1 The extradition may also be “special” from the point of view of the status of the wanted person—ratione personae: e.g., where it is applied to persons who are not nationals of the State. This is the case with the French Extradition Law of 10 March 1927, entitled “Concerning the Extradition of Foreigners”, i.e., persons who are not French nationals. The technical expression “speciality principle (rule)” is connected particularly with the scope of the extradition rottone materiae, apart from its territorial specificness. However, the subject of our discussion is linked to the speciality principle from the material point of view only.

2 It is possible to define it also as the first aspect, since it determines the scope of the other aspect, which is only of a secondary or derivative nature.

3 “Offender” is here used in the widest possible sense, including a person who has not yet been convicted, but is already extraditable from the point of view of the stage of proceedings taken against him by the requesting State. In sec. 2(1) of the Extradition Law, 1954 (8 L.S.I. 144) where the legislature refers to the “extradition of offenders” it uses the term “offender” not only for a person who has already been convicted, but also for a person who has not yet been tried. We shall use the term “offender” in this sense from now on, both for a person whose extradition is requested and also for someone who has already been extradited.

4 The most convincing proof of this is the fact that there are States maintaining extradition relations on a conventional basis only, where the question whether and with which States to make extradition agreements, is one in their exclusive discretion. Even where it is stipulated in certain multilateral international treaties that the offences which they deal with shall be treated as extradition offences between the parties, or that the parties to the treaties, which maintain extradition relations only on a conventional basis, will look upon these treaties as extradition agreements made between them with regard to the above-mentioned offences, the effect of these provisions is subject to the discretion of each State to become a party to these treaties, and even while doing so, to formulate its reservations about any of their provisions. See, e.g., Art. 10 of the International Convention for the Suppression of Counterfeiting Currency, Geneva, 1929 (K.A. no. 538, vol. 15, p. 249); Art. 8 of the Convention for the Suppression of Aircraft Hijacking, The Hague, 16.12.70 (K.A. no. 780, vol. 22, p. 473); Art. 8 of the Convention for the Suppression of Illegal Acts against Safety of Civil Aviation, Montreal, 23.9.71 (K.A. no. 781, vol. 22, p. 489).

5 International law does not set any limits or restrictions in this matter, even where offences of a political character are being considered.

6 A terminological distinction should be made between the offence which is “the ground of the extradition request”, which is the offence—according to its legal definition (in jure) and its actual structure (in rem)—for which the State interested in receiving the offender requests his extradition, and between the offence constituting “the ground of the extradition”, which is the offence, according to its definition and structure, in respect of which the extradition is agreed to by the requested State. There can be a difference between the two offences, because of the differing legal systems of the two States, where each of them must examine the act attributed to the offender according to its own laws. Therefore, an offence which is “the ground of the extradition”, means an offence in respect of which the requested State agrees to the extradition in accordance with the requirements of its own laws, and not the offence which constitutes “the ground of the extradition request”.

7 “Competence to try”—including the competence to perform any proceedings in the presence of a person in the sovereign territory of the State possessing the competence—such as detaining the person, taking evidence from him, etc.; i.e., the surrendered person is treated as being absent for the purposes of proceedings concerning any other offence. “Competence to punish”—in the wide sense, including the competence to enforce punishment previously imposed, and not only the competence to pronounce sentence. It is of course understood that the restriction cannot relate to a legal ground created after the extradition. We will, therefore, use the combined phrase “competence to try and punish”, as also including competence to detain, competence to take other proceedings as aforesaid, and also competence to enforce punishment.

8 In the strict or wider scope, as practised by the State which has extradited the wanted person.

9 See Dinstein, Y., “The Speciality Principle in Extradition” (1974) 4 Iyunei Mishpat 682–691Google Scholar in which the same basic supposition is set out. This article (hereinafter referred to as Dinstein) appeared after the present article had been completed so that reference to the ideas it contains can only be made by way of footnotes.

10 Cf. Dinstein. We take the liberty to express some reservations about the opinions expressed. They do not, of course, have bearing on his basic conclusion, which is, in our opinion, very correct. He lays down inter alia, that “the absence of a treaty [for extradition of offenders] cuts the ground from under the customary laws of extradition”, because “the fundamental duty to extradite offenders from one State to another exists in international law only by virtue of a treaty” (at 683). Is this indeed the case? Take, e.g., France—and the many countries acting like her, which do not make its extradition relations with other States conditional upon there being extradition agreements with them, nor even demand reciprocity in these relations (Extradition Law of 1927). Or take the example of the large number of States, which maintain extradition relations with other States and are satisfied with ordinary reciprocity only. N.B. Israel also is entitled to maintain extradition relations on the basis of ordinary reciprocity by virtue of sec. 13 of the Air Navigation (Offences and Jurisdiction) Law, 1971 (25 L.S.I. 55). Are these States which maintain extradition relations other than on a conventional basis, at liberty to ignore the customary laws of extradition? Is such a State at liberty to ignore the limitation of competence as a norm of customary law—as the learned writer rightly defines the limitation—only because the extradition was not carried out on the basis of a general extradition treaty? Regretfully our reply does not match the view taken by him. It is correct to say that there are rules in the field of extradition which are binding only by virtue of express provisions in a treaty, but it is doubtful whether there is a basis for laying down that the customary rules “are binding only when linked to a treaty” (at 683). And as an application of this general opinion to the specific subject of the limitation of competence, we are told that: “where there is no extradition treaty between two States, the speciality principle has no effect on the relations between them, in view of the fact that the principle has no significance except against the background of an extradition treaty” (ibid.). The ruling is quite clear, but where is the convincing reasoning? Nevertheless, the linking of the effect of the customary norm only to the framework of extradition relations based on a treaty is a basic idea expressed more than once in the article of the learned writer.

