Extradition between Germany and Israel

The question of extradition becomes more complicated when it comes to citizens. In principle, both states do not extradite their own citizens to other (third) states. In Germany, this is regulated by Article 16 II of the Basic Law (GG), which stipulates that German citizens may not be extradited to countries that are not members of the European Union.

Non-German EU citizens may nevertheless be extradited to third countries. According to the ECJ, this practice violates neither the general prohibition of discrimination under Article 18 TFEU nor the free movement of persons within the EU under Article 21 TFEU. However, the Member State to which the citizen concerned belongs has a priority right of surrender, which is why it must be informed before the extradition.

Israel’s extradition practice with regard to its citizens has strained diplomatic relations between Israel and other states several times in the past. In principle, Israel does not extradite its citizens to foreign countries either. Thus, under the right of every Jew and their families and descendants to Israeli citizenship, Israel has at times been considered a safe haven for delinquent individuals who had a right to Israeli citizenship but no actual relationship to Israel.

The prominent case of a young US-American in 1999 initially strained US-Israeli relations at the time, only to lead to a change in Israeli legislation. This involved a 17-year-old suspected of murder in the United States who fled to Israel. He had never visited Israel before, but held Israeli citizenship through his Israeli father and, under this, had a right to be protected from extradition by the Israeli state. The Israeli Supreme Court, therefore, ruled on 2 September 1999 that extraditing the 17-year-old would violate Israeli law. Instead, he was sentenced in Israel and began serving his prison term there. Critics of this Israeli extradition policy argued that Israel would thus become a port of call for criminals with no real relationship to the Israeli state. Since 1999, the conditions for refusing an extradition request have been tightened. As a result of the Amendment Acts of 1999 and 2001, protection from an extradition request is now only available to Israelis who, at the time of the commission of the offence, not only possessed Israeli citizenship but also resided in Israel. If both are true, Israeli citizens can also be extradited with the proviso that the criminal proceedings are carried out in the foreign state but that the sentence is nevertheless served in Israel. In this way, Israel tried to respond to criticism from abroad and still ensure the protection of its citizens.

The European Convention on Extradition lays down certain conditions that oblige a state to extradite or prohibit extradition. According to Art. 1 of the European Convention on Extradition, member states are obliged to comply with a request for extradition, provided the conditions for extradition laid down in the Convention are met. However, states must refuse extradition if, for example, the act allegedly committed is punishable by death in the requesting state or if the requested state has serious reasons to believe that the persecution is unlawful, for example, in the case of a religious or racist motive (Art. 3 para. 1 of the European Convention on Extradition). The fundamental obligation to extradite, according to Art. 3 para. 1 and Art. 4 of the European Convention on Extradition also does not apply in the case of a politically or militarily punishable act. In addition, the principle of the rule of law always applies in Germany. If German courts or authorities have serious reasons to believe that the principle of the rule of law is not observed in a state, they are obliged to refuse the extradition request.

As already explained, extradition generally takes place between Germany and Israel. Requests for extradition can, therefore, be refused if the person in question is one of the country’s citizens or if other obstacles to extradition stand in the way of a requested extradition. In most cases, there are no such obstacles between Israel and Germany. In the past, attention has been drawn to precarious prison conditions in Israeli prisons, but this has almost exclusively concerned Palestinian prisoners in Israel. In the case of persons extradited by Germany, there has therefore been no justified suspicion that they would have to expect undignified prison conditions.