunity only so long as they limited their activities to engaging in the negotiations. Any activities during this time in support of Hamas’s military activities – for example, by strategizing actionable military options– would be an abuse of parlementaire status immediately lifting their temporary immunity from attack.
Thus, notwithstanding the fact that in my view the law should, and can, be interpreted to accommodate a more contemporary conception of “parlementaires” that may encompass negotiators operating far from the front lines, I am less than fully confident that those targeted in the Doha strike enjoyed immunity from attack by virtue of their role as negotiators in this particular instance.
Finally, as noted, the ICRC asserts that the customary parlementaire rules apply in both IACs (which they surely do) and NIACs. This contention is not unassailable. The Hague Regulations, to which reference is always made when justifying their customary character, applied only in international armed conflict. Moreover, the State practice and opinio juris the ICRC cites in support of its conclusion regarding applicability in a NIAC is unusually sparse (see here and here).
Nevertheless, I lean in the direction of the ICRC’s position for two reasons. First, such an assertion is consistent with LOAC’s foundational balancing of military and humanitarian considerations. Second, it is undeniable that there is a steady creep of rules designed for IACs into NIAC law, a point famously made in dicta by the International Criminal Tribunal for the Former Yugoslavia’s Appeals Chamber (Tadić, ¶ 97). But the matter is far from settled.
Concluding Thoughts
In my view, the IAF’s Doha strike falters on the threshold requirements for invoking the “unwilling or unable” doctrine. It requires both a manifest unwillingness or inability of the territorial State to act and an exhaustion of non-forcible alternatives. Neither condition seems satisfied in the case of Qatar, a State proactively hosting negotiations to end the conflict and that had open lines of communication with Israel. This being so, there was no “circumstance precluding the wrongfulness” of Israel’s non-consensual penetration of Qatari territory; the operation violated Qatar’s territorial sovereignty. This incident is an example of overreach by a State with a legitimate right of self-defense.
Even if the unwilling or unable doctrine limitations had been satisfied, the strike would have been somewhat questionable. Clearly, the individuals targeted were either direct participants or members of an organized armed group and thus would normally be lawful objects of attack. But they may also have qualified as parlementaries immune from attack during the ceasefire discussions, so long as they were not contemporaneously involved in Hamas’s military actions. The legal uncertainty surrounding the applicability of parlementaire protections to them, especially during an NIAC, and the lack of facts as to what else they may have been doing while negotiating, leaves a definitive conclusion on that possibility elusive.
Finally, as I observed last week when commenting on the U.S. strike of a drug cartel speedboat, “We seem to be on a normative slippery slope that endangers the very values the right to use force in self-defense is meant to protect.” Operation Summit of Fire is, unfortunately, further evidence of that reality. The slope is becoming slippier.
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