Michigan Journal of International Law Volume 12 Issue 1 1990 Note, The United States, Israel and their Extradition Dilemma Sheryl A. Petkunas University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Courts Commons, Criminal Law Commons, and the International Law Commons Recommended Citation Sheryl A. Petkunas, Note, The United States, Israel and their Extradition Dilemma, 12 MICH. J. INT'L L. 204 (1990). Available at: https://repository.law.umich.edu/mjil/vol12/iss1/8 This Note is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NOTE NOTE, THE UNITED STATES, ISRAEL AND THEIR EXTRADITION DILEMMA Sheryl A. Petkunas* The degree to which States parties comply with an extradition treaty influences relations between those countries, particularly when political offenses are involved.' As a result of recent domestic devel- opments, both legal and political, in the United States and Israel, each State's application of the 1962 U.S.-Israel Extradition Treaty2 is creat- ing uncertainty as to the Treaty's scope. In applying the Treaty's political offense exception, the United States Courts of Appeals have failed to reach a consensus on how to distinguish terrorist acts from political offenses. Despite this lack of consistent application, the United States has exhibited a willingness to extradite individuals in accordance with the Treaty. Israel's ability to meet the terms of the Treaty, on the other hand, is impaired by domestic legislation prohib- iting the extradition of its nationals. 3 For instance, Federal Bureau of Investigation officials await the result of their request to Israel for the arrest of Robert Manning, a suspect in a string of pipe bomb murders who has dual United States and Israeli citizenship.4 Israel's refusal to extradite individuals suspected of crimes in the United States, such as Manning, would undermine the purpose of the Treaty as well as the relationship formed between Israel and the United States as a result of 5 the treaty. Part I of this note will examine the different approaches taken by the Second, Seventh and Ninth Circuits in their application of the * University of Michigan Law School, Class of 1991. 1. Grooms and Samson, InternationalLaw - The PoliticalOffense Exception to Extradition: A 19th Century British Standard in 20th Century American Courts, 59 NOTRE DAME L. REV. 1005, 1007 (1984). 2. Convention on Extradition, Dec. 10, 1962, United States-Israel, 14 U.S.T. 1707, T.I.A.S. No. 5476 [hereinafter 1962 U.S.-Israel Extradition Treaty]. 3. Offences Committed Abroad (Amendment of Enactments) Law, § 2, 32 LAWS OF THE STATE OF ISRAEL 63, 64 (1978) (amending Extradition Law of Aug. 23, 1954, infra note 97). 4. In October 1988, an arrest warrant, the first step in extradition, was issued for Manning. Spano, Israel Unlikely to Arrest Killing Suspect, L.A. Times, Oct. 22, 1988, § 2 (Metro), at 10, col. 4. See also Tipping, Charges Dropped in Mail Bombing, U.P.I. Jan. 27. 1989 (NEXIS, Do- mestic News). 5. Grooms & Samson, supra note 1, at 1007. Fall 1990] US., Israel and Extradition Treaty's political offense exception. Part II will discuss the conflict that may arise from Israel's application of a domestic law which con- travenes the purpose of the Treaty. Part III will address both the need for the United States and Israel to reconcile problems in applying the political offense exception through renegotiation and the dilemma aris- ing from the failure of the Israeli government and the Knesset to coor- dinate policy with regard to the extradition of nationals. I. POLITICAL OFFENSE EXCEPTION: DIVERGENT APPLICATIONS BY U.S. COURTS Extradition is one State's surrender of persons accused or con- victed of crimes to another State so that the requesting State may try or punish those persons under its own laws. 6 Extradition has three main purposes: to bring criminals to justice, to promote good bilateral relations between treaty parties and to prevent a State from becoming a haven for dangerous persons.7 Absent a treaty, principles of interna- tional law neither require a State to extradite nor prevent a State from voluntarily doing so. 8 Treaties create an obligation by specifying the situations under which the parties are required to extradite individuals. In defining extraditable crimes, multilateral and some bilateral treaties require "double criminality," the principle that the act be ille- gal in both the State requesting the extradition and the State receiving the request. 9 Most bilateral treaties contain a list of specific crimes for which a person may be extradited. '0 The 1962 U.S.-Israel Extradition Treaty lists extraditable crimes in article II.11 Most extradition treaties include a political offense exception.1 2 The exception protects the right of people to rebel against an oppres- sive government.1 3 It also may protect the person sought against un- 6. M. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 107 (6th ed. 1987); L. HENKIN, R. PUGH, 0. SCHACTER & H. SMIT, INTERNATIONAL LAW AND CASE MATERIALS 885 (2d ed. 1987) [hereinafter INTERNATIONAL LAW]. 7. Note, Extradition in an Era of Terrorism: The Need to Abolish the Political Offense Excep- tion, 61 N.Y.U. L. REV. 654, 658 n.18 (1986) [hereinafter Political Offense Exception] (citing Draft Convention on Extradition, 29 AM. J. INT'L L. 22, 112-13 (Supp. 1935) (article 5 and commentary thereto)). 8. INTERNATIONAL LAW, supra, note 6, at 885-86 (quoting Factor v. Laubenheimer, 290 U.S. 276, 287 (1933)). 9. INTERNATIONAL LAW, supra note 6, at 886. 10. Id. 11. 1962 U.S.-Israel Extradition Treaty, supra note 2, at art. II. 12. Note, In Re Extradition of Atta. Tension Between the Political Offense Exception and U.S. Counterterrorism Policy, 1 PACE Y.B. INT'L L. 163, 167 (1989) [hereinafter Atta Extradition]. 13. Political Offense Exception, supra note 7, at 661. Michigan Journalof InternationalLaw [Vol. 12:204 fair treatment by the requesting country and prevent the requested country from becoming embroiled in another State's domestic con- 1 4 flict. Article VI(4) of the 1962 U.S.-Israel Extradition Treaty pro- vides exception to extradition when [tihe offense is regarded by the requested Party as one of a political char- acter or if the person sought proves that the request for his extradition has, in fact, been aimed with a view to trying or punishing him for an offense of a political character.15 Like most extradition treaties,' 6 the 1962 U.S.-Israel Extradition Treaty does not define a political offense. Because there is a lack of international consensus as to what constitutes a political offense and because the United States has never defined the term by legislation or treaty,' 7 United States courts have traditionally assumed the role of interpreting the phrase with the hope of setting forth a politically neu- 8 tral interpretation based on the facts of each case.' Typically, the United States government has insisted that the de- termination of what constitutes a political offense be left to the Execu- tive Branch. U.S. courts have consistently held, however, that this determination comports with the duty of the courts to interpret a treaty in accordance with its text as well as 18 U.S.C.A. § 3184.19 Courts have reasoned that application of the political offense exception involves the kind of factual determinations routine to the process of judicial interpretation and does not touch upon any foreign policy ele- 14. Id. 15. 1962 U.S.-Israel Extradition Treaty, supra note 2, at art. VI. 16. Atta Extradition, supra note 12, at 166. 17. PoliticalOffense Exception, supra note 7, at 655-56. 18. Atta Extradition, supra note 12, at 166-67. 19. Quinn v. Robinson, 783 F.2d 776 (9th Cir.), cert. denied, 479 U.S. 882 (1986); Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1981). 18 U.S.C.A. § 3184 (West 1990) reads: Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States, or any magistrate author- ized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and consid- ered. Such complaint may be filed before and such warrant may be issued by a judge or magistrate of the United States District Court for the District of Columbia if the wherea- bouts within the United States of the person charged are not known. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commit- ment of the person so charged to the proper jail, there to remain until such surrender shall be made.