Passports and assassinations

The revelation at the start of this week that assassins had made use of Irish, British, German and French passports to perpetuate a murder in Dubai has shocked many. However this is far from the first time this has been done and rarely if ever is anyone held accountable for it.  The repercussions are often more political than legal. During the 1980s Margarete Thatcher ordered the closing down of Mossad’s base in London and an assurance that British passports would not be used again by Israeli forces after a similar event. However, if it is proved to once again that there are  Mossad agents involved it will only reinforce the notion that certain states can continue to act unlawfully even in situations where there are clear breaches of international and domestic law.

At the request of Dubai, Interpol have issued a ‘red notice’ to help in the idenficiation of the assassins of Hamas cammader Mahmoud al-Mabhhouh(who incidently also entered Dubai using a false passport). While most suspicision has fallen upon Israel, there is as yet no evidence to directly link Mossad to the assassination, though it is possible that more evidence will emerge.

Micheál Martin T.D., the Minister for Foreign Affairs, invited the Israeli ambassador to discuss the issue with him this morning. The tone of the press release was not as strident as the statements from the British Foreign Secretary David Miliband M.P. The Department of Foreign Affairs stated that:

It was stressed that, regardless of who was responsible, the Government takes grave exception to the forgery and misuse of Irish passports which could devalue the standing of the passports and potentially put at risk the safety of Irish citizens travelling abroad.

An important question is what action could the Irish Government take if it is proved that Israel or any other state was behind the assassination. The most obvious place to start is the law surrounding state responsibility. The International Law Commission’s Draft Articles on State Responsibility provide in article 1 that every state is responsible for its international wrongful acts and certainly the forging or otherwise of passports, which generally remain the property of the issuing government would be considered such. International wrongful acts can be bilateral or as the International Court of Justice averred in the Barcelona Traction Case international. It would also have to be under Article 2 (a) an act attributable to the state and therefore there would have to be proof that it was Mossad agents involved in the assassination. If it were for instance Hamas that ordered the assassination it would be very difficult to assert that any state had direct or indirect control of Hamas. The Nicaragua case before the ICJ has set a very high standard for elements of direct or indirect control of armed bands. Israel has not made a declaration of acceptance of the permanent jurisdiction of the ICJ and therefore if Ireland wished to take a case against Israel it would have to rely on a treaty that granted jurisdiction to the ICJ or some other court or tribunal. Countermeasures cannot be taken by one state against another punitively and therefore it would be difficult for Ireland to take an action unless there is an ongoing breach of international law.Indeed according to the ICJ in the Gabčíkovo-Nagymaros Project countermeasures must be proportional and non-punitive.

Of course if it was proved to be Israel that is involved, Ireland may be willing to accept an apology for the use of Irish passports, however this does not resolve the more disturbing broader issue of extra-judicial killings.