US, February 21, 2010 (Pal Telegraph; by Rachel Rudolph) – Dominating the world news, even in the United States, is the Al-Mabhouh assassination. Israel has a long history of engaging in targeted killings and assassinations, so why has this one sparked media frenzy? Many outlets are focusing on the use of fake passports, while others are condemning the lack of action by those governments whose passports were used. Very few are actually focusing on the act of assassination itself and its consequences under international law. While targeted killings of specific individuals with government approval are permissible under international law under certain conditions, assassinations (an attack on an individual who believes there is no need to fear the attacker) are not. Was the murder of Al-Mabhouh an assassination? If so, is this another Israeli crime against humanity?
While I am sure Palestine Telegraph readers are well acquainted with the murder, a little background should be given to help understand the applicability of international law. Born in the Jabalya camp in the northern Gaza Strip on Feb. 14, 1960, Mahmoud Al-Mabhouh was murdered on Jan. 20 at a hotel in Dubai. There was no reason to suspect that this trip would be his last, as Al-Mabhouh had travelled to Dubai in the past and never encountered any problems. However, while he had no problems travelling to Dubai, Israel’s Mossad had attempted to take his life three times in the past: in 1991, 2004 and 2008. The last attempt followed the Israeli assassination of Imad Mughniyeh, a top military leader with the Lebanese Hizbullah organization.
Al-Mabhouh was murdered by a team consisting of 11 agents. The team of agents changed hotels, arrived from different locations and changed their clothes to thwart identification. All of them had Austrian mobile numbers and conducted encrypted calls from Dubai to Austria. None, however, had prior contact with one another, as all communication went through the Austrian office. Austrian authorities said they intended to open an investigation. Dubai also detained two Palestinian Fatah security officials in connection with the murder.
The team of 11 also used fake passports. Mossad has a history of using foreign passports to carry out its activities. In 1987, Margaret Thatcher deported 13 Israeli diplomats after the assassination of a Palestinian cartoonist in London. In 1997, Israeli agents traveling with fake Canadian passports were arrested in Amman after attempting to assassinate Khaled Meshaal, the elected head of the Hamas politburo. In 1998, Labour’s MP Galloway stated that four members of the UN weapons inspection team in Iraq were Mossad agents working under false names and papers.
Israel’s response to Mossad’s involvement in the Al-Mabhouh murder was noncommittal. Israeli Foreign Minister Avigdor Liberman said there was no evidence of Israeli involvement, but in any case, Israel never responds, never confirms and never denies. This response or lack thereof was to be expected given Israel’s policy on Mossad actions.
Prior to Efraim Havely becoming the ninth director of Mossad, the prime minister’s approval for such operations was needed. Havely disagreed with this policy, arguing that the prime minister needs “deniability” and must be insulated from any failures as well. While the procedure for selecting targets has not been made public, the overall sense of how decisions are made has emerged. According to Steven R. David (2003), Israeli intelligence agencies rely on the testimony of collaborators to identify those who pose a threat to security. A report on the target’s activities is complied and the potential for him or her to engage in future attacks is assessed. A recommendation is then made to target the individual, which is approved or disapproved by the Israeli government. Once approval is given, no further permission is sought for the operation in terms of timing, location, etc.
History of Israeli Assassinations
The history of Israeli assassinations actually predates the declaration of statehood by Israel. Nachman Ben-Yehuda (1997) examines the political assassinations carried out prior to and after the establishment of the State of Israel. According to his findings, up until 1988, 90 percent of the political assassinations occurred between 1939 and 1948 and were conducted by Hagana, Etzel or Lehi. Most of them (73 percent) targeted Jews rather than Brits or Arabs, motivated by revenge or the target’s reputation as “squealers” or “traitors.” The charge of “traitor/squealer” was used 91.2% of the time. Moreover, Ben-Yehuda’s research finds that the assassinations were all deliberate and planned in advance.
