Thursday, March 8, 2018

Extradition or Jurisdiction? – A Hard Look at the Law

Listen, my children, and you shall hear
Extradition laws in the land we all revere.
The report is from April of Ninety-five
Though many a man who was then alive,
are to most of these laws largely unaware,
in the Mideast side, in the land we revere.

Neither by land, nor by sea nor by plane,
for the accused here on the opposite shore must remain.
Even if Australia shall spread the alarm
He cannot be taken from his village or farm,
For the country-folk cannot be sent out to harm.

-      Heskel Worthwads Hirshfellow

I have been writing about the Malka Leifer saga since June 2016. My objective was (1) to present the halachic perspective on the issue (it's assur), (2) to portray that it is diametrically opposed to the conventional secular perspective (it's an act of virtue), and (3) to dissuade all G-d fearing Jews from pursuing this sinful naarishkeit and Chillul Hashem.

Until now, my stance has been mostly Halachic (and partly pragmatic). The two primary components to my stance are:

1.   There is no hetter for Mesira in this case.

This is because Mrs. Leifer does not reside in Australia and cannot be considered a “rodef” there. All her activities in Australia are ancient history. Mesira can only be permitted for an active rodef, and certainly only to the authorities in the region where the active redifa is currently taking place. Thus, there is no justification for schlepping her back to Australia and handing her over to non-Jews. The only outcome for this is punishment and not protection and this is strictly forbidden.

2.   With no connection to the above, no matter how guilty or “evil’ she may be, no Jew may be forcibly sent out of Eretz Yisroel.

This is taken from the law of the escaped Eved Canaani in Yoreh Deah 267:85. The chiddush of this Halacha is that even one who is not a true Jew, and who rightfully belongs to an observant Jew who lives in the diaspora, cannot be taken out of Eretz Yisrael. It goes without saying that a full-fledged observant Jew who is living in Eretz Yisrael cannot be forcibly sent out.

These and the additional arguments and the pragmatic points are all discussed at length in my post about Flirting with Danger.

The second component above – that our Halacha forbids extradition from Eretz Yisroel – was working on the assumption that this opposes the legal status of extradition according to Israeli secular law. It was assuming that according to Israeli law, there is no reason not to honor this extradition request. This seems to be what everyone thinks.

Without knowing much about international extradition, a few things bothered me about the system. I even contacted a legal professional with my concerns which we will discuss very soon. His terse response was, “That’s just the way it is.” But now that recent developments in the Malka Leifer case suggest that extradition proceedings may actually take place (R”L), I decided to take a much deeper look.

Of course, I am not a lawyer, but being a Toen Rabbani (I am still working on getting my license) brings me very close. I am quite skilled at legal research so I can claim that I at least qualify as a “law student”. Obviously, the best source of information would be an experienced legal expert in this field. Although I know lots of lawyers, I don’t know any who handled international extradition.

So I did consult with a great legal mind – Sergei N.Google, Esq. (from the Israeli law offices of Google, Bing, Nett and Yahoo).

What I discovered shocked even me. There are numerous legal reasons why the State of Israel need not honor this request, and at least one that they may not. As far as I can see, even by secular Israeli law, extradition in this case is illegal!

Among other things, Mr. Google referred me to these two sources (you may want to check them out yourself): Wikipedia – Extradition and, more relevant, a 1995 report of the extradition laws from the Israel Ministry of Foreign Affairs (IMFA).

Let’s check out the issues.

Extradition Scenarios

To understand what the complexities are, we need to clarify our case. There are a number of extradition scenarios, the variations of which make it either very easy or very difficult to honor an extradition request. There are two very dominant considerations, one I will label with 1 and 2 and the second with A and B.

First consideration - citizenship:

1.   The refugee is a citizen of the requesting country. For example: The refugee is Australian and committed a crime in Australia. He ran to Israel where he is not a citizen. Basically, the requesting country is asking the refugee country for their citizen back. The refugee country has no responsibility to protect this person who is not their citizen. There is nothing to hold back extradition so it should be easy.

