Presiding Judge: Should this not be extraterritorial?
Attorney General: It can be either way. In American
literature they say exterritorial, while others say
extraterritorial. But if the Court prefers
extraterritorial;…
Presiding Judge: No, do as you prefer.
Attorney General: If our law is in fact invalid, then even
if the Accused had come here of his own free will and not
by force, it would not be possible to try him, if the law is
not a law. And if his being brought here forcibly negates
the trial and the jurisdiction, it invalidates the
jurisdiction in respect of all offences, including laws
which are not exterritorial, even normal laws. Therefore it
is necessary to differentiate between the two arguments and
there is no inherent connection between them. Defence
Counsel linked them together, and I ask to deal with each
one separately, since each of them points to different legal
concepts.
Yesterday, I discussed the question of bringing a man within
the jurisdiction by force and there is no need for
repetition. I shall, therefore refer to the other part of
the argument, which claims to invalidate our law on the
grounds that it applied to acts which were not committed on
the territory of Israel, at the time when the State of
Israel was not yet a reality.
The principles which generate jurisdiction to deal with
criminal matters were examined already before the Second
World War by a number of outstanding jurists in the United
States, in a research study conducted under the auspices of
Harvard University. The Court will find abundant material in
the report of the researchers. It is a scientific study. I
shall only read a short extract therefrom, to be found in
the American Journal of International Law, Volume 29 of the
year 1934 – Supplement. I quote from page 445:
“An analysis of modern national codes of penal law
procedure, checked against the conclusions of reliable
writers and the resolutions of international
conferences or learned societies, and supplemented by
some exploration of the jurisprudence of national
courts, discloses five general principles on which a
more or less extensive penal jurisdiction is claimed by
States at the present time. These five general
principles are: first, the territorial principle,
determining jurisdiction by reference to the place
where the offence is committed; second, the nationality
principle, determining jurisdiction by reference to the
nationality or national character of the person
committing the offence; third, the protective
principle, determining jurisdiction by reference to the
national interest injured by the offence; fourth, the
universality principle determining jurisdiction by
reference to the custody of the person committing the
offence; and fifth, the passive personality principle,
determining jurisdiction by reference to the
nationality or national character of the person injured
by the offence. Of these five principles, the first is
everywhere regarded as of primary importance and of
fundamental character. The second is universally
accepted, though there are striking differences in the
extent to which it is used in the different national
systems. The third is claimed by most States, regarded
with misgivings in a few, and generally ranked as the
basis of an auxiliary competence. The fourth is widely,
but by no means universally accepted as the basis of an
auxiliary competence, except for the offence of piracy
with respect to which it is the generally recognized
principle of jurisdiction. The fifth, asserted in some
form by a considerable number of States and contested
by others, is admittedly auxiliary in character and is
probably not essential for any State if the ends served
are adequately provided for in other principles.”
It is, therefore, not true to say that one principle only
generates jurisdiction, and that is the territorial
principle. There are a number of principles, some more
accepted, some less, some more widely spread, some less. In
1935 the Harvard researchers had not yet experienced the
[Second] World War and its crimes, and the principle which
would have to be developed as a consequence thereof. But
even if we deal with the territorial principles and a
State’s right to enact laws which have applications beyond
its borders, it would appear that even before the World War
principles had become accepted that were not in conformity
with what Defence Counsel submitted here. The problem was
discussed in greater comprehensiveness by the International
Court at the Hague, in the well-known judgment in the matter
of the “Lotus.” The facts in the “Lotus” case and the
judgment were published in the official publication of the
International Court, Booklet 10 – “Affaire du ‘Lotus’.”
Presiding Judge: Booklet 10 – what series was this?
