Military Prosecutor v Bakir

Date05 March 1970
CourtMilitary Court (Israel)
Israel, Military Court sitting in Ramallah
Military Prosecutor
Akrash Nazimi Bakir

Jurisdiction In general Territorial Territorial limits of jurisdiction Legislative competence of State Need for express legislative intent Relevance of partial completion of act within the jurisdiction The law of Israel

War and neutrality Warfare on land Occupation of enemy territory Judicial functions of Occupant Jurisdiction of military court Offences committed outside jurisdiction having no effect within jurisdiction Whether military legislation sufficiently explicit Geneva Convention relative to Protection of Civilian Persons in Time of War, 1949 (Article 64) Limitation of extraterritorial jurisdiction to security offences The law of Israel

Summary: The facts.The defendant was charged with making a false declaration and submitting a false document to the customs authorities in Jerusalem, acting on behalf of the Regional Command, with regard to the purported payment of customs duty to the Jordanian authorities in order to obtain the release of a quantity of potash. These were offences under both the Security Provisions Order and Jordanian criminal law. The defendant was a resident of Shechem and at all material times a Jordanian citizen. In his defence, a preliminary plea was raised of lack of jurisdiction by reason of the fact that on the face of the charge the offences were committed, if at all, outside the territorial jurisdiction of the Court.

Held: The Court dismissed the charge, saying that it was very rare indeed for extraterritorial jurisdiction to cover acts committed outside the jurisdiction which have no consequences there; to have such jurisdiction there must be express legislative warrant, which will not be implied. Article 64 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949, compels the conclusion that an Occupying Power may only take extraterritorial jurisdiction to itself in respect of the classic security offences indicated in that article. The same emerges from Article 70.

The following is the text of the relevant parts of the judgment:

1. The defendant, Akrash Nazimi Bakir, was charged in the Military Court of Ramallah before a single Judge with offences under section 59 (1) of the Security Provisions Order (hereinafter called the Order) and sections 261 and 417 (1) of the Jordanian Criminal Law of 1960 (hereinafter called the local Law). Before the defendant was called upon to plead to the charge, counsel on his behalf raised the preliminary point that the Military Court had no jurisdiction to try him since on the face of the charge it appeared that the offences with which he was charged had all been physically committed, if at all, in united Jerusalem outside the territorial jurisdiction of the Court.

[The Court then dealt with a number of procedural matters, involving the transfer of the case to a bench of three Judges, the non-appellate nature of the proceedings before the latter and the order of addressing the Court on the matter of jurisdiction.]

8. In the opinion of learned defence counsel the question whether we have jurisdiction must be decided on the assumption that all the counts of the charge alleged against the defendant were in fact proved. In other words, the test is that if the jurisdiction appears on the face of the counts of the charge, as pleaded by the prosecution, the Court may try the defendant, but otherwise it may not. I accept this test with one reservation, that should the Court put the test to itself and find that the facts answer it, then prima facie it has jurisdiction. I say prima facie in order to stress that the defence may nevertheless raise the question of jurisdiction again at any stage of the trial if the evidence justifies that course.

9. What are the counts of the charge alleged against the defendant? I am afraid that some unnecessary confusion has occurred by formal amendments of the charge. [The Court explained how these amendments had occurred.] Before I can continue, it is essential to establish the charges as these emerge from the detailed amendments by sifting out the irrelevant inferences and details.

10. The version of the prosecution is that in September 1967, or near thereto, the defendant, who is a resident of Shechem and a Jordanian subject (or at least was a Jordanian subject at all material times), made a declaration that he had paid the Jordanian authorities customs duty for a quantity of salts...

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