Practice Relating to Rule 157. Jurisdiction over War Crimes
Israel’s Manual on the Rules of Warfare (2006) states: “The full force of the law may be brought to bear against war criminals under their own jurisdiction or under international law.”
The manual further states:
The national courts of law of various countries are competent to arraign individuals for crimes committed within their jurisdiction. There are especially serious crimes, however, such as war crimes, crimes against humanity and others, the perpetration of which is injurious to the human race as a whole, not merely to the national laws of that country. International justice imposes a duty on all countries to act to prevent the commission of such crimes and bring their perpetrators to justice.
To that end, countries are entitled to bring the perpetrators to trial in their own national courts, even if the crime itself was committed outside their jurisdiction. This judicial rule is known as universal jurisdiction.
The internal justice system of a number of countries, including Israel, has provisions covering universal jurisdiction. Thus, for example, Adolf Eichmann was made to stand trial in Israel for an offence that is included in Israel’s main legislation, under ‘The Law for Meting out Justice to Nazis and their Collaborators’, which is tantamount to the enforcement through universal jurisdiction of prohibitions under the rules of war against the commission of crimes against humanity.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Penal Law (1977), as amended in 1994, under Section 16 entitled “Offences against the Law of Nations”, states:
a) The penal laws of Israel shall apply in respect of external offences for the committing of which the State of Israel has undertaken, in multilateral international treaties open to accession, to penalize; this will also apply even where the person committing the offence is not an Israeli citizen or resident, and irrespective of the place of committing of the offence.
b) The qualifications specified in Section 14(b)(2) and (3), and (c), shall also apply in respect of the applicability of the penal laws of Israel under this Section.
Section 14 of the Law states:
(b) … (2) A qualification for penal liability under the laws of that State [i.e. another State] does not apply; (3) The person has not yet been acquitted of that offence in that State or, having been convicted, he has not served the sentence imposed on him in respect of that offence. (c) No penalty more grave than what could have been imposed under the laws of the State where the offence was committed shall be imposed in respect of the offence.
In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem stated with respect to the acts for which Eichmann was accused:
The abhorrent crimes defined in this Law [Nazis and Nazi Collaborators (Punishment) Law of 1950] are not crimes under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.
In view of the repeated affirmation by the United Nations in the resolution of the General Assembly of 1946 and in the Convention of 1948, and also in view of the Advisory Opinion of the International Court of Justice, there is no doubt that genocide has been recognized as a crime under international law in the full legal meaning of this term, ex tunc
; that is to say, the crimes of genocide which were committed against the Jewish people and other peoples during the period of the Hitler régime were crimes under international law. It follows, therefore, in accordance with the accepted principles of international law, that the jurisdiction to try such crimes is universal
[emphasis in original]
With respect to Article VI of the 1948 Genocide Convention, the Court noted:
22. It is clear that Article 6 [of the 1948 Genocide Convention], like all other articles which determine the conventional obligations of the contracting parties, is intended for cases of genocide which will occur in the future after the ratification of the treaty or the adherence thereto by the State or States concerned … It is certain that it [the obligation arising from Article 6 of the 1948 Genocide Convention] constitutes no part of the principles of customary international law, which are also binding outside the conventional application of the Convention.
23. Moreover, even with regard to the conventional application of the Convention, it is not to be assumed that Article 6 is designed to limit the jurisdiction of countries to crimes of genocide by the principle of territoriality.
25. In the [1948 Genocide Convention] the Members of the United Nations … contented themselves with the determination of territorial jurisdiction as a compulsory minimum
… But there is nothing … to lead us to deduce any rule against the principle of universal jurisdiction with respect to the crime in question. It is clear that the reference in Article 6 to territorial jurisdiction … is not exhaustive. Every sovereign State may exercise its existing powers within the limits of customary international law.
[emphasis in original]
With respect to the provisions of Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV, the Court stated:
Here the principle of “universality of jurisdiction with respect to war crimes” is laid down as the obligatory jurisdiction of the High Contracting Parties, from which none of them may withdraw and which none of them may waive (as expressly stated in the [1949 Geneva Conventions]). That obligation is binding not only on the belligerents, but also on the neutral parties to the [1949 Geneva] Conventions.
Moreover, with respect to the protective principle and a specific territorial link, the Court affirmed the existence of a “linking point” in the case in question, stating:
Indeed, this crime [“the killing of millions of Jews with intent to exterminate the Jewish people”] very deeply concerns the “vital interests” of the State of Israel, and under the “protective principle” this State has the right to punish the criminals.
