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The Practice and Case Law of Israel in Matters Related to International Law

Published online by Cambridge University Press:  04 July 2014

Rotem M. Giladi
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Extract

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in the Edelson case.

Type
International Law
Information
Israel Law Review , Volume 31 , Issue 4 , Autumn 1997 , pp. 803 - 853
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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References

1 C.A. 7092/94 (as yet unpublished; judgment delivered on June 3, 1997, Supreme Court); all citations refer to the court judgment.

2 C.C. 1251/93, Petitions 4933/94, 13006/94, 12906/94, 10397/94 (as yet unpublished; judgment delivered on December 31, 1996, Tel-Aviv District Court); all citations refer to the court judgment.

3 See Rina Navot v. South African Airways 25 P.D.A., 68 (National Labour Court), reviewed in Cohen, B., “The Practice of Israel in Matters Related to International Law” (1992) 26 Is. L.R. 559 Google Scholar; C.C. 626/93 E. & A. Electronic and Automation Inc. v. The Republic of Côte d'Ivoire and Jean Pierre Boni (as yet unpublished) (Jerusalem District Court), reviewed by Lerner, T. in “The Practice and Case Law of Israel in Matters Related to International Law” (1993) 27 Is. L.R. 668 Google Scholar.

4 See “Restricted Sovereign Immunity”, in B. Cohen, supra n. 3, reviewing the ruling in the first instance by Judge Galyn: Reinhold v. Her Majesty The Queen in Right of Canada (1991) (iii) P.M. 161; see also the review by T. Lerner, supra n. 3, at 675; and Leave to Appeal 7092/94 Her Majesty The Queen in Right of Canada v. Edelson and Others (unpublished; judgment delivered on 16 February 1995, Supreme Court), reviewed in “Granting a Leave to Appeal: Procedural Privileges of a Foreign State Litigant?” in Giladi, R.M., “The Practice and Case Law of Israel in Matters Related to International Law” (1995) 29 Is. L.R. 506, at 538 Google Scholar (reviewing the petition for leave to appeal in the Supreme Court).

5 Supra n. 2.

6 Reinhold, supra n. 4.

7 Ibid., at 176.

8 For a more thorough account of Judge Galyn's ruling see B. Cohen, supra n. 3, at 560-561.

9 C.C. 908/92 (unpublished), see B. Cohen, supra n. 3.

10 C.A. 581/91 and C.A. 613/93 Her Majesty The Queen in Right of Canada v. Edelson and Others, (unpublished; judgment delivered on 17 November 1994, Tel-Aviv District Court).

11 At 34-36.

12 This rationale advanced by the President seems to put a foreign state litigant in a privileged position vis-à-vis other litigants: see R.M. Giladi, supra n. 4, at 538.

13 Shabbabo v. Haylen, (1953-4) 9 P.M. 502, at 503-4.

14 (1972) 26(ii) P.D. 328. In that case, Sussmann J., who delivered the judgment, said obiter: “A judgment against a diplomatic envoy is void ab initio, for immunity exempts the defendant from the yoke of jurisdiction of an Israeli court. The matter is, quite simply, a matter of lack of jurisdiction. An Israeli court cannot assume jurisdiction to adjudicate except with the consent of the foreign sovereign itself” (at 335).

15 Ibid.

16 On the doctrine of absolute immunity in execution proceedings, see n. 34, infra.

17 For criticism of the Sansur ruling see Moritz, Y., “Diplomatic Immunity in Commercial Disputes” (1972–1973) 28 HaPraklit 317 Google Scholar; cf. Nenner, Y., “The Legal Basis for Diplomatic and Sovereign Immunity” (1974–1975) 29 HaPraklit 49 Google Scholar.

18 Carmi v. Dolberg (1980) (ii) P.M. 265.

19 Ibid., at 274.

20 Ibid., at 278.

21 Ibid., at 281.

22 Ibid., at 285.

23 See Leah Maurice v. The Republic of South Africa, (1987) 19 P.D.A. 557, at 559, citing its earlier decision in N.L.C. 3/32, Weiss v. German Embassy in Israel (unpublished).

24 Supra, n. 3.

25 500 U.N. Treaty Series 95.

26 The expression “the Queen in Right of Canada” in Canadian constitutional law is symbolic; it does not denote any personal involvement of the Queen.

