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Non-Extradition of Israeli Nationals and Extraterritorial Jurisdiction: Reflections on Bill No. 1306

Published online by Cambridge University Press:  12 February 2016

Theodor Meron
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Extract

Bill No. 1306 of 25 July 1977 would amend the Extradition Law of 1954 so as to preclude entirely the possibility of extraditing to foreign States any nationals of Israel. Sec. 1 of the Extradition Law would be replaced by the following section: “A person who is in Israel may only be extradited to another State if he is not an Israeli national and only in accordance with this Law”. A (majority) report of a committee established by the Minister of Justice and chaired by Judge Nathan proposed in October 1976 to amend the Extradition Law so that in the future Israeli nationals would be extradited only to States which extradite their nationals to Israel. The Committee proposed also that Israeli courts be granted jurisdiction to try, under Israeli law, Israeli nationals who have committed abroad offences covered by the Extradition Law. A minority recommendation submitted by Judge Nathan proposed that a total prohibition be imposed on the extradition of Israeli nationals. The Government Bill is based on the recommendation of Judge Nathan. The object of this article is to consider some of the questions to which this Bill gives rise.

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Articles
Information
Israel Law Review , Volume 13 , Issue 2 , April 1978 , pp. 215 - 229
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 The Bill passed the first reading by the Knesset on 1 August 1977. Although this article went to press after the adoption of the revised Bill by the Knesset, on 3 January 1978, it does not take into account changes made after the first reading. The principal change made was that the prohibition of the extradition of an Israeli national does not apply to offences committed prior to his becoming an Israeli national. The Bill, as amended, was published in (1978) S.H. no. 881, p. 52. The amendment of the Extradition Law is to enter into effect six months after the date of publication.

2 For a view supporting the prohibition of extradition of Israeli nationals to foreign countries and the extension to such nationals of the extraterritorial jurisdiction of Israeli courts, see Feller, , “The Scope of Reciprocity in Extradition” (1975) 10 Is. L.R. 427.Google Scholar

3 Report of the Royal Commission on Extradition C. no. 2039 at 6 (1878). Parliamentary Papers (1878) vol. 24, p. 903 at 907. Quoted in the Harvard Research on Extradition (1935) 29 (Supp. 1) Am.J.I.L. 15 at 127.

4 See ibid., at 128–29.

5 Ibid., at 123. Similar proposals were made by a number of other research institutes. See ibid., at 126.

6 (1926) 20 (Supp. 1) Am. J.I.L. 244.

7 Ibid., at 249.

8 International Law (1965) vol. 2, pp. 798–99.

9 Extradition in International Law (1971) 126. Shearer goes as far as to suggest that non-extradition of nationals “takes on a growingly ‘reactionary’ aspect”. Ibid., at 94. For Shearer's summary of reasons for and against extradition of nationals, see ibid., at 118–25.

10 “Public International Law Problems of the Jurisdiction of the State of Israel” (1961) 88 Journal du Droit International 986 at 1034.

11 Ibid., at 1060.

12 Harvard Research on Jurisdiction with Respect to Crime (1935) 29 (Supp. 2) Am. J.I.L. 445.

13 Ibid., at 519.

14 Meron, supra n. 10, at 1040.

15 Ibid., at 1052, 1054. Note also the qualifications to this conclusion, ibid., at 1054.

16 See Penal Law (Offences Committed Abroad) (Consolidated Version), 1973, sec. 4 (a). For a very broad statement of the protective principle of jurisdiction, see sec. 2(a), whereby the courts in Israel are competent to try under Israeli law a person who committed an act abroad which would have been an offence had it been committed in Israel, and which harmed or was intended to harm the State of Israel, its security, property or economy or its transport or communication links with other countries.

17 In criminal trials in Israel which are based on the adversary system, as a general principle, the prosecution must bring witnesses to give oral evidence in order to establish every point in its case. Such witnesses are subject to cross-examination. Should the Bill in its present form become Law, witnesses would have to be brought to Israel to give evidence.

18 See Meron, , “Israel and the European Extradition System” (1970) 5 Is. L.R. 75 at 76.CrossRefGoogle Scholar

19 Supra n. 12 at 533. The Research assimilated to the legal position of nationals, only such aliens as were engaged in the discharge of public functions of a State or engaged as one of the personnel of a ship or aircraft having the national character of that State. Ibid., at 539.

20 Such as persons who emigrated from Israel many years ago after a short stay in Israel and have not since maintained ties with Israel. See supra n. 1.

