39. We should add that the well-known judgment of the
International Court of Justice at The Hague in the “Lotus
Case” ruled that the principle of territoriality does not
limit the power of the state to try crimes and, moreover,
any argument against such power must point to a specific
rule in international law which negates that power. We have
not guided ourselves by this rule which devolves, as it
were, the “onus of proof” upon him who contends against such
power, but have preferred to base ourselves on positive
grounds which establish the jurisdiction of the State of
Israel.
40. The second contention of learned Counsel for the Defence
was that the trial in Israel of the Accused, following upon
his capture in a foreign land, is in conflict with
international law and takes away the jurisdiction of the
Court. Counsel pleaded that the Accused, who had resided in
Argentina under an assumed name, was kidnapped on 11 May
1960 by the agents of the State of Israel, and was forcibly
brought to Israel. He requested that two witnesses be heard
in proof of his contention that the kidnappers of the
Accused acted on orders they received from the Government of
Israel or its representatives, a contention to which learned
Counsel attached considerable importance, in an effort to
prove that he was brought to Israel’s area of jurisdiction
in violation of international law. He summed up his
contentions by submitting that the Court ought not to lend
its support to an illegal act of the State, and that in
these circumstances the Court has no jurisdiction to try the
Accused.
On the other hand, the learned Attorney General pleaded that
the jurisdiction of the Court was based upon the Nazis and
Nazi Collaborators (Punishment) Law which applied to the
Accused and to the acts attributed to him in the indictment;
that it is the duty of the Court to do no other than try
such crimes; and that in accordance with established
judicial precedents in England, the United States and
Israel, the Court is not to enter into the circumstances of
the arrest of the Accused and of his transference to the
area of jurisdiction of the State, these questions having no
bearing on the jurisdiction of the Court to try the Accused
for the offences for which he is being prosecuted, but only
on the foreign relations of the State. The Attorney General
added that, with reference to the circumstances of the
arrest of the Accused and his transference to Israel, the
Republic of Argentina had lodged a complaint with the
Security Council of the United Nations, which resolved on 23
June 1960 as follows (document S/4349) (Exhibit T/1):
“The Security Council,
Having examined the complaint that the transfer of
Adolf Eichmann to the territory of Israel constitutes a
violation of the sovereignty of the Argentine Republic,
Considering that the violation of the sovereignty of a
Member State is incompatible with the Charter of the
United Nations,
Having regard to the fact that reciprocal respect for
and the mutual protection of the sovereign rights of
States are an essential condition for their harmonious
coexistence,
Noting that the repetition of acts such as that giving
rise to this situation would involve a breach of the
principles upon which international order is founded,
creating an atmosphere of insecurity and distrust
incompatible with the preservation of peace,
Mindful of the universal condemnation of the
persecution of the Jews under the Nazis and of the
concern of people in all countries that Eichmann should
be brought to appropriate justice for the crimes of
which he is accused,
Noting at the same time that this resolution should in
no way be interpreted as condoning the odious crimes of
which Eichmann is accused,
1. Declares that acts such as that under consideration,
which affect the sovereignty of a Member State and
therefore cause international friction, may, if
repeated, endanger international peace and security;
2. Requests the Government of Israel to make
appropriate reparation in accordance with the Charter
of the United Nations and the rules of international
law;
3. Expresses the hope that the traditionally friendly
relations between Argentina and Israel will be
advanced.”
Pursuant to this Resolution, the two governments reached an
agreement on the settlement of the dispute between them, and
on 3 August 1960 issued the following joint communique
(T/4):
“Los Gobiernos de la Republica Argentina e Israel,
animados por el proposito de dar cumplimiento a la
resolucion del Consejo de Seguridad del dia 23 de Junio
de 1960 en cuanto expresa la esperanza de que mejoren
las relaciones tradicionalmente amistosas entre ambos
paises, resuelven considerar concluido el incidente
originado en la accion cometida por nacionales
israelies en perjuicio de derechos fundamentales del
Estado argentino” (The Governments of Argentina and
Israel, actuated by an intention to put into effect the
resolution of the Security Council of 23 June 1960,
insofar as it gives expression to the hope for the
improvement of the relations of traditional friendship
between the two countries, resolve to view as settled
the incident which was caused in the wake of the action
of citizens of Israel which violated the basic rights
of the State of Argentina).