27 The Preamble to the lease contract stated that it was made “… between HER MAJESTY THE QUEEN in Right of Canada, represented by Mr. James K. Barteman, Canadian Ambassador to Israel …”.

28 The President mentioned the English State Immunity Act, 1978; the American Foreign Sovereign Immunities Act, 1976; the Canadian State Immunity Act, 1982; and the Australian Foreign States Immunities Act, 1986.

29 In this respect, the President cited Jennings, R. and Watts, A., (eds.), Oppenheim's International Law (Longman, 9th ed., 1992) Vol. 1, (Peace) 343 Google Scholar (hereinafter “Oppenheim's International Law”).

30 On the applicability of public international law in Israel see Lapidoth, R., “International Law within the Israel Legal System”, (1990) 24 Is. L.R. 451 Google Scholar; “International Law”, in Zamir, Y. and Colombo, S. (eds.), The Law of Israel: General Survey, (Faculty of Law, Haifa University, Harry and Michael Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1995) 85 Google Scholar; Benvenisti, E., “The Influence of International Human Rights Law on the Israeli Legal System: Present and Future”, (1994) 28 Is. L.R. 136 CrossRefGoogle Scholar; and R.M. Giladi, “The Effect of International Treaties Within the Israeli Legal System”, in “The Practice and Case Law of Israel in Matters Related to International Law”, supra n. 4, at 535.

31 The President referred to the decisions mentioned supra n. 3.

32 At 12.

33 See n. 34, infra.

34 At 14. Note, however, that this question has been dealt with extensively in the District Court judgment: supra n. 10.

35 Here the President reviewed the legal position in England, the United States and Canada itself.

36 Such as the European Convention on State Immunities, 1972, Treaty Series No. 74 (1979); the International Law Commission's Draft Articles on Jurisdictional Immunities of States and their Property, 1986, (1986) Yearbook of the International Law Commission, Vol. II, Part II, at 8.

37 At 22.

38 Supra n. 13.

39 Supra n. 18. This observation by the President may be contested: the decision of Judge Nathan in the Carmi case did not actually require ruling on the scope of the immunity, as the judge ruled that the Bank could not have been considered a part of the Romanian Republic. Technically, therefore, Judge Nathan's apparent support for the restrictive immunity doctrine is to be considered obiter dictum.

40 Supra n. 3.

41 Dinstein, Y., “Par in Parem Non Habet Imperium”, (1966) 1 Is. L.R. 407 Google Scholar.

42 Lauterpacht, H., “The Problem of Jurisdictional Immunities of Foreign States” (1951) 28 Br. Yrbk. Int'l L. 220, at 226 Google Scholar.

43 Subject to the few exceptions proposed by Lauterpacht — ibid., at 236.

44 Which means according a foreign state in Israeli courts the same treatment its own courts treat foreign states.

45 At 23-31, 31-34.

46 For an elaboration of the President's view on this point see supra, Part D.3; on the rationale underlying sovereign immunity see Dinstein, Y., The Internal Authority of the State (Schocken, Tel Aviv, 1972) at 105 Google Scholar; Oppenheim's International Law, supra n. 29, at 341; and Lauterpacht, supra n. 42, at 221-226.

47 At 25.

48 Ibid.; here the President used the example of nationalisation or expropriation.

49 Here the President referred to several court rulings and statutory provisions in different states (at 26-31).

50 At 31.

51 At 29; the President cited the German Constitutional Court in Claim Against the Empire of Iran (1963) 45 I.L.R. 57, at 80, in which it was said: “The qualification of state activity as sovereign or non-sovereign must in principle be made by national (municipal) law, since international law, at least usually, contains no criteria for this distinction”.

Several points must be made with regard to this statement. First, from an international law perspective, the uniform application of international law requires — whether or not it “usually” (in itself a vague expression) contains such criteria — that municipal courts in different states all apply the same criteria. Such criteria for the distinction between “governmental” and “private” acts develops, as a matter of practice, by the municipal courts (and, at times, by national legislatures), for the claims of sovereign immunity is made only in these courts (and not in international forums, to which private persons and corporations have no access); the accumulated jurisprudence of these courts is, in itself, the state practice which is the basis — albeit not the exclusive — for the rules of international customary law; even where this jurisprudence does not represent general, uniform and consistent state practice, so that an apparent lacuna exists as to the correct criteria, the municipal courts may not fill this lacuna by national legal sources (i.e., criteria based on the jurisprudence and legal systems of their individual states), but must apply general principles of law (referred to in Art. 38(1) of the Statute of the International Court of Justice) lest international law be applied in a different manner in different states and so become devoid of its contents. The practical result may be similar in that that the “general principles of law” will surely contain at least some of the principles of individual legal systems, but that will not always be the case. Second, the case cited by the President has been decided in 1963; it may be argued that with the lapse of time and a sufficient amount of national court judgments have accumulated so as to clarify these criteria; this point will be argued elsewhere: infra, Part F.

