The post-Sheinbein Israeli extradition law: has it solved the extradition problems between Israel and the United States or as it merely shifted the battleground?

• Author: Abramovsky, Abraham

ABSTRACT

In this Article, the Authors examine Israel's stance on extradition. In Part II, the Article offers an historical timeline of the development of Israel's extradition policies, from common law to reciprocity. In Part III, the Article examines Israel's initial attempts to address the problems inherent in its operating extradition policy. This section also includes an analysis of the reform movement's effect on specific cases. In Part IV, the Article examines the most recent reform of Israel's extradition policy.

1. INTRODUCTION

   On April 19, 1999, the Israeli parliament enacted the Extradition Act (Amendment No. 6), which, for the first time since 1978, permitted the extradition of Israeli nationals who had committed crimes abroad. (1) From independence in 1948 until 1978, Israel had followed the common-law tradition, inherited from the British Mandatory authorities, of extraditing its own citizens. (2) In 1978, under new political leadership and in the wake of a succession of high-profile cases, Israel amended its extradition statute by adopting the Continental system, declaring that it would no longer extradite its nationals. (3)

   This policy existed in Israel without major difficulty until 1997. (4) Beginning in the mid-1990s, however, Israeli officials, concerned that Israel's extradition policy rendered it a haven for Jewish criminals, began to study proposals for full or partial return to the pre-1978 system. (5) In September 1997, this reform process gained impetus with the flight of teenage murderer Samuel Sheinbein from Maryland to Israel. (6)

   The disconcerting aspects of the Sheinbein case stemmed from the fact that Sheinbein was born in the United States and, prior to being accused of the gruesome murder of Enrique Tello, Jr., had never lived in Israel. (7) He, however, was able to claim that because his father was an Israeli citizen, he was a national of Israel pursuant to the Nationality Law of 1952 and that his extradition was thus precluded by the 1978 statute. (8) This placed the Israeli government in the position of being forced--against its will and against the interests of its closest ally, the United States--to prosecute in the Israeli courts a fugitive who had no prior connection whatsoever with Israel. In addition, the case became a political and diplomatic debacle for Israel, straining U.S.-Israeli relations to the point where leading members of the U.S. Congress threatened to cut off aid. (9)

   The damage that the Sheinbein case caused to U.S.-Israeli relations, combined with Israel's anger at the cynical manner in which Sheinbein manipulated its legal system, led to the repeal of the 1978 extradition legislation. On September 2, 1999, Sheinbein pled guilty in the Jerusalem District Court to Tello's murder, putting an end to the two-year battle over his extradition between Israel and the United States. (10) By then, however, the case had also put an end to Israel's twenty-year experiment with nonextradition of its nationals.

   Rather than returning to the pre-1978 system, however, the new legislation divided Israeli citizens for the first time into two categories. (11) Israeli nationals who are residents of Israel at the time an extradition request is made may now be extradited, but only on condition that they be returned to Israel to serve any prison sentence that may be imposed if convicted by the courts of the requesting state. (12) Those who are not residents at the time of the extradition request may be extradited regardless of whether the requesting state agrees in advance to allow them to serve their sentences in Israel and would thus ordinarily be incarcerated in the prisons of the requesting state. (13)

   The 1999 law represents the latest chapter in Israel's continuing effort to balance its historic role as a sanctuary for persecuted Jews with its obligation as a sovereign state to assist other nations in combating crime. Like Israel's previous attempts to achieve this balance, however, the most recent amendment to the Extradition Act may not constitute the desired solution. Because the significant date for determining Israeli citizenship and residency is the date of the extradition request rather than the date the offense was committed, the possibility remains that a fugitive might seek the protection of Israeli law by fleeing to Israel and attempting to remain there long enough to qualify as a resident. (14)

   Moreover, due to differences in sentencing policy between Israel and other nations, especially the United States, future manipulation of the amended Israeli extradition law is not only possible but likely. (15) It may well be that only the battleground has shifted; while Israeli nationality is no longer a bar to extradition, the issue of Israeli residency can still be used by fugitives to gain advantage and disrupt the extradition process. Thus, despite the confident assertion of Israeli diplomat Lenny Ben-David that there would be "no more Sheinbeins," (16) it is likely that Israel will find itself with more unwanted and politically damaging guests.

