Israel Matzav

The Mabhouh liquidation and international law

The Los Angeles Times has a forum of military and human rights lawyers debating the liquidation of Hamas terrorist and arms dealer Mahmoud al-Mabhouh. The lawyers all assume that Mabhouh was killed by Israel's Mossad and then debate the question of whether the killing was justified.

The most extreme view was that taken by Philip Alston, the UN's special rapporteur on targeted killings, who argues that

There is no legal justification for the cold-blooded murder of a man who, if alleged to have committed crimes, could have been arrested and charged.

Where Mr. Alston proposes to arrest Mr. Mabhouh is left unsaid, but it is clear that Syria - where he lived - would not arrest him, and it is unlikely that the United Arab Emirates would arrest him either, and certainly not on Israel's say-so. In Mr. Alston's world, all a murderer has to do is to escape to a country that will not allow his arrest in order to be free from retribution. That's obviously absurd.

Amos Guiora, who was a legal adviser to the IDF in the Gaza Strip between 1994-97, sets out the IDF's standards for when a targeted killing is justified. The standards are certainly at least as justified as those of anyone else in the debate. By the IDF's standards, Mabhouh could certainly have been targeted.

Kenneth Anderson of the Hoover Institute has no problem with Mabhouh being dead. He argues - even more leniently than Guiora does - that Mabhouh's killing is justified because it was an act of self-defense, and did not even require the existence of a war.

David Kaye, a former State Department lawyer and now a professor at UCLA Law School, argues that the killing is unjustified because it violates Dubai's sovereignty. I wonder what country in this region Mr. Kaye believes would have given Israel permission to liquidate the likes of Mr. Mabhouh, let alone not warned him that such a liquidation was coming. My guess is that the Mossad - if the Mossad was behind it - decided that it was easier to operate in Dubai than in Syria where Mabhouh resided. Besides, as I have argued before, I don't believe that Mabhouh was the real target. I believe that those papers he was carrying were the real target.

Former CIA lawyer and current Naval academy professor Vicki Divoll seems to be arguing that such a killing is justified for Israel, whose existence is threatened, but not for the United States.

Retired professor Michael Walzer argues that while the killing was justified, carrying it out in the relatively friendly Emirates and using passports that were connected to Israeli citizens was a mistake, which is worse than a crime.

Read the whole thing. Some of the comments are worth reading as well.

France has condemned the 'execution' of Mabhouh. I haven't got time to research it, but I will bet that they did the same or worse in Algeria.

Ireland's Ian O'Doherty gives the layman's view of whether liquidating Mabhouh was justified.

Frankly, I find it hard to understand anyone who doesn't simply shrug their shoulders and realise that it's one fewer terrorist planning murderous attacks on civilians.

Al-Mabhouh certainly had enough form to merit his execution -- he was personally responsible for the murder of IDF soldiers in the '80s and was, by all accounts, in Dubai to arrange an arms deal with the main Hamas sponsor, Iran.

Any country has the right to defend itself from attack, and Israel has even more right to do so than any other country on earth for the simple reason that when a country loses a war it faces a few years of rebuilding and recovery. If and when Israel loses a war it will simply cease to exist.

So, when you know that you are facing the possibility of complete and total annihilation rather than just military defeat, the niceties of international law tend to become rather moot.

I believe that O'Doherty's view is actually a fair statement of international law.

By the way, O'Doherty also has a heck of a story about the reaction of Irish Muslims (yes, there is such a thing) to the use of Irish passports in the liquidation. Read the whole thing.

posted by Carl in Jerusalem @ 9:54 AM