11 This seems to us the accurate definition of a one-sided relaxing of the limitation of competence on the part of the State to which the wanted person has been extradited. Indeed, his presence in this State may be considered a legal fact only for the purposes of his being tried and punished for offences which fit into the limits of the specificness of extradition, naturally apart from offences committed after the extradition. The taking of this opportunity, in order to deal with that person outside the aforesaid limits, means a kind of “kidnapping” of a person from the territory of the requested State, for a purpose different to that agreed upon in the extradition proceedings. It may be called a “procedural kidnapping” for such a purpose.

12 Sec. 24 reads as follows: “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”.

13 After the extradition the question may arise only concerning a person who has not yet been tried. Where the person has already been convicted, his acts have already been defined when he was tried.

14 See the pronouncements of the court in Steven Ivan Ross v. State of Israel (1973) (II) 27 P.D. 370, 371 (hereinafter: in re Ross).

15 Since if for the purposes of double criminality “it makes no difference what names are given to these acts in the various laws” (ibid., at 373) of the requested and the requesting States, this means not only that there is nothing wrong in this for the purposes of passive extradition proceedings, but also that this is no bar to the wanted person being punished for his offence, after extradition, in the requesting State. This is precisely the purpose of his extradition.

16 In re Ross 371.

17 Ibid. (per Sussmann D.P.).

18 Ibid., at 371.

19 For a fuller discussion of this subject see: Feller, S.Z., “The Significance of Double Criminality in the Law of Extradition” (1975) 10 Is.L.R. 51–80.Google Scholar See also supra n. 8 with regard to the distinction between the ground of the extradition request and the ground of the extradition.

20 Indeed, in re Ross, the Supreme Court did not hesitate to declare the wanted person extraditable to the United States for the offence of “false imprisonment”, despite the fact that the offence for which the extradition was requested was that of “transportation”. Moreover, the offence which constituted the ground of the extradition—”false imprisonment”— does not even exist under the law on which the extradition request was based, while the offence of “transportation” does not exist under the law of Israel. However, since this offence included all the required elements for the creation of such offence, the Supreme Court did not regard the limitation of competence as any obstacle to the extradition. The offences need not be identical in name and structure. It is sufficient if a few of the elements of the first are likely to generate the second.

21 With regard to the requested State, in the absence of a contrary provision, the offence for which the surrendered person is to be punished need not be extraditable under the law of the requesting State. The requested State is subject only to its own law and the offence must be extraditable according to this whereas under the law of the requesting State it is possible that the requirement should be that the conduct attributed to the wanted person should be punishable only, and not precisely also an extradition offence. Where the requesting State finds itself in the position of a requested State, the requirement will, of course, be the opposite. So, too, the requirement of reciprocity will be satisfied; in all cases, as aforesaid, in the absence of any other express provision in the law of the requested State.

22 (1975) (I) 29 P.D. 589. See also Dinstein whose article is devoted to that judgment.

23 K.A. no. 354, vol. 10, p. 649.

23a This treaty has now been amended, and in sec. 8A, explicitly states the limitation (K.A. no. 833, vol. 25, p. 175). Further reference to the treaty is made to its text before amendment, since the fundamental question remains. It is instructive that the statements in the exchange of notes between the two governments which amended the treaty stated that “the amendment was to take effect from the date of entry into force of the said Treaty.” There is no explanation for this statement other than that the amendment is, in its very essence, no more than an authentic interpretation which derives from the very existence of the Treaty.

24 The following is the text of the section, as cited in re Cowan: “No person surrendered to the Republic by any foreign State in terms of an extradition agreement shall, until he has returned or had an opportunity of returning to such foreign State, be detained or tried in the Republic for any offence committed prior to his surrender other than the offence in respect of which extradition was sought, unless such foreign State consents thereto; provided that any such person may at the request of another foreign State and with a view to his surrender to such State, be detained in the Republic for an offence which was so committed and to which that agreement relates, provided such detention is not contrary to the laws of or the extradition agreement with the State which surrendered him to the Republic”.

25 Sec. 17 reads as follows: “17. (a) A wanted person shall not be extradited unless it has been ensured, by the agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence, committed prior to his extradition; 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 sixty days after being given an opportunity to do so, or if the State of Israel has consented in writing to an act as aforesaid against the wanted person.

(b) Consent as specified in subsection (a) shall not be given unless the person in question has, in his absence been declared extraditable also in respect of the other offence, after he was given an opportunity to be represented in the proceedings aimed at obtaining the declaration”.

26 Ibid.

27 Ibid.

28 Cf. the view expressed by Sussmann D.P., in re Cowan 593 at marginal letter f.

29 Ibid., at 596 (top of the page).

30 Ibid., at marginal letter a.

31 Ibid.

32 Ibid., at marginal letters b and c, at the end of the judgment.

33 See Extradition Law, sec. 2(2) which provides that a person may be extradited “‥ if…he is accused or has been convicted in the requesting State of an offence of a non-political character…”.

34 See Extradition Law, schedule to sec. 2, which excludes from the range of extradition offences “an offence with which a person can only be charged if at the time of committing it he is a soldier within the meaning of the Army Code, 1948”. It should be pointed out that the attitude of international law with regard to extradition in respect of military offences is less decisive than with regard to offences of a political character. E.g., with regard to political offences, the European Extradition Convention, to which Israel is a party (K.A. no. 647, vol. 17, p. 87) provides that “Extradition shall not be granted if the offence in respect of which he is requested…” (Art. 3(1)), while in Art. 4 the Convention provides, that the extradition in respect of military offences “is exclused from the application of this Convention” only. Thus, the parties may agree between themselves, separately, on extradition for offences of a military character. See also Art. 28 of the Convention.

