Dershowitz Defends Israeli Assassinations in Dubai

by Julian Ku

Alan Dershowitz has a very short but persuasive assessment of the legal issues arising out of the alleged Israeli assassinations of a Hamas leader in Dubai.

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.

There is an additional wrinkle here that Dershowitz doesn’t talk about, which is whether the presumptive assassins from Mossad are privileged combatants authorized to kill in an armed conflict.  This is the same problem faced by CIA officers directly involved in drone assassinations in Pakistan. Still, the bottom line seems right: There is no legal defense for the assassins under Dubai law and if caught there, they would likely be convicted.  If it is proved that the Israeli government ordered the killing, then the State of Israel is on the hook here for violating Dubai’s sovereignty.

So I wouldn’t look to see a legal defense offered by Israel here. There is no serious legal defense.  But the moral defense seems relatively powerful, as Dershowitz goes on to explore.

http://opiniojuris.org/2010/02/19/dershowitz-defends-israeli-assassinations-in-dubai/

7 Responses

  1. A moral defense? What about all the palestinians whose human rights are constantly denied and violated by Israel, who is promoting and supporting the occupation of territories belonging to other people, who engages in killing operations, among other actions it would (rightly) condemn if committed against them? If international law is invoked by Israel in order to justify some of its actions, it would be hypocritical to dismiss it when it doesn’t serve their selfish interests, just as it involves double standards to deny others the right of self-determination invoked for oneself. Vengeance is not moral. Besides, there were third, lawful options

  2. There is always a moral defense for committing crimes. The point of civilisation is that we no longer listen to those arguments. Morality is not a get-out-of-jail-card. If it were it would be immoral to lock me up for robbing a bank that, being part of companies that shamelessly manipulated and bankrupted the planet, now is giving tax-payers money away as bonusses to vultures we call bankdirectors.

    As an aside, ever wondered why certain countries provoke so much hostility? Hint: think of the propensity to commit crimes and then evade accountability for it: i.e. not prosecuting people that order detainees to be tortured, waving aside the numerous innocent bystanders killed as mere collateral dameage, et cetera. But of course, a <a href=”http://contusio-cordis.blogspot.com/2009/11/what-is-fair-and-balanced.html “>more balanced approach</a> would eliminate the possibility of us blaming that horrible strange looking geeser with the foreign name.

  3. On the contrary, Tsutsugamushi, we recognize all sorts of defenses against crimes that may be seen as moral in nature, at least as far as we punish crimes because they are immoral acts. Killing generally is immoral, most people would agree, but self-defense may act as a moral defense to the killing. It just so happens that in domestic law, we have codified many of these moral defenses into legal defenses, but that doesn’t deprive them of their moral underpinnings. What those defenses require, however, is a weighing of the culpability of the crime against the moral defense offered.

    Here, Dubai’s domestic law has preemptively and presumptively already weighed these arguments in relation to Israel and come down against Israel’s ability to carry out assassinations on its soil, as is Dubai’s right to determine. To say that moral defenses to crimes must be ignored in a civilized society, though, is a fallacy, I believe.

  4. Very true, the moral defense angle is quite a strong case. Quite surprising, that the question of Syria/Dubai harboring a terrorist and a murderer has quite escaped everyone’s notice here. Its quite inconceivable, that the  Dubai police efficient as it is in tracking and publishing the details, has been blind to this terrorist’s and other similar ones using its turf as a plotting/breeding ground for criminal activities..

  5. The point is that anyone can invoke all sorts of moral arguments and they never invalidate the legal ones. Mitigate mabe. In the case of self-defense you are still found guilty (legal) but no sentence will be given in light of the fact that saving your life is considered some sort of get-out-of-jail-card. It does not preclude the possibility of prosecution before that.

    More to the point, who decides which individual can be killed without any judicial review: i.e. trial? If a normal judicial procedure leads to many errors -wasn’t it this week that a man was freed after spending years in jail while being innocent- how do you prevent such errors here? In other words, what if the wrong person is assassinated? Of course, collateral damage.

  6. I think the Israelis had every right to take out this enemy of mankind.  Yes that’s what someone who aids and abets the indiscriminate firing of rockets into civilian areas is.   Frankly, I’m happy this goon is gone.

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