To Kill a Terrorist

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.

If it could be proved that Israel was responsible for the hit—an extremely unlikely situation—then only Dubai could lawfully bring Israelis to trial.  They would not be properly subjected to prosecution before an international tribunal.  But what if a suspect was arrested in England, the United States or some other western country and Dubai sought his extradition?  That would pose an interesting legal, diplomatic, political and moral dilemma.  Traditional extradition treaties do not explicitly cover situations of this kind.  This was not an ordinary murder.  It was carried out as a matter of state policy as part of an ongoing war.  A western democracy would certainly have the right and the power to refuse to extradite.  But they might decide, for political or diplomatic reasons, to turn the person over to Dubai.

Turning now to the moral considerations, which might influence a decision whether to extradite, the situation is even murkier.  The Goldstone report suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks.  Richard Goldstone, in his 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 engaged in the firing of rockets.  Well, there could be no better example of a proportionate, retail and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mahmoud al-Mabhouh.  Not only was Mabhouh the commander in charge of Hamas’ unlawful military actions at the time of his death, he was also personally responsible for the kidnapping and coldblooded murder of two Israeli soldiers several years earlier.

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.  If Israel was responsible for the killing, it had only two options: to let him go on his way and continue to endanger Israeli civilian lives by transferring unlawful anti-personnel weapons from Iran to Gaza, or to kill him.  There was no third alternative.  Given those two options, killing seems like the least tragic choice available.

  • Rick Geiger

    My question is why was this guy walking freely in Dubai?? Everyone knew he was a terrorist?? Why did the Dubai government not arrest him and jail him?? The answer is that the Dubai government is complicit it the war against the Jews, therefore Dubai is a legitimate battlefield and therefore the what we had here was the death of a enemy combatant on the battlefield…just like we are doing if Afghanistan and even in Pakistan.

    But the fact is that the Mossad did not do this. It was done by Hamas/Iran because the guy had turned and was talking to the CIA.

    • Peachey

      Or was it a Fatah party hit? This is also very likely since they too have the need to cut the heads off the serpents. A more interesting question would be if Fatah and Israel are collaborating to remove that which they cannot do separately. Sounds as if he was lured out into the open. Saudi Arabia, Dubai, Syria, Iran, Egypt, etc. are all vipers in the same basket. It is deadly and foolish of us to trust any of them.

  • badaboo

    It is a war , there is no doubt that a state of war exists between Hamas and the State and citizens of Israel . [ though others may call it something else ]There is no doubt Mabhouh was a Hamas participant in this war , a combatant in every sense of the word __ Therefore it is a legal kill , and a moral one .Regardless of where it takes place .If the participants were in fact Israelis , or if they were not , and got caught , then they would no doubt be subject to the laws of Dubais . __However if their identity was determined but after they had left Dubais territory , any extradition agreements should be considered null and void , and only be considered had an innocent citizen of Dubais been the target .

  • badaboo

    Rick , that may be plausible , due to the strange or "contrived " names on some of the passports- living Israeli citizens .

  • JosephWiess

    Nations have the inviolable right to act in self-protection. It all depends upon whether you acknowledge the UN as a valid organization, or not. In my mind, since Hamas and the PLO are at war with Israel and are constantly lobbing rockets over the border, then Israel has the sovereign right to take the fight to the enemy, even if that enemy is hiding in New York City, or in this case, in Dubai.

    After all, we attacked Iraq and Afghanistan without a legal declaration of war, and we've been fighting this supposed war for nine years. As any Senator or Representative will tell you, they didn't formally declare war against either Iraq or Afghanistan, we merely went in on the strength of a resolution. Not a single senator signed a declaration of war, as they will be the first to admit.

  • seadog1946

    Mossad did not put this Dubai operation together… Israel should find out who these people are and contract them to find and extract Gilad Shalit by assassinating his kidnappers.

  • eerie Steve

    I call this sort of thing Nigh Evil. You just cannot rank it. It is neither hot nor cold but lukewarm. Yes, He Who Wrestles With Angels, bitch fighting like this is a great way to get everyone bitten.

    I say to Israel "Assimilate or be destroyed."

    Israel does not have the balls to just wipe everyone out, nor do they have the brains to move their country to some place where they would be loved, like the Western Hemisphere.

    In my opinion, Moses was a screw up. He was a murderer who missed the oil. Give me Southern California any day.

    • mondaygirl51

      Steve, you are eerie indeed. First of all Israel took out Syria's Nuclear site in the middle of the night and nobody mentioned it for weeks. Second, Israel is occupying the same piece of dirt that Moses led them to 4,000 years ago. Oh and eerie dude you can have southern California

  • BS1977

    Get Eerie Steve off this site. The guy is insane.

  • Ron A

    As far as I'm concerned, a known terrorist is fair game for anyone. Especially anyone part of the hierarchy of any known terrorist group.