Attorney General: Publications of the Permanent Court of
International Justice, Series A – No. 10. The facts are as
follows (they appear on page 10): The French ship “Lotus”
which was on its way to Constantinople collided with the
Turkish ship “Boz-Kourt” on the open seas. The fact that
this was on the high seas is clear from page 5 where it is
stated:
“On the high seas between the French steamer Lotus and
the Turkish steamer Boz-Kourt, a collision occurred on
August 2nd, 1926…” The Turkish ship was cut into two
and eight Turkish subjects who were on board, were
drowned. When Mr. Demons who was the officer of the
watch of the ship “Lotus” at the time of the collision
reached Constantinople and disembarked from his ship,
he was arrested by the Turkish authorities and brought
to trial for the offence of harming Turkish citizens.
He argued that the Turkish extraterritorial law, which
laid down that the infliction of injury upon a Turkish
subject anywhere in the world was a criminal offence
under Turkish law, was not valid, and accordingly, as
he argued, the Turkish Court did not have jurisdiction
to deal with his case. The Court did not accept his
argument, and after a dispute had arisen between
France, Demons’ country, and Turkey which was demanding
jurisdiction for herself, the two countries agreed to
refer the question of the legitimacy of the Turkish law
to the decision of the International Court at the
Hague.”
I quote from page 12 (in English)
“The violation, if any, of the principles of
international law would have consisted in the taking of
criminal proceedings against Lieutenant Demons. It is
not therefore a question relating to any particular
step in these proceedings – such as his being put to
trial, his arrest, his detention pending trial or the
judgment given by the Criminal Court of Stamboul – but
the very fact of the Turkish Courts exercising criminal
jurisdiction. That is why the arguments put forward by
the Parties in both phases of the proceedings relate
exclusively to the question whether Turkey has or has
not, according to the principles of international law,
jurisdiction to prosecute in this case.
The Parties agree that the Court has not to consider
whether the prosecution was in conformity with Turkish
law; it did not, therefore, consider whether, apart
from the actual question of jurisdiction, the
provisions of Turkish law cited by Turkish authorities
were really applicable in this case, or whether the
manner in which the proceedings against Lieutenant
Demons were conducted might constitute a denial of
justice, and accordingly, a violation of international
law. The discussions have borne exclusively upon the
question whether criminal jurisdiction does or does not
exist in this case.”
And at the foot of page 18:-
“Now the first and foremost restriction imposed by
international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may
not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly
territorial, it cannot be exercised by a State outside
its territory except by virtue of a permissive rule
derived from international custom or from a convention.
“It does not, however, follow that international law
prohibits a State from exercising jurisdiction in its
own territory, in respect of any case which relates to
acts which have taken place abroad, and in which it
cannot rely on some permissive rule of international
law. Such a view would only be tenable if international
law contained a general prohibition to States to extend
the application of their laws and the jurisdiction of
their courts to persons, property and acts outside
their territory, and if, as an exception to this
general prohibition, it allowed States to do so only in
certain specific cases. But this is certainly not the
case under international law as it stands at present.
Far from laying down a general prohibition to the
effect that States may not extend the application of
their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it
leaves them in this respect a wide measure of
discretion which is only limited in certain cases by
prohibitive rules; as regards other cases, every State
remains free to adopt the principles which it regards
as best and most suitable.”
And consequently this was the final majority conclusion in
the”Lotus” case on page 32:
“For THESE REASONS the Court, having heard both
parties, gives, by the President’s casting vote – the
votes being equally divided – judgment to the effect:
(1) that, following the collision which occurred on
August 2nd, 1926, on the high seas between the French
steamship Lotus and the Turkish steamship Boz-Kourt,
and upon the arrival of the French ship at Stamboul,
and in consequence of the loss of the Boz-Kourt having
involved the death of eight Turkish nationals, Turkey,
by instituting criminal proceedings in pursuance of
Turkish law against Lieutenant Demons, officer of the
watch on board of the Lotus at the time of the
collision, has not acted in conflict with the
principles of international law…”
Judge Halevi: I have a question to the Attorney General.
Did the majority in the International Court accept the
general principles, or did the majority only decide in fact
that Turkey had not violated international law, and was this
majority made up of judges holding conflicting views
regarding the general principles?
