26 Nissan 5721 (12 April 1961)

Presiding Judge: I declare the fourth session open. Will the Attorney General please continue his argument.

Attorney General: Before I go on I would like to return a moment to the judgment in the "Lotus" case. I am afraid that a misunderstanding may have arisen out of my reply to the question of His Honour Judge Halevi. The majority opinion in the "Lotus" case was a single one, consisting of one uniform formulation. The dissenting judgments - these were the ones that came to different conclusions for differing reasons, each of them according to its own viewpoint. If my reply this morning was understood to mean that the majority judges also reached their conclusion for differing reasons, I should like to put the issue correctly, for it was not so.

The majority judgment was a single decision which, although it was adopted by the casting vote of the President of the Court, was nevertheless a single decision. Amongst these judges there were no differences of opinion. There were differences of opinion amongst the dissenting judges and each one approached the problem from his own individual angle.

While I am dealing with the "Lotus" case, perhaps I may draw the Court's attention to the remarks of the Swedish judge, Nyholm, who was one of the dissenting judges. The Court will find them on page 63: "International Law is not static but develops all the time." Indeed, I have already shown to what extent Judge Nyholm was right, for international law, particularly in regard to the territorial principle, continually undergoes change as we have already seen in a comparison of various developments.

In the United States also, which apparently rigidly preserved the territorial principle in legislation and jurisdiction, there were serious inroads in this theory even before the United States actively entered into the process of punishing the Hitlerite criminals. I would refer here to the article of Professor Lawrence Preuss, of the University of Michigan, published in Grotius Society - Transactions of the year 1944, Problems of Peace and War, Vol. 30, page 184. The article is lengthy and with the Court's permission I shall read only its beginning and its end. This is what Professor Preuss says at the beginning of his article:

"It is commonly asserted that the exclusive territoriality of the criminal law is the fundamental principle which distinguishes the Anglo-American conception of jurisdiction from that which prevails in countries which follow the tradition of Roman Law. This generalization, like so many that seek to draw a sharp distinction between the so-called Anglo-American and continental schools of International Law is misleading, in that it tends to over-simplification of a complex problem and results at best in half-truth. The territorial principle is basic to the common law, but it has in practice undergone so many exceptions that it is inaccurate to ascribe it without numerous qualifications to the British and American legal systems."

"The dogmatic statement of the strict territorial principle viewed as an ineluctable consequence of the theory of sovereignty and without reference to the many modifications which it has undergone in practice is responsible for the common attempts to draw a sharp contrast between the Anglo-American and the continental conceptions as to the criminal competence of states. A more careful study of the interpretation and application of the territorial principle would show that the breach between the two systems is not so great, and that it has been virtually bridged by means of the broad interpretation given to the objective principle in the Anglo-American system. A clear realization of these facts should serve to withdraw the discussion of jurisdiction from the spheres of logic and of sovereignty. It should furthermore remove certain obstacles to a fuller cooperation by the United States in international movements for the repression of crimes, movements which have up to this time been opposed by adherence of the strict territorial theory which they conceived alone to be in conformity with international law."

And indeed, we know that by signing the London Charter, America actively joined the system of legislation and jurisdiction in both ex post facto and exterritorial questions.

Presiding Judge: Are you referring to the United States?

Attorney General: Yes - the United States of America. But the punishment of war criminals was not the only subject for the exterritorial nature of the legislation. There were many countries which for various reasons or for the sake of various purposes, laid down in their criminal codes exterritorial regulations concerning certain crimes. We shall submit to the Court an exact list and the detailed sections. It will suffice here to read out the names of the countries: Austria, the Soviet Union, Germany.

Presiding Judge: Would you kindly repeat what these countries enacted?

Attorney General: I am quoting the names of the states which extended exterritorial validity to various sections in their domestic law...

Presiding Judge: What we call "offences committed abroad?"

Attorney General: Offences committed abroad - exactly. I want to show that Israel is not the only country to have done so, but that today it is the necessity of the times in many different countries which in order to ensure the security of the state, the security of the population, the security of their economy, have provided that the arm of the state is able to inflict punishment for acts committed beyond the territorial boundaries as well. The Court will encounter such legislation in the criminal law of Austria, Soviet Russia, Germany, Italy, Denmark, Holland, Finland, Czechoslovakia, Switzerland, Brazil and France. We shall submit a detailed list of such enactments.

Presiding Judge: Is this an exhaustive list?

Attorney General: No, this is a list which we compiled after preliminary research.

Presiding Judge: You could have added the Ottoman Law which is closer to us from many points of view.

Attorney General: I shall obviously have to mention the State of Israel shortly, in this instance, but we wanted to show that we are in good company with many countries, which for one reason or another, and not necessarily in the recent past, found it necessary to lay down regulations for the punishment of acts committed beyond the borders of the State. Here in Israel, too, explicit or general effect has been given to laws having an exterritorial application. At this point I would mention, without quoting, the case of Lahis versus the Minister of Defence, High Court 27/28 Pesakim A 236. May I be permitted to read an extract from High Court Case 100/157, Weiss versus the Inspector General of Police, Piskei Din 12, page 179 and page 188. I read from the judgment of the President of the Court, His Honour Judge Landau:

"We return therefore, to the general basic principles which we have set out before, following the judgment in the Amsterdam case, that every law possesses territorial validity, unless its content warrants otherwise, either specifically or in its general implication, and that the intention to depart from the territorial principle can also be gathered from the general trend of the law as it emerges from the totality of its provisions, or from the nature of the provision of the law which is under consideration."