21 O'Connell, op. cit., supra n. 8, at 799.

22 Supra n. 6.

23 Sec. 3.

24 Sec. 10.

25 Sec. 18.

26 Secs. 19–20.

27 Meron, supra n. 18, at 75–77.

28 The Law of Return, 1950, sec. 2 (4 L.S.I. 114).

29 The Law of Return (Amendment) 1954, sec. 1. (8 L.S.I. 144).

30 Sec. 1 of the Law of Return, 1950, establishing the right of every Jew to come to Israel as an immigrant should be read together with sec. 2(a) of the Nationality Law, 1952, (6 L.S.I. 50) according to which every immigrant under the Law of Return shall become a national of Israel.

31 (1977) 31 P.D. 449 at 465.

32 Shearer suggested that extradition of nationals should be limited to trial and judgment. An extradited national should be returned to his home State after sentencing to serve the sentence imposed abroad, but subject to the regulations including those relating to remission or reduction of sentences, parole and probation in force in his home State. Shearer explained that the main purpose of his proposal was to secure the most appropriate forum for jurisdiction over the crime and at the same time to secure to the most appropriate organs—those of the home State—the task of corrective punishment and rehabilitation. A secondary effect of die proposal would be to permit the possibility of release from imprisonment in the rare cases where a miscarriage of justice may be considered to have occurred. Op. cit., supra n. 9, at 126—27.

33 See Friedmann, Lissitzyn & Pugh, International Law (1969) 494. For a list of treaties providing for discretionary surrender of nationals see Shearer, op. cit., supra n. 9, at 219–20. For a list of treaties prohibiting extradition of nationals, see ibid., at 220–23.

34 Austria, Cyprus, Denmark, Greece, Ireland, Italy, the Netherlands, Norway, Sweden, Switzerland, Turkey, Liechtenstein, Finland, Federal Republic of Germany.

35 K.A. No. 308, Article 3.

36 K.A. No. 231, Article 3.

37 K.A. No. 505, Article 4; K.A. No. 639.

38 K.A. No. 354, Article 2.

39 K.A. No. 360, Article 1.

40 K.A. No. 790.

41 K.A. No. 721, Article 1.

42 See O'Connell, op. cit., supra n. 8, at 798. Hyde, , International Law Chiefly as Interpreted and Applied By the United States (2nd rev. ed., 1951) vol. 2, p. 1028.Google Scholar Shearer, (op. cit., supra n. 9 at 101) suggests that where an extradition agreement contains no provision relating to nationality, it applies, according to a settled rule of interpretation to all persons irrespective of nationality. The Supreme Court of the United States has always insisted that the word “persons” in extradition treaties includes citizens. See Chartton v. Kelly 229 U.S. 447 at 476; 33 S.Ct. 945 at 955 (1913).

43 Article 1.

44 Article 3.

45 Article 2.

46 K.A. No. 832, Article 8.

47 K.A. No. 230, Article 3.

48 K.A. No. 231, Article 3.

49 Article 6(2). In Pesachovitz v. The State of Israel, Landau J. discussed the obligatory character of this provision when read together with provisions of Swiss domestic law. (1977) 31 P.D. 449 at 456.

50 See Article 3 (“Devra faire poursuivre…”).

51 Theodor Herzl in The Jewish State, supported the principle of extradition of Jewish criminals from the Jewish State even in the absence of reciprocity. See Meron, supra n. 18 at 77, n. 7.

52 Charlton v. Kelly, 229 U.S. 447. 33 S.Ct. 945 (1913). Hyde, op. cit. supra n. 42, vol. 2 at 1028–29. However, under a treaty providing that neither party is under a duty to extradite its nationals, the United States has no constitutional power to surrender its nationals. Valentine v. United States ex rel. Neidecker, 299 U.S. 5; 57 S.Ct. 100 (1936). Harvard Research on Extradition, supra n. 3, at 124, n. 10.

53 See, in general, Feller, supra n. 2.

54 Agranat, P. in Kamiar v. Attorney General (1972) 44 International Law Reports 273–74.Google Scholar

55 Ibid.

56 Supra n. 49, at 449.

57 Ibid., at 465.

58 It should, however, be remembered that such a formula would altogether preclude extradition of United States nationals from the United States to Israel, in accordance with the decision of the United States Supreme Court in the Valentine case, where the Court held that if a treaty does not require extradition of the nationals of the United States, then it does not authorise their extradition from the United States either. See supra n. 52.