7.3 The Principle of “Universal Jurisdiction” applied to “War Crimes”.

Finally, and in order to establish that the application of the principle of universal jurisdiction is not limited solely to piracy, for reasons that should be obvious, review of the relevant common law authorities and the views of eminent authors in the field was an important area of investigation in the case of Eichmann v.The State of Israel (on appeal), especially as applied to ‘war crimes’ generally and specifically the commission of ‘crimes against humanity.’

“ The truth is - and this further supports our conclusion - that the application of that principle ..(‘universal jurisdiction’).. has been advancing for quite some time beyond the international crime of piracy. We have in mind its application to conventional war crimes as well. As stated in paragraph 11 (c) of this Judgment, whenever the ´belligerent' countries tried and punished a member of the armed forces of the enemy for any act contrary to ´the laws and customs of war,' it did so because an international crime was involved which the countries of the world as a whole were anxious to prevent. Thus, in his article mentioned in the same paragraph, Cowles reviewed a series of cases that occurred prior to World War II, in which American military tribunals tried the offenders for war crimes committed within territory which was not, at the time, under the control of the armed forces of the United States, but was reached by them only subsequently. On the strength of that review he summarized the position by saying (p. 217):

"Actual practice shows that the jurisdiction assumed by military courts, trying offences against the law of war, has been personal, or universal, not territorial. The jurisdiction, exercised over war crimes, has been of the same nature as that exercised in the case of the pirate, and this broad jurisdiction has been assumed for the same fundamental reason."

He therefore reached the conclusion (p. 218):

"...under international law, every independent state has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offence was committed."

In his article "Legal Basis of Jurisdiction over War Crimes" (published in the British Yearbook of International Law (1951) pp. 390-391), Baxter stated that at the end of World War II cases of war crimes were tried by the British military tribunals in Germany, in which victims were not British subjects but nationals of allied countries:

"In the Zyklon B case...those killed by poison gas supplied by the accused included Belgian, Dutch, French, Czech and Polish nationals, and it was not alleged that any British subjects were among the victims."

(See report of this case in L.R.T.W.C., vol. 1, pp. 93, 102).

In this connection, mention should also be made of a case which was tried by a British military court in Singapore. In that case, the court, composed of British officers, sentenced to death a member of the Japanese army for unlawfully killing American prisoners of war in Saigon (then French Indo-China); that is to say, the court so composed exercised jurisdiction, notwithstanding the fact that the scene of the crime was in French territory, and the victims were not British nationals (L.R.T.W.C., vol. 1, p. 106).

True, the fact that the victims of the crimes in these cases were nationals of countries in alliance with the state prosecuting the offender derogates somewhat from the universal character of the jurisdiction exercised, but, on the other hand, they indicate that substantial strides were made towards extending the use of that principle. Indeed, Baxter concluded, on the basis of these cases and also of those that were tried by the American tribunals in Germany under Control Law No. 10, that:

"International law also surmounts the jurisdictional barrier, as municipal law cannot, by recognizing the universality of jurisdiction enjoyed by war crimes tribunals."

Moreover, according to this expert's opinion, even a neutral country has the right to try a person for a war crime (ibid., p. 392). This is also the view of Greenspan (op. cit.,p. 503):

"Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict to which that state is not a party."

Note 357: "This has been called the doctrine of the Universality of Jurisdiction over war crimes."

(The expression ´war crimes' in the above passage extends also to ´crimes against humanity' and ´genocide' in time of war: ibid., p. 420).

Eichmann v. The State of Israel

Record of proceedings on Appeal in the Supreme Court of Israel

Appeal Session 7; Judgement

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