52 At 31. The President brought several examples of similar court rulings (at 32-33).

53 At 34.

54 Mazza J. concurred with the judgment delivered by the President as a whole; Strasberg-Cohen J. also concurred, but added an explicit support to the call for a legislative arrangement.

55 Supra n. 2.

56 It was argued that the items were purchased from U.S. defense excess, see infra n. 57.

57 Similar circumstances and arguments surrounded another transaction with a different buyer, only that this time the U.S. authorities argued that the property in question was stolen. This allegation was dropped upon production of purchase documentation (from U.S. defense excess).

58 Supra n. 10.

59 Supra text accompanying n. 50.

60 Here the Court cited Saudi Arabia v. Nelson, (1993) 113 S. Ct. 1471; (1993) 123 L Ed 2d 47, in which the United States Supreme Court upheld the plea of immunity because the actions of the Saudi government (consisting of mistreatment by police forces of the claimant who was hired to work in a Saudi hospital) did not constitute “commercial activity” within the meaning of Para. 1605(a)(2) of the Foreign Sovereign Immunities Act of 1976.

61 At 11; emphasis added — R.M.G.

62 United State of America v. Public Service Alliance of Canada et al. 91 D.L.R. (4th) 449.

63 At 29 et seq.

64 At 30.

65 Supra n. 60; an illustration of this exclusion can be seen in Argentina v. Weltover (1992) 31 I.L.M. 1220, in which the United States Supreme Court held that ”[t]he question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or commerce’” (at 1227).

66 Lauterpacht, supra n. 42, at 225.

67 Supra text accompanying n. 55. An extensive survey of state practice in that respect can be found at Badr, G.M., State Immunity: An Analytical and Prognostic View (Martinus Nijhoff Publishers, The Hague, 1984) at 21 CrossRefGoogle Scholar et seq.; 32-33.

68 Ibid., at 96.

69 Schreuer, C.H., State Immunity: Some Recent Developments (Grotius Publications Ltd., Cambridge, 1988) at 16–17 Google Scholar.

70 Supra n. 60, at 59.

71 Ibid.

72 The author wishes to thank Adv. Moshe Cohen of the Association of Civil Rights in Israel for his kind assistance in providing relevant documents and information.

73 (1995) 49(iii) P.D. 843.

74 H.C. 7616/96 (as yet unpublished; judgment delivered on 26 February 1997).

75 6 L.S.I. 159 (hereinafter “the 1952 Law”).

76 Order Concerning Prevention of Infiltration, (No. 329) 1969, 19 Kovetz Minsharim Vetzavim Shel HaMimshal HaTzevai (Collection of Proclamations and Orders of the Military Government) (Judea and Samaria) 665 (hereinafter “the 1969 Order”).

77 Zimmerman, N., “Human Rights: Non-refoulement of Refugees”, in “The Practice and Case Law of the State of Israel in Matters Related to International Law” (1994) 28 Is. L.R. 179, at 184 Google Scholar.

78 The orders were issued under sec. 13(a) of the 1952 Law, supra n. 75. This section reads:

“Deportation

(a) In respect of a person other than Israel national or an Oleh under the Law of Return, 5710-1950, the Minister of Interior may issue an order of deportation if such a person is in Israel without a permit of residence”.

79 Supra n. 75; this section reads:

“(c) Where an order of deportation has been issued in respect of any person, a frontier control officer or police officer may arrest him and detain him in such place and manner as the Minister of Interior may prescribe, until his departure or deportation from Israel”.

80 189 U.N. Treaty Series 150 (hereinafter, “The 1951 Convention”); on which see The Refugee Convention, 1951, The Travaux Preparatoires Analysed With a Commentary by Dr. Paul Weis, Cambridge International Documents Series, Vol. 7, (Grotius Publication, Cambridge University Press, 1995)Google Scholar; Robinson, N., Convention Relating to the Status of Refugees, Its History, Contents and Interpretation: A Commentary, (Institute of Jewish Affairs, World Jewish Congress, New York, 1953)Google Scholar.

