Does the International Law of Assassination Outside of the Battlefield Make Sense?

Alan Dershowitz’s recent Huffington Post column discusses the legality of the assassination of Mahmoud al-Mabhouh, (now former) leader of Hamas’ military wing. Commentators correctly speculate that Israel was responsible. Dershowitz argues that the assassination did not violate international law. Whether or not the assassination violated international law, another important question is whether the relevant international law makes sense.

Dershowitz’s first inquiry is to determine if al-Mabhouh was a combatant vis-à-vis his killers. Accepting that the Israelis assassinated him, al-Mabhouh was a combatant—considering that he was an “active participant in the ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful anti-personnel rockets that target Israeli civilians.[1]” Now that we’ve established that al-Mabhouh was a combatant, we have to determine if there are circumstances in which international law forbids combatant assassinations. Presumably, international law does not allow assassinations of combatants under all circumstances.

Dershowitz writes that geography is the only limitation on assassinations of combatants. Had the assassination taken place in Gaza, it assuredly would have been legal. The only complication to the legality of the assassination is the fact that it took place in Dubai. Dubai law and sovereignty was violated—but nothing else. Perhaps there should be other circumstances in which assassinations of combatants are prohibited. I confess to not being an international law expert; therefore, my analysis will proceed from the assumption that Dershowitz’s interpretation of international law is correct.

What about situations in which a combatant is unengaged in military operations? What if he’s at home with his wife and children? Such a prohibition would be more desirable in a conventional warfare scenario. With many of today’s targeted assassinations occurring in a guerilla/asymmetrical warfare scenario, it is harder for the larger party to detect and respond to the actions of the smaller party. So as to allow the former to fight back against evasive tactics, international law may need to allow the larger party to strike outside of the battlefield context.

Outside of the battlefield context, the target is much more likely to be unprepared. He may be in a civilian area where there is a significant risk of collateral damage. International law allows the assassination, with the caveat that there are constraints on collateral damage; it does not prohibit an assassination attempt simply because of nearby innocents. If we deem the actions of the guerilla/insurgent party problematic when it chooses to strike its enemy in its civilian areas, should we not make the same consideration toward the actions of the stronger party? Without prohibiting outside-of-the-battlefield assassinations, is international law encouraging assassinations that may endanger civilians?

This criticism of international law is not misplaced, but I ultimately feel like international law strikes the right balance vis-à-vis the allowance of assassinations outside of a battlefield context.  This is because parties that don’t give a whit about international law (often the guerilla, or insurgent party to an asymmetric conflict) cannot be constrained by international law. If they cannot be deterred by international law, then it is unfair to place constraints on only the stronger party, since doing so would ensure that killers will continue to operate without impunity. International law cannot expect that all parties will honor it. Indeed, it must be crafted with the pragmatic acknowledgment that many parties will not follow it.

Conflicts of the twenty-first century are very different than conflicts of the mid-twentieth century. International law must encourage parties to end their conflicts, but must also appreciate that it will not always succeed and where it does not succeed, it must not unfairly punish one party. If assassinations are not inherently illegitimate, we must allow them to occur outside of the battlefield, subject to constraints necessary to minimize collateral damage.