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.
The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance). Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing? Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.
It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens. But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional. As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing. Am I missing something?
As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law. Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals. But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear. Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.
In any event, if the U.S. is going to pursue this policy, it should openly defend its legality. As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles. And what better place to launch this defense do so than here at the Opinio Juris?