1 G.C. 626/93 K&A. Electronical & Automation Inc. v. The Republic of Côte d'Ivoire and Jean Pierre Boni, Ambassador of La Côte d'Ivoire, Jerusalem District Court (as yet unpublished).

2 C.C. 2310/93 Ilan Zilka & Others v. The Republic of Côte d'Ivoire and Jean Pierre Boni, Petah Tikwa Magistrate Court (as yet unpublished).

3 Supra n. 1.

4 On the subject of state (or sovereign) immunity, see Shaw, M.N., International Law (Grotius Publications Ltd., 3rd ed., 1991) 430–462.Google Scholar

5 The Convention on Diplomatic Relations, 500 U.N.T.S. 95. Although Israel has not ratified this convention, its provisions apply in the Israeli legal system, insofar as they reflect current customary international law. See infra, nn. 29–30 and accompanying text.

6 Ibid., Art. 31 of the Convention provides as follows:

(1) A diplomatic agent shall… enjoy immunity from [the] civil and administrative jurisdiction [of the receiving State], except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(…)

(3) No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

(…)

7 Ibid., Arts. 30(1) and 22. Art. 30(1) states as follows:

The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

Art. 22 states:

(1) The premises of the mission shall be inviolable. The agents of the receiving State shall not enter them, except with the consent of the head of the mission.

(…)

(3) The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

8 It is interesting to note that the question of the immunity of the Ambassador (or, for that matter, of the Republic of Côte divoire itself) from juridical proceedings was not raised by the respondents. See infra n. 17 ff., and accompanying text.

9 Reinhold v. Her Majesty the Queen in Right of Canada, [1991] 3 P.M. 176. See Cohen, B., “The Practice of Israel in Matters Related to International Law”, (1992) 26 Is. L.R. 559.Google Scholar

10 See supra n. 4.

11 On the Reinhold case see also infra nn. 34–35 and accompanying text.

12 Although analogies are possible, due to the many similarities between the two fields. See, e.g., the Sauvel case, infra nn. 19–30 and accompanying text.

13 Supra n. 2, at 6.

14 Supra n. 5, Art. 32.

15 See supra n. 7.

16 As regards the waiver of state immunity, no such requirement for explicitness appears, either. A narrow interpretational approach, though, is generally exercised by courts. See, e.g., Arab Banking Corporation v. International Tin Council and Others (1986) 77 International Law Reports (I.L.R.) 1, where a clause which stated that the contract shall be “subject to the… jurisdiction of the English courts” was interpreted so as to be a waiver of immunity from the courfe adjudicative powers but not from its enforcement powers. See also Shaw, supra n. 4, at 456.

17 See supra n. 8.

18 Intpro Properties (U.K.) Ltd. v. Sauvel and Others (1982), 64 I.L.R. 363.

19 State Immunity Act, 1978, sec. 16(l)(b), 10 Halsbury's Statutes 652. This section Bete the exception to the exception of a sovereign's immunity, whereby although a transaction concerning real property is a non-sovereign act, if it is concluded “for the purpose of the mission” it is of a sovereign nature. See infra n. 21.

20 Intpro Properties Ltd. v. Sauvel and Others (1983) 64 I.L.R. 384.

21 According to the doctrine of restricted immunity, only sovereign acts (jure imperii) enjoy the state's immunity from jurisdiction, while non-sovereign acts (jure gestionis) do not. The distinction between the two is based not upon the purpose of the action, but rather on its nature. See Shaw, supra n. 4, at 436–450. See also Brownlie, I., Principles of Public International Law (Oxford, 4th ed., 1990) 332–336.Google Scholar

22 Supra nn. 5–6 and accompanying text.

23 Supra n. 19.

24 For example, although states are not immune from legal proceedings in all matters which qualify as jure gestionis, diplomatic agents do enjoy immunity in many of these matters, and lose it only in the three instances set forth in Art. 31(1) of the Convention. Supra nn. 6, 21.

