1 Belgium, Luxemburg, France, South Africa, the United Kingdom, the United States of America, Canada, Swaziland. Extradition between Israel and Swaziland is in fact the subject of an exchange of letters by which the two states have agreed to regulate the matter in accordance with the Israel-United Kingdom extradition agreement.

2 Austria, Italy, Ireland, Denmark, Holland, Turkey, Greece, Lichtenstein, Norway, Finland, Cyprus, Sweden, Switzerland.

3 Art. 3 of the agreement with France and Art. 2 of that with the Union of South Africa. The agreements with France, Luxemburg and South Africa, it should be explained, contain a special rule in the event of the person claimed becoming a national of the requested state after commission of the offence.

For the present purpose, no importance attaches to the fine difference in the terms of this rule as between the agreement with Luxemburg and those with France and South Africa.

Art. 3 of the Luxemburg Agreement reads as follows:

The Contracting Parties will not extradite their own nationals. Extradition may, however, be granted if, at the time of the offence, the person sought was not a national of the State applied to.

Art. 3 of the Israel-Belgium Convention:

Each Contracting party reserves the right to grant or refuse extradition of its nationals.

Art. 2 of the South African Treaty:

The High Contracting Parties reciprocally undertake to deliver up to each other, under the circumstances and conditions stated in the present Treaty, but subject to their respective laws on extradition, those persons who, being accused or convicted of any of the offences enumerated in art. 3, committed within the territory of the one Party shall be found within the territory of the other Party: Provided that each High Contracting Party reserves the right to refuse to grant the surrender of its own citizens, unless the fugitive was not a citizen of the requested Party at the time of the commission of the offence.

4 It may be observed that in the Belgian agreement there is the further provision that each of the parties also reserves “the right” to extradite its nationals. This provision is clearly not intended to add anything to or derogate from the right to refuse extradition (see the full text in n. 3 supra). Reservation of a “right” to extradite nationals as opposed to the general “obligation” of the parties to surrender offenders to each other, can in truth only mean a right to refuse extradition; the positive aspect of the right to extradite is already embraced by the general obligation. The South African Treaty, it seems, prefers the simple and more direct formula—”each High Contracting Party reserves the right to refuse to grant the surrender of its own citizens”, as a perfectly clear proviso to the general obligation to extradite. It follows that no real difference in norm exists between the absolute and permissive form of the exception. See in this regard Shearer, I. H., Extradition in International Law 110–114.Google Scholar

5 For reservations about this view, see infra.

6 Art. 3 of the French agreement:

The Contracting Parties will not extradite their nationals unless the person sought was not a national of the requested state at the time of the commission of the offence.

Where one of the Contracting Parties has refused to extradite a person by virtue of this Article, it shall bring him to trial, if it is competent to prosecute him, upon the other Contracting Party serving upon it, through the diplomatic channel, a request to bring him to trial and attaching to the request the files, documents, exhibits and information in its possession.

The requesting Party shall be informed of the result of its request.

Art. 6 of the European Convention:

1. (a) A Contracting Party shall have the right to refuse extradition of its nationals.

(b) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term “nationals” within the meaning of this Convention.

(c) Nationality shall be determined as at the time of the decision concerning extradition. If, however, the person claimed is first recognized as a national of the requested Party during the period between the time of the decision and the time contemplated for the surrender, the requested Party may avail itself of the provision contained in sub-paragraph (a) of this Article.

2. If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request.

7 Since the justiciability of a person for an offence in the courts of a state exempts the latter from all obligation to surrender him, even if he is not one of its nationals; the independent jurisdiction ousts extradition. This principle has also found expression in Art. 7 of the Israel-France extradition agreement.

