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Targeted for death

Military and human rights lawyers weigh in on the legality of the killing of Hamas' Mahmoud Mabhouh.

February 21, 2010

The Israeli government has a long history of hunting down its enemies, as it did, famously, with members of Black September, the Palestinian terrorist group that killed 11 Israeli athletes and coaches at the Munich Olympics in 1972. Because of this, most Israelis and much of the world assume that Israel's Mossad spy agency was responsible for the Jan. 19 slaying of Mahmoud Mabhouh, founder of Hamas' military wing, in his Dubai hotel room.

United Arab Emirates police have released details of the killing, including that the hit squad members carried fake British, Irish and German passports, some in the names of Israeli citizens who apparently were unaware that their identities had been usurped. In Israel, most of the public debate has not focused on who did it, or the legality or morality of a targeted killing (which is largely taken for granted), but on the cost/benefit analysis: Was the operation a success because Mabhouh was eliminated, no civilians died and no agent was caught? Or was it a failure because it angered a moderate Arab state and allies, such as Britain, and damaged the government's reputation? The United States has adopted its own program of targeted killings, generally by missiles launched from Predator drones in Afghanistan and Pakistan.

In light of these developments, The Times' Marjorie Miller sought the views of an array of military and human rights lawyers on the legality and legitimacy of targeted killings.

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 was the legal advisor to the officer in command of the Gaza Strip from 1994-97, and in that capacity was involved in targeted killing decisions. I believed when I served in the Israel Defense Forces, and I believe now, that targeted killings are lawful, predicated on the following caveats.

There must be reliable, valid, viable and corroborated intelligence indicating that the individual intends to commit future terrorist acts. International law does not tolerate revenge-based action. In addition, the decision must meet tests of proportionality, military necessity, alternatives and collateral damage. If the target can be arrested, then that is better, as he can provide valuable intelligence. With respect to collateral damage, the state is obligated to minimize the loss of innocent life in operational counter-terrorism.

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: the mastermind -- quarterback -- who identifies targets, recruits the bombers and plans the action. The suicide bomber is a legitimate target when he is on his way to commit the terrorist attack. The third category is the person responsible for logistics -- the driver, the person who makes the bomb and facilitates the bombing. He is a legitimate target -- not 24/7, but also not only when engaged in the direct action, meaning he falls in between the mastermind and the bomber. The fourth category is the financier, who is a legitimate target not only when wiring money; but his status needs far further discussion.

I think there is a fundamental difference between drone attacks as presently conducted and targeted killing, for the latter is person-specific whereas the former seems to result in not insignificant collateral damage. I have long advocated person-specific operational counter-terrorism as a means to protect the state and to protect innocent lives.

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.

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