By our Decision No. 3 of 17 April 1961 (Session 6, Vol. I,
p. 60), we dismissed Counsel’s objections to the
jurisdiction of the Court, and ruled that there is no need
to hear the witnesses summoned with reference to his second
contention. The following are the reasons for our ruling:
41. It is an established rule of law that a person standing
trial for an offence against the laws of a state may not
oppose his being tried by reason of the illegality of his
arrest, or of the means whereby he was brought to the area
of jurisdiction of the state. The courts in England, the
United States and Israel have ruled continuously that the
circumstances of the arrest and the mode of bringing of the
accused into the area of the state have no relevance to his
trial, and they consistently refused in all cases to enter
into an examination of these circumstances.
The principle was first established in Ex parte Susanna
Scott (1829) 9 B. & C. 446; 109 E.R. 106. The applicant was
charged in England with the misdemeanour of perjury. A
British police officer, in executing the warrant of arrest,
specifically addressed to him by Lord Chief Justice
Tenterden, arrested the applicant in Belgium. The applicant
appealed to the British Ambassador in Belgium, who refused
to intervene, and the police officer brought her to England,
where an order was issued for her imprisonment pending her
trial. She then filed an application for her release by way
of abeas corpus. Lord Chief Justice Tenterden dismissed the
application, saying:
“I consider the present question to be the same as if
the party were now brought into Court under the warrant
granted for her apprehension… The question,
therefore, is this, whether if a person charged with a
crime is found in this country, it is the duty of the
Court to take care that such a party shall be amenable
to justice, or whether we are to consider the
circumstances under which she was brought here. I
thought, and still continue to think, that we cannot
inquire into them. If the act complained of were done
against the law of a foreign country, that country
might have vindicated its own law. If it gave her a
right of action, she may sue upon it… For these
reasons, I am of opinion that the rule must be
discharged.”
In his summing up to the jury in the case R. v. Nelson and
Brand (1867), the Lord Chief Justice, Sir Alexander
Cockburn, said (as quoted in O’Higgins, “Unlawful Seizure
and Irregular Extradition,” 36 British Yearbook of
International Law, 1960, p. 285):
“Suppose a man were to commit a crime in this country,
say murder, and that before he can be apprehended he
escapes into some country with which we have not got an
extradition treaty, so that we could not get him
delivered up to us by the authorities, and suppose that
an English police officer were to pursue the
malefactor, and finding him in some place where he
could lay his hands upon him, and from which he could
easily reach the sea, got him on board a ship and
brought him before a magistrate, the magistrate could
not refuse to commit him. If he were brought here for
trial, it would not be a plea to the jurisdiction of
the Court that he had escaped from justice, and that by
some illegal means he had been brought back. It would
be said, `Nay, you are here; you are charged with
having committed a crime, and you must stand your
trial. We leave you to settle with the party who may
have done an illegal act in bringing you into this
position; settle that with him’.”
In Ex parte Elliott, 1 All E.R. 373, the court heard an
application for habeas corpus of a British soldier who
deserted his unit in 1946, was arrested in 1948 in Belgium
by two British military officers escorted by two Belgian
police officers, was transferred by the British military
authorities to England, and was there held in custody
pending his trial for desertion. Counsel for applicant
pleaded inter alia that the British authorities in Belgium
had no power to arrest the applicant, and that he was
arrested contrary to Belgian law. Lord Goddard dismissed
the application, saying in his judgment (p. 376):
“The point with regard to the arrest in Belgium is
entirely false. If a person is arrested abroad and he
is brought before a court in this country charged with
an offence which that court has jurisdiction to hear,
it is no answer for him to say, he being then in lawful
custody in this country: `I was arrested contrary to
the laws of the State of A or the State of B where I
was actually arrested.’ He is in custody before the
court which has jurisdiction to try him. What is it
suggested that the court can do? The court cannot
dismiss the charge at once without its being heard. He
is charged with an offence against English law, the law
applicable to the case.”