   Accordingly, this Article will trace the history of extradition in Israel, analyze the interpretation of the 1999 amendments to the Israeli Extradition Act, and suggest further revisions. Part II will discuss extradition in Israel from the Mandate of Palestine through the Sheinbein case, including both the legislation and the cases and principles that shaped the various amendments to the law. Part III will examine the movement for reform that arose prior to and during the Sheinbein case, the substance of the 1999 legislation, and its interpretation by the Israeli courts. Finally, Part IV will discuss the reasons why the current Israeli extradition statute remains subject to abuse by fugitives and suggest possible amendments that will move Israeli law closer to the balance it has sought. While cases involving extradition disputes between Israel and other countries will be discussed, the primary focus of this Article will be the extradition relationship between Israel and the United States.

2. FROM HERZL TO SHEINBEIN: EXTRADITION AND THE ZIONIST IDEAL

   On November 29, 1947, the United Nations General Assembly issued Resolution 181, calling for the partition of the British Mandate of Palestine into Arab and Jewish states. (17) Six months later, on May 14, 1948, British forces withdrew from Palestine, and the Provisional Government of the State of Israel declared independence. (18) On the same day, the new nation, which was already embroiled in military clashes with Palestinian Arab irregulars, was invaded by the forces of five Arab nations. (19) The ensuing war lasted slightly more than a year, ending with the conclusion of a cease-fire agreement with Syria on July 20, 1949. (20)

   1. 1896-1975: Zionist Honor and the Common Law

      The Israeli victory in the War of Independence resulted in the formation of the first Jewish state in modern times and the culmination of the Zionist movement first articulated by Theodor Herzl half-a-century before. (21) One of the first acts of the State of Israel after securing its immediate independence was to give expression to another of the founding Zionist ideals by enacting the Law of Return. (22) This statute, enacted in 1950, allows any Jew to immigrate to Israel and immediately obtain Israeli citizenship, without the necessity of obtaining permission either before or after settling in Israel. (23) As originally enacted, it prohibited the government of Israel from limiting the total volume of immigration and allowed the preclusion of individual immigrants only if they were "engaged in an activity against the Jewish people" or presented a threat to public health. (24) As one noted Israeli academic has stated, the Law of Return

      views every Jew and his or her family members as in potentia citizens of the State of Israel, thus establishing a formal, legal link between the State of Israel and the community of world Jewry, and expressing a fundamental Zionist value upon which the State itself is founded: that Israel should provide a home to any Jew who so desires. (25) One of the corollaries of this policy of unrestricted immigration was that Israel "established a policy, since consistently followed, of aiming at the conclusion of extradition agreements with as many States as possible." (26) This was done both out of recognition of the "growing interdependence of States" and out of awareness that a country which was a haven for Jews might also become a haven for Jewish criminals. (27) If such criminals were allowed to obtain sanctuary in Israel, both the international relations of the Israeli government and the maintenance of domestic law and order would be prejudiced. (28)

      In fact, more than half-a-century before the creation of Israel, the founding philosopher of the Zionist movement argued that extradition was a matter of honor for any Zionist state. (29) In his seminal 1896 work, The Jewish State, Theodor Herzl wrote:

      Every just private claim originating in the [requesting] 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 honor ... 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 civilized nation does. (30) Thus, although Israel did not adopt a domestic extradition statute until 1954, the post-independence government continued to apply the 1926 Extradition Ordinance promulgated by the British Mandatory authorities. (31) Pursuant to the 1926 statute, Israel concluded provisional agreements in the form of exchange of notes with France in 1951 and with Belgium in 1953. (32) These agreements were governed by the terms of the pre-existing extradition treaties between these countries and the United Kingdom. (33)

      In 1954, the Israeli parliament, the Knesset...