Case Number

HCJ 27/48

Date Decided

2-1-1959

Decision Type

Original

Document Type

Full Opinion

Abstract

An officer in the Israel Army was charged before a military court in Israel with murder, an offence under S. 214(b) of the Criminal Code Ordinance 1936 and section 97 of the Army Code 1948. The officer submitted that the military court had no jurisdiction inasmuch as the acts with which he was charged were alleged to have been committed in Hula, a village in Lebanon, and outside the borders of either Israel, or Palestine as constituted under the Mandate. This submission was rejected, but the case was stood over to allow him to petition the High Court on the question of jurisdiction.

Upon the hearing of the petition it was argued, in addition to a submission of no jurisdiction in the military court, that only that Court had jurisdiction to interpret the Army Code.

Held, rejecting the petition, that where a criminal offence is committed by an army officer beyond the borders of Israel, he may be tried by a military court under the Army Code:

A person charged before a military court who alleges that that court is without jurisdiction, may petition the High Court without awaiting the decision of the military court:

The High Court may interpret the Army Code, the military court having no exclusive jurisdiction to interpret that Code :

The military court has jurisdiction to try a case such as the present in accordance with Article 38 (as amended) of the Palestine Order in Council, read together with Section 3(b) of the Criminal Code Ordinance 1936 and section 3 of the Army Code.

Keywords

Army, Criminal Law -- Criminal Procedure, International Law -- Occupied territories, International Law -- Relevance of foreign law in judicial decisions, Justiciability

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