Chapter 7: State Jurisdiction and Immunities
155
propaganda during the Second World War, notwithstanding that nationality is
irrelevant in enforcement of the protective principle.
87
Relying on
Joyce,
the District
Court of Jerusalem upheld,
inter alia,
protective jurisdiction in the
Eichmann
case.
88
The accused was responsible for implementing Hitler’s ‘Final Solution’ programme.
After the war, he fled to Argentina and was abducted by Israeli agents to stand trial
in Israel under the 1951 Nazi and Nazi Collaborators Law for war crimes, crimes
against the Jewish people and crimes against humanity. The judgment of the District
Court, which was subsequently affirmed by the Israeli Supreme Court,
89
held that a
country whose ‘vital interests’ and ultimately its existence are threatened, such as in
the case of the extermination of the Jewish people, has a right to assume jurisdiction
to try the offenders.
90
The protective principle was used by western European States during the Cold
War in cases involving enlistment or espionage which resulted in a threat to the
interests of allied countries. In
Re Van den Plas,
91
for example, a Belgian national was
held liable for acts of espionage against Belgium by a French tribunal, on the basis
that his acts were injurious to the interests of both France and Belgium. US
jurisprudence has perceived the ambit of ‘national interests’ under the protective
principle as encompassing acts which do not necessarily require a direct or actual
effect within the territory of the US.
92
This has had considerable impact on cases
involving the breach of US immigration law, where the breach was perpetrated
outside US territory.
93
US courts have approached the issue of immigration as vital
to the security of a country, especially as regards the executive function determining
who should be permitted to enter.
94
Applying the protective principle in cases
involving the extra-territorial apprehension of drug-traffickers
95
or suspected
terrorists
96
has proved less arduous, since a threat to security or other national interests
can be easily discerned and proven. It is generally agreed that, in order to restrict
possible abuse, the use of statute based protective principle jurisdiction should be
limited to cases where both significant national interests are at stake and, moreover,
where its application in each particular case is permissible under international law.
97
87
Nonetheless, in
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