    We should go back to "Wanted: Dead or Alive"…Works great in the inner cities, like LA, too.

    Ron A.

  • Jim Smith

    California is a dysfunctional state, soon to be the ward of the Federal Government.

    Mabhouh lived by the sword and died by the sword. He chose his destiny and in the end he got his justice. It's just too bad it didn't happen sooner.

    Muslim supporters will continue to cry foul…. in their eyes it's only okay to kill Israeli women, children and old people.

    • eerie Steve

      Yes, and that's a lot better than people being blown up. Just bulldoze the Mexican Mafia into submission. Build some settlements and those Korean store owners will start worshiping you as a god.

      I say draw them out. These are people who want to literally DIE. So the clandenstined cold war assassination attempts won't work.

      What would work is what I call turncoating them. Give them their trial, their platform, their judge, their jury.

      Then we give them their execution!

      Literally make it the worst thing possible. Suffocation without the anesthesia. Then let that wear off, and then really give them the anesthesia!

      That man would think you are god.

      Then we lobotomize them, shave them, and drive them before our tanks on the battlefield in *ahem* New Riyadh. What's better than Jews Vs. Palestinians? Jews and Saudis vs. Palestinians. Period. End of story. You wanted to search for war, well you are going to find that there is worst things than blowing yourself up.

  • crypticguise

    Mr. Dershowitz, like all lawyers, has a tendency to "talk to much" and do too little. His last comment "…Given those two options, killing seems like the least tragic choice available…" is particularly telling.

    He sees the killing of this murdering bastard as a "tragic choice". I see it as justice.

    • xman

      I see it as justice. Wouldn't we have killed Hitler in 1941 or 1942 had the chance arisen to do so? You bet we would.

  • Theolonious

    If Israel assassinated the leader of the Hamas military wing, did it have the right to?.HAIL YEAH

    Animals such as these deserve it. I cannot think of a better way to do it either. ASPHIXIATION

  • tom

    Israel has the right to remove anyone who poses a threat to them, whoever or wherever they may be, the west including my country England whom I love is so hypocritical over this, Israel has done nothing that we have not, Israel values its people unlike this unelected british government we have here who are signing our sovereignty away to europe and fighting wars in afghanistan when the people whom carried out the london bombings were british and already living here. I say' go on Israel, defeat the enemy through superior firepower' thats how you win, thats how ww2 was won, it seems Israel is slandered for using disproportianate force, what are we using in afghanistan? do the taliban have tanks and aircraft? Israel is in the front line on the war on terror, if israel goes down then we do, support Israel, use your common sense and see what is really going on.

    • mondaygirl51


  • hank hill

    if israel did this you would not even hear about it would be done very cleanly and not like the mess it is glad he is dead but someone else did it and wants to blame israel.

    • mondaygirl51

      Yea like the way they took out Syria's Nuclear site. Nice and Quiet. I like that.

  • ronny

    It's not about rights. It's about what has to be done. This is the problem with the modern West. We have made ourselves utterly insane with a concept of service to the law as opposed to having the law serve our societies.

  • John C. Davidson

    Anyone encouraging children to commit suicide to kill people of an opposing viewpoint should be shot on the spot.

  • alcycle

    'Actions' taken, such as this one, against MaM; serve as warning to miscreants that the way the World treated Leon Klinghoffers murder will not be tolerated & serves as a 'Mafia Style' easily understood message……….'complex judicial situations' can be solved by using basic Biblical justice……..

  • restinpieces

    Dershowitz's logic is rubbish! According to his logic if the U.S. Army (USAR) decided the Dershowitz is a threat to the people of Dublin, Ireland, then the USAR can kill him while he is supposedly buying cocaine in Bolivia! By the same token, if the government of Congo decides that Netanyahu is a threat to the people of Israel, then they should sent a hit squad to London what Netanyahu is buying arms for the Israeli army. Give me a break!

  • RobCon

    Finally a left-wing lawyer on OUR side.

  • USMCSniper

    This is a no brainer. When someone becomes a terrorist and takes up murdering innocents, then it is he who has chosen the rules of the game- which means he is a legitimate target for extermination anywhere, anytime, and without quarter. The right to self defense is absolute!

  • size enlargement

    You need to read more about Israel.
    Some pictures can clarify you that Israel most of time only protects itself and not
    attack harmless people.

  • Lynda S. Layton

    Is it possible that al-Mabhouh could be the MABUS of Nostradamus' quatrains? What DOES MABHOUH mean, in Arabic, and what tribe, or clan is he from???

  • Lynda S. Layton

    What tribal clan is al-Mabhouh, or al-Mabhuh from? What does this name mean in Arabic? It sure fits MABUS (as in Nostradamus' Quatrains) to me. Readers from everywhere are encouraged to submit their language's meanings for MABUS. I've been researching this for years. Thanks!