Chapter 5 Audio podcast

In 1960, in one of the most notorious operations ever conducted by the intelligence service on foreign soil, Israel's external intelligence service Mossad kidnapped former Nazi officer Adolf Eichmann in Argentina. In Argentina,Eichmann was sedated by his Mossad captors, and via a brief stopover in Africa, flown to Israel on an LL Airliner. When in Israel, Eichmann was subsequently prosecuted and later convicted for a range of crimes, including crimes against humanity and war crimes. And in December 1961, Eichmann was sentenced to death.In May 1962,he was hanged in a prison in Israel.

Now, in many ways, the Israeli operation to kidnap Eichmann in Argentina was a remarkable success, and the trial of Eichmann in Israel was also an important moment in the gradual evolution of international criminal law,something that we will return to in a later episode of this podcast.But the kidnapping of Eichmannin Argentina was also a very clear violation of international law, because by exercising the power and authority of the state of Israel in Argentina without the consent of the authorities in Argentina, Mossad violated a prohibition ininternational law against physically exercising its jurisdiction abroad.

In this episode of the International Law Podcast, episode five, I will take a closer look at the concept of jurisdiction in international law. And, as you will know by now, as always, I'll make three points about the topic that I think are worth highlighting.

The first of these points concerns the important distinction between, on the one hand, jurisdiction to prescribe, and, on the other, jurisdiction to enforce. To be clear, the Eichmann operation in Argentina was an example of jurisdiction to enforce, because the Mossad agents physically enforced the willof the Israeli state.Jurisdiction to prescribe, however, refers to the mere authority of the state to regulate certain conduct. If we use the case of Eichmann as an example, jurisdiction to prescribe concerns the state of Israel's authority under international law to enact legislation that criminalizes the conduct that Eichmann had committed, such as crimes against humanity or the killings of citizens of Israel. And to be clear, also, Israel's jurisdiction to prescribe says nothing about its physical enforcement of violations of Israeli law. That is a matter for jurisdiction toenforce. In the Eichmann case,therefore, the problem was not that Israel had prescribed certain acts in its criminal laws in Israel, but the problem was that its agent enforced the Israeli laws in Argentina by simply kidnapping Eichmann and transporting him to Israel.

The purpose of the different rules on jurisdiction is to ensure that statesare able to balance their interests against each other. In the Eichmann case, while no one can dispute Israel's interest in prosecuting an individual like Eichmann for his acts committed inWorld War II, its physical exercise of Israeli laws in Argentinaclearly infringed upon Argentina’s interest and Argentina’s sovereignty. Clearly, respect for sovereignty means that a state's authority under international law to exercise its jurisdiction to enforce must be much more limited than its authority to exercise its jurisdiction to prescribe. Physical enforcement is always more intrusive than simply prescribing a given act.

The second point I want to highlight here concerns so-called universal jurisdiction. Now, it is generally accepted that a state is only allowed to extend its laws, and therefore exercise its prescriptive jurisdiction over an individual or a matter, if the state is somehow affected by the act, or otherwise have a reasonable interest in doing so. In short, there has to be some sort of real link or a connecting factor between the acts or the behavior that this state wants toprescribe and the legitimate interests of that state. This principle is also reflected in the most widely accepted forms of prescriptive jurisdiction. According to the principle of territoriality, astate exerts its jurisdiction over an act because it has been committed on its territory.Under the principle of nationality, the state exerts jurisdiction overan act because it has been committed by one of its nationals. Under the passive personality principle, jurisdiction is relied upon because the victim of an offense is the national of the state, and according to protective jurisdiction, a state exerts jurisdiction because the acts are somehow harmful to the state.

So far, so good.But there is an exception to the requirement of a connecting factor, because some offenses are considered to be so serious that any state may claim jurisdiction over them. And that is the case regardless of where they have been committed, who they have been committed against,or the nationality of the perpetrator.For some offenses, there is,in other words, what we call universal jurisdiction. Now, the purpose of universal jurisdiction is to prevent perpetrators of the worst crimes to simply go free. In the Eichmann trial in Israel, it was forcefully articulated that the crimes that Eichmann had committed were crimes against all nations and that it must therefore also be open to all states to prosecute such crimes.In practice,universal jurisdiction only applies to the very worst of crimes, such as genocide, crimes against humanity, serious war crimes, and torture. Now, there are, in fact, different forms of universal jurisdiction. In its most pure form,universal jurisdiction is quite controversial. Here,astate will claim a right to prosecute an offense that has no apparent connection to the state even though the offender is not present on the territory of the state. Now, the reason why this form of universal jurisdiction is controversial is because it can be very detrimental and harmful to peaceful interstate relations. For instance, if a state expresses an intention to prosecute a sitting head of state of another state, for crimes that has no relation to the potential prosecuting state, in a case where the acting sit of head is not even on the territory,it can create a lot of friction,and the head of state maybe limited in fulfilling his or her functions. A less aggressive form of universal jurisdiction is that whichis derived from the treaty-based obligation of a state to either prosecute or extradite, an alleged offender suspected of specific offenses that is located on the territory of that state. In practice, since a legal basis for the obligation to prosecute orextraditeis a treaty, it does not apply to non-state parties to those treaties.

The third and last issue that I will cover in this particular episode on jurisdiction takes us back to where we began this episode, with jurisdiction to enforce, because it is important to reiterate that international law is very clear when it comes to a state's physical enforcement of its jurisdiction. Unless state A gives its consent,state B cannot enter into state A in order to exercise its powers there,period. And if the state nevertheless does so, as Mossad did in Argentina back in 1960, the state commits a breach of sovereignty. Of course, it is only natural that the prohibition on physical enforcement of jurisdiction may create frustration for a state that wants to get its hands on an individual that maybe is in hiding in another state.Ininternational law,the answer to that frustration is found in the concept of extradition.Here, I'm referring to the process that governs when a state will hand over an individual that is located on its territory to another state where that person is wanted for criminal prosecution. But in practice, extraditions are governed by certain legal principles. Most importantly, to protect the individuals, human rights law conventions prohibit extradition if there is a risk that the individual that is wanted for extradition will be subjected to inhuman or degrading treatment in the receiving state, or in a third state to which the individual may subsequently be transferred.

Now, the Eichmann case illustrates what can happen when a state that wants to get its hand on a person that resides in another state decides totake matters into its own hands. Of course, a state may decide to simply ignore international law and go to the extreme measure of trying to kidnap the individual, and use that as a way to ensure that the individual is brought before a court.

In even more extreme cases,the state may simply decide to resort to extrajudicial assassinations in other states.Here, the state will simply send its operatives to another state,in order to kill what the state somehow considers to be its enemy. Unfortunately, such operations have been conducted twice in 2018. First, in March of that year, operatives of the Russian military intelligence service, the GRU,poisoned two Russian nationals, Sergei Skripal and his daughter Yulia. The poisoningtook place in Salisburyin the United Kingdom, and it was a clear violation of Britishsovereignty. Around half year later, a team of Saudi Arabian individuals killed Saudi national Jamal Khashoggi, who was a journalist and a critic of the Saudi government based in Washington DC. They killed them in the Saudi consulate in Istanbul, in Turkey. Like the episode in Salisbury, that episode also was a clear violation of international law.