Attorney General: It was so, Your Honour. But I will submit
immediately that not only the views of the majority have to
be examined, but also those of the minority; and I want to
ask myself: if the “Lotus” issue had been discussed not
when it was discussed but today, what would those same
minority judges say – the Dutch, for example, or the English
– in view of the developments in their policies on the
territorial question which occurred meanwhile in their
countries.
The Dutch judge said that the criminal law cannot apply
beyond the jurisdiction of the country which enacted it, and
he was firm on this principle, on that of his country, the
territorial principle. But the law develops and now let us
see what Holland herself did in the meantime. Let us look at
the International Law Report of the year 1951, page 206,
edited by Lauterpacht:
“The defendant, a woman of Belgian nationality and
domiciled in Belgium, was prosecuted in the Special
Police Court of Breda on November 2, 1950, for having
acted in Belgium as an accessory to offences committed
by Netherland subjects against the Dutch Currency
Decree…The conviction was upheld by the Court of
Appeal at s’Hertogenbosch on March 7, 1951.
“The defendant appealed further.
“Held (by the Supreme Court): that the accused was
rightly convicted. The acts committed by the accused
did not come under any of the general principles of
applicability of Netherlands criminal law as laid down
in Book 1, Section 1, of the Netherlands Penal Code.
These acts could therefore only fall under the scope of
Dutch criminal law in virtue of the special provisions
contained in Article 31 of the Emergency Decree of 1945
on Currency Restrictions. Those provisions were
directed not only against Netherlands subjects who
committed currency offences in a foreign country, but
also to foreign nationals abroad who were accessories
to such offences.”
The Dutch law, in this age of aircraft – I could add
possibly today, in the age of jets and rockets – says: It is
impossible to stand firm any longer on the territorial
principle. We must depart from these limitations. There are
crimes which by their very nature are committed between
countries. True, in a relatively primitive period, at the
beginning the law adhered to this principle. Here is the
crime, here are your judges, here are your witnesses, here
they know you – here you will be judged. But today, with the
development of the world, and the development of the
principle of international law, there is no longer this
faithfulness to the territorial principle, and I doubt
whether that same British judge, Lord Finlay, who also
dissented from the majority opinion in “Lotus,” would today
give the judgment that he gave then.
Presiding Judge: Why, Sir, are you connecting this with the
most sophisticated means of transportation – if we may
presume that rockets are means of transportation?
Attorney General: Rockets are simply a sign of the times.
It is a fact that the world has been converted into one
world, and in consequence of easy opportunities to move from
place to place today, to commit crimes that cross
boundaries, the law has had to adjust itself to a new
framework.
Let us take the well-known instance of the judgment in the
case of Joyce who was known by the popular name of Lord
Haw_Haw (Joyce v. Director of Police Prosecutions, 1946
Appeals cases – A.C. 347). What did Joyce do? Joyce served
the Nazi Germans by broadcasts directed to England. He did
not set foot on English soil while he committed his crimes.
His words travelled over the ether waves. His insidious and
subversive propaganda was the aspect found to be
treasonable. That was what brought him to trial. I am not
dealing now with the special aspects of the Joyce case, his
loss of British nationality, his own surrender of British
nationality and so on. This does not affect us. But what
does matter to me is this territorial principle. When the
matter was argued in Court, Joyce said: “What do you want of
me? You are the country attached more than others to the
territorial principle. How can you judge me? I did not step
on English soil for one moment at the time I committed those
acts which you now say are treasonable.” What did the Court
say? What did the Lord Chancellor, Lord Jowitt say? On page
372 he says:
“No principle of comity demands that a state should
ignore the crime of treason committed against it
outside its territory. On the contrary a proper regard
for its own security requires that all those who commit
that crime, whether they commit it within or without
the realm should be amenable to its law.”
And Lord Jowitt simply ignores the territorial principle and
says:
“It does not matter where you committed the offence.
The security of the state makes it essential that
legislation should embrace the whole world, and
wherever you commit this act – when you are caught by
us, you will pay the penalty for it.”
This development of the law in this case is even more
noteworthy when we compare to this the authority on which
Lord Finlay, the English judge in the “Lotus” case relied.