In the Eichmann case in 1962, Israel’s Supreme Court, dealing with the question of the conformity of Israel’s Nazis and Nazi Collaborators (Punishment) Law of 1950 with principles of international law and States’ criminal jurisdiction over acts committed by foreign nationals abroad, quoted parts of the judgment of the Permanent Court of International Justice in the Lotus case and stated:
This argument [of the defendant] is to the effect that the enactment of a criminal law applicable to an act committed in a foreign country by a national conflicts with the principle of territorial sovereignty. But here too we must hold that there is no such rule in customary international law, and that to this day it has not obtained general international agreement. Evidence of this is to be found in the Judgement of the [Permanent Court of International Justice] in the Lotus case …
Our principal object [is] to make it clear … that under international law no prohibition whatsoever falls upon the enactment of the Law of 1950 either because it created ex post facto offences or because such offences are of an extra-territorial character … The two propositions on which we propose to rely will … be as follows:
(1) The crimes created by the Law and of which the appellant was convicted must be deemed today as having always borne the stamp of international crimes, banned by the law of nations and entailing individual responsibility.
(2) It is the peculiarly universal character of these crimes that vests in every State the authority to try and punish anyone who participated in their commission.
[emphasis in original]
Under a part of the judgment dealing with universal jurisdiction, the Supreme Court further stated:
One of the principles whereby States assume, in one degree or another, the power to try and punish a person for an offence is the principle of universality. Its meaning is substantially that such power is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody when brought to trial … But while general agreement exists as to [the offence of piracy], the question of the scope of its application is in dispute.
There is full justification for applying here the principle of universal jurisdiction, since the international character of “crimes against humanity” (in the wide meaning of the term) dealt with in this case is no longer in doubt, while the unprecedented extent of their injurious and murderous effects is not to be disputed at the present time. In other words, the basic reason for which international law recognizes the right of each State to exercise such jurisdiction in piracy offences – notwithstanding the fact that its own sovereignty does not extend to the scene of the commission of the offence (the high seas) and the offender is a national of another State or is stateless – applies with even greater force to the above-mentioned crimes.
The truth is – and this further supports our conclusion – that the application of this principle has for some time been moving beyond the international crime of piracy. We have in mind its application to conventional war crimes as well … Whenever a “belligerent” country tries and punishes a member of the armed forces of the enemy for an act contrary to “the laws and customs of war”, it does so because the matter involves an international crime in the prevention of which the countries of the whole world have an interest.
Referring to a writer’s opinion concerning the Zyklon B case decided by the British Military Court at Hamburg in 1946, and another British Military Court’s decision in a case where a member of the Japanese army had been tried for unlawfully killing American POWs in what was then French Indo-China, the Supreme Court stated:
Although the fact that the victims of the crimes in these cases were nationals of countries in alliance with the prosecuting State derogates in some degree from the universal character of the jurisdiction exercised, nevertheless, on the other hand, the cases indicate that substantial strides were made towards extending the use of the said principle … Moreover, according to [a writer’s] opinion, even a neutral country has jurisdiction to try a person for a war crime.
The Supreme Court also discussed “the limitation upon the exercise of universal jurisdiction imposed by most of those who support this principle, namely, that the State which has apprehended the offender must first offer to extradite him to the State in which the offence was committed”, as well as the contention of the appellant that Israel was obliged to offer his extradition to Germany as his country of national origin, and stated:
The requirement of making an offer to extradite the offender to the State of his national origin is supported neither by international law nor by the practice of States … The idea behind the above-mentioned limitation is not that the requirement to offer the offender to the State in which the offence was committed was designed to prevent the violation of its territorial sovereignty. Its basis is rather a purely practical one. Normally, the great majority of the witnesses and the greater part of the evidence are concentrated in that State and it is therefore the most convenient place (forum conveniens
) for the conduct of the trial … It is clear … that it is the State of Israel – not the State of Germany – that must be regarded as the forum conveniens
for the conduct of the trial … It follows that the aut dedere
rule cannot assist the appellant in the circumstances of this case.
Referring to Article VI of the 1948 Genocide Convention, the Supreme Court held:
Article 6 imposes upon the parties contractual obligations with future effect, that is to say, obligations which bind them to prosecute for crimes of genocide which may be committed within their territories in the future. This obligation, however, has nothing to do with the universal power
vested in every State to prosecute for crimes of this type committed in the past – a power which is based on customary
[emphasis in original]
The Supreme Court concluded that:
We sum up our views on this subject as follows: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, pursuant to the principle of universal jurisdiction, and acting in the capacity of guardian of international law and agents for its enforcement, to try the Appellant. This being the case, it is immaterial that the State of Israel did not exist at the time the offences were committed.
In regard to the crimes directed against the Jews the District Court found additional support for its jurisdiction in the connecting link between the State of Israel and the Jewish people – including that between the State of Israel and the Jewish victims of the holocaust – and the National Home in Palestine, as is explained in its judgement. It therefore upheld its criminal and penal jurisdiction by virtue also of the “protective” principle and the principle of “passive personality”. It should be made clear that we fully agree with every word said by the Court on this subject.