Stampfer v Attorney-General [Israel, Supreme Court (sitting as the Court of Criminal Appeals).]

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court (sitting as the Court of Criminal Appeals).

(Cheshin, Deputy President; Goitein and Vitkon JJ.)

Stampfer
and
Attorney-General.

International Law and Municipal Law — Incorporation of International Law in Municipal Law as Consequence of Independence — The Law of Israel.

Mandated Territory — Whether Included in Term “Colony”— The Law of Palestine and Israel.

Jurisdiction — On the High Seas — Criminal Jurisdiction — Over Nationals with regard to Crimes Committed on National Vessel on High Seas — Territoriality of Ships — The Law of Israel — Admiralty Offences (Colonial) Act, 1849 — Palestine Order in Council, 1922 — Foreign Jurisdiction Act, 1890 — International Law and Municipal Law.

The Facts (as stated by the Court).—“The appellant was prosecuted in the District Court of Haifa and convicted on several counts of manslaughter under s. 212 of the Palestine Criminal Code Ordinance, 1936. The act on which the charge was based occurred on the s.s. Massada, which sank on the high seas, or in one of her boats immediately before the sinking, when the appellant, an Israel national, was one of her crew. It is not in dispute that the vessel, after acquisition by its owners, an Israeli corporation, had been provisionally registered at the Israel Consulate in Copenhagen and was flying the Israel flag. The question of public international law which thus arose was whether the Israel courts have criminal jurisdiction over offences committed by Israel nationals in Israel ships on the high seas.”

Held: that this question must be answered in the affirmative.

The judgment of the Court was given by Cheshin, Deputy President (Vitkon J. concurring). He said: “The first question to be dealt with is whether the District Court of Haifa was competent to try and determine the case. It has been contended before us that s. 6 of the Criminal Code Ordinance, 1936, limits the territorial competence of the criminal courts to the territory of the State and a strip three nautical miles[1] wide along its coastline, and that the District Court of Haifa, therefore, was not competent to try the appellant for the offence in question, which, by common consent, was committed on the high seas. The said section 6, as modified by virtue of section 15 (a) of the Law and Administration Ordinance (No. 1 of 5708–1948), provides:

‘The jurisdiction of the courts of Israel for the purposes of this Code extends to every place within Israel or within three nautical miles of the coast thereof measured from low water mark.’

This section undoubtedly introduced into the law of this country the principle of the territorial jurisdiction of the courts, which obtains in Great Britain and the United States of America. However, section 6 does not stand alone, but should in my opinion be read together with section 3 (b) of the Ordinance, which somewhat limits its application and by this very fact extends the area of jurisdiction of the courts. That section provides:

‘… the provisions of this Code shall be without prejudice to (a) the liability of any person to be tried and punished for any offence against any law other than this Code; or (b) the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Israel courts in respect of acts done beyond the ordinary jurisdiction of these courts’.

[After a reference to Lahis v. Minister of Defence[2] the Judge continued:] “The phrase ‘for an offence against any law’ in section 3 (b) of the Ordinance does not refer to an act defined as an offence in any law other than the Criminal Code Ordinance, for such an offence is dealt with in section 3 (a). It refers to any other law empowering the courts—notwithstanding the provision of section 6—to try a person who has committed an offence, including an offence under the Criminal Code Ordinance. We must examine, therefore, whether there is any other law empowering the courts in Israel to

try a person who has committed an offence on the high seas, outside the territorial sea of the State

“It is an important rule of public international law that merchant vessels on the high seas are under the jurisdiction of the State whose flag they lawfully fly and that the law of the flag State prescribes the rights and obligations of every person on board. The essential purpose of this rule is to protect the public from the law of the jungle (or here perhaps more exactly, the law of the sea). It is imperative for law and order to be established on ships sailing the high seas, lest they become places of lawlessness, where everybody does as he pleases and brute force prevails. The establishment of law and order in the remote and undefined spaces of the sea may be effected in one of two ways: (1) the State concerned in the matter may assume jurisdiction over persons and property situated in such a place; (2) every State may exercise unlimited jurisdiction in such a place, regardless of the rights and claims of other States. The first of these two ways has been adopted in international law, and the accepted principle is that persons under the protection of the flag of a particular State, when in places not under the sovereignty of any other State, are amenable to the laws and jurisdiction of that State as if they were within its territory. Therefore, by general consent, a merchant vessel on the high seas is deemed to be the State, or part of the State, whose flag she flies.”

The Judge here quoted from the English case of Forbes v. CochraneENR, (1824) 107 E.R. 450, emphasizing that that case did not concern British subjects but foreigners who had found refuge on a British ship, the Court ruling that they were under British jurisdiction; and Reg. v. AndersonELR, (1868) L.R. 1 C.C.R. 161. He also quoted from the judgment of the Permanent Court of International Justice in The Lotus[1] and from the United States cases United States v. Flores, 53 S.Ct. Rep. 58o,[2] and United States v. Rodgers, 14 S.Ct. Rep. 109, and others. The Judge continued: “The position is the same with regard to the law of non-Anglo-Saxon countries. In an Italian case [quoted in Briggs, The Law of Nations, 2nd ed., p. 340[3], it appeared that a member of the crew of an Italian vessel had misbehaved while the vessel was in a Spanish port. When the vessel returned to an Italian port the man was arrested, prosecuted and...

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