The policy of sanctioning targeted murder did not stop with the establishment of the state of Israel. In the 1970s, there was a wave of killings of pro-Palestinian individuals in Paris, Nicosia, Beirut and Athens; and, in 1978, a member of the Popular Front for the Liberation of Palestine was killed. In 1988, during the first Intifada, the PLO’s Khalil al-Wazir was assassinated.
In the 1990s, there were three major waves of Israeli assassinations. Two of the prominent political targets were Fathi Shikaki and Yahya Ayyash. There was also the attempted assassination of Khaled Meshaal. Another wave began in 2000, following the second Intifada. Some of the high-ranking individuals targeted include Abu Ali Mustafa (PFLP), Raed al-Karmi (Tanzim Movement), Salah Shehada (a commander of the military wing of Hamas), Sheikh Ahmed Yassin (one of the founders of Hamas) and Abdel Aziz Rantisi (the leader of Hamas in Gaza in 2004). Then, in 2008, Mossad assassinated Imad Mughniyeh. There were many other figures targeted, but these were the most high-profile. All, including those not listed, were killed without any trial or due process. It should also be noted that in the past, Israel’s policy of systematically targeting individuals has been condemned by Arab countries, Europe, the United Nations and even the United States (David, 2003). In 2002, the European Union even threatened sanctions.
Following the political murder of Mahmoud Al-Mabhouh, however, there have been no calls for an investigation or threats of sanctions by the International community. It was not until it was revealed that foreign passports were used to carry out the attack that foreign governments –namely, the British, French and Irish governments — called on Israel’s ambassadors to explain the situation. The UK and France have also increased pressure on Israel to provide them with information on the assassination. Britain has also launched an investigation due to the violation of its security and affront to its integrity. The investigation is to be led by the Serious Organised Crime Agency, which will work closely with the Emirati authorities. British politicians have also called on Israel to launch an investigation into the matter.
Israeli press commentary suggests that there is no need to be concerned over the “unpleasantness with [the]governments,” since the “State of Israel will emerge from this affair unblemished and the Mossad will continue enjoying a reputation of fearless determination and nearly unstoppable capabilities.” Mossad’s strategy, according to Efraim Havely, is to think outside the box, including penetrating organizations it deems enemies and exploiting the differences between factions, movements and political parties. But is Israel’s systematic practice of political assassinations and willful disregard of the other states’ sovereignty consistent with international law?
Systematic Murder under International Law
International law is complex in terms of the protection, rights and treatment of non-state actors, especially when they are the target of state violence. Official state actions are governed by the UN Charter. Article 2 of the charter specifically prohibits the aggressive use of force by states. The only exception to this prohibition is Article 51, which authorizes military action to for self-defense. This right, however, can only be invoked when the threat of aggression is imminent and force is necessary as a last resort. If force is used, the state’s response must be proportionate.
It is hard to argue Israel’s applicability of Article 51 in the case of Al-Mabhouh’s murder. First, Israel’s actions were not taken against another state actor. Second, he posed no imminent danger. Al-Mabhouh lived in Syria and was traveling on a diplomatic mission for Hamas. Threat of imminent aggression was not present. Israel, however, argues that it is involved in an ongoing armed conflict with the Palestinians, especially with the political movement Hamas. Therefore, it says, there is a constant, imminent threat of aggression. However, this argument is a stretch for the Al-Mabhouh murder because he was not living inside the Palestinian Territories. This fact in itself reduces the imminent nature of any perceived threat he may have been. Third, Article 51 states that force is to be used only as a means of last resort. The Israeli agents could have subdued and arrested Al-Mabhouh or contacted the Emirati authorities to seek his arrest. The use of force was not proportionate.
In addition, Israel violated Article 2 of the UN Charter. Article 2 requires that states respect the sovereignty of other countries. The use of fake passports of another country and the carrying out of murder on another state’s territory, without its permission, is a clear violation of this article. Israel also violated the sovereignty of Austria, given that its territory was used as the command center for carrying out the attack. There is no plausible argument that Israel can give to justify this violation, particularly since Al-Mabhouh posed no imminent threat.
