If Israel killed Mahmoud al-Mabhouh, Did It Have the Right To?

Alan M. Dershowitz
Hudson New York
18 February '10

I don’t know whether Israel did or did not assassinate the leader of the Hamas military wing, Mahmoud al-Mabhouh. But assuming for argument’s sake that the Mossad made the hit, did it have the right to engage in this “extrajudicial assassination?”

Not all extrajudicial killings are unlawful. Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon. There are several complex legal questions involved in assessing these situations.

First, was the person who was killed a combatant, in relation to those killed him? If Israel killed Mabhouh, there can be absolutely no doubt that he was a combatant. He was actively participating in an ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful, anti-personnel rockets that target Israeli civilians. Both the United States and Great Britain routinely killed such combatants during the Second World War, whether they were in uniform or not. Moreover, Hamas combatants deliberately remove their uniforms while engaged in combat.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

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Related:Mahmoud al-Mabhouh: To Kill a Terrorist - Exclusive Analysis
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