The Lord Chief Justice concluded his pronouncement on this
issue by saying (p. 377):
“We have no power to go into the question, once a
prisoner is in lawful custody in this country, of the
circumstances in which he may have been brought here.
The circumstances in which the applicant may have been
arrested in Belgium are no concern of this court.”
42. The principle is also acknowledged in Palestine judicial
precedent. In the application for habeas corpus by Isaac
Katz (on behalf of Chaim Novik against the General Officer
Commanding the Polish Forces in Palestine, High Court of
Justice 71/44 (Palestine Law Reports, Vol. 11, p. 355),
Advocate Olshan (as he then was) submitted that Novik, who
was tried for desertion by a Polish military tribunal, was
brought before that exterritorial tribunal without any
decision by a civil court of Palestine, as is required under
the Allied Forces Act, was directly surrendered to the
Polish forces and was tried. The Chief Justice dismissed
the application on the ground that (p. 358) “Provided the
Court Martial is properly constituted, and provided the
accused, who is before it, is subject to its jurisdiction,
the circumstances in which he was arrested and arrived
before the Court are not relevant to the question of the
jurisdiction of the Court.”
In the appeal of Mahmoud Hassan Yassin, known as Afuna v.
Attorney General, Criminal Appeal 14/42 (PLR, Vol. 9, p.
63), the Supreme Court heard the case of a “fugitive
criminal” who was arrested in Syria by a Palestine Police
Sergeant, was forcibly returned to the country, and was
sentenced to death by the Court of Criminal Assizes.
Counsel for appellant pleaded that by reason of the non-
enforcement of the extradition agreement obtaining between
the two countries, his client’s arrest in Syria and forcible
transfer to Palestine were unlawful and the Jerusalem court
had no jurisdiction to convict him. The Court of Appeal
dismissed the contention on the ground that:
“In our opinion, the law is correctly stated in volume
4 of Moore’s Digest of International Law, at page 311.
The authority cited is an American (State) case which,
of course, is not binding on this Court. Nevertheless
we adopt the language used, which is as follows: `Where
a fugitive is brought back by kidnapping, or by other
irregular means, and not under an extradition treaty,
he cannot, although an extradition treaty exists
between the two countries, set up in answer to the
indictment the unlawful manner in which he was brought
within the jurisdiction of the court. It belongs
exclusively to the government from whose territory he
was wrongfully taken to complain of the violation of
its rights.’
“Accepting that view of the law, we think that there is
no substance in the extradition point.”
The precedent quoted in Moore (ibid.) and referred to in
that judgment as “an American (State) case” is no other than
Ker v. Illinois, 119, U.S. 436, the leading case in the
United States Supreme Court on this issue. At all events,
it must be stressed that the American ruling, as summed up
by Moore, was in this case expressly “adopted” by the
Supreme Court of Palestine.
43. Before we proceed, in the wake of this “adoption,” to
American judicial precedent, we would dwell briefly on the
import of the judgments we have hitherto surveyed from the
point of view of international law. The question which
presents itself from this point of view is – whether the
principle of Ex parte Scott and Ex parte Elliott that the
accused may not oppose his being tried by reason of the
illegality of his arrest or of the means whereby he was
brought to the area of jurisdiction, is limited to the
illegality of those means in the sense of the municipal law
of the country in question, or is general and also applies
to the use of means which are a violation of international
law, namely a violation of the sovereignty of a foreign
state. The recently published article of O’Higgins quoted
above is devoted to the analysis of these judgments,
especially the English judgments, from this point of view.
