¹ European Treaty Series, No. 24.

² Duk, Principles Underlying the European Convention on Extradition; Schultz, The Principles of the Traditional Law of Extradition; Karle, Some Problems Concerning the Application of the European Convention on Extradition. (These reports are documents of the Council of Europe not yet published).

³ See, in general, Ben-Meir, , “Mkomo Shel Heskem Hasgara baMishpat Haisraeli”, in Hamishpat (1956) 138–143, 162–169Google Scholar; Hava Shahor-Landau, , “Al Hahasgara” (1953–1954) 10 MaPraklit 347Google Scholar; A.G. v. Kamiar (1966) 51 P.M. 13; Minister of Justice and A.G. v Kamiar (1966) (III) 20 P.D. 608; A.G. v. Kamiar (1967) 57 P.M. 184; Kamiar v. State of Israel (1967–68) (II) 22 P.D. 85.

⁴ Meron, , “Public International Law Problems of the Jurisdiction of the State of Israel”, 88 Journal du Droit International (1961) at 1Google Scholar. See also Penal Law Revision (Offences Committed Abroad) Law, 1955, as amended.

⁵ See the Report of the Ministry for Foreign Affairs of Israel to the International Law Commission, U.N. Doc. A/CN. 4/19, 24 Jan. 1950, 2 Yearbook of the International Law Commission (1950), at pp. 216–17.

⁶ Law of Return (Amendment), 1954, Sec. 1. The Law of Return (Sec. 2) as originally adopted provided only that the Minister of the Interior could refuse to grant an immigrant's visa if satisfied that the applicant was acting against the Jewish people, or was likely to endanger public health or the security of the State.

⁷ It is interesting to observe that Herzl, in The Jewish State, had this to say about the extradition of Jewish criminals from the Jewish State:

“Every just private claim originating in the abandoned countries will be heard more readily in the Jewish State than anywhere else. We shall not wait for reciprocity; we shall act purely for the sake of our own honour. We shall thus perhaps find, later on, that law courts will be more willing to hear our claims than now seems to be the case in some places.

It will be inferred, as a matter of course, from previous remarks, that we shall deliver up Jewish criminals more readily than any other State would do, till the time comes when we can enforce our penal code on the same principles as every other civilised nation does. There will therefore be a period of transition, during which we shall receive our criminals only after they have suffered due penalties. But, having made amends, they will be received without any restrictions whatever, for our criminals also must enter upon a new life.”

In principle, the refusal to extradite nationals makes sense primarily when the requested State accepts the obligation to prosecute the requested person. It may be further observed that expulsion of aliens which is not subject to the strict safeguards established for extradition may in some cases lead to results analogous to extradition. Duk points out in this respect that:

“Without entering into details I wish to point here at a well-known inconsistency. What happens if a foreign visitor is wanted by the police of his home country for an (alleged) offence that cannot lead to his extradition? In many cases he will be promptly regarded as an undesirable alien, and treated as such; which may result in his expulsion and (informal) surrender to that police.

As a rule, stray visitors are feebly protected under the national Alien Acts. Moreover, by virtue of a system of bilateral treaties, the object of which is to prevent that foreigners are surreptitiously shifted over the frontier, there is often hardly any choice as to the country of destination in case of expulsion; solely the fatherland opens its gates (possibly the gates of a jail). One may deplore this state of affairs and speak of xenophobious practices, but one has to face the facts of life” (at pp. 7–8).

There is a growing tendency to assimilate residence to nationality. For a person who is really rooted in a foreign country, extradition may create problems similar to those arising out of extradition of the nationals of the requested State. Duk points out that the exemption from any obligation to extradite one's nationals, which sometimes appears in constitutions of States seems to be based on the following reasons:

(1) Most people are, and feel, at home in the country of their nationality.

(2) Prosecution, trial and punishment in the country to which the delinquent belongs (where he is at home) are—as a rule—in the interest of justice, because there he is in the best position to prepare and organise his defence, there his antecedents, social background and other personal circumstances, as well as his motives, can be more easily investigated and appreciated than elsewhere, and—last but not least—the facilities and opportunities for his rehabilitation and his adaptation to established rules of social conduct, are generally, in comparison, the best in that country, so that on the whole it is indicated to have the sentence executed there.

(3) Although, in some cases, citizenship constitutes merely a formal bond—the delinquent may be born and brought up in another country, where he feels more at home—the objective criterion of nationality is, in a legal instrument, better than a subjective one, because of the need for certainty. A criterion referring to the country where the person claimed feels at home, or where he is rooted, is rather vague, and so, perhaps, less useful for practical purposes (at pp. 5–6).

The European Convention on Extradition, in Article 6(1)(b), allows the Contracting States to define, as far as they are concerned, the term “national”. In so far as such a definition may bind other States, the attention is drawn to the Nottebohm Case (Preliminary Objections) I.C.J. Reports 1953, p. 111.