8 Extra-territorial jurisdiction of criminal law by virtue of the representative principle is a new departure in the fight against crime. The principle is applied inter alia in cases where the criminal does not come under the active personality of municipal law, in spite of his being a national; but it is for this very reason that he may not be extradited, although his offence is an extraditable one. In such cases, to uphold the rule aut dedere aut punire and to fill the vacuum juris, the local criminal law is applied, if the state, which otherwise would be entitled to have him extradited, requests that he be prosecuted in the state where he is present. In fact, the state where the criminal is held carries out the task of the requesting state and represents it in the prosecution of the person. Ratione materiae the application of municipal criminal law is specific in that it relates to special offences not caught by the extra-territoriality of the law under other principles—passive personality, or protective or universality. Ratione personae the application is again specific since it comes into effect concerning offenders who do not fall within the ambit of the active personality principle; in point of choice of law, the application should be subsidiary only because it will be taken into account solely when the law is not applicable by virtue of some other principle and also because it will be conditional on the double criminality of the conduct, on the absence of a foreign res judicata in relation thereto, on any cause ousting criminal liability for the offence in the state where it was committed, as well as on the rule of mitior lex.

As for the extra-territoriality of criminal law under the principle of representation, see Schultz, H., “Compétence des Jurisdictions Pénales pour les Infractions Commises a l'Etranger” (1967) Rev. Sc. Cr. Dr. Pén. Comp. 308–309Google Scholar; Grützner, H., “L'Application de la Loi Pénale Etrangère par le Juge National” (1960) Rev. Int. Dr. Pén. 400–405Google Scholar; Feller, S.Z., “Jurisdiction over Offences with a Foreign Element” in Bassiouni, and Nanda, , eds., A Treatise on International Criminal Law, vol. 2, pp. 5, 34–37.Google Scholar The example given above is obviously only one instance of the application of the extra-territoriality of criminal law under the representative principle.

9 In contrast to “active extradition”, an expression intended to denote the complex of proceedings by a requesting state in order to secure the surrender of a person sought by it, “passive extradition” covers the complex of proceedings which a requested state must follow in connection with the surrender of an offender to another state in accordance with law.

10 Clearly any non-correspondence between municipal law and an international rule is liable to give rise to international complication; this, however, is a matter on a different plane, although here again the individual has no standing.

11 The exceptions are in the terms of Art. 14:

1. (a) When the Party which surrendered him consents. A request for con sent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;

(b) when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.

2. The requesting Party may, however, take any measures necessary to remove the person from its territory, or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time.

3. When the description of the offence charged is altered in the course of proceedings, the extradited person shall only be proceeded against or sentenced insofar as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition.

12 In this regard the following remarks of the Special Court of Cassation in Holland in the case of Flesche are illuminating: “An extradition treaty must generally be looked upon as a convention by which two States define the limits within which they will be mutually obliged to grant extradition.… Such a treaty cannot therefore be construed as conferring on individual offenders personal rights which they would be entitled to invoke on their own behalf in order thereby to prevent their extradition as the result of the States”: In re Flesche (1949) Ann. Dig. and Rep. of Public Int. Law Cases, Case No. 87, pp. 226, 270.

That is, an individual can succeed in contesting his extradition so far only as his plea is based on local law.

See Bassiouni, cited infra n. 30. See also, Rosenne, Sh., “The Application of Extradition Treaties (Cr. A. 557/71)” (1972) 28 HaPraklit 140Google Scholar: “in principle one must demur absolutely from any reliance on international law in a legal dispute between a person and a state (and all the more so between a national and his own state), since in general international law prescribes the relations between states”. Cf. Richok v. The State of Israel (1959) 13 P.D. 959, 963, 967, 973; The Custodian of Absentees Property v. Mamrah (1956) 10 P.D. 1825, 1829–1831. This approach is contested by those who urge that the individual can also be the subject of rights in matters of extradition, drawn directly from international law. Accordingly a person who has been brought to trial contrary to the limitations dictated by the Speciality rule may found a plea directly and exclusively upon this international norm. As a result these limitations are binding upon the court even when they are not part of or were not received by municipal law; see Panhuys, H. F. Van, “Le Traité d'extradition en tant que source de droits pour les individus” Le Droit Pénal International, recueil d'études en hommage à ]. M. Van Bemmelen 58–74.Google Scholar

13 Sec. 17 of the Law provides:

However, this provision shall not apply if the wanted person left the requesting state after his extradition and has voluntarily returned to it or if he has not left the requesting state within 60 days after being given the opportunity to do so or if the State of Israel has consented in writing to an act as aforesaid against the wanted person.

