Legal Advisor to Torah Mitzion
Having just finished his IDF Army Service, Avner decided to travel to the Far East. He planned to stay in India for several months, portering part-time, to save money for the rest of his trip. However, not more than one week had elapsed when Avner found himself in a dispute with a Chinese porter, who worked at the same company. Blows soon followed and the next thing Avner saw was the porter lying on the ground in a coma. Avner panicked, quickly packed his bags and flew back to Israel.
The porter’s body was found and the Chinese police commenced an inquiry, in which it became apparent that Avner was responsible for the murder. The Chinese Justice Ministry submitted a formal request to the Israeli Government for Avner’s extradition to the Chinese authorities for trial. Unlike in Israel, the maximum penalty for murder in China is the death penalty. Moreover, Avner’s attorney argues, that the trial may be conducted by judges who are not known for their sympathy towards Israel. Should Israel accede to China’s request?
Introduction to Moral Dilemmas
Our case raises a number of challenging issues. First, should extradition be an option at all? On the face of things, “to serve a prison sentence in a foreign country, besides the deprivation of liberty, involves an extra “punishment” of residing in an environment whose customs and language are foreign to the prisoner, and causes the prisoner’s family additional distress, above and beyond the suffering caused to the family as a natural consequence of the imprisonment of one of its members, in view of the remoteness of the place and time” (Supreme Court Justice, Menachem Elon, in the case of Aloni v. Minister of Justice 1986).
Secondly, is there any room for the institution of extradition in the Israeli legal system? It could be argued that the State of Israel, being the “Jewish State,” needs to serve as a refuge for any Jew, even if he is a criminal. On the other hand, perhaps preference should be given to the principle that determines that a criminal needs to receive his just deserts so as not to profit from his crime.
Other difficult dilemmas, relating to the subject of extradition, arise when the extradition of an Israeli offender to a foreign country may potentially harm him, even seriously. Perhaps the interest of the individual should take preference in such a case, certainly if he is likely to face real danger if he is extradited?
Possible Grounds for Avner’s Extradition Under Modern Israeli Law
Under the Israeli Extradition Law, 5714-1954 (“the Law”), a person found in Israel may only be extradited to another country under the provisions of the Law. The basic thrust of the Law is thus negative in nature – extradition is an exception to the rule under which citizens of Israel cannot be extradited to stand trial abroad. The Law reflects the view that Jews should not be handed over to gentile courts, where they might face an unfair trial.
The Law requires the existence of an agreement between Israel and the requesting state providing for reciprocal obligations to extradite requested persons. If such a treaty exists with China, this threshold would be satisfied in our case. Another condition contained in the Law is that the offense must be an extraditable offense, i.e. any offence which would carry a prison sentence of one year or more. This would certainly be satisfied in our case, as even if the porter’s death was caused by negligence, the penalty under Israeli law is a 3 year prison sentence (and up to 20 years imprisonment for manslaughter).
Under section 2B of the Law, a wanted person may not be extradited where the request for his extradition arises from racial or religious discrimination. If Avner’s extradition is being sought solely because of his Jewish background, he would not be extraditable under Israeli Law. Clearly, however, this would be difficult to prove.
Should Avner be extradited if his life is likely to be endangered following the extradition? Under section 16 of the Law, a wanted person may not be extradited for an offence which is punishable by death under the law of the requesting state (but not so punishable in Israel). Assuming the law in China does not require the death penalty for the offence with which Avner is being charged, but the judges in their hostility are likely to subject Avner to the death penalty or perhaps condemn him to languish in a Chinese jail – should Avner then be extradited? The Law is silent on this point.
The Foundations of Law Act, 5740-1980
Until the year 1980, when a particular situation was not fully covered by the existing Israeli law, the principles of British law would be used to fill the gap created. In 1980, a revolutionary law was passed by the Israeli Knesset – the Foundations of Law Act. This states that where a judge is faced with a legal question requiring decision, to which he finds no answer in statute law, judicial precedent or analogy: “…he shall decide it in light of the principles of freedom, justice, equity and peace of the Jewish heritage.”
We examined above the existing “statute law” with a bearing on our case and found it wanting. In accordance with the requirements of the Foundations of Law Act, we must next examine whether any “judicial precedent or analogy” is able to assist us on the issue of whether a person should be extradited when his life is likely to be endangered by his extradition?
Aloni v. Minister of Justice (1986)
Until 1986, this question had not been decided. In 1983, William Nakash, a French Jew, collaborated in the killing of an Arab in Benzensan, France, following a quarrel among nightclub owners. Shortly after the murder, Mr. Nakash arrived in Israel under a false identity and received Israeli citizenship. France requested his extradition based upon the extradition treaty that existed between the two countries.
The Israeli Justice Minister declined to carry out the extradition, citing fears concerning the physical safety of Nakash in a French jail at the hands of fellow inmates. Several MKs appealed the decision to the High Court of Justice, which decided to overturn the Minister’s decision. The majority opinion ruled that Nakash’s extradition should only be avoided in the event of a high probability of danger to his life (by contrast, Justice Elon, in the minority, ruled that a reasonable doubt concerning the accused’s safety, were he to serve his sentence in a foreign country, would be sufficient to prevent his extradition).
What is intriguing, more so than the final outcome of the case, which went against Nakash, is Justice Elon’s approach to find an answer to a question that had not hitherto been dealt with in Israeli law or by the courts. Using the Foundations of Law Act, 5740-1980 as his mandate, Justice Elon reviewed the attitude of Jewish Law to extradition. We shall follow his thought process, which ultimately led him to conclude that it is possible, even under Jewish Law, to extradite a criminal to a foreign government.