25 Supra n. 5, Art. l(i).

26 Diplomatic Privileges Act, 1964, Schedule I, sec. l(i), 10 Halsbury's Statutes 563.

27 It is important to realize that although the private premises of diplomats enjoy the same immunity as the premises of the mission, in accordance with Art. 30(1) of the Convention (supra n. 7), they do not constitute a part of the premises of the mission — unlike the residence of the head of the mission, as per Art. l(i) of the Convention.

28 Supra n. 19.

29 Lapidoth, R., “International Law within the Israel Legal System”, (1990) 24 Is. L.R. 451, at 452–455.Google Scholar

30 Brownlie. supra n. 21, at 346–347.

31 Supra nn. 9–11 and accompanying text.

32 Supra n. 9.

33 Once again it should be emphasized that a confusion of issues occurred in Ohad J.'s decision: the Reinhold case, which deals with the application of the doctrine of restricted state immunity (see supra n. 21), cannot serve as a basis for a decision regarding the immunity of a diplomat from legal proceedings, as the latter point is regulated by the Convention (see supra n. 7).

34 Supra n. 9, at 179.

35 Denza, E., Diplomatic Law (New York, 1976) 90–92.Google Scholar

36 Supra n. 1.

37 Supra nn. 9–11 and accompanying text.

38 Supra n. 21.

39 See Art. 19(a) of the International Law Commission Draft Articles on Jurisdictional Immunities of States and their Property, (1991) 301.L.M. 1563; cf. Brownlie, supra n. 21, at 343–344.

40 Philippine Embassy Bank Account (1977) 65 I.L.R. 146.

41 E.g., Republic of “A” Embassy Bank Account Case (Austria) (1986) 77 I.L.R. 489. See also Shaw, supra n. 4, at 458–460.

42 State of Israel v. Sahn Tokyo Ltd. & Another, (1992) 46(iv) P.D. 226.

43 Between 1950 and 1980, the uniformity of customs valuation in the European Community was guided by the Brussels Convention (see infra n. 51 and accompanying text). In 1980, however, that system was replaced by the GATT Customs Valuation Code (see infra n. 65).

44 See infra n. 63.

45 The Customs Ordinance [New Version], 1 L.S.I. [N.V.] 51. Section 134(a) of the Ordinance provides as follows: “The Director may make rules for the purpose of giving effect to the provisions of sections 129 to 133 …” These sections deal with the valuation of goods for customs purposes. See infra n. 48, and accompanying text.

46 The Customs Regulation (Valuation of Goods), 5731–1970, K.T. (1970) 117, as amended in K.T. (1985) 1529.

47 Supra n. 45, sec. 130(a).

48 Ibid., sec. 130B, and cf. infra n. 51 and accompanying text.

49 Shlomo Mitterani and Others v. Minister of Transportation and Others, (1983) 37(ii) P.D. 337, at 357–8:

“The criterion for the validity of subsidiary legislation arises in every instance from the word of the primary legislator;… The subsidiary legislator does not derive its power other than from the vesting of authority in the mother-law, which defines the scope of activity permitted to it”.

50 These sections deal with the “normal price” of imported goods and its definition, define the term “open market”, and suggest using the invoice price as the basis for the “normal price”.

51 The Convention on the Valuation of Goods for Customs Purposes, 1958, 26 K.A. 713.

52 Supra n. 42, at 244.

53 Explanatory Notes to the Legislative Bill to Amend the Customs Ordinance (Amendment No. 2), 5722–1962, H.H. (1962) 128. In the preamble to the Explanatory Notes it is stated as follows: “The purpose of the suggested law is the adaptation of some of the provisions of the Customs Ordinance to the rules of the aforementioned conventions”.

54 34 Divrei HaKnesset 1914.