However, while Article 51 of the UN charter is not plausibly applicable to the Al-Mabhouh murder, the United States has set a precedent in its so-called war on Al-Qaeda. Due to the U.S. targeting of Al-Qaeda, the definition of a non-international conflict has been extended to include one between a state and non-state actor outside the state’s territory. Thus, Article 3 (as well as the Provisions of Additional Protocol II) of the Geneva Conventions are applicable when a state engages in violence against a non-state actor outside of its territory or the territories in which there is ongoing conflict.
Given this U.S. precedent, there are several other criteria that must be met. First, the individuals targeted must be of the armed forces of the non-state actor. And while there is no obligation to attempt to arrest members of the armed forces before they are targeted, combatants can only be killed when they cannot be prevented from perpetrating an attack that endangers the lives of others. In all other circumstances, combatants should be arrested, prosecuted and punished for their crimes under law. Second, those who play a purely political role for a non-state group cannot be targeted. Third, targeting must meet the requirement of proportionality under customary international law. Fourth, permission must be sought from the government on whose territory an attack is believed to be imminent.
Israel did not seek the permission of the UAE to carry out an attack on its territory and there has been no evidence presented that Al-Mabhouh was planning to perpetrate an attack. Moreover, the Israeli agents were able to locate him at his hotel. Even if Israel attempted to make the weak argument that he was planning to perpetrate an attack, there is no plausible argument that he could not have been prevented from carrying it out. Al-Mabhouh could have been arrested, prosecuted and punished for whatever so-called crimes that Israel claims he violated. Nothing changes the fact that he deserved due process and Israel violated his rights granted under international law. Israel willfully murdered Al-Mabhouh. The question now is whether the murder was in fact an assassination.
Targeted Killing versus Assassination
Targeted killing is the intentional slaying of a specific individual or group of individuals undertaken with explicit government approval. It is permissible to target combatants under international law, especially when a state is in armed conflict. For a targeted killing to be permissible, the targets must be combatants or part of the military chain of command; they must pose an imminent threat to the security of the state; and, the means used must not be “treacherous.” A targeted killing must be an option of last resort and arrest not possible. Finally, when conducted in a foreign territory, permission must be obtained for it to be legal under international law. If it is not, then the act is in violation of Article 2 of the UN Charter. This is even the case when the individual targeted is a non-state actor. Therefore, even if Al-Mabhouh’s murder is considered a targeted killing and not an assassination, Israel violated Article 2 because permission was not granted by the UAE. Given the means used to carry out the murder, it is questionable whether it was in fact a targeted killing.
Assassination is defined as “murder by treacherous means”; therefore, the method used is important for determining the legality of the action. Treachery is an attack on an individual who believes there is no need to fear the attacker, especially in incidents when the attacker pretends to be a non-combatant civilian. There was no reason to believe that Al-Mabhouh feared the attackers, who knocked on his hotel room door. The woman who knocked was dressed as a hotel employee and the other agents were all dressed in civilian clothing. Thus, the means used were treacherous and it was an assassination, not a targeted killing. It is clear from the press photos released that Al-Mabhouh was treated in a cruel, humiliating and inhumane way. Article 3 of the Geneva Conventions prohibits cruel, humiliating and degrading treatment.
A Crime Against Humanity?
A crime against humanity is one that is part of a systematic or widespread pattern of attacks against a civilian population. In addition, if an assassination that targeted a particular person was part of a broader plan to destroy the individual’s entire group, it could be viewed as genocide. As has been demonstrated, there was a systematic use of murder and political assassination carried out before and after the establishment of the state of Israel. Since Israel’s declaration of independence, the Israeli government has engaged in a systematic and widespread pattern of attacks on Palestinian civilians. Moreover, it has engaged in a systematic pattern of assassinations that target particular persons in a group.
Therefore, Israel has engaged in crimes against humanity and genocide. Israel has continuously and systematically violated international law. The British, French, Irish, Austrian and Emirati governments, as well as the international community, have a duty to do more than call for an investigation into Israeli action. Condemnation and sanctions are necessary.
Rachael M. Rudolph, PhD
Ezzedine al-Qassam Brigades-Information Office
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