81 1967 Protocol relating to the Status of Refugees, 606 U.N. Treaty Series 267 (hereinafter, “the Protocol”). It should be noted that the United Nations High Commissioner for Refugees (hereinafter, “the UNHCR”) recognised the applicants as “refugees”; see infra.

82 This language follows that of Art. 33(1) of the 1951 Convention which prescribes the prohibition of expulsion or return (“refoulement”) of refugees; see infra.

83 Most of the parties' arguments are summarised in the Court judgment (at 847); others are contained in the application and other Court documents.

84 This arrangement was proposed by the respondents and endorsed by the Court. It should be emphasised that the Court endeavoured to find an agreed settlement. After this effort failed, the Court viewed the issues in contention as consisting of the “target state” and the release of the applicants from detention (at 847). It stems from the judgment, however, that there was also a total lack of disagreement concerning the refugee status of the applicants, on which issue the Court chose not to rule, infra, text following n. 109.

85 This statement is quoted in the Court judgment (at 847) and was made by the respondents on the basis of the opinion of the IDF's Intelligence Branch.

86 The fate of these six applicants was discussed in Plonim v. Minister of Interior, supra n. 74, which will be reviewed infra.

87 S.H. no. 1391, p. 150 (1992) as amended S.H. no. 1454, p. 90 (March, 1994).

88 Expressed in Art. 33 of the 1951 Convention, infra.

89 At 848.

90 At 848-849; the President cited Mrar et al. v. Minister of Defense et al., (1971) 25(i) P.D. 142; Shaheen v. The Minister of Interior et al., (1985) 39(i) P.D. 798; Maslem et al. v. Commander of I.D.F. Forces in the Gaza Strip; Abu-Judian v. The Minister of Defense et al., (1991) 45(iii) P.D. 444; H.C. 5163/93 (not published).

91 At 849; The President cited the English case of Bugdaycay v. Secretary of State [1987] 1 All E.R. 940 (H.L.).

92 At 849-850.

93 And was specifically deferred by him for future consideration. This question has been argued in the second phase of the case (Plonim v. Minister of Interior, supra n. 74), and will be reviewed infra.

94 At 850.

95 Ibid.; Kedmi J., who joined the President's ruling, added the following remarks, at 852: “Enemy state's nationals who enter Israel illegally, cannot compel the State of Israel to send them to a state viewed by them as “appropriate”, nor to compel it — by eliminating each target state for expulsion — to let them walk free within its territory. True, the choice of a target state for expulsion should be made while taking account of the risks the expelled persons may be exposed to in that country. However, in this context, the term “risk” must be given a limited meaning of real danger to life or to a prolonged denial of freedom; and against “inconvenience” which does not amount to “risk” in the said meaning, it is certainly permitted, in my own view, to put the security interest of the state”.

96 Under sec. 13(c) of the 1952 Law, supra n. 75.

97 Here the President cited Ben-Israel v. Minister of Interior et al., (1990) 44 (iv) P.D. 149.

98 At 851.

99 At 852.

100 Supra n. 74.

101 See the language of Art. 33(2) of the 1951 Convention, infra n. 119.

102 Supra n. 87. This argument, important as it is, cannot be dealt with in this Section which focuses on the international law aspects of this affair.

103 Under Israeli law, treaties do not form part of the “law of the land” unless they are transformed into Israeli law by enactment. International customary law, on the other hand, is incorporated automatically into Israeli law unless there is a clear contradiction between the international norm and an Israeli primary (Knesset) legislation. Ambiguous Israeli law, in general, is presumed by the courts to be consistent with international law, including the international law obligations of the State of Israel — i.e., untransformed treaties ( Lapidoth, R., “International Law Within the Israel Legal System”, (1990) 24 Is. L.R. 451, at 455 Google Scholar et seq and the authorities cited supra n. 30). Those provisions of the 1951 Convention which reflect rules of customary international law are, of course, incorporated into Israeli law automatically.

104 Court Application, at 18.

105 Specifically, reliance was made on Art. 9(1) of the International Convention on Civil and Political Rights, 1966, 312 K.A. 269, ratified by Israel on 18 August 1992.