55 Barak, A., Interpretation in Law — Volume II: Statutory Interpretation (Jerusalem, 1993, in Hebrew) 575–578.Google Scholar

56 Supra n. 42, at 248–249.

57 Cf. infra n. 65.

58 Explanatory Notes to the Brussels Definition of Value (Customs Co-Operation Council, 1971), 73, as cited by Shamgar P., supra n. 42, at 241.

59 Supra n. 51, Annex II, Note 5.

60 Supra n. 42, at 241, 258.

61 Ibid., at 254–255.

62 Ibid., at 239.

63 C.i.f. stands for cost, insurance, freight; that is, the actual price of the transaction and the costs incurred by the importer with regard to insuring and transporting the merchandise. By definition, the c.i.f. price is higher than the f.o.b. (free on board) price, which excludes the latter two components.

64 Ha'aretz, 29 November, 1993, p. D4.

65 In 1980, the European Community accepted the GATT Customs Valuations Code which was concluded in Tokyo in 1979, and which changed some aspects of European Customs Law. The most important one for the matter under discussion here is the abandonment of the “normal price” as the basis for valuation, and emphasizing the price of the transaction, i.e., the “invoice price”, as the best standard. This was, in effect, a rejection of the notional concept of value and an adoptation, once again, of the positive concept. Cf. supra n. 57 and accompanying text. Israel has declared its intentions to accept the 1979 Code (Department of Customs and V.A.T., Customs Valuation — GATT Agreement (Tel Aviv, 1990)Google Scholar). This lends further support to the arguments of the respondents in the Tokyo case, and to the decision rendered both by the District and the Supreme Courts. For a thorough discussion of the GATT Code, see Lasok, D., The Customs Law of the European Economic Community (Kluwer, 2nd ed., 1990) 232–244.Google Scholar

66 Robert Steven Manning v. Minister of Justice Prof. David Libai and Others (1993) (as yet unpublished; Takdin 93(2) 1556).

67 Infra n. 88 ff., and accompanying text.

68 Robert Manning and Others v. State of Israel (1993) (as yet unpublished; Takdin 93(1) 1581); Robert Manning and Others v. State of Israel (1993) (as yet unpublished).

69 Robert Manning v. Minister of Justice David Libai and Others (1993) (as yet unpublished; Takdin 93(2) 1051); Reuven Manning and Others v. Minister of Justice David Libai and Others (1993) (as yet unpublished; Takdin 93(2) 1563); Rochelle Manning v. Minister of Justice and Others (1993) (as yet unpublished).

70 See infra nn. 85–86 and accompanying text.

71 Gilbert, G., Aspects of Extradition Law (1991) 79.Google Scholar

72 See, e.g., Art. 6 of the Extradition Treaty between Canada and the United States of America, 1971; see Kavass, I.I. & Sprudzs, A., Extradition Laws and Treaties — United States (New York, 1979), vol. I, p. 120.1Google Scholar; Art. II of the 1957 European Convention on Extradition, 597 U.N.T.S. 338.

73 Art. 7 of the Convention on Extradition between the United States of America and the State of Israel, 1962, 484 U.N.T.S. 285, 13 K.A. 795, provides as follows:

“When the offense for which the extradition is requested is punishable by death under the laws of the requesting Party and the laws of the requested Party do not permit such punishment for that offense, extradition may be refused unless the requesting Party provides such assurances as the requested Party considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed”.

74 See, e.g., Art. II of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953, 213 U.N.T.S. 221, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. And Art. VII of the International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171, which provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.

74a However, Art. 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ((1984) 231.L.M. 1027) provides as follows: “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

75 On the rule of non-inquiry, see Bassiouni, M.C., International Extradition — United States Law and Practice (2nd ed., 1987) 372–376.Google Scholar

76 Ibid., at 493–496.

77 Extradition Resolution no. IV, 68–II ANN.IDI., Session de Cambridge, pp. 304–6, as cited in Gilbert, supra n. 71, at 80.