"If a person has been exiled or banished from his country because of some crime, the Nation in which he takes refuge has no right to punish him for the offence committed in a foreign country; for nature only confers upon men and Nations the right to punish to be used for their defence and security; whence it follows that we can punish only those who have done us an injury.

But this principle also makes it clear that while the jurisdiction of each State is in general limited to punishing crimes committed in its territory, an exception must be made against those criminals who, by the character and frequency of their crimes, are a menace to public security everywhere and proclaim themselves enemies of the whole human race. Men who by profession are poisoners, assassins, or incendiaries may be exterminated wherever they are caught; for they direct their disastrous attacks against all Nations, by destroying the foundation of their common safety. Thus pirates are hanged by the first persons into whose hands they fall. If the sovereign of the country in which crimes of this nature have been committed requests the surrender of the perpetrators for the purpose of punishing them, they should be turned over to him as being the one who has first interest in inflicting exemplary punishment upon them; and as it is proper that the guilty should be convicted after a trial conducted with due process of law, we have another reason why criminals of this class are ordinarily delivered up to the States in which the crimes have been committed."

"Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis. As he has therefore renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him; so that every community has a right, by the rule of self- defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property."

"The universal jurisdiction, the criminal competence which has been discussed so far was the competence of the State or States having a direct connection with the crime, the country of the agent or the country which has been harmed through the violation of its territorial criminal laws, whether by an offence beyond its borders against its nationals, its interests or against persons entitled to its protection. But in the case of war crimes, international law does not recognize that the states concerned have the exclusive right to punish. The basis of the principle of the universal competence of all countries to impose punishment is an old one. This is how Grotius defined it (De jure belli ac pacis): 'It should be understood that kings and all those having sovereign powers in general are entitled to punish not only for offences against themselves and their nationals, but also for those crimes which have no specific application to them; those that consist of a gross violation of the law of nature or the law of nations in respect to anyone. I say 'in respect of any one' and not only in respect of their subjects'."

"It is well-known that international law adopted the system of universal competence in what related to the prosecution of the crime of piracy. It did so on the basis of this conception of piracy as a crime involving universal competence to punish. There is no general principle at all of international law limiting this competence to punish, in regard to war criminals, to the law or a judge of the locus delicti. The rules of the law of war, as they were formulated in Anglo-Saxon countries, lay down that the right to punish war criminals belongs to the party in whose hands the accused are to be found, independently of the site of the crime or of the nationality of the criminal or of the victim. Here, too, it is possible to notice the link existing between the theory of judicial competence and that of legislative competence.

"In the same way international law does not prevent a party to the war from trying war criminals whose victims are not its nationals. Any such restrictions in favour of the territorial judge or the national judge of the victims, or of the Courts of war-time Allies or an international Court arise from directives which have been agreed upon, such as the Moscow Declaration or the London Charter or Control Council Law No. 10.

"After the Second World War a large number of trials were held in Europe which were not within the framework of the International Military Tribunal Law No. 10, and also in the Far East, and the principle of international competence was applied. One may point firstly to the proceedings that took place before the American and the British Military Tribunals in regard to cases conducted outside the territory of the judge's country but whose victims were subjects of that country. These cases can be considered to be related to the passive principle. But evidently it would be more exact to regard them as an application of the principle of universality, of the right of punishment, if we take note of the definition of war crimes applying to these cases - a definition which relates neither to the place where the crime was committed nor to the nationality of the victim. It should be pointed out that in many such trials the principle of passive competence took precedence over the territorial principle, even where the site of the crime was in the country of an ally such as France, Norway, Holland, Belgium or China.

"Here are several clear examples of universal judicial competence which was assumed by British or American tribunals. A British military court, sitting at Alnelo in Holland, convicted Germans of two war crimes perpetrated in Holland, one against a British prisoner of war, and the other against a Dutch citizen. One of the accused was convicted of this latter crime only. In a case considered by a Military Tribunal in Hamburg, the offence was an act of criminal complicity. Whereas the site of the complicity in crime was in Hamburg, the place of the main crime - which was not considered at all at the trial - was in Poland. The victims were nationals of Allied countries, not British citizens. In the trial of concentration camp personnel at Bergen- Belsen who were tried by a British Court, amongst the victims whose names were mentioned in the indictment, were only two British subjects and a number of nationals of other countries, including Hungarians and one Italian.

"We may also refer here to judgments issued by British Courts in Singapore: war crimes committed in Indo-China by a Japanese against American prisoners of war; war crimes committed in Germany by Germans against Polish children, war crimes committed in Rome against Italian hostages. No less significance attaches to the cases which were tried by American Military Tribunals. For example, in the trial of those who were responsible for the Hadamar Sanatorium which was heard by a military commission in Wiesbaden, the victims were several hundred Polish and Soviet nationals, not citizens of the United States of America. Nor were the victims of the concentration camp in Dachau United States citizens."

"These many consistent and clear cases prove that international law recognizes, in regard to international competence in the matter of war crimes, side by side with the territorial principle and the principle protecting nationals, a third principle as well: the universal right of punishment. But a state in whose hands the accused has fallen ought to waive this competence, which it has assumed for itself, if in accordance with international agreements extradition has been applied for by the country of the locus delicti or by the country of which the victim was a subject."

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