35 See Art. 5 of the European Extradition Convention, with regard to this type of offence. The attitude is more conciliatory, in the fact that the Convention will also apply to them “if the Contracting Parties have so decided in respect of any such offence or category of offences”. In the Extradition Law of Israel there is no special restriction with regard to this category of offences.

36 E.g., imprisonment for four months under Art. 1 of the European Extradition Convention.

37 Under the Extradition Law, basically, imprisonment for a period exceeding three years.

38 See Extradition Law, and also the European Extradition Convention, Art. 11.

39 This has found expression in Extradition Law, secs. 3 and 8 in the fact that the Minister of Justice “may”, but is not obliged to, direct the beginning of proceedings for declaring the wanted person extraditable, while even after such a declaration, the Minister of Justice again “may” and is not obliged to, direct the carrying out of the extradition. See Schultz, , “The General Framework of Extradition and Asylum” in Bassiouni, and Nanda, , eds. A Treatise on International Criminal Law (1973) 309Google Scholar; M. Bassiouni, “International Extradition in American Practice and World Public Order”, ibid., at 347, 361.

40 See Falk, , “Les Problèmes Actuels de l'Extradition” (1968) 3–4 Rev. Int. Dr. Pén. 716Google Scholar; Schultz, , “Les Problèmes Actuels de l'Extradition” (1974) 3–4 Rev. Int. Dr. Pén. 499, 509.Google Scholar

41 See Trousse, et Vanhalewyn, , “Les Problèmes Actuels de l'Extradition” (1968) 3–4 Rev. Int. Dr. Pén. 460, 468.Google Scholar

42 Sec Schultz, op. cit. supra n. 39, at 785, 805. See also the Conclusions of the Congress of the International Association of Penal Law (Rome, 1969) in which, for the purposes of extradition for offences of a political character, it was stated: “It shall be open to the requested State to refuse extradition when the incriminating act constitutes a political crime according to its own law” (sec. V(1) of the resolution on “Extradition” (1970) 1–2 Rev. Int. Dr. Pén. 13); i.e., permissive and not imperative language.

43 Belgium, Denmark and Luxembourg.

44 See Vogler, T., Auslieferungsrecht und Grundgesetz 33–37Google Scholar: “Als Gesamtvorgang aus Auslieferungsersuchen und Auslieferungsbewillingung… erfüllt die Auslieferung alle Merkmale eines Zweiseitigen völkerrechtlichen Rechsgeschäfts, eines völkerrechtlichen Vertrages” (at 33–34). See also Beauchet, L., Traité de l'Extradition 11–16Google Scholar: “Toute extradition, qu'elle procède d'un traité général ou d'une convention spéciale, suppose un contrat entre les deux Etats… Le Contrat d'extradition se forme par le concours du consentement des parties, c'està-dire de l'Etat qui réclame le fugitif, et de l'Etat qui le livre” (at 11–12). See also Moore, J.B., A Treatise on Extradition and Interstate Rendition vol. I, p. 4Google Scholar: “The act of extradition assumes the form of a contract”; and see also Seeber, L., “Die Zusicherung des Gegenseitigkeit in Auslieferungsverkehr” (1973) 8 Monatsschrift fur Deutsches Recht, 634–635.Google Scholar In this article the author mentions the idea of the State of Israel being able legally to obtain the extradition of the murderers of the Israeli sportmen in Munich, despite the absence of an extradition agreement between Israel and the Federal Republic of Germany, despite the fact that according to the Extradition Law of Germany the ensuring of reciprocity is required for the extradition of offenders from it, and despite the fact that Israel may not give a specific assurance as aforesaid, except in one of the two cases: either that it maintains extradition relations with the requesting State on the basis of reciprocity stemming from a general agreement, or, in the absence of such an agreement, on the basis of a special provision of the law of Israel permitting extradition relations also other than on the basis of a general convention. Seeber's idea is based on the fact that actually, in every specific extradition, an ad hoc contract is included, with an international significance, and if we join to it the assurance that there will be reciprocity in the future towards the requested State, in its hypothetical future status as a requesting State, then the requirement of reciprocity under German law will also be satisfied—and make possible the extradition of the terrorists should Israel request their surrender—and also fulfil the requirement of sec. 2(1) of the Extradition Law of Israel, by which it is permitted to surrender a person from Israel where “an agreement providing for reciprocity as to the extradition of offenders exists between Israel and the State requesting his extradition”. See the reaction to this idea in: Feller, S.Z., “Uber die Gegenseitigkeit in Auslieferungsverken” (1974) 2 Monatsschrift für Deutsches Recht 104–106Google Scholar: Indeed, through every specific extradition a legal relationship is created between the State requesting the extradition and the State surrendering the wanted person—but this relationship is restricted to this specific extradition, and has no further implications. Every addition, at this stage, on the part of the Government of Israel, as a party requesting extradition from another State, is dependent on the backing of its Extradition Law; and this Law entitles the Government to make general extradition agreements, as appears from the aforesaid sec. 2(1), and not to bind itself at the time of any one concrete extradition request. Apart from this, what is the framework of an obligation for a particular extradition? The ‘reaction’ mentioned above dealt with these points.