78 Ibid.

79 The European Convention on the Protection of Human Rights and Fundamental Freedoms, supra n. 74.

80 See, e.g., Application No. 7317/75 William Posnet lynas against Switzerland, (1977) 20 Yearbook of the European Convention on Human Rights 412; Application No. 8299/78 X. and Y. against Ireland, (1981) 24 Yearbook of the European Convention on Human Rights 132.

81 Gilbert, supra n. 71, at 79–90.

82 Supra n. 74. See also a nearly identical version in Art. 1 of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, (1982) 28 I.C.J.R. 69.

83 Supra n. 66, at 1558.

84 Ibid.

85 Supra nn. 68–69 and accompanying text.

86 Supra n. 69.

87 Ha'aretz, March 20, 1994, p. A-7.

88 Ivan (John) Demjanjuk v. State of Israel (Supreme Court of Israel — Special Publication).

89 On the principle of specialty, see Dinstein, Y., “The Principle of Specialty in Extradition”, (1975) 4 Iyunei Mishpat 682Google Scholar; Gilbert, supra n. 71, at 106–107; Bassiouni, supra n. 75, at 359–371.

90 Cf. Winston Brent Qwan v. State of Israel, (1975) 29(i) P.D. 589. In that case, dealing with an extradition from Israel to the Republic of South Africa, under a bilateral treaty which did not contain the principle of specialty, the Court found that this principle — in one way or another — is part of customary international law.

91 Supra n. 73.

92 Supra n. 88, at 42; supra n. 90, at 594; Brownlie, supra n. 21, at 316.

93 See Lapidoth, supra n. 29, at 452–455.

94 Sec. 24 of the Extradition Law, 1954, 8 L.S.I. 144.

95 In the Matter of the Extradition of John Demjanjuk, 612 F.Supp. 544 (1985); Demjanjuk v. Petrovsky, 776 F.2d. 571 (1985).

96 Supra n. 88, at 38–39.

97 4 L.S.I. 154. See infra n. 101, for the text of the relevant sections of the Nazi Punishment Law.

98 L.S.I., Special Volume.

99 Supra n. 88, at 17, 23–25.

100 State of Israel v. Ivan (John) Demjanjuk (1988) (as yet unpublished).

101 The Nazi Punishment Law provides as follows:

“1(a) A person who has committed one of the following offences:

(1) done, during the period of the Nazi regime, in an enemy country, an act constituting a crime against the Jewish people;

(2) done, during the period of the Nazi regime, in an enemy country, an act constituting a crime against humanity;

(3) done, during the period of the Second World War, in an enemy country, an act constituting a war crime;

is liable to the death penalty.

(b) In this section —

“crime against the Jewish people” means any of the following acts, committed with intent to destroy the Jewish people in whole or in part: (1) killing Jews;

…

(…)

“crime against humanity” means any of the following acts: murder, extermination, … [of] civilian population, …

“war crime” means any of the following acts: murder,… of civilian population of or in occupied territory;…

2. If a person, during the period of the Nazi regime, committed in an enemy country an act by which, had he committed it in Israel territory, he would have become guilty of an offence under one of the following sections of the Penal Law, and he committed the act against a persecuted person as a persecuted person, he shall be guilty of an offence … and be liable to the same punishment…:… Section 300 [·murder] …”

102 Art. 2 of the Convention provides a complete list of extraditable crimes. Among them appears “murder”, whereas “crimes against the Jewish people”, “crimes against humanity”, “war crimes” or “genocide” do not appear.

103 On the principle of double criminality, see Bassiouni, supra n. 75, at 324–327.

104 Supra n. 88, at 43.

105 Restatement of the Foreign Relations Law of the United States, 477, p. 579, as cited in supra n. 88, at 44. But see Bassiouni, supra n. 75, at 365, and cf. the United States Court of Appeals (Petrovsky, supra n. 95, at 584) which, in dismissing Demjanjuk'e appeal with regard to the order of extradition, held that: “The right to insist on application of the principle of specialty belongs to the requested state, not to the individual whose extradition is requested”.

