Israeli Policy on Extradition
By Naomi Scheinerman
Extradition is the removal of a person or the surrendering of an accused person by one state to another. One of the legal and moral dilemmas Israel has faced throughout its history as a Jewish homeland and as a sovereign nation in an international community is the question of extradition. Extradition calls into question the nature of Israel as a haven for Jews of all sorts: criminal and non-criminal.
In his 1896 treatise, The Jewish State, Theodor Herzl supported extradition, arguing that delivering criminals readily to the states where the crime was committed was a matter of honor. The British Mandate Authority established the 1926 Extradition Ordinance that Israel then adopted and applied until 1954. The 1950 Law of Return established the Jewish homeland as a true haven for Jews throughout the world, allowing all Jews to receive immediate Israeli citizenship upon immigrating to Israel, and without setting any cap on immigration. This policy was set with full awareness that allowing all Jews meant allowing all Jewish criminals as well. Hence, in 1954, the Knesset amended the Law of Return to allow the Minister of the Interior to refuse Israeli citizenship to applicants with criminal backgrounds. On the same day, the Knesset also passed the Extradition Act of 1954 which repealed the 1926 ordinance and declared the Fugitive Offenders Act of 1881 no longer applicable. The 1954 Act required an agreement of reciprocity between Israel and the requesting state as well as dual criminality (that the offense for which extradition was sought be a crime in both Israel and the offended nation). Extradition could only be sought in capital cases if the offended nation agreed not to use the death penalty. The Act also allowed for the refusal of extradition if it was found that a Jew was being accused on the basis of race alone. During the next decade, Israel struck a number of bilateral treatises with foreign countries who sought the extradition of Israeli citizens. This way, Israel made extradition treaties and agreements on a case-by-case basis.
It was not until 1962 that there arose a problem with these policies. Robert Soblen, an American Jew who fled to Israel after being convicted of espionage in the United States, committed suicide while on the way back to the U.S. for his trial. This led Menachem Begin, Opposition and Likud Party leader, to speak out very strongly against extradition. The refusal to extradite citizens is known as the Continental system because by the end of the 19th century, it was common practice amongst Continental states.
Another high profile extradition case put the issue in the national spotlight in 1977. Reuben Pesachowitz, an Israeli citizen, was sought by Switzerland for fraud. Pesachowitz argued that because Swiss law precluded its citizens from extradition, his extradition from Israel should also be barred. The court ruled against Pesachowitz, causing a major outcry in Israeli society and engendering anger at the practice of extradition. Then, an Israeli citizen named Shmuel Flatto-Sharon published a pamphlet in France that was translated into English and Hebrew arguing that every individual Jew in the world should be provided with Israeli passports so that they may receive sanctuary in the event of persecution. Flatto-Sharon campaigned for Likud on an anti-extradition platform and received popular support, winning a seat in the Knesset. That same year, Likud took control of the government with Begin, a strong opponent of extradition, as Prime Minister.
In 1978, the Knesset passed the Offenses Committed Abroad Act. It eliminated extradition of Israeli citizens and switched Israel to the Continental system. Crimes committed by Israeli citizens abroad could be prosecuted in Israel. The Extradition Act was thus amended so that no Israeli citizen could be extradited except for offenses committed before he/she obtained citizenship. The new law was treated with concern by some academics who saw it as a way for Israelis to commit crimes abroad and harm relations with other countries. At the same time, Israelis were supportive of the law because they felt it made Israel truly a Jewish haven.
In the 1990’s, concern arose amongst Israeli officials that the standing policy on extradition did indeed make the Jewish haven a Jewish criminal haven, and at the expense of international relations. In September 1997, the impetus for changing the policy finally came with the flight of a teenage murderer named Samuel Sheinbein. Sheinbein was born in the United States to an Israeli father and an American mother. He had never visited Israel. He was accused of the gruesome murder of Enrique Tello Jr. in Maryland. Because of the 1952 Nationality Law, Sheinbein was an Israeli citizen and because of the 1978 Extradition Act, he flew to Israel to claim protection from the government. The State of Maryland allows the death penalty and Israel does not, which Sheinbein used as the basis of his argument that Israel did not have the power to extradite him and instead should try him in its own courts for the crime he committed abroad. The case was brought to the Supreme Court in Israel, which ruled in his favor, claiming his citizenship exempted him from extradition. On September 2, 1999, Sheinbein pled guilty to the murder of Tello in the Jerusalem District Court. The ordeal strained U.S.-Israel relations to the point where leading members of the U.S. Congress threatened to cut off aid. In addition, it portrayed a great abuse of the 1978 Act because Sheinbein had never had any attachment to the State of Israel, let alone even visited Israel before he flew there to seek refuge.
In response to the Sheinbein Affair, on April 19, 1999, the Knesset passed an Amendment (Number 6) to the Extradition Act, which permitted the extradition of Israeli citizens who had committed crimes abroad. It divided Israeli citizens into two categories: Israeli citizens who are residents of Israel at the time an extradition request is made and those who are not residents at the time of the extradition request. The former are to be extradited, but then returned to Israel for sentencing. The latter group may be extradited and serve sentences in either the state where the crime was committed or in Israel. The 1999 amendment was an attempt to distance Israel with its reputation as a harbinger of criminals and to be a safe haven for only Israeli residents. However, Abraham Abramovsky and Jonathan I. Edelstein argue that current extradition policy in Israel still leaves loopholes and problems that will allow many criminals to recede to Israel’s soil and the sanctity of its courts.
Source: Abramovsky, Abraham and Edelstein, Jonathan I. Vanderbilt Journal of Transnational Law, 35.1 (Jan 2002): p1(72).