⁸ See also Extradition (Amendment) Law, 1956, and Criminal Procedure Law 1965, Sec. 222.

⁹ Sec. 1.

¹⁰ Sec. 21.

¹¹ See e.g. Custodian of Absentee Property v. Samra and others (1956) 26 P.E. 209; See also, Lapidoth, , La Conclusion des Traités Internationaux en Israë (1962)Google Scholar; Lapidoth, , Les Rapports entre le Droit International Public et le Droit Interne en Israë (1959)Google Scholar.

¹² The principle of reciprocity in extradition “is not peculiar to the law of extradition; it is the application of a principle of general international law to extradition.… In their desire to respect sovereignty and to ensure that their own sovereignty and right to equality was scrupulously respected, States were disinclined to concede advantages to another State without the absolute assurance that, if necessary, they would be able to obtain the same advantages”. Schultz Report, p. 2. Schultz discussed the concept of reciprocity in extradition in the following terms:

“The value of the principle of reciprocity as regards the law of extradition is a matter of considerable contention. For some it is the foundation on which extradition is based; others see it as an inevitable consequence of the sovereignty of a State; yet another group considers that the more extradition is transformed from an instrument of State power into an instrument of criminal justice, the more will reciprocity lose its earlier meaning and find its sole justification as a political principle, excluding a State's obligation to provide unilateral facilities. It may well be said that the discussion has scarcely advanced beyond the resolution adopted by the Institute of International Law at Oxford on 9 September 1880, Article 5 of which was worded as follows: ‘the condition of reciprocity, in this matter, may be governed by politics, it is not required by justice.’ If we examine the scope of the principle of reciprocity, preference should be given to writers who maintain that reciprocity is not a legal condition of extradition and consider that adherence to that principle may sometimes prove to be advantageous from the political point of view. It is even possible to delimit more precisely the cases where the need for reciprocity should be maintained; reciprocity has no meaning when, in the absence of a treaty, extradition is to take place solely by virtue of power conferred by municipal law. On the other hand, the principle of reciprocity must be maintained, although in modified form, for extradition treaties, as this is the only way of ensuring recognition of the principle of the States' mutual right to equality. As the fundamental basis of the contractual law of extradition, reciprocity must be taken to have the meaning of equivalence in substance and not the formal equality of facilities. Thus the obligation to take proceedings against a national whose extradition has been refused is considered as equivalent to the extradition of that national” (pp. 2–3).

The principle of reciprocity is obviously implicit in Article 1 of the European Convention on Extradition, which speaks of the obligation to “surrender to each other” certain persons.

¹³ The Israel Law does not contain any provision based on the Belgian clause or the attentat clause (based on the Belgian Law of 22 March 1856), which denies the principle of non-extradition for political offences for those who have taken, or have attempted to take the life of heads of States or their families.

While the Extradiction Law refers to political offences (Secs. 2 and 10), it does not refer specifically to non-extradition in the case of such military offences as are not offences under ordinary criminal law (which are referred to in Article 4 of the European Convention on Extradition), and fiscal offences (which are covered by Article 5 of the Convention).

The schedule to the Extradition Law excludes from extradition offences “an offence with which a person can only be charged if at the time of committing it he is a soldier within the meaning of the Army Code, 5708”. Shamgar in Extradition for Military Offences (Israel Defence Forces-Military Advocate General's H.Q.) observes that:

“In other words, the legal possibility of preferment of charges, serves as an indicator, pointing out if the person is subject to military law; but the Law did not intend to extend the rule of non-extradition to each and every offence with which a person subject to military law can be charged: it appears that the legislator intended to express in the above wording the aim to exclude from extradition only offences answering the twofold test laid down by the Harvard Research, namely that offences precluded from extradition are only offences which are punishable merely as a violation of a military law or regulation and which would not be punishable as a violation of a civil law or regulation if the military law or regulation did not apply. The definition of the Law cited above answers both tests as it excludes by its wording any offence with which a person not subject to military law cannot be charged” (pp. 38–39. See also idem, pp. 21–22).

¹⁴ The principle of double criminality, that is the requirement of punishability of an offence under the criminal law of both the requesting and the requested States, “could be thought to be derived from the principle of reciprocity”. (Schultz Report, p. 4.) In Schultz's view, there is, however, another reason for the principle:

“In law it would be intolerable to begin an extradition procedure against a person and to imprison him for an offence which under the criminal law of the requested State could never be the subject of criminal proceedings. This argument is not the same as the one put forward on the grounds of the innocence of the person being proceeded against. For if the condition of double criminality is not met under the law of the requested State, the offences can never, by definition, be punishable offences. In this instance it is no longer a question of fact, as would be the case if innocence were being discussed, but a question of law” (p. 5).