106 H.C. 7616/96, decision of February 26, 1997, not published.

107 The other arguments concerned the proper balance of interests: the life of the individual on one hand, and the state security on the other. It was argued that the magnitude of the basic right to life requires that the expulsion of an individual is not to be permitted unless the Court was convinced beyond any slight doubt (or at the highest level of probability) that the individual will not be harmed nor transferred to a state in which he may be harmed.

108 Court judgment, at 1.

109 Supra Part C.

110 Art. 6(B) of the Statute of the Office of the United Nations High Commissioner for Refugees extends the competence of the UNHCR to “Any… person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his face, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence”. The Statute was adopted by the United Nations General Assembly in its Resolution 428(V) of 14 December 1950, to which it is annexed. Note that Israel is a member of the UNHCR Programme's Executive Committee.

111 Applicable law may include international law — to the extent that it forms part of the municipal law of the state in question; some states provide for UNHCR participation in the procedure determining refugee status: see Goodwin-Gill, G.S., The Refugee in International Law (Clarendon Press, Oxford, 1983) 21 Google ScholarPubMed.

112 Ibid., at 20.

113 The general definition contained in Art. I(A) (2) of the 1951 Convention, as amended by Art. I(2) of the Protocol, applies refugee status to any person who: “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it”. This definition differs slightly from that contained in the UNHCR Statute, supra n. 110; comparative analysis can be found at Goodwin-Gill, supra n. 111, at 12-13. In the case of the applicants, the difference between the definition of the Convention and Protocol, on one hand, and that contained in the UNHCR Statute is immaterial; if the facts professed by the applicants are accurate, both definitions seem to apply to them.

114 Goodwin-Gill writes: “The core elements in general international law define a refugee as a person outside his or her country of origin, who is unable or unwilling to return there owing to a well-founded fear of being prosecuted on grounds of race, religion, nationality, social group, or political opinion” (emphasis added — R.M.G.); supra n. 111, at 216.

115 See text accompanying n. 83, supra.

116 These affidavits contained statements to the effect that the applicants were dissidents in Iraq and that were persecuted on various grounds.

117 See supra n. 109 and supra Part E.1.

118 Supra n. 111, at 217. On the standing of the UNHCR in general international law, see ibid., at 131 et seq.

119 Supra n. 80; a view exists that extensive ratification of the Convention makes this principle a rule of customary international law: see, for example, Stenberg, G., Non-Expulsion and Non-Refoulement, (Iustus Forlag, Sweden, 1989) 266 Google Scholar et seq. See also Goodwin-Gill, supra n. 111, at 69-73.

120 Supra n. 87; the Court did mention Art. 33, but did not even discuss its application within Israel. It may be argued that the President relied on Art. 33 silently — which, in turn, indicates the customary nature of this principle and that it applies in Israel.

121 On expulsion in general, see Goodwin-Gill, G.S., “The Limits of the Power of Expulsion in Public International Law” (1974–1975) 47 Br. Yrbk. Int'l L. 55 Google Scholar.

122 Supra n. 74.

123 Supra n. 107.

124 Letter to Mr. Moshe Cohen, Adv., Association of Civil Rights in Israel, dated 26 May 1997 (author's files).

125 See, for example, Ekiu v. United States (1891) 192 US 651, 659: (“it is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions …”); Goodwin-Gill, supra n. 111, at 92: (“of course, in the final analysis, if no other state is willing to receive [the alien], then the only state to which an alien can lawfully be removed is his state of nationality or citizenship”); Doehring, K., “Aliens, Expulsion and Deportation”, in Bernhardt, R., Encyclopedia of Public International Law, (North-Holland, Amsterdam/London/New York/Tokyo, 1992) Vol. I, 109, at 110 Google Scholar: (“… third states have no international duty to receive expelled individuals of foreign nationality or stateless persons. A duty to receive foreigners is only established if it rests upon treaties”).