The learned author’s conclusion is as follows (p. 319):
A British court will probably exercise jurisdiction over a
criminal brought before it as the result of a violation of
international law. There is, however, no precedent which
binds any British court to adopt this view.”
This careful evaluation is based on the learned author’s
view that most English precedents do not, in effect, deal
with cases of violation of international law, and that
although in Emperor v. Vinayak Damodar Savarkar (1910),
I.L.R. 35 Bombay 225 (228) the principle of Ex parte Scott
and R.V. Nelson and Brand, was applied in effect to a case
where the accused pleaded violation of international law
(ibid., p. 286), Lord Reading had expressed a reservation on
this issue in R. v. Garrett (1917), 86 L.J. (K.B.) 894, 898.
44. American judicial precedent on this issue is more
unequivocal (and this is apparently the reason why the
Supreme Court of Palestine, in Criminal Appeal 14/42, (Afuna
v. A.G.) preferred to base themselves on this established
rule as summed up in Moore’s book, rather than on Ex parte
Scott (see p. 66 of that judgment). American judgments
expressly establish that it makes no difference whether or
not the measures whereby the accused was brought into the
area of jurisdiction were unlawful in the sense of municipal
law or of international law: The uniform rule is that the
court will not enter into an examination of this question
which is not relevant to the trial of the accused. The
ratio of this ruling is that the right to plead violation of
the sovereignty of a state is the exclusive right of that
state. Only the sovereign state may raise, or waive, that
contention, and the accused has no right to represent the
rights of that state. That principle found expression also
in English judgments, and indeed American judgments view Ex
parte Scott as one of their own precedents.
That principle was well explained by Travers, author of the
well-known work Droit Penal International, in his article:
“Des arrestations au cas de venue involontaire sur le
territoire,” 13 Revue de Droit International Prive et de
Droit Penal International (1917), 627 et seq.
The learned author, who supports that doctrine as
established in the United States, says (p. 643):
“Mais – et c’est un point que nous tenons a mettre en
relief – si l’Etat, dont les agents ont ete fautifs,
peut, par courtoisie internationale et pour eviter
toute tension de rapports, agir d’office, c’est-a-dire
ordonner l’elargissement immediat et exprimer des
regrets; si l’Etat, dont le territoire a ete viole,
peut, de son co66te, adresser toutes protestations et
exiger toutes satisfactions, les personnes arre66tees
n’ont, par contre, aucun droit de reclamation.
“Elles ne peuvent se faire un titre de l’irregularite
commise et profiter de sa perpetration pour obtenir la
cessation de leur detention.
“La raison en est double.
“D’abord, l’individu arrete n’a aucune qualite pour
parler au nom de la souverainete etrangere; il n’en est
pas le representant.
“En second lieu, l’Etat etranger qui, maitre de sa
souverainete, peut faire telles concessions qu’il juge
convenables; est libre de ratifier tous actes
irreguliers. Son silence constitue, tout au moins, une
presomption de ratification.”
Considerable importance attaches to this pronouncement for
the present case, in view of the settlement of the dispute
between Argentina and Israel. Whatever we may think of the
general legal problem, now that the Governments of Argentina
and Israel have issued their joint communique of 3 August
1960 to the effect that both governments have decided to
view as liquidated the “incident” whereby the sovereignty of
Argentina was violated, the Accused in this case can
certainly retain no right to base himself on the “violated
sovereignty” of the State of Argentina. The indictment in
this case was presented after Argentina had forgiven Israel
for that violation of her sovereignty, so that there no
longer subsisted any violation of international law. In
these circumstances, the Accused cannot presume to be
speaking on behalf of Argentina and cannot claim rights
which that sovereign state has waived. As Travers said in
summing up his article (p. 646):
“Les Etats etant seuls juges des exigences de leur
droit de souverainete, le vice, existant en ce cas, ne
peut etre invoque que par le gouvernement lese. Il ne
saurait appartenir a un malfaiteur quelconque de parler
au nom de la souverainete violee.”
Last-Modified: 1999/05/27