2.   The refugee is not a citizen of the requesting country but is a citizen of the refugee country. For example: The refugee is Israeli and committed a crime in Australia. He ran to Israel where he is a national citizen. Basically, the requesting country is asking the refugee country to hand over one of their citizens to them. The refugee country has a strong responsibility to protect this person who is indeed their citizen. As such, it is duty bound to challenge the extradition on any reasonable grounds, or to assist the refugee in his challenge. This makes it difficult.

Of course, there can also be cases of dual citizenship (or not a citizen of either country). I am assuming that Mrs. Leifer never obtained Australian citizenship and is only Israeli. I saw no mention of such a thing in any news clip. (Note - See Second Update at the end of this post)

Second consideration – level of guilt:

A.   The refugee has stood trial in the requesting country and has been found guilty by due process of law. Hence, they are requesting the refugee country to hand over a person whose guilt was proven. This justifies an extradition. Should be easy.

B.   The refugee is merely suspected of committing a crime but has not stood trial. The requesting country cannot assure the refugee country that the refugee is indeed guilty. There is much less justification for extradition in this case. Not as easy.

As you can see, from these two considerations we can create up to four scenarios: 1A, 1B, 2A, and 2B.

1A – a citizen who was convicted – justifies extradition on both counts. 1B and 2A each have a compelling side and a protective side. But 2B - a non-citizen who has not been convicted, has two strikes against extradition. From a moral standpoint, it is very difficult to justify the refugee country agreeing to extradite their own citizen on a mere suspicion.
It seems to me that extradition treaties were made primarily for 1A and possibly 1B and 2A scenarios. I don't think their main objective is to include 2B scenarios.

Clearly, 2B is the scenario that applies to Malka Leifer. And this was one of the concerns that I posed to the “legal professional”. His response was that he agrees in principle but the extradition treaties do not scrutinize.

This lawyer is an expert in Israeli criminal law, but I am not sure how much experience he has with international extradition. From the Google links I posted above, I see at least four issues he may not be aware of. Let’s examine:

1 - Prima Facie Evidence

In my previous post, I suggested that the extradition request from Australia may not be entirely legal for lack of "Prima Facie evidence". What is Prima Facie evidence?

YourDictionary says:

Prima facie evidence is a legal term used to mean that you have enough evidence to prove something by pointing to some basic facts, but that your proof can be refuted.

So it means that there are “basic facts” to prove something even if it is not irrefutable.  Now, obviously, there is a lot of subjectivity in how to understand these things, but to me, “basic facts” means physical circumstantial evidence that support the allegations of the accusers, or possibly, objective eye-witnesses. I cannot fathom that an unsupported accusation from nobody but the accuser is called “evidence” at any level.  But our case is even worse.

A homicide is established by the discovery of a dead body (with signs of homicide). This determines that a crime was committed. The only question is whodunnit? A homicide can be established years after its occurrence because the body will stay dead forever (though the signs of homicide may deteriorate).  Likewise, if the Mona Lisa is missing from the Louvre, this attests that a robbery took place. A burnt building attests that there was arson. In these cases, it is not difficult to establish that there was a crime. And once there was, circumstantial (Prima Facie) evidence can point to the culprit.

Assaults are different. Especially sexual assaults. Unless there are broken bones, stitches, pregnancies, or permanent physical injuries, after a week, or at most a month or two, there is no longer any physical evidence of an assault. If an assault is reported within that time, the police report and the injuries will establish that an assault took place. But if the assault is not reported within that time, there is no evidence of a crime whatsoever. There is nothing but the belated complaint of the “victim”.

In my judgement, Prima Facie evidence only applies when there is no question that there was a crime. But if even the mere occurrence of a crime cannot be established, what can be called Prima Facie evidence?

