EEI#29 "What Kind of war" – Lawyering up – the killing of Hamas' Mahmoud Mabhouh


See Targeted for death -  the killing of Hamas’ Mahmoud Mabhouh.  (See  background report on the operation itself)

Los Angeles Times’ Marjorie Miller sought the views of an array of military and human rights lawyers on the legality and legitimacy of targeted killings.

So what kind of war or warfare or confrontation or conflict against non-state actors is war amongst the people? How do you fight, how do you survive, how does a country do both and yet maintain its sense of right and wrong?

Over the jump, key thoughts from the above article.

 If new to this site or the What Kind of War series please see the first article: EEI #15 So What Kind of War Is It?

Philip Alston
U.N. special rapporteur on extrajudicial killings

If a foreign intelligence agency was responsible for the killing of Mabhouh, the matter should clearly be classified as an extrajudicial execution. There is no legal justification for the cold-blooded murder of a man who, if alleged to have committed crimes, could have been arrested and charged. Political murders of this type undermine the fabric of international law as well as stoke the fires of conflict

Amos Guiora
Professor of Law, S.J. Quinney College of Law, University of Utah

I have long advocated person-specific operational counter-terrorism as a means to protect the state and to protect innocent lives… targeted killings are lawful, predicated on the following caveats.

When is a person a legitimate target in the context of lawful, preemptive self-defense? There is a requirement for an intelligence picture suggesting significant future action that endangers national security.

There are four categories of legitimate targets in the suicide-bombing infrastructure: 1) the mastermind — quarterback — who identifies targets, recruits the bombers and plans the action; 2) the suicide bomber; 3) the person responsible for logistics — the driver, the person who makes the bomb and facilitates the bombing. 4) the financier

 Kenneth Anderson
Hoover Institution, Task Force on National Security and Law

People who object to targeted killing often seem to have a covert premise that amounts to functional pacifism — yes, of course you can protect yourselves, but any practicable ways of doing so are, sorry, illegal.

But targeted killing can be an important, discrete, discriminating way of projecting lethal force. Sometimes people mistakenly think that any time you’re using force, it must be better to do it in the open, transparent and acknowledged. However, the ability to use force can allow you to take out someone who is a genuine threat without raising the circumstances into open, overt, large-scale war, which could have drastically worse consequences for everyone…

“armed conflict” in a legal sense — and perhaps surprisingly to the non-lawyers — isn’t the only basis for using force in international law. The U.S. and many other countries have traditionally relied on at least the international law of self-defense, permitting uses of force even though the fighting does not rise to the level of an “armed conflict” against a nonstate actor.

David Kaye
Executive director, International Human Rights Program, UCLA School of Law; former State Department lawyer

My view is that there’s no question but that the Dubai operation, if it was Israel, is illegal. Under international law, it’s a basic rule that you don’t operate in another state without its consent. This is a pretty clear violation of Dubai’s sovereignty, presumably without the Emirates’ consent; Dubai seems to have a murder case on its hands.

So let’s talk consequences: Imagine a Chechen leader, considered extremely threatening by Russia, makes his way to the United States. Russian authorities decide they cannot seek his extradition from the United States back to Russia for any number of reasons, and because he is perceived as such a great threat, Russia mounts an operation to kill this person in the United States. Are we OK with that?

The Dubai killing could be a harbinger of a lawlessness in which any state that sees a threat out there can use force in another state to stop it. International law may not always be enforceable, but it provides a sense of settled expectations about how states are to behave. If Israel did it, and if we consent to its use of force in this situation, then what is the principled response to another state’s similar action in the United States or elsewhere?

Vicki Divoll
Teaches U.S. government and Constitution at the Naval Academy; former CIA lawyer

… In the pre-9/11 era, the U.S. would have considered such a targeted killing to be an “assassination,” which, under a presidential executive order in effect since the Ford administration, was prohibited if done by U.S. intelligence officers. Indeed, the CIA could not even share intelligence with a foreign intelligence service, including our close allies, if there were any chance it could be used to target and kill an identified terrorist.

Today, that executive order is still on the books.
Our moral code and policy pronouncements once reflected an understanding that such treacherous killing was not how a great nation should defend itself — unless, like Israel, its very survival is at stake. At one time, the United States did not kill in the shadows — until we became as afraid for our lives as the Israelis have been for decades. But are we really afraid now for our survival as a nation? How can a bunch of thugs reduce us to this?

Michael Walzer
Author of “Just and Unjust Wars”; emeritus professor, Institute for Advanced Study; co-editor of Dissent magazine

Targeted assassinations can be justified when the target is a legitimate enemy who is actively engaged in planning or organizing or carrying out criminal or terrorist activities, and when it’s possible to hit the target without killing innocent people. Also, when it’s not possible to bring the targeted person to justice in a normal way; when he isn’t living in a zone of peace where law and order prevails and policemen make arrests, but when he is living in something more like a zone of war. When those conditions are met, I think this is a legitimate response to international terrorism.
… It should be the policy of the United States in Afghanistan, and probably in Pakistan too, that after you carry out one of these raids, you should be prepared to defend it. You’re using the coercive power of the state in a lethal way, and in a democracy — in a country committed to the rule of law — actions of that sort should be subject to some kind of public scrutiny. 

If you are new to this site or “What kind of war?” series please see the first article in the seriesEEI #15 So What Kind of War Is It? (First in a Series)

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