Commentary Magazine


Topic: proportionate retail measures

Dershowitz on the Mahmoud al-Mabhouh Killing

As Alan Dershowitz is wont to do, he takes a lawyerly look at whether the killing of Hamas military leader Mahmoud al-Mabhouh in a Dubai hotel room was legally and morally justified. He assumes, for the sake of argument, of course, that Mossad “did make the hit.” On the legal side, he notes that there are certainly extrajudicial killings that are not unlawful. “Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon.” After some analysis, he concludes: “This was not an ordinary murder. It was carried out as a matter of state policy as part of an ongoing war. … Obviously it would have been better if he could have been captured and subjected to judicial justice. But it was impossible to capture him, especially when he was in Dubai.” Well, the “obviously” is debatable, but his conclusion is sound.

Once Dershowitz considers the moral equation, the fun starts. He’s Dershowitz, after all, so he goes at it:

The Goldstone Report ordered by the UN Human Rights Council suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists.

Well, there could be no better example of a proportionate and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mabhouh. Not only was he the commander in charge of Hamas’ unlawful military actions, he was also personally responsible for the kidnapping and murder of two Israeli soldiers several years earlier.

It’s hard not to see the unalloyed benefit in the surgical assassination of Mabhouh, unless, of course, the applicable moral rule in these situations is that Israel is never entitled to defend itself. While the professional Israel hamstringers fret, others are mystified by all the hand-wringing, content in the knowledge that some women, children, and Israel soldiers might be spared. (“Was he sleeping the happy sleep of the just terrorist after completing yet another deal with the butchers of Iran to import Iranian-made weapons into Gaza when he was dispatched to the arms of his 72 virgins?”) Meanwhile, moral clarity reigns in Israel, even on the Left:

While Europe is up in arms over the slaying of top Hamas guerrilla Mahmoud Al-Mabhouh — and everyone blames the Mossad — the near-unanimous verdict in Israel: mission accomplished.

Even self-described Tel Aviv “Communist” Haish Harel gave a thumbs-up to the Jan. 20 assassination in Dubai, which has brought Israel a blizzard of unwanted international attention.

“He wasn’t a civilian. He was a fighter, and he was still active,” said Harel, 29, carrying his young son on his shoulders.

And thanks to Mossad — well, if it was Mossad – Harel and that young son may sleep a little sounder, and those who would seek to slaughter them both (and thousands more, if they could) may be warier of hotel rooms and many other spots on the planet where at any moment they too can be victims of a justified extrajudicial killing.

As Alan Dershowitz is wont to do, he takes a lawyerly look at whether the killing of Hamas military leader Mahmoud al-Mabhouh in a Dubai hotel room was legally and morally justified. He assumes, for the sake of argument, of course, that Mossad “did make the hit.” On the legal side, he notes that there are certainly extrajudicial killings that are not unlawful. “Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon.” After some analysis, he concludes: “This was not an ordinary murder. It was carried out as a matter of state policy as part of an ongoing war. … Obviously it would have been better if he could have been captured and subjected to judicial justice. But it was impossible to capture him, especially when he was in Dubai.” Well, the “obviously” is debatable, but his conclusion is sound.

Once Dershowitz considers the moral equation, the fun starts. He’s Dershowitz, after all, so he goes at it:

The Goldstone Report ordered by the UN Human Rights Council suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists.

Well, there could be no better example of a proportionate and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mabhouh. Not only was he the commander in charge of Hamas’ unlawful military actions, he was also personally responsible for the kidnapping and murder of two Israeli soldiers several years earlier.

It’s hard not to see the unalloyed benefit in the surgical assassination of Mabhouh, unless, of course, the applicable moral rule in these situations is that Israel is never entitled to defend itself. While the professional Israel hamstringers fret, others are mystified by all the hand-wringing, content in the knowledge that some women, children, and Israel soldiers might be spared. (“Was he sleeping the happy sleep of the just terrorist after completing yet another deal with the butchers of Iran to import Iranian-made weapons into Gaza when he was dispatched to the arms of his 72 virgins?”) Meanwhile, moral clarity reigns in Israel, even on the Left:

While Europe is up in arms over the slaying of top Hamas guerrilla Mahmoud Al-Mabhouh — and everyone blames the Mossad — the near-unanimous verdict in Israel: mission accomplished.

Even self-described Tel Aviv “Communist” Haish Harel gave a thumbs-up to the Jan. 20 assassination in Dubai, which has brought Israel a blizzard of unwanted international attention.

“He wasn’t a civilian. He was a fighter, and he was still active,” said Harel, 29, carrying his young son on his shoulders.

And thanks to Mossad — well, if it was Mossad – Harel and that young son may sleep a little sounder, and those who would seek to slaughter them both (and thousands more, if they could) may be warier of hotel rooms and many other spots on the planet where at any moment they too can be victims of a justified extrajudicial killing.

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