125a Note, however, that in Abu Aita et al. v. Commander of the Judea and Samaria Region et al. (1983) 37(ii) P.D. 197, President Shamgar held that “the burden to prove the existence of a custom … falls upon the party which pleads its existence” (at 241). Lapidoth comments on this case: “Hence, unlike the other laws of the state which the court is presumed to know, the existence of an international custom must be proven by whoever wishes to rely on it”, supra n. 103, at 455. The President does not explain why customary international law, being part of the law of the land, should be differentiated from other laws of the state. The position of the President appears to be unfounded: Blackstone's doctrine, which applies in Israel — according to the Supreme Court itself — necessitates that the court has judicial notice of customary international law. Note that in the United Kingdom where Blackstone's doctrine originates — “… international law is not treated as a foreign law but in an evidential manner as part of the law of the land. This means that… the courts must take judicial notice of any rule of international law and may refer, for example, to textbooks rather than require the presence and testimony of expert opinion”. Shaw, M.N., International Law (Grotius Publications, Cambridge University Press, 4th ed., 1997) 108 Google Scholar.

126 Attorney for the respondent told the Court that the six applicants will not be expelled without their attorney being notified in advance — supra, Part D.

127 Penal Law (Amendment No. 39) (Introductory Part and General Part) 1994, passed in the Knesset on 25 July 1994; S.H. no. 1481 (23 August 1994) p. 348 (hereinafter “Amendment No. 39”). Except where otherwise provided, all translations contained in this section are the author's and are not to be treated as official.

128 The Amendment is based on a proposal made and published by Prof. S.Z. Feller and Prof. M. Kremnitzer of the Hebrew University, Jerusalem: Feller, S.Z., and Kremnitzer, M., “Introductory Part and General Part of a New Penal Law — and Concise Commentary”, 1984 XIV(1) Mishpatim 130 Google Scholar (hereinafter “Commentary”). An English version of the proposal can be found in Feller, S.Z. and Kremnitzer, M., “Penal Law — Draft Proposal and New Code” (1996) 30 Is. L.R. 36 CrossRefGoogle Scholar. The Bill, including Explanatory Notes, was published in Penal Bill (General Part and Introductory Part) 1992, H.H. 2098, 115 (6 January 1996) (hereinafter “Bill and Explanatory Notes to the Bill”); unauthorised English translation of the Bill appears in (1996) 30 Is. L.R. 5.

129 Infra, at Part D.

130 Oppenheim's International Law, at 456-7. See also Restatement of the Foreign Relations Law of the United States (Third), Vol. 1, (American Law Institute, 1986)Google Scholar.

131 Oppenheim's International Law, at 458.

132 Or, under certain circumstances, its residents.

133 On the law applicable in Israel prior to Amendment No. 39, see Feller, S.Z., Elements of Criminal Law, Vol. 1, (Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, Hebrew University of Jerusalem, Jerusalem, 1984, in Hebrew)Google Scholar (hereinafter “Feller, 1984”); Dinstein, Y., The Internal Authority of the State, (Schocken Publishing House, Tel Aviv, 1972, in Hebrew)Google Scholar (hereinafter, “Dinstein, 1972”).

134 Which term is defined in sec. 7(c) as “the sovereign territory of the State of Israel including the strip of its coastal waters, as well as vessels and aircrafts registered in Israel”.

135 See the Commentary, at 199, and the Explanatory Notes to the Bill, at 117. Note that according to sec. 8, the place of an offense committed by way of an omission is where the legal duty to act applied; see sec. 8 in the Commentary, at 200, and the Explanatory Notes to the Bill, at 117.

136 Specific comments on sec. 9 appear in the Commentary, at 200-201, and the Explanatory Notes to the Bill, at 117-118.

137 These are; the World Zionist Organization, the Jewish Agency, the Jewish National Fund, the United Israel Appeal and all comptrolled bodies. See Commentary, at 202, and Explanatory Notes to the Bill, at 119-120.

138 Infra, Part D.

139 Sec. 14(c); and see Commentary, at 202-203, and Explanatory Notes to the Bill, at 120-121.

140 Misdemeanours and crimes.

141 This will not apply where the person was extradited by Israel to another state where he or she was acquitted or convicted and served a sentence.

142 Commentary, at 203-204, and Explanatory Notes to the Bill, at 121.

143 Other than that, sec. 16(b) provides that application of this basis of jurisdiction is limited by res judicata and several other grounds; see Commentary, at 204, and Explanatory Notes to the Bill, at 122.

144 This jurisdiction will apply provided that: the requirement of dual criminality is satisfied; that the offender is present in Israel and is an Israeli resident; that the requesting state, upon exhaustion of the proceedings against that person in Israel shall forgo, by requesting Israel to exercise jurisdiction, the applicability of its own laws in the matter; that the punishment imposed in Israel will not exceed that which could be imposed according to the laws of the requesting state; and subject to other conditions provided for in the treaty; see Commentary, at 204-205, and Explanatory Notes to the Bill, at 122-123.