45 See L. Beauchet, at 11–12; T. Vogler, at 34.

46 In re Cowan 594 at marginal letter a.

47 Ibid., at 593 at marginal letter f.

48 See on the custom and its creation in the field of international law, Rousseau, C., Droit International Public vol. 1, pp. 307–341Google Scholar; see with regard to the custom and its significance also the article of Prof. Tedeschi, G., “Custom in Israel Law: Present and Future” (1973) 5 Mishpatim 9–60.Google Scholar

49 The silence of the Extradition Treaty between the State of Israel and the Union of South Africa is not to be regarded—as will be clarified further on—as intended to prescribe a negative arrangement, while in all other extradition agreements to which Israel was a party, the rule is expressly dealt with. See also, e.g., Art. 7 of the Extradition Treaty between the United States and Great Britain of 1931, Art. X of the Guatemala Extradition Treaty of 1934, Art. 17 of the Montevideo Extradition Convention of 1933, Art. 11 of the Caracas Extradition Treaty of 1911, and Art. 377 of the Bustamente Code. The limitation of competence was also provided for in Art. 23 of the Harvard Draft Convention and in international documents concerning extradition, such as point 22 of the Conclusions of the International Law Institute, Oxford, 1880.

50 In re Cowan 596 at marginal letter c.

51 Ibid., at 594 at marginal letter b.

52 Ibid., at 595 between marginal letters b and c.

53 Ibid., at top of 596.

54 In re Cowan 593.

55 The full text of subsection 7(b) is as follows:

“(b) A fugitive criminal shall not be surrendered to a foreign state, unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Palestine, be detained or tried in that foreign State for any offence committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded”;.

56 Sec. 3 (2): “A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded”;.

57 The following is the full text:

“19. Where, in pursuance of any arrangement with a foreign state, any person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the first Schedule to this Act, is surrendered by that foreign state, such person shall not, until he has been restored or had an opportunity of returning to such foreign state, be triable or tried for any offence committed prior to the surrender in any part of Her Majesty's dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded”.

58 Sussmann D.P. gave full consideration to this matter in re Ross, see supra n. 14 (Cohn J. concurring).

59 E.g., the Extradition Laws of: Great Britain (Extradition Law, 1870, sec. 3(2)); Canada (Extradition Law, 1952, sec. 4); Finland (Extradition Law, 1922, sec. 9); France (Extradition Law, 1927, sec. 7); Greece (Criminal Procedure Code, 1950, art. 440); Sweden (Extradition Law, 1958, sec. 12); Ireland (Extradition Law, 1967, sec. 10); Holland (Extradition Law, 1967, sec. 12); Cyprus (Extradition Law, 1970, sec. 16); Roumania (Extradition Law, 1971, sec. 7); and of course sec. 17 of Israel's Extradition Law. (See as far as relevant, Harvard Research 377, 354, 365); Grützner, H., Internationaler Rechtschilfeverkehr in Strafsachen, Teil IV, F2, p. 3Google Scholar; G3, pp. 3–4; S6, pp. 5–6; 16, p. 7; D1, p. 2; N6, pp. 3–4; Z2, p. 17; R4, p. 2.

60 For example, the Extradition Law of Australia, 1966 (sec. 13 (2) (a)); H. Grützner… Teil IV, A3, pp. 5–6.

61 Text of the Extradition Law of Switzerland, 1892 (sec. 7); see also the Extradition Law of Mexico, 1897 (sec. 4(1) (b), (2) (a)), (Harvard Research 399, and H. Grützner, Teil IV, M7, pp. 1–2 as is relevant.

62 The Extradition Law of Germany, 1929 (sec. 6), (Harvard Research 370).

63 E.g., the Montevideo Convention, 1889 (Art. 26 (2)) between Argentina, Bolivia, Paraguay, Peru and Uruguay (Harvard Research 260 at 261); the Montevideo Convention, 1933 (Art. 17 (a)) between six American States including the United States (Harvard Research 274 at 276); the Caracas Treaty, 1911 (Art. 11), between six South American States (Harvard Research 269); the Bustamente Code, 1928 (Art. 370), which serves as a basis for extradition relations between fourteen American states (Harvard Research 270 at 377); the Extradition Treaty between Finland and Holland, 1933 (Art. 6) (Harvard Research 336 at 338).

64 The Guatemala Treaty, 1934 (Art. X), between five American States (Harvard Research 278 at 279).

65 The Mexico Treaty, 1902 (Art. 5), between seventeen American States, including the United States (Harvard Research 263 at 264).

66 The Inter-Arab Treaty, 1952 (Art. XIV), between seven Arab States. Bedi, S.D., Extradition in International Law and Practice 222.Google Scholar

67 Art. 7 of the Extradition Treaty between the United States and Great Britain (Harvard Research 301, at 302).Google Scholar

68 Despite this, in the Comment on this Article its provisions are explained as follows: “The requesting State, having obtained the extradition of the person sought may not, without the consent of the surrendering State, either try or punish such person for any act committed prior to his extradition, other than that on which the request was based”. (Harvard Research 199). In this explanation there is a certain difference as compared with the text of the Article. We can presume that we have here an expression which is not strict, because a few lines further on it is stated, this time fully matching the provisions of the Art. as follows: “The limitation placed upon the requesting State that it may try and punish an extradited person only for the act for which extradition is obtained…” i.e., the limitation is linked to the offence which is the “ground of the extradition” and not to the offence which is the “ground of the extradition request”. On the distinction between the two “grounds”, see supra n. 6.