How does this apply to extradition?  This is critical.

I did not make up the distinction between a convicted refugee and a suspected refugee. It is clearly discussed in the IMFA report. The report says as follows:

There is a difference between the evidence required when the person sought is a convicted felon and the evidence required when he/she is a suspected felon. Where the requested person has already been convicted, prima facie evidence need not be shown

In contrast, when a requested person is only accused of committing a crime, the State must show a prima facie case.

This says that in order to approve an extradition, even for a non-citizen, if one is merely a suspect  (1B or 2B), there must be Prima Facie evidence of their guilt. In our case there isn’t even any evidence of a crime!

This is Israeli law. Has it changed since 1995?

For this reason, I maintain that Australia’s request for extradition does not meet legal standards and is not sustainable. In fact, my sources tell me that the Adass community in Australia does not want this extradition. May I suggest that they challenge the legality of it in the Australian courts?

2 - Article 8

Israel signed the European Convention on Extradition as well as a bilateral treaty with Australia. I don’t know if the terms match but, at least in the European treaty we have “Article 8”. Here I will quote from the Wikipedia page:

Article 8 states that everyone has the right to the respect of their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. While this article is useful as it provide for a prohibition to extradition, the threshold required to meet this prohibition is high. Article 8 does explicitly provide that this right is subject to limits in the interests of national security and public safety, so these limits must be weighed in a balancing of priority against this right. Cases where extradition is sought usually involve serious crimes so while these limits are often justified there have been cases where extradition could not be justified in light of the individual's family life. Cases to date have mostly involved dependant children where the extradition would be counter to the best interests of this child. In the case of FK v. Polish Judicial Authority the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed number of years ago.

This basically says that if the accused person has a family and dependents in their place of refuge and the extradition would harm the welfare of the family members, extradition can be denied.

Most crooks are running away from their homeland and if they have family, they are probably not with them. But we are dealing with scenario 2, the accused is in her homeland with her family. This is certainly grounds for denying extradition.

This is obviously a highly subjective provision, but, as I wrote, if the accused is a citizen of the refugee country, they have a responsibility to uphold this challenge to legally protect their citizen. Of course, if the Israeli-Australian treaty does not include this provision, it may not be viable.

3 - Jurisdiction

In all of my posts, I have repeatedly declared that if anybody wants to prosecute Mrs. Leifer, they must do it right here in Israel. No extradition allowed.

Immediately, some of the lynch mob folks attacked me such as this one who commented on my keynote post saying: Incidentally you cannot be prosecuted in israel for crimes committed elsewhere.

I responded to him: Not so. Citizenship gives jurisdiction. If an Israeli punches me in the nose in China I can sue him here for it.

At the time, I didn’t have a black and white source to link to. But I do now.  The Wikipedia article says so. What’s more, they say, this is something that can be used as a reason to deny extradition, even for a non-citizen. Here’s what they write:

Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction. 

This is exactly what I wrote back in June 2016. But I have learned that it is not merely that the State of Israel has Jurisdiction, but that it is a legal excuse to deny extradition. Not just an excuse, it is mandatory as we will see in the next and final issue.

Before we go there, it is important to discuss the law of double criminality and what it means. Let’s again check out the IMFA report:

Double Criminality

Section 2(2) of the Extradition Law states that a person may be extradited if:

"he is accused or has been convicted in the requesting state of an offense of a non-political character and which, had it been committed in Israel, would be one of the offenses set out in the Schedule to this Law."

This means that the crime must be an offense both in the requesting and the requested state. This section is thus the source for the requirement of double criminality.

What it means is that, if he (or she) cannot be tried in Israel for this alleged crime because it is not a crime in Israel, then the accused cannot be extradited for this crime, either.  It must be a punishable crime in both places. This creates a one-two punch that says that extradition is only possible if the crime is triable in Israel, and once the refugee is an Israeli citizen, then Israel has jurisdiction to try the crime here. As such, they have no reason to extradite nor any obligation to.