14 Sec. 24 of the Law reads as follows:

Person extradited to Israel 24. Where a person has been extradited to Israel by a foreign state, he shall not be detained or tried for another offence, or extradited to another state for any offence, committed before his extradition, unless that foreign state consents in writing to such an act or he has not left Israel within sixty days after being given an opportunity—subsequent to his extradition—so to do or he left Israel after his extradition and has voluntarily returned to it.

15 See on this Kowan v. The State of Israel (1975) (I) 29 P.D. 589. The Deputy President (Sussmann J.) inclined to the view that the Speciality rule is not to be regarded as common in the international community consolidated uniformly and generally, which is incorporated automatically in the local normative system of every state. (It should be noted that this is not the view of the writer).

16 The text of Art. 2 is as follows:

No Swiss citizen may be delivered to a foreign State. When a Swiss citizen is sought in Switzerland by a foreign State for an infraction envisaged by the treaty or by the promise of reciprocity, the Federal Council shall guarantee to the State which makes the request or to which it refuses the extradition, that the person sought will be tried and, if there is ground, punished in Switzerland in conformity with the law of the competent Swiss tribunal. The requesting State, on its part, shall give the assurance that the person will not be prosecuted within its territory for the second time for the same act, and that conviction which could be pronounced against him in the requesting State will not be executed, at least that he will not be subjected to the penalty to which he has been convicted in Switzerland. If this assurance is given, the Canton of residence or, in default of such residence, the Canton of origin, is under the obligation to proceed against the person in question as if the infraction were committed within the territory of the Canton.

17 The text of Art. 6 is as follows:

Crimes or delicts committed abroad by a Swiss person:

1. The present Code applies to every Swiss person who has committed a crime or delict abroad, which can under Swiss law give occasion to extradition, if the act is punishable within the State where it was committed and the person is present in Switzerland or if he is extradited to the Confederation by reason of his offence. The foreign law shall always be applicable if it is more favourable to the defendant.

2. The person shall not be punished again in Switzerland if he has been acquitted abroad of the same act by an effectvie judgment, if he has undergone the punishment pronounced against him abroad or if it has been remitted or prescribed by lapse of time. Where he has undergone abroad part only of the punishment pronounced against him, the same shall be taken into account in the punishment to be pronounced.

18 A slight difference exists between the two sections as to the conditions of their application. Sec. 6 of the Criminal Code makes jurisdiction conditional upon the active personality principle, the offender being a national also when he committed his offence, whereas sec. 2 of the Extradition Law is satisfied with his being a national when the other state requests his extradition. In accordance with the latter provision, whilst there will be no extradition, the person will upon the request of the requesting state be prosecuted, even where he was not a Swiss citizen at the time of the commission of the offence. The two sections do not entirely overlap, and where they do not—and only sec. 2 applies—jurisdiction is in fact merely representative as an alternative or counterbalance to non-extradition and not purely active personal jurisdiction.

19 It should be noted that in its ratification of the European Convention Switzerland made a special declaration regarding the said sec. 6, setting out its relevant normative position:

The Swiss Federal Council declares that Swiss law does not permit extradition of Swiss nationals. Provided that the statutory requirements are satisfied, the Swiss authorities may take proceedings and pass sentences in respect of offences committed outside Switzerland which are punishable under Swiss law as crimes or correctional offences (délits),… if they are extraditable under Swiss law and were committed by a Swiss national.

20 Notwithstanding the different reservations which parties to a multilateral treaty are likely to make regarding certain provisions therein.

21 Such as Israel in accordance with sec. 2(1) of its Extradition Law, 1954.

22 As in France where the Extradition Law of March 10, 1927 contains no reference to reciprocity, or as in Switzerland where sec. 1 of its Extradition Law makes extradition conditional upon reciprocity, not necessarily conventional, and in exceptional cases permits extradition without any assurance of reciprocity, as follows:

The Federal Council may, on condition of reciprocity, or as an exception even without that condition, deliver to foreign States at their request and under conditions stipulated by the provision of the present Law, any alien who is sought, arrested, formally charged or convicted by the competent judicial authority of the requesting State and who is found within the territory of the Confederation.

