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.

A few years later, the U.S. government signed a compensation treaty with the Libyans, compensating only American victims. Crowell & Moring demanded that the funds obtained through the treaty should be shared with all victims of terrorism, including non-Americans, as per the JPA. Alford thinks it will be difficult for the non-Americans to argue that the JPA overrides the treaty as the agreement does not explicitly allocate funds obtained through diplomatic means. I bow to his superior knowledge of likely litigation outcomes – but am unsure that such a decision would be just.

The majority of victims of Libyan atrocities are non-American. Morally, they are as entitled to compensation as American victims. There is a possibility that other nations will not be as successful as the Americans in obtaining compensation for their victims.  The Libyans have a strong incentive to please the Americans as well as only a few other powerful nations who control the levers of the War on Terror. Most nations would have difficulty imposing sanctions or other penalties that could compel the Libyans to give in to their demands. Odds are, there’s a limited amount of possible compensation money obtainable from the Libyans. Should it all go to the Americans because they have a stronger negotiating position? No. This does not mean that the United States is in the wrong by taking advantage of its strong negotiating position so as to benefit its citizens, but it does mean that the victims need to consider whether they should abide by the terms of the JPA after receiving treaty-obtained funds.

US victims need not have signed the JPA. They could have opted out of the JPA, renegotiated it, or retained another firm under different conditions. In retrospect, it is easy to say that they would have been well-advised to seek an alternative agreement. They would have had no trouble finding another law firm, as the case is high-profile. If the victims lacked the funds, they could have made a contingent fee arrangement (as the JPA does) or, convinced a firm to take the case on a pro-bono basis.

Americans were represented at the bargaining table, like victims of other nationalities. That they did sign the JPA compels them to share compensation money according to the agreement’s terms. True, the JPA does not explicitly state that it applies to funds obtained through diplomatic means. Perhaps American victims were unaware that their government was negotiating a compensation treaty and thus, it could be said they were unable to plan for such an eventuality in the JPA. I doubt that they were unaware. Even if they were, it is obvious that there are a variety of means for obtaining compensation. The language of the JPA makes no distinction between means of recovery – it therefore binds signatories to a comprehensive collective endeavour.

Aside from the question of what should happen, there is a question of what will happen. Alford is probably right that, as the JPA did not explicitly mention diplomatically obtained compensation, such money is off-limits. Even if diplomatically obtained compensation was mentioned in the JPA, I’m not sure the JPA could supersede the US-Libya agreement. In an age of terrorism, it is important to think not just about the law’s role as a prevention mechanism – it is important to think about how the law can serve as a compensation mechanism to assist survivors and their families.

Alston’s argument seems prima facie justifiable. If an actor’s military operations are killing civilians and worry UN investigators, surely the member state government should either issue a convincing public defence  of the operations or end them. Yet, if US government lawyers do the former, they may risk compromising key military operations. Why is this, and if it is the case, how can the drone operations face international law scrutiny?

The strongest possible legal memo in defence of drone operations would go into great detail, possibly including even classified military records. Such records could provide insight into CIA and US Armed Forces tactical decisions. Government lawyers might argue that if this information were made publicly available, enemies of the United States could use it to prepare for future US offensives or launch one of their own. The obvious counter-argument is that without exploring the nature of the operations, violations of international law, if there are any, can continue unhindered. How can we know if there are violations of international law if operational details are not publicized? Is there a way to balance these two competing interests? I argue that in an international law context, there is.

In the context of liberal democratic states’ domestic courts, citizens expect that the lion’s share of courtroom proceedings will be publicly broadcast. Where the government is directly responsible to citizens, it makes sense for citizens to demand public accountability. As international law courts are not directly responsible to citizens as domestic courts are, they are not burdened with the same expectations. Perhaps an international law accountability regime should depublicize its activities. This idea is worth exploring given that they are much more likely to be concerned with sensitive military activities than domestic law.

Arguably, this may push the balance too far in favour of the state. But the regime could be modified to respond to violations in different ways. For example, where a particular kind of violation occurs, as a penalty to the offender, the regime may publicize military operations. The other possible criticism of the regime is that if legal memos in defence of military operations and the regime’s analysis of those memos are classified, there is a risk of collusion between state and international officials. Furthermore, the media will have a tougher time holding international law actors and courts to account if their activities are depublicized. My response is that the extent to which the media can hold international courts to account is limited, as there does not tend to be much general interest in international law jurisprudence. Provided offices like those held by Mr. Alston are filled in an independent fashion, collusion seems unlikely.

The conduct of the war on terrorism, as has been frequently observed, requires a delicate balancing act between expeditiousness and the rule of law. There are many different ways for the regime to balance the competing values. Why should the same balancing act not be attempted by the international law accountability regime?