69 Ibid., at 200.

70 K.A. no. 505, vol. 13, p. 795.

71 K.A. no. 721, vol. 21, p. 367.

72 K.A. no. 832, vol. 25, p. 157.

73 K.A. no. 308, vol. 10, p. 379.

74 K.A. no. 230, vol 7, p. 637.

75 K.A. no. 231, vol. 7, p. 653.

76 K.A. no. 647, vol. 17, p. 87.

77 K.A. no. 360, vol. 11, p. 65.

78 The laws of: Argentina (Art. VI); Switzerland (sec. 7(2); Germany (sec. 6); Finland (sec. 9); Sweden (sec. 14); Ireland (sec. 14); Greece (sec. 440 of the Code of Procedure); Denmark (sec. 10 and sec. 20 (2)); Roumania (sec. 7).

79 This opinion is based on the provisions of sec. 17 (b) of the Extradition Law which refers to a person who has, in his absence, been declared extraditable also in respect of the other offence”, while by the provisions of sec. 9 of that Law such declaration can only be made where the conditions for the extradition stipulated in the law of the person are fulfilled—including the condition that the offence for which the extradition is requested is an extradition offence.

80 E.g., sec. 21(3) of the French Extradition Law expressly provides: “The consent may be given by the French Government even in the case where the act which causes the request is not one of the offences set forth by Art. 4 of the present Law”; or sec. 16 of the Extradition Law of Cyprus, 1970. This approach is also expressly taken in sec. 12, together with secs. 8–11 of the Extradition Law of Holland, 1967.

81 See e.g., sec. 3(2) of the English Extradition Law, supra n. 56 and sec. 4 of the Canadian Extradition Law based on it.

82 See e.g. the Montevideo Convention 1889 (Art. 26(2)); the Bustamente Code, 1928 (Art. 377); the Guatemala Treaty, 1934 (Art. X); the Finland-Netherlands Treaty, 1933 (Art. 6).

83 E.g., the Caracas Extradition Treaty, 1911 (Art. 11); the Extradition Treaty between the United States and Great Britain, 1931 (Art. 7).

84 See Bedi, S.D., Extradition in International Law and Practice 152Google Scholar, (Harvard Research 201); Lombois, C., Droit Pénal International 500–501Google Scholar; Bassiouni, M.C., “Two Models of Extradition in Law and Practice” in A Treatise on International Criminal Law vol. II, p. 360–361.Google Scholar

85 The relation between the two aspects of the speciality principle—the specificness of the competence to extradite of the requested State and the limitation of the competence to try and punish of the requesting State—is like any mathematical function. The first competence is in the capacity of an independent variable (x), because every State is sovereign to fix the range of the extradition ratione materiae, and accordingly to delimit the ground of the extradition in each concrete case; the second competence is in the capacity of the dependent variable (y) on the variations of the first variable. The principle of the speciality of extradition lies in the constant correlation of the two variables, expressed by adapting the second variable to the first as an essential condition for the maintenance of extradition relations. Thus the limitation of competence becomes obligatory as a peremptory rule of customary international law.

86 Nevertheless, Dinstein, has taken the view that the speciality principle falls into the category of “customary rules dealing with extradition which must be read into an extradition treaty in the absence of another arrangement”, and in continuation, it is again stated that if two States “become contracting parties to an extradition treaty, the general international law does not prevent them from prescribing in the relations between them an arrangement which contradicts the speciality principle”. Authority for this opinion is also given—the judgment given by the Special Court of Cassation in Holland in 1949 in the Flesche case, in which it was ruled that “the speciality rule is not within the jus cogens and no doubt it is permitted to deviate from it” (at 683; our italics). This does not prevent the writer from rightly adding that had it not been for the speciality principle, one could have made worthless the determination of extraditable offences which appears in the Extradition Treaty. “Because if the principle had not existed, it would have been possible to submit in each case an extradition request for a certain offence which would come into the scope of the extraditable offences, and to conduct the criminal proceedings retroactively in respect of any conceivable offence” (at 684). If the result is expressed in the removal of the basis for maintenance of normal extradition relations, how can one accept the concept of “arrangement which contradicts the speciality principle”? But nevertheless, this is conceivable according to the view of Professor Dinstein.

86a This is distinctly proven by the amendment made in the extradition treaty (see supra n. 23a).

87 See a similar opinion on this point in Dinstein.

88 In re Cowan, 596 at marginal letter a.

89 Ibid., between marginal letters b and c.

90 Ibid.

91 Gutwirth v. State of Israel (1974) (II) P.D. 421, 425 at marginal letter g.

92 See text of the sections supra nn. 55 and 56.

93 See text of sec. 19 of the Extradition Law of the Union of South Africa, supra n. 24.

94 Perhaps it is now opportune to reflect on how to interpret sec. 17 of the Extradition Law as suggested by Dinstein. His proposal to interpret the section “more in the spirit than in the letter” could, in his opinion, have enabled the Supreme Court to avoid arriving at the solution it did in re Cowan. He points out to us a noticeable flaw in the text of subsec. (a) of the aforesaid section. The text commences, as we know, with the words: “A wanted person shall not be extradited unless it has been ensured, by the agreement with the requesting State, that he …” In the same subsection, after this opening, there is a second part—termed by Dinstein “the ending”—which opens, this time, with the proviso “however this provision shall not apply if the wanted person left…” (see the whole text of the section supra n. 25). That is to say like in the hypotheses in the continuation of the second part, a person shall indeed be extradited.