145 Shachar, Y., “Against the National Applicability of the Criminal Law”, (1996) V(1) Plilim 5–64 Google Scholar (hereinafter “Shachar, 1996”); and Feller, S.Z., and Kremnitzer, M., “A Response to the “Against the National Applicability of the Criminal Law By Prof. Yoram Shachar””, (1996) V(1) Plilim 65–100 Google Scholar (hereinafter: “Feller and Kremnitzer, 1996”).

146 To a lesser extent, Prof. Shachar also criticises the application of protective principle to Israelis “as Israelis”, over and above the extent to which the passive personality principle already sanctions. He also questions some other changes introduced by the Amendment on several grounds.

147 Supra n. 128; the Explanatory Notes to sec. 13 read:

“The proposed section deals with the protective application, which is based on a special link between the type of the offense and the state, where the offense can put in jeopardy the state's political, security and economic interests, or its prestige and the proper functioning of its authorities. In order to avoid a casuistic specification which may be lacking,… the general formulation of an offense capable of harming the proper functioning of the state authorities is proposed (the proposed section (a)(3)).

…

It is also proposed to include within the protective application an offense aimed at harming a Israeli citizen, as an Israeli [citizen, resident or public servant], by contrast with the existing law, according to which such injury is included in the passive personal application. It should also be emphasized that a special protection was granted in sec. 13(b)(2) to the life of Jews, their body, health freedom or property as [the life, body, health, freedom or property of Jews] without any other link to the State of Israel. The reason being that in such an injury, aimed at an Israeli or an Israeli public servant because he or she has [such] status in it, the real injured party — by virtue of the motive and object of the offense — is the state, and the physically harmed person is seen as representing it or constituting a part of it through which the state is harmed. … The same kind of reason lies at the [providing of] protective application in relation to injuries to Jews or Jewish institutions as [Jews or Jewish institutions]; this as an expression for the State of Israel being the state of the Jewish people.

The protective application is, by its nature, specific with regard the extent of the offenses and general with regard to the status of the perpetrator; from the point of view of the rules concerning the choice of law, it is primary (by virtue of the proposed sec. 9(a)) due to the importance and vital nature of the interests protected by the protective application. This is also the existing law, though its regime is not uniform: the aspects of disregard of foreign law are primary only because the law was silent on this point whereas the disregard to a foreign res judicata had been determined explicitly in sec. 10(d) of the Penal Law”.

148 Supra n. 145. As for legal literature related to the debate, see Feller, S.Z., “Jurisdiction over Offences with a Foreign Element” in Bassiouni, M.C., and Nanda, V.P., eds., A Treatise on International Criminal Law (Springfield, Vol. II, 1973) 5 Google Scholar; Cameron, I., The Protective Principle of International Criminal Jurisdiction (Aldershot, 1994)Google Scholar; Adolf Eichmann v. The Attorney-General, (1962) 16(iii) P.D. 2033 (on which see generally Schwarzenberger, , “The Eichmann Judgment” (1962) Current Legal Problems 248 Google Scholar; Lador-Lederer, J., “The Eichmann Case Revisited” (1984) 14 Is. Yrbk. Human Rights 54)Google Scholar.

149 Shachar, 1996, supra n. 145, at 6.

150 See the Law of Return, (1950) 4 L.S.I. 114.

151 Shachar, 1996, at 9; see also at 15-34.

152 It should be noted that where the protective principle is applied, the applying state may normally exercise jurisdiction in its courts irrespective of claims which may serve to negate, absolve, limit or mitigate the criminal liability in the state in whose territory the acts have been committed (for example: necessity, self defence, duress, justification, limitation, pardon or res judicata). See Feller, 1984, at paras. 333-334 and 364.

153 Which term does not cover, in his opinion, the “prestige” of the State.

154 On the meaning of which term in international law see Feinberg, N., “On the History of the Term ‘A Jewish National Home’” in Essays on Jewish Issues of Our Time (Dvir, Jerusalem, 1980) 139 Google Scholar.