The Federal Council may, when it requests from a foreign State the extradition of a person who is sought, arrested, formally charged or convicted by competent Swiss tribunals, promise reciprocity within the limits of the provisions of the present Law.

Extradition treaties may be concluded with foreign States within the limits of the provisions of the present Law.

When an extradition treaty exists between Switzerland and the requesting State, the Federal Council may, nevertheless, on the condition of reciprocity, or even without that condition, grant the extradition for an infraction not envisaged by the treaty, within the limits fixed by the present Law; and if Switzerland is the requesting State, it may, within the same limits, promise reciprocity.

The Federal Council shall inform the Federal Assembly of the promises of reciprocity given or received.

23 Argentina, W. Germany, Finland, Ireland, Japan, Luxemburg, Peru, Spain, Czechoslovakia, Hungary, Roumania. In contrast to the United States of America, Great Britain, Holland, Belgium, Israel which under law grant extradition only in reliance on contractual reciprocity.

24 Italy, Algeria, Brazil, Denmark, Yugoslavia, Greece, Morocco, Finland, France, Sweden; under Swiss law reciprocity may be waived in exceptional cases as appears from n. 22 supra.

25 Sec. 18 of the Extradition Law, 1954, of Israel provides expressly that the Minister of Justice “may” order the carrying out of the extradition of a wanted person “whose declaration as subject to extradition has become final”. The commencement of extradition proceedings is also a matter in the discretion of the Minister of Justice under sec. 3 of the Law.

26 See Travers, M., Le Droit Pénal International, vol. IV, pp. 388–389Google Scholar: “Aucun principe n'oblige l'Etat reguis à accorder de remise que sous condition de réciprocité”; “Aucune règle de droit ne serait violée si des delinquents étaient livrés sous reciprocité”.

See also the Conclusions of the Tenth Congress of International Criminal Law, (Rome, September 29—October 5, 1969) which recommend that “it is desirable that States should be able to effect extradition also if international conventions are lacking.… Reciprocity is not imposed by the exigencies of justice. It is desirable that reciprocity should cease to be a rigid rule in the law of extradition.”

27 Cited in Research in International Law Harvard Law School (1935) (hereinafter referred to as “Harvard Research”) 285.

28 See Grützner, , (1968) Rev. Int. Dr. Pen. 380–383.Google Scholar

29 It is not disputed that if all states were bound by extradition treaty—bilateral, multilateral, regional or even a uniform extradition agreement—no argument giving preference to reciprocity as “ordinary reservation” over contractual reciprocity in the general arrangements would be tenable. Contractual ties in such general arrangements would furthermore lead to uniformity of the normative basis for extradition relations universally and to the development of extradition law on that basis as a branch of international law. Yet, so long as the situation is otherwise, there is certainly no reason to preclude extradition relations on the ground of reciprocity as ordinary reservation as an addendum to such relations founded on international agreements by a gradual narrowing of the network of the former relations along with a broadening of the latter. This approach is without doubt more consonant with the struggle against crime, the success of which depends in large part on the cooperation of states in matters of extradition. In fact, that is also the underlying concept of every extradition agreement: the realization of reciprocity in this area. If this fundamental premise is not disputed, why not build extradition law directly on the foundations of reciprocity as ordinary reservation, leaving contractual reciprocity to grow progressively, particularly when the parties wish to adopt special conditions going beyond the regular internal norms applicable by virtue of ordinary reciprocity reservation? For instance, if under such norms passive extradition—both as to initiation of proceedings and as to implementation of extradition after a wanted person has been declared extraditable—lies within the discretion of the executive, it could be prescribed that a state is obliged to initiate extradition proceedings, and then implement them without exercising any such discretion, after judicial enquiry that all the necessary conditions have been met. It is also easier to fulfil extradition relations based on reciprocity as ordinary reservation with different countries than to sign with all of them formal agreements. Further, and this is central, extradition in reliance on ordinary reciprocity reservation is effectuated in due observance of all requirements prescribed by internal law, and it is permissive and not mandatory. Ultimately, reciprocity of this kind is a question of fact the existence of which is weighed by the executive. The latter may initiate reciprocity or bring it to an end. The question is one of relations with other states, the answer to which is left to the government at every stage of the effectuation of and proceedings for extradition. In the U.S.A. as well, which is bound by extradition agreements with more than eighty states throughout the world, voices have been raised against a system based on contractual reciprocity (Wise, E., “Some Problems of Extradition” (1969) 15 Wayne L.R. 709, 713–714Google Scholar), whilst in England, which maintains extradition relations under the Fugitive Offenders Act, 1967, on the basis of ordinary reciprocity, with all previous members of the Empire, demand has for quite a time been made to abandon contractual reciprocity (Report of the Royal Commision on Extradition (1965); O'Higgins, P., “Reform of British Extradition Law” [1963] Crim. L.R. 805Google Scholar). For all the above reasons, we prefer ordinary reciprocity reservation to contractual reciprocity.