However, such an interpretative combination of the two parts of sec. 17 (a) is factually impossible, since in all three hypotheses which the ending has considered, the premise is that the wanted person has already been extradited, while the State to which he was surrendered is interested in him also with regard to another offence than that which was the ground of the extradition, or for the purpose of re-extradition to a third State; i.e., the requesting State no longer needs to receive the wanted person physically, since he is already in its hands. Despite the above-mentioned unreasonable conjunction between the two parts of sec. 17 (a), there is no place for any controversy with regard to the significance of the settlement included in the aforesaid ending. The State to which the wanted person was surrendered shall not be liable for any breach of the limitation of competence if it detains or tries the extradited person or punishes him for an offence committed before the extradition and other than that which was the ground of his extradition, or if that State re-extradites him to a third State for any offence committed by him previously, if: a) he left the territory of the State after his surrender and returned to it voluntarily, b) he was given the opportunity of leaving the territory of the State and did not do so within sixty days, or c) the State of Israel consented in writing to one of the above-mentioned actions. The contradiction between the two parts of the subsection is a matter of a defect in grammatical construction and not a contradiction stemming from some “literal strict interpretation”, as if possible but not desirable. Therefore, we are not convinced by the reasoning according to which the reconciling of this contradiction through an interpretation of the section “more in the spirit than in the letter”, constitutes the real basis for interpreting by the same rational method also the first part of sec. 17 (a), and by so doing to prevent the treaty with South Africa from being inapplicable, despite the fact that we also prefer the logical interpretation to the grammatical interpretation.

We deem this comment necessary, because Dinstein compares sec. 17 (a) as enacted by the legislature, with the same section as formulated in the draft Bill (at 687). Here in the proposed original, the conjunction between the two parts was “unless…”, and not the defective and badly-worded expression as appears in the Law after the “amendments” in the Knesset. Dinstein concludes that “had the draft Bill in its form as it was, become law, then undoubtedly the conclusion arrived at in the judgment in the Cowan case would have been justified”. Is such a statement possible, after Dinstein had concluded that “as a result of the special character of the speciality principle in customary international law, it is fit and proper to read the principle into the treaty”? (at 686). It is difficult not to have reservations about that statement which basically and, in our opinion, correctly rules out this pronouncement. Especially as there is no relevant relation between the manner of ensuring the limitation of competence—“by the agreement” with which inter alia, the first part of sec. 17 (a) deals, and between the relaxations with which the ending deals. In any case, as for the conjunction, defective or fitting, between the two parts, it has no connection with this aspect of the arrangement. This time, according to Dinstein, the grammatical interpretation takes precedence over the logical interpretation.

Let us consider Dinstein's interpretation of sec. 17 (a) of the Extradition Law in the same article. He suggests solving the problem which arose in re Cowan by removing the contradiction between the ending of sec. 17 (a) and its first part. In his view this purpose can be achieved by the original und strange method of ignoring the following first words of the section: “a wanted person shall not be extradited unless it has been ensured, by the agreement with the requesting State”. The section should be read as if it commenced directly with the words: “He [the extradited person] will not be detained, tried or punished …” because, the learned writer states, “only when we read the ending together with the above-mentioned first words does the contradiction which we have been discussing become exposed (at 688), while “the ending of sec. 17 (a) becomes clear if and when we ignore the above-mentioned first words at the beginning of the section” (ibid.). The defect is not, this time, in the conjunction between the end of the first part, but in the aforesaid first words. If by ignoring them we get rid of the contradiction between the two parts, this will also serve as a basis for solving correctly the problem which arose in the Cowan case. Among these words we find the expression “if ensured by the agreement” also, and by ignoring them all, we also free ourselves from the confusing requirement included in this expression. It seems to have here, neither a logical nor a grammatical interpretation.

Moreover, this interpretative suggestion changes the very object of the regulation of the norm to which it relates. Indeed, as it is formulated in the original, the norm in the first part of sec. 17 (a) of the Extradition Law is intended to call for the requirement of a preliminary assurance on the part of the requesting State, to respect the specificness of extradition as delimited by the State of Israel, as a pre-condition for the extradition of the wanted person. This is what the norm is intended for, no more and no less.

An analysis of this norm reveals to us the following structure: the hypothesis—the passive extradition proceedings conducted in Israel as a requested State; the disposition—the order directed to the authorities in Israel to examine whether there is an assurance as aforesaid on the part of the requesting State; and the sanction in the absence of the preliminary assurance, the wanted person will not be surrendered. In brief, the norm regulates the conduct of the State of Israel, as a requested party, and its conduct only, according to the requirements of the assurance only, where its realisation or non-realisation in the future has no effect on the matter under consideration. The norm is not intended to serve as a legal basis for realising the assurance. This normative basis is found in another place—with regard to the State of Israel as a requesting party—in sec. 24 of the Extradition Law and with regard to any other State with which Israel maintains extradition relations, again as a requesting party, in its municipal legislation where it restricts its competence to try and punish and even its competence to re-extradite to a third State, a person found in its territory as having been extradited from another State. What does Dinstein propose? To delete the above-mentioned first words in the first part of sec. 17 (a) of the Extradition Law and to begin the provisions of the section with the words “he [the extradited person] will not be detained, tried or punished in that [the requesting] State for another offence…” This absolutely changes the regulated object of the norm—from the matter of the preliminary assurance to another matter—the scope of the competence of the requesting State to try, punish and re-extradite; this leads also to an alteration of the entire structure of the norm: the hypothesis is ordinary criminal proceedings—and not extradition—after extradition; the disposition is directed to the requesting State—and not to Israel as a requested State—to act within the given limits of competence; while the sanction, which has to be duly linked to the disobedience to the disposition is entirely absent since Israel is entirely lacking in competence to issue directives directly to the authorities of the requesting State. Is this what sec. 17 (a) of the Extradition Law was intended to make provision for? To serve as a normative basis in the Israeli municipal law for the authorities of the requesting State in regard to their aforesaid restricted competence, where the place of such basis may be in its municipal law only? On the other hand, the natural function of sec. 17 (a) of the Extradition Law, both in content and spirit, has been abandoned thereby. This section establishes the patterns of behaviour of the Israeli authorities only, in the framework of passive extradition proceedings, where the conduct regulated thereby concerns the existence of a preliminary assurance to respect the limitation of competence, and not its actual realisation; in addition, this cuts the ground from under the sanction in case the aforesaid assurance has not been given, if, indeed, the statement that we have to disregard the first words of sec. 17 (a) of the Extradition Law, is accepted.