But, what’s more, is that after all the above, the State of Israel has no right to extradite as we are about to find out.

4 - National

This is the treaty-breaker. The Wikipedia article says as follows:

Own Countries

Some countries, such as Austria, Brazil, the Czech Republic, France, Germany, Japan, the People's Republic of China, the Republic of China (Taiwan), Russia, Switzerland and Syria forbid extradition of their own citizens. These countries often have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders

When I read this, I was a bit disappointed that Israel does not appear to be on the list. But, lo and behold, according to the 1995 IMFA report, it sure is:

(4) Nationals

Any person may be extradited from Israel except for a person who was an Israeli national at the time of the commission of the offense. However, to ensure that an Israeli national does not escape prosecution, Sections 7A and 10A of the Penal Law, 5737-1977 (as amended) extend the jurisdiction of the Israeli courts to hear cases in which an Israeli national is alleged to have committed a crime abroad, thus adhering to the rule "aut dedere aut punire".

What this says is that it is legally forbidden for the State of Israel to extradite somebody like Malka Leifer because she was certainly an Israeli National at the time of the alleged offense(s). Since they have jurisdiction on her crimes AND she is a National, she is exempt from extradition.

Israeli law, folks!

So we have just learned four reasons why according to the legal laws of the State of Israel, Malka Leifer is not eligible for extradition.

But I need to add one more thought.

This applies particularly to the lack of evidence of the occurrence of any crime whatsoever.

This extradition campaign is the result of a lot of noise from the Child Abuse Advocates plus a sense of diplomatic respect to the Commonwealth of Australia. But beyond this, it is lacking some very fundamental components which seems to indicate that such an extradition – one of an Israeli National citizen who has not been convicted of the alleged crime (a 2B scenario) wherein there is no evidence that a crime even occurred - is most likely an unprecedented occurence.

And it would be a very dangerous precedent to set.

We live in a very hostile world that is not sympathetic to the struggles of the State of Israel for survival and security. There are ubiquitous open ended “arrest warrants” in many countries for Israeli officials, politicians, and military personnel for bogus “war crimes” or “crimes against humanity”. Many of our leaders and military heroes are not free to travel anywhere in the world without diplomatic cover for fear of wanton prosecution in countries that have no moral jurisdiction (only self-imposed) to whatever events they would prosecute for.

It is unthinkable that the State of Israel should acquiesce to an extradition request for any natural born Israeli citizen under these circumstances; especially when the treaties themselves provide for the exemptions.

Doing so would set a horrible precedent and could open a Pandora’s box that will haunt Israeli officials forever. It would be political suicide.

For what gain?

Quoth the maven ---nevermore!

Update and Clarification - The information in this post was based on the two documents that I have referenced throughout. I subsequently checked out the current law in Hebrew. Surprisingly, there is no mention that an Israeli National cannot be extradited at all which was indicated in the IMFA report, but rather that they may be extradited on the condition that they must be returned to Israel to serve their prison sentence if one is imposed. Obviously, this mitigates the "treaty-breaker" issue in #4 above. Either the law was changed or the IMFA report is inaccurate.
The other three aspects are likewise not mentioned in the text of the Israeli law but I believe they are provisions of the multi-lateral treaties as specified in the Wiki article.  

Second Update - An astute reader has challenged my assumption that Mrs. Leifer is solely an Israeli citizen He claims that she is in actuality a dual citizen. He linked me to a Feb. 28 op-ed item in The Age (of Victoria) and that is what it says. This is the first time I have seen this assertion made anywhere in print.
If this is so (I never have complete faith in news items and especially in op-ed pieces), it creates a separate "hybrid" scenario between 1B and 2B. The Israeli government still has a responsibility to assist her to challenge but this will certainly give the Australian government more clout. Hard to tell how this would play out in the event of a serious challenge.

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