¹⁵ Sec. 3.

^15a “The maxim ne bis in idem, which is expressed in Article 9 of the European Convention, may have a threefold influence on the question of extradition; it may exclude extradition if criminal proceedings for the same offence have been instituted in the requested State, if such proceedings have led to a decision which has been implemented, or if the same offence has been judged by a decision implemented in a third State” (Schultz Report, p. 13).

¹⁶ Sec. 8.

¹⁷ Sec. 8.

¹⁸ Sec. 9.

¹⁹ Sec. 10.

²⁰ Sec. 16.

²¹ Sec. 24. Schultz explains the reasoning for the principle of speciality of extradition as follows:

“When a State surrenders a person it relinquishes such power over the person as could be exercised by virtue of its territorial sovereignty. A State abandons its power only when it has determined whether the offence in question is punishable under its own law and not automatically excluded as an extraditable offence. It is reasonable that extradition should depend on such conditions only if the requested State can be certain that the requesting State is taking proceedings against the surrendered person only for the offences for which extradition was requested. This restriction inherent in any act of extradition is known as the principle of speciality. Such restriction of the judicial powers of the requesting State is an undisputed rule of the traditional law of extradition” (pp. 14–15). Regarding transit of extradited persons see Extradition (Amendment) Law, 1956, Sec. 3.

²² Sec. 17.

²³ Sec. 24.

²⁴ Kitvei Amana 505.

²⁵ Kitvei Amana 354.

^25a As yet unpublished.

²⁶ Kitvei Amana 454.

²⁷ Kitvei Amana 230.

²⁸ Kitvei Amana 232.

²⁹ Kitvei Amana 231.

³⁰ Kitvei Amana 229.

³¹ Kitvei Amana 510.

³² Kitvei Amana 309.

³³ Kitvei Amana 360.

³⁴ Kitvei Amana 308.

³⁵ The view is sometimes held that transit is really a form of mutual assistance in criminal proceedings which should be considered separately and not be subject to the conditions of speciality. Its requirements should be less stringent than those applying in areas of extradition (Schultz Report, p. 17).

³⁶ Schultz observed, in connection with Article 3(4) of the European Convention, that war crimes and crimes against humanity cannot come within the framework of a political crime (at p. 10).

It may be observed that on this point, the views expressed by the Observer for Israel were generally supported. The common conclusion was reached that:

“It should also be expressly stated that the crimes of genocide, war crimes and crimes against humanity may in no circumstances be considered as political offences.” (Point 2)

³⁷ Aware of the growing problem of terrorism, Schultz suggests:

“All that can be done is to attempt to delimit the privilege of political offenders, by refusing it to those who have committed acts of terror and barbarism. However, it is highly debatable whether such a restriction of a political crime can be achieved by means of a general provision such as the Belgian clause, or whether each case should be examined individually, as is the practice under Swiss law, except where an absolute political crime is concerned” (at p. 9).

In the case of Ktir v. Ministère Public Federal the Swiss Federal Tribunal decided to grant extradition to France of a member of the F.L.N. accused in France of murder. The Tribunal, in denying the political nature of the offence, stated as follows (17 May 1961).

“As regards the political nature of the offence, it should be pointed out, first of all, that the F.L.N. is fighting for power in Algeria. It is active not only in that country, but also in France. The character of the organization is clearly political. The appellant states that he is a member of the F.L.N. and that he committed the act with which he is charged by virtue of that membership and on the orders of his superiors. His declarations are plausible. It may be deduced therefrom that he acted for political, not personal reasons. It does not, however, follow that the act had a predominantly political character. For this to be the case it is necessary that the murder of Mezai should have been the sole means of safeguarding the more important interests of the F.L.N. and of attaining the political aim of that organization. That is not so. It has not been shown that the interests of the F.L.N. were so gravely compromised by the alleged treason of Mezai that his ‘suppression’ was the sole means of effectively safeguarding them. Nor is it possible to conclude that the murder in which Ktir took part in any way advanced the liberation of Algeria. That murder was primarily an act of vengeance and terror. Its relationship to the political aims of the F.L.N. is too loose to justify it and to give it a predominantly political character. It is accordingly not a political offence in the meaning of Article 2, paragraph 1, of the Treaty. Since the other conditions set forth in the Treaty are satisfied, extradition must in principle be granted” (34 International Law Reports 143 at 145).

It may further be observed that at the twenty-first International Conference of the Red Cross, held in Istanbul in September 1969, Arab Delegations, led by the Algerian Red Crescent Society, were frustrated in their attempt to have Arab terrorists recognized as prisoners of war.

Compare in re Castioni [1891] 1 Q.B. 149; in re Meunier [1894] 2 Q.B. 415.