30 See Gonsa, H., (1968) Rev. Int. Dr. Pén. 450–451.Google Scholar

Interestingly, this view is also common in the U.S.A. where extradition is on the basis of contractual reciprocity alone. As C. Bassiouni puts it: “Since the American practice rests largely on treaties wherein the mutuality of obligation exists, it is clear that reciprocity is a conditio sine qua non. However, the nature of such reciprocity does not lie in every aspect of the process but in the principle of mutuality of obligations, even though these obligations may have different applications. The American position is that this is not a question of fairness for the accused nor an individual right but rather a measure of state sovereignty. Wherefore, the state can waive it and the individual whose extradition is sought cannot insist upon it” ((1968) Rev. Int. Dr. Pénal, 495, 946).

31 See the Tel Aviv District Court decision in Pesachovitz v. A.G. (1973) (not reported).

32 See the full text of the Article in n. 6 supra.

33 See Jescheck, H. H., “Neue Formen der Internationalen Rechtshilfe in Strafsachen” in Festschrift für Richard M. Honig (1970) 72–73.Google Scholar

34 Harvard Research, at p. 270. Fifteen states of South America are parties to the Bustamente Code.

35 Ibid. at p. 274. The U.S.A. is also a party to this regional Convention.

36 Ibid. at p. 278.

37 Bedi, S. D., Extradition in International Law and Practice 220.Google Scholar

38 Harvard Research, at pp. 21–31.

39 Schedule A, Reservation No. 3. Non-Extradition of Nationals with Duty of Prosecution. See also the commentary, Ibid. at pp. 222–224.

40 See the list of extradition treaties in Shearer, op. cit., at pp. 219–223.

41 See supra n. 3.

42 Presumably these states reserve the right to refuse extradition of their nationals for reasons of internal law, otherwise there is no explaining this restriction in respect of the agreement with Israel which is itself not prevented from surrendering its nationals by any internal statutory provision; see further supra n. 4.

43 This clearly notwithstanding compliance with the normative requirement of the existence of an agreement prescribing reciprocity in extradition between Israel and the requesting state. In the absence of such an agreement, the Minister of Justice will undoubtedly not direct the institution of the extradition proceedings—not as the result of the exercise of his discretion but in compliance with the requirements of the Law. In all matters concerning extradition the discretion vested in the Minister of Justice may well relate only to the readiness of Israel to maintain or not to maintain extradition relations with the requesting state even where both states are bound by agreement. What is therefore involved is a criterion of a policy nature, in addition to the other criteria made obligatory by the Law. This aspect of reciprocity is accordingly also a question of fact and not of law. It is self-evident that the Minister of Justice is not prevented from addressing himself at this first stage to other questions as well—such as whether the offence is an extraditable one or of a political nature, or whether the wanted person has been charged for racial or religious reasons, or the period of limitations has run and the like—in deciding whether to initiate proceedings of an extradition which may prove itself to be manifestly inadmissible. The Minister is, however, not required to go into these questions, he may leave the enquiry and decision to the court without expressing any opinion thereon. These questions are the concern of the law and are remitted to investigation by the court which will hear the extradition petition. See Lipski v. Minister of Justice (1962) (not reported) in which Berinson J. stated: “Upon these conditions being met to the satisfaction of the Minister of Justice, I think that he is not obliged to turn himself into a court of law and deal with all the arguments which the person sought can raise in court”; and Cohn J. held: “The discretion vested in the Minister of Justice does not require or even justify his having regard to all the arguments which may be raised in judicial proceedings in court”, and this after saying that these questions generally “are not questions which the Minister of Justice must answer” since they involve the normative conditions for the existence of extradition relations.

