New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

http://opiniojuris.org/2015/08/13/new-essay-on-perfidy-and-permissible-ruses-of-war/

6 Responses

  1. I simply do not accept that this specific case is a law of war issue at all.

  2. PaulR: I doubt anyone cares one way or another unless you proffer reasons on behalf of WHY you do not accept this as a case germane to the laws of war.

  3. Paul,

    If your point is that it is not clear whether Mughniyah was a legitimate target in an armed conflict, I might be inclined to agree. I make clear in a footnote that I am assuming for sake of argument that IHL applied to the attack.

  4. Killing of terrorists through stealth and deceit using special forces’ teams can hardly be called perfidious. IF that be the case, should killing of bin Laden deep inside Pakistan be called as aggression because US forces went into a sovereign country without the host’s consent and killed him. The numerous special forces operations against terror outfits in sovereign lands like Iraq, Syria, Somalia could all be termed as breaches of international law. Mughniyah was a terrorist, not a combatant. IHL cannot be applied to those who have scant respect for law and human life.

  5. If IHL cannot be applied to Mughniyah, then his killing was governed by IHRL — and was clearly an extrajudicial killing, as he posed no imminent threat to anyone when he was killed.

  6. It was a case of targetted killing. He was, till his death, a very big threat to the West and Israel. U.S. and Israeli officials have alleged that Mughniyeh was involved in numerous kidnappings of Westerners in Beirut during the 1980s, most notably the kidnapping of Terry Anderson, Terry Waite, and William Francis Buckley, who was the CIA station chief in Beirut. Some of these individuals were later killed, such as Buckley, who was tortured and eventually murdered. He became a legitimate target not only for Israel but for many Western security agencies.On 14th December 2006, the Supreme Court of Israel ruled that targeted killing is a legitimate form of self-defense against terrorists, and outlined several conditions for its use.

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