It is difficult, therefore, to recommend the deletion of this commencement of the provisions of sec. 17, through exploiting the confused drafting of the text of the section, instead of keeping the function of the section according to its complete structure and logical interpretation.

95 For text of section see supra n. 55.

96 For text of section see supra n. 25.

97 In re Cowan 595, at marginal letter a.

98 Heckstetter v. State of Israel (1971) (I) 26 P.D. 241.

99 K.A. no. 454, vol. 13, p. 1.

100 Art. 21 (2) of the Treaty provides that “this Treaty…shall also apply to offences committed before it came into force”.

101 K.A. no. 647, vol. 17, p. 87.

102 Italy, France, Switzerland, South Africa, Great Britain and Sweden.

103 See also Feller, S. Z., “On the Retroactivity of Extradition Laws” (1972) 4 Mishpatim 403–418.Google Scholar

104 At 595, on the line before the last.

105 Mettgenberg, W., Deutsches Auslieferungsgesetz 2 (neubearbeitete Auflage von K. Doerner) vol. 2, p. 324 ff.Google Scholar

106 Ibid., at 326.

107 In re Cowan 595, at marginal letter e.

108 See Mettgenberg-Doerner, at 326.

109 Ibid., at 324, and the following is the language of the extract in the original: “Die in 6 aufgestellte Bedingung einer Auslieferung dass der ersuchende Staat Gewähr für die Beachtung des völkerrechtlichen Grundsatzes der Spezialitätbictet, gehört zu den anforderungen, die das Gesetz an die zwischenstaatlichen Rechtbezühungen stellt; sie entspricht, von Einzelheiten der Regelung abgesehen, allgemeinen völkerrechtlichen Anschauungen”.

110 See: U.S. v. Lawrence (1876) 13 Blatscf. 295; U.S. v. Rauscher (1886) 119 U.S. 407; In re Woodhall (1888) 57 L.J.M.C. 72: The discussion on the historical development of the rule in the United States and the relationship to all the cases mentioned in Moore, J. B., A Digest of International Law vol. 4, pp. 306–312Google Scholar: The discussion on the same subject in: Beauchet, L., Traité de l'Extradition, 416–422Google Scholar; Moore, J. B., Extradition (1891), vol. 1, pp. 194–259Google Scholar; Moore, J. B., “De l'Extradition dans les rapports entre l'Angleterre et les Etats-Unis” (1889) 16 Journal du Droit International Privé 792–796Google Scholar; The unsigned review of the Woodhall case and the significance of the rule in re Rauscher in (1888) 15 Journal du Droit International Privé 406–407.

111 The President of the United States delivered a special message to the Congress on this matter and informed it that the extradition relations with Great Britain should be regarded as having been severed; see the article on the judgment given in People v. Martin 1399, 1409, and Beauchet, L., Traité …, at 416–417.Google Scholar

112 See the reference and the aforesaid material, supra n. 110.

113 It should be pointed out that in the extradition treaty between the United States and Great Britain of 1931, which replaced the previous treaty, it was expressly provided in Art. 7 that:

“A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place…”.

114 See O'Connell, , International Law (1970) vol. 2, p. 732.Google Scholar

115 At 574, between marginal letters f and g.

116 See in re Rauscher 238. See also Moore, J. B., “De l'Extradition dans les rapports entre l'Angleterre et les Etats-Unis” (1889) 16 Journal du Droit International Privé 792–796.Google Scholar

117 See the text of the provisions, supra n. 56.

118 At 248.

119 At 249.

120 In re Rauscher 246.

121 In re Collins (1907) 151 Cal. 340.

122 International Law (supra n. 114) at 731.

123 Ibid., vol. 1, p. 702.

124 As Sussmann D.P. concluded, in re Cowan 594 at marginal letter g. In general we must be very careful in relying upon the opinions of learned authorities in the field of public international law—however renowned—on the subjects of international criminal law; this is because they are engaged in these subjects in the most general and almost incidental manner. Therefore, it is possible to draw conclusions from their statements which they had perhaps not intended. The learned works on public international law are not intended for an exhaustive examination of criminal subjects; the experts in public international law are called upon only not to ignore certain criminal questions connected with international relations.

125 De l'Extradition… 793–794.

126 Extradition in International… 149–152.

127 Bassiouni, M. C., International Extradition and World Public Order (1974) 313.Google Scholar

128 Bassiouni, M. C., A Treatise on… 360–361.Google Scholar

129 Lombois, C., Droit Pénal International, 499.Google Scholar Indeed, this learned writer adds that the limitation is likely to be denied by an unambiguous contrary express provision. But, certainly, only through paying attention to the quantitative aspect of the limitation and not its very nature and existence.