At the final stage of implementing extradition, after the wanted person has been declared subject to extradition, the considerations of the executive arm are undoubtedly a matter of policy; since judicially it has already been decided that normatively the extradition petition is properly founded, the “policy” reciprocity will also be a question of fact.

44 See supra n. 43.

45 See Feller, S. Z., “La législation pénale israélienne et les principes de l'application de la loi pénale dans l'espace” Scripta Hierosolymitana, vol. XVI, Studies in Israel Legislative Problems (1966) 275–297Google Scholar; idem, “Certain Aspects of the Principle of Legality” (1968) 1 Mishpatim 19, 56–57.

46 Shearer, op. cit., at pp. 219–233.

47 Ibid.

48 The reference is to extradition relations based on treaties in which the non-extradition of nationals is not made conditional upon his prosecution in the requested state.

49 Feller, “La législation pénale…” cit., at p. 289; idem, “Compétence des juridictions pénales israéliennes pour les infractions commises à l'étranger” Israeli Reports to the Seventh International Congress of Comparative Law (1966) 138, 150–151; idem, “Certain Aspects…”, cit., at pp. 49–50 and sec. 11 in conjunction with sees. 12 and 17 of the draft Law at pp. 62–66.; idem, “A Strange Patch on an Outworn Garment” (1972) 28 HaPraklit 235, 240–243.

50 That is to say, that responsibility should be subject to the double-criminality requirement—that the act should also constitute an offence in the country where it was committed—to the foreign law insofar as it deals less rigorously with the offender, to every limitation on responsibility according to such foreign law—such as amnesty, prescription, abolition of the offence and the like—and to foreign res judicata provided that he served his sentence there for the offence involved if found guilty thereof. In addition, the opening of criminal proceedings should require the particular approval of the Attorney General, as is customary with all offences committed abroad; this, in order to filter and exercise jurisdiction in pursuance of special reasons.

51 See Feller, “Certain Aspects…”, cit., secs. 11, 12 and 17 of the draft Law at pp. 62–66.

52 As was proposed in a private Extradition Law Amendment Bill of June 10, 1975 submitted to the Knesset by nine members. The proposal is as follows: “After sec. 2 there shall be inserted the following new section:

Nationals. 3. A requested person who is an Israeli national shall not be extradited unless his extradition is requested for an offence he committed prior to his becoming an Israeli naional”.

Despite the final proviso the proposed norm is likely to confer immunity upon a person already a national in respect of offences he committed abroad, if no provision is made parallelwise conferring active personal jurisdiction over him; something which the proposers have not suggested.

53 4 L.S.I. 114.

54 6 L.S.I. 50.

55 As has been done in France (art. 689 of the Criminal Procedure Code), Switzerland (art. 6 of the Criminal Code), West Germany (art. 7(2), 1 of the Criminal Code), Italy (art. 9 of the Criminal Code), Belgium (art. 8 of the Criminal Procedure Code), Denmark (art. 7 of the Criminal Code), Sweden (art. 2 of chap. 2 of the Criminal Code), Norway (art. 12(3) of the Criminal Code), Greece (art. 6 of the Criminal Code), Roumania (art. 4 of the Criminai Code), Czechoslovakia (art. 18 of the Criminal Code), U.S.S.R. (art. 5 of the Principles of Criminal Legislation), Yugoslavia (art. 93 of the Criminal Code) and others. See also Harvard Research: Draft Convention on Jurisdiction with Respect to Crime, art. 5, pp. 425 and 505–521; Resolution adopted by the Conference for the Unification of Penal Law, Warsaw, 1927, art. 2, p. 627; Resolution on the Conflict of Penal Laws with respect to Competence, adopted by the Institute of International Law, Cambridge, July 31, 1931, art. 3, p. 630.