On Sunday, Feb. 23, 2014, one of the oddest cases of unintended consequences came to an end. I refer to the death of Samuel Sheinbein in a shootout in an Israeli prison. According to media reports the thirty-three-years-old Sheinbein was shot after opening fire and seriously injuring several prison guards using a weapon he had smuggled into jail. This was reportedly the first known