Dershowitz on the Mahmoud al-Mabhouh Killing

Jennifer Rubin
Contentions/Commentary
24 February '10

As Alan Dershowitz is wont to do, he takes a lawyerly look at whether the killing of Hamas military leader Mahmoud al-Mabhouh in a Dubai hotel room was legally and morally justified. He assumes, for the sake of argument, of course, that Mossad “did make the hit.” On the legal side, he notes that there are certainly extrajudicial killings that are not unlawful. “Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon.” After some analysis, he concludes: “This was not an ordinary murder. It was carried out as a matter of state policy as part of an ongoing war. … Obviously it would have been better if he could have been captured and subjected to judicial justice. But it was impossible to capture him, especially when he was in Dubai.” Well, the “obviously” is debatable, but his conclusion is sound.

Once Dershowitz considers the moral equation, the fun starts. He’s Dershowitz, after all, so he goes at it:

The Goldstone Report ordered by the UN Human Rights Council suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists.

Well, there could be no better example of a proportionate and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mabhouh. Not only was he the commander in charge of Hamas’ unlawful military actions, he was also personally responsible for the kidnapping and murder of two Israeli soldiers several years earlier.

It’s hard not to see the unalloyed benefit in the surgical assassination of Mabhouh, unless, of course, the applicable moral rule in these situations is that Israel is never entitled to defend itself.

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