106 Supra n. 88, at 45–46.

107 Ibid., at 49.

108 U.S. v. Paroutian, 299 F.2d. 486, 490; and see Bassiouni, supra n. 75, at 367, but see his words quoted infra n. 132 and accompanying text.

109 Supra n. 95.

110 Ibid., at 580.

111 In “Crimes against the Jewish People” it is not explicit (“killing Jews”, see supra n. 101), but the elements exist, and’ the difference in terminology is due to the Law's legislative history; see supra n. 88, at 53.

112 Ibid., at 56.

113 Supra n. 95, at 679–680, 683.

114 Gilbert, supra n. 71, at 106. See also the quotation from Bassiouni, infra n. 132 and accompanying text.

115 Decorte v. Societe Anonyme Groupe d'Assurances Nedlloyd and Others (Belgium, Court of Cassation (Second Chambers), 1971), 69 I.L.R. 216. 217–218.

116 Extradition Act, 1989, schedule I, sec. 1, para. 1(3), 17 Halsbury'e Statutes of England (4th ed.) 606. For the situation in England prior to the enactment of the Extradition Act of 1989, see Stanbrook, I. & Stanbrook, C., Extradition: The Law and Practice (1980) 15, 47.Google Scholar

117 Supra n. 88, at 392.

118 I.e., whether John Demjanjuk and Ivan the Terrible where one and the same person.

119 Supra n. 88, at 394–396.

120 Sec. 28 of the Penal Law, 1977, provides as follows:

“If an offence has been committed, all the following shall be deemed to have participated in committing it, and shall bear responsibility for it:

(…)

2) Whosoever committed an act, or refrained from committing an act, thereby enabling another to commit the offence or assisting him in committing the offence; whether present at the time the offence was committed or not.

(…)

4) Whosoever assisted another in committing an offence by being present at the site for the purpose of deterring objections, or supporting the person committing the offence in his decision, or ensuring the commission of the offence …”

See also Feller, S. Z., Principles of Criminal Law (Jerusalem, 1987, in Hebrew), vol. 2, pp. 237–276.Google Scholar

121 Supra n. 88, at 400.

122 Infra nn. 133–135 and accompanying text.

123 Supra n. 88, at 402.

124 Supra n. 94.

125 Bassiouni, supra n. 75, at 360.

126 Supra n. 108 and accompanying text.

127 Bassiouni, supra n. 75, at 362. If the relator is acquitted of the offense for which he was extradited, he should be given the opportunity to leave the requesting state before being detained again for an unrelated offense, and the surrendering state loses its jurisdiction over him, making question of a second extradition a moot question. (Ibid.) It should be noted, however, that this doctrine refers to an unrelated offense, and is not directly applicable to our case, where strongly related offenses are being discussed. Nonetheless, it seems that if the Israeli authorities would have wished to try Demjanjuk for participation despite the Supreme Court's decision and after his acquittal, the doctrine would have been relevant and a renewed extradition unpracticable. Cf. infra n. 132 and accompanying text.

128 The Decorte case, supra n. 115 and accompanying text.

129 Extradition Act, 1873, sec. 3, 13 Halsbury's Statutes of England (3rd. ed.) 270.

130 Extradition Act, 1989, which invalidated all the numerous extradition acts in force until then, and which omitted this particular provision.

131 Supra n. 113 and accompanying text.

132 Bassiouni, supra n. 75, at 364; but cf. supra n. 108.

133 Sec. 216 of the Criminal Procedure Law (Consolidated Version) 36 L.S.I. 35.

134 Supra n. 88, at 402.

135 Ibid., at 403–404.

136 Ibid.

137 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division and by Ms. Annie Dadon of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.

138 The Memorandum of Intent is on strengthening the relations between the two countries.

139 The date of the Memorandum of Understanding wae inadvertently omitted from the actual document.

140 Israel is not party to the Memorandum, but an exchange of letters dated the same day constituted an agreement between Denmark, Italy, Norway, Israel and the P.L.O.