130 Harvard Research, 200.

131 Ibid., at 286.

132 At the top of 595.

133 In re Flesche; (1949) Ann. Dig. and Rep. of Public Int. Law Cases, Case No. 87, p. 266.

134 Except, of course, the principal war criminals who were tried by special international tribunals.

135 In re Flesche, 267.

136 Ibid., at 268.

137 Ibid., at 269.

138 In re Cowan at top of 595.

139 In re Flesche, 270.

140 Ibid., at 269.

141 Ibid., at 270.

142 In re Cowan, 595, before marginal letter a.

143 The amendments are made to adapt the Law to the provisions of the Genocide Convention concerning extradition for offences committed before this Convention and concerning their law of limitation.

144 At top of 595.

145 People of State of California v. Ed. R. Martin (1922) 21 A.L.R. 1399.

146 People v. Martin 1409–1410.

147 In re Cowan 595, before marginal letter a.

148 People v. Martin 1409.

149 Ibid., at 1410.

150 Ibid.

151 Ibid.

152 For text of the said provisions, see supra n. 55.

153 In re Dilasser (1952) 19 Int. L. Rep., Case no. 83, p. 377.

154 At 594, before marginal letter f, and at 596, at marginal letter d.

155 In re Cowan 596, between marginal letters c and d.

156 For text of section, see supra n. 14.

157 Ibid.

158 For text of section, see supra n. 25.

159 We do not see the legal significance to be connected with the question if the plea of the limitation of competence may or may not be argued in a court of the requested State at the stage after the extradition. On this subject, Dinstein takes the view that “the plea of speciality is a unique characteristic of the extradition laws”, because, where “in general” the objections against extradition are raised in the framework of passive extradition proceedings, “the plea of speciality, on the other hand, cannot generally be pleaded until after an extradition order has already been issued and the extradition has been carried out”. (p. 585). Even were the matter precisely so, absolute, and not only “generally”, is this distinction material from any legal point of view? What are the implications of this “unique characteristic”? Has the plea no legal validity where it is argued before the extradition at the stage of passive extradition proceedings in the requested State? Indeed, in the Cowan case the argument was pleaded precisely at this stage, and the Supreme Court not only did not formally rule out the pleading, but also accepted it and rejected the request for extradition for reasons connected precisely with this argument. If we do not identify ourselves with the solution, this is not because the plea could not be accepted at the stage in which it was put forward, but for material reasons only. Indeed, if the wanted person could prove that not only is there no assurance from the requesting State to respect the limitation of competence, but that also, in practice, it treats it with disrespect, then surely the court of the requested State would feel itself called upon to give its opinion on the argument and how far it was well-based (see the views of Prof. Dinstein at 688). Illustrative of this are the extradition relations between Great Britain and the United States of America before the Rauscher case, where the limitation of competence was pleaded in a court of the first-mentioned State, as a State requested to surrender and before any extradition, since in the United States, as a requesting State, it was the practice to treat the limitation of competence with disrespect. In our view, the plea should be made at this stage or another, in one State or another, according to the circumstances and to the legal relevance of the plea for the solution about to be given, without any distinction. The legal question so far as we see it—since it is connected with the nature of the limitation of competence from the point of view of the nature of the norm reflected in it—is what is to be the fate of the plea of a surrendered person when argued in the court of the State to which he was extradited, where the municipal law of this State does not contain any express provision for the limitation, or where it contains a special contradictory provision? The replies to this question in its two alternatives, are certainly dependent on the nature of the norm embodied in the limitation. If we agree with the rule laid down by the Supreme Court in re Cowan, according to which the limitation is not to be treated as a norm of customary international law, then the plea of the individual will not be accepted by the Court of the requested State, neither where the municipal law is silent nor where it has expressly provided otherwise, and not even where, on the international plane, an assurance was given to the requested State to respect the limitation. The failure to respect the limitation of competence can then become a matter to be taken up between the requested and requesting States. If Dinstein's opinion—with which we agree—is accepted, i.e., that the limitation expresses a rule of customary law, then it is self-executing on the municipal plane also, without the need for being expressly adapted to the rule, even in legal systems where no preference is given to the conventional norms of international law over the norms of municipal law. Only a special contradictory norm will exclude the rule from having an effect in these legal systems, but it will remain inapplicable for the simple reason that it frustrates and hinders the very maintenance of extradition relations; whoever goes further and takes the view that it is a peremptory rule also, rejects by so doing, any special contradictory norm in the municipal law of the State to which the individual was surrendered.

Reverting to the Dilasser case, and in order to put matters on a precise footing, as we see them, we would like to make a further brief comment on that unique characateristic which Dinstein deduces from the stage in which the plea of speciality may be argued. In that same case, too, expression is given to the characteristic regarding which the plea is to be argued as if at the stage “after an extradition order has already been issued and the extradition has been carried out”. In fact we have the impression that in the Dilasser case, the court dealt actually with an additional French request for a “complementary” extradition and not with the plea of the limitation of competence, although as a consequence of the restrictions involved by this limitation. As is known, the standpoint of the court of Venezuela, as a requested State was that the widening of the scope of the extradition in a complementary manner was possible on a conventional basis between the requested State and the requesting State; since the extradition of Dilasser was acceded to in the absence of an extradition agreement, the request to extend the initial scope of Dilasser's extradition was refused. That is to say, that an additional request for extradition came up for consideration, and with regard to the object of this request it can be said that we are at the stage before the extradition, despite the fact that the wanted person has already been surrendered on another ground to the requesting State. If we wish to take the view, nevertheless, that the main issue in the Dilasser case was precisely the limitation of competence, then it becomes clear that the plea was argued at the stage before, and not after the extradition.