155 Supra n. 145.

156 The authors refer to Feller, S.Z., “‘The Criminal Jurisdiction: Limits and Limitations’ What and Where Are They” (1972) 2 Iyunei Mishpat 582 Google Scholar (hereinafter, Feller, 1972), which follows Dinstein, Y., “The Criminal Jurisdiction: Limits and Limitations”, (1971) 1 Iyunei Mishpat 303 Google Scholar.

157 The State of Israel v. Azayze' (1970) 24(i) P.D. 417 at 419. Dinstein, (1972) at 95, criticizes this ruling of the Court by noting that international law does prevent the sovereign legislature from extending its laws extra-territorially. Shachar, 1996, at 11, concurs.

158 The S.S. Lotus Case (1927) P.C.I.J. Series A, No. 10, at 18–19 Google Scholar; Feller and Kremnitzer bring the following citation: “… as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion is left to states by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other states”; cf. n. 160 and n. 163, infra.

159 This argument is well illustrated in Feller, 1972, supra n. 156.

160 Supra n. 130, at 235. See also Oppenheim's International Law, supra n. 29, in which it is stated that international law “determines the permissible limits of a state's jurisdiction” while the internal law of the state “prescribes the extent to which, and the manner in which, the state in fact asserts its jurisdiction” (at 456). Note the following passages from the Lotus case (cf. n. 158, supra): “all that is required of a state is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty”.

161 As for limitations on the power to prescribe see, for example, Comments to paras. 402-403 of the Restatement, supra n. 130.

162 Restatement, supra n. 130, at 238.

163 The way to reconcile the controversy between Prof. Feller and Prof. Kremnitzer, on one hand, and Prof. Dinstein and Prof. Shachar, on the other, is to examine the perspective: from an internal Israeli law point of view, the Knesset is sovereign and so it may legislate with relation to anything, anywhere and anytime. From the point of view of international law, a state's freedom to legislate is limited, of course, by the requirements of international law itself which emanate, first and foremost, from the sovereignty, of other states. The Permanent Court did not specify the limitations on a state's freedom to prescribe or adjudicate; see, however, the Restatement, at 235 et seq. (paras. 402-3). The distinction between the power to prescribe and the power to enforce is, in itself, correct; it must be emphasised, nevertheless, that in the Lotus case, the question submitted to the Permanent Court — pursuant to the terms of the special agreement between France and Turkey — did not concern the compatibility of Turkey's penal legislation with international law but, rather, “whether or not the principles of international law prevent Turkey from instituting criminal proceedings … under Turkish law” (at 15). The judgment therefore deals only with the power to adjudicate; the Court's statements dealing with the power to prescribe (which are relied on by Prof. Feller and Prof. Kremnitzer and cited supra), are to be treated as obiter dicta.

164 See, for example, Art. 27 of the Vienna Convention on the Law of Treaties, Vienna, May 23, 1969 (1969) 8 I.L.M. 679, which provides that the provisions of a state's internal law may not be invoked as a justification for failure to perform a treaty. This rule is not limited to treaties: McNair, , Law of Treaties, (Clarendon Press, Oxford, 1961)Google Scholar wrote that: “This is a fundamental principle applicable to the international obligations of a state whether arising from agreement or from the rules of customary international law. It is this principle which establishes the primacy of international law over municipal law”.

165 Restatement, supra n. 130, at 240.

166 Supra n. 130.

167 The Restatement lists, by way of example, “espionage, counterfeiting of the state's seal or currency, falsification of official documents, as well as perjury before consular officials, and conspiracy to violate the immigration or customs laws” (supra n. 130, at 240). The list contained in Oppenheim's International Law is very similar in nature, supra n. 29.

168 See R. Lapidoth, “International Law within the Israel Legal System”, supra n. 30, at 455; see also “International Law”, in Y. Zamir and S. Colombo, eds., The Law of Israel: General Survey, supra n. 30, at 85; and E. Benvenisti, “The Influence of International Human Rights Law on the Israeli Legal System: Present and Future”, supra n. 30.

169 Ibid.; see also Shtampfer v. Attorney-General (1956) 10 P.D. 5, at 14-15.

170 Prof. Feller and Prof. Kremnitzer advocate for “selective implementation, only in instances in which the Attorney-General has determined that there is public interest [in prosecution]”, Feller and Kremnitzer, 1996, supra n. 145, at 85.

171 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division, and by Ms. Rina Assaf of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.

172 An ICAO treaty.

173 An ICAO treaty.

174 An UNESCO treaty.