He relied on the statement appearing in the third edition of
International Law by Oppenheim (the book was published in
1920). In the first volume, Peace, the author says (on page
240):
“The question is, therefore, whether States have a
right to jurisdiction over acts of foreigners committed
in foreign countries, and whether the home State of
such an alien has a duty to acquiesce in the latter’s
punishment in case he comes into the power of these
States. The question which is controversial, ought to
be answered in the negative. For at the time such
criminal acts are committed the perpetrators are
neither under the territorial not under the personal
supremacy of the States concerned. And a State can only
require respect for its laws from such aliens as are
permanently or transiently within its territory. No
right for a State to extend its jurisdiction over acts
of foreigners committed in foreign countries can be
said to have grown up according to the Law of Nations.”
On this, Lord Finlay based his dissenting opinion and said:
“Turkey had no right to try Demons.” But let us take that
same book International Law by Oppenheim, the first volume
Peace (published by Lauterpacht) in the eighth edition of
the year 1955 – the same section in the same paragraph 147,
on page 33. The beginning is the same but the continuation
is different, and this is what he says:
“The question is, therefore, whether States have a
right to exercise jurisdiction over acts of foreigners
committed in foreign countries, and whether the home
State of such an alien has a duty to acquiesce in the
latter’s punishment in case he comes into the power of
those States.”
The same sentence, so far.
“Some answer this question in the negative.”
The Court should please note:
“They assert that at the time such criminal acts are
committed the perpetrators are neither under the
territorial nor under the personal supremacy of the
State concerned, and that a State can only require
respect for its laws from such aliens as are
permanently or transiently within its territory. This
is probably the accurate view with regard to some
cases. But it is not a view which, consistently with
the practice of States and with common sense, can be
rigidly adopted in all cases.”
If Lord Finlay had to deal today with the “Lotus” case and
wanted to be guided by Oppenheim’s classic work, he would at
least have to consent with the opinion of the President and
the other judges.
Presiding Judge: I presume the eighth edition quotes the
“Lotus” case?
Attorney General: Yes. Since international law continues to
develop, and this is its only hope. We should, therefore,
not be surprised when we read the article, referred to by
the Court, by Professor Lauterpacht who was the editor of
the latter edition of Oppenheim, in his article in the
Cambridge Law Journal of the year 1947, Volume 9, an article
entitled “Allegiance, Diplomatic Protection and Criminal
Jurisdiction over Aliens.”
The article begins on page 330, and I read on page 345:
“There is international authority – in the Judgment of
the Permanent Court of International Justice in the
Lotus Case – in support of the extension, by reference
to the place in effect, of the territorial principle.
In that case the Court accepted as a valid proposition
of law that ‘it is certain that the courts of many
countries, even of countries which have given their
criminal legislation a strictly territorial character,
interpret criminal law in the sense that offences, the
authors of which at the moment of commission are in the
territory of another State, are nevertheless to be
regarded as having been committed in the national
territory, if one of the constituent elements of the
offence, and more especially its effects, have taken
place there’.”
I have emphasized the words “its effects” because I shall
still have something to say on the effect, on the
conclusions and the consequences of the acts against the
State of Israel, of which Adolf Eichmann has been accused.
I shall conclude this portion of my argument with
Lauterpacht’s concluding observation, in the final words of
that article, on page 348:-
“It would be in accordance with an enlightened
principle of justice – a principle which has not as yet
become part of the law of nations – if, in the absence
of effective extradition, the courts of a State were to
assume jurisdiction over common crimes, by whomsoever
and wherever committed, of a heinous nature.
Territoriality of jurisdiction is a rule of convenience
in the sphere of the law of evidence. It is not a
requirement of justice or even a necessary postulate of
the sovereignty of the State.”
Presiding Judge: How does the Law of Evidence enter into
this matter?
Attorney General: The Law of Evidence enters here, as the
problem is: Where are the witnesses and where are the
judges, where are the authorities, where would it be more
convenient to conduct the trial? I shall continue my
argument on this point when the Court resumes its sittings.
(The session terminated at 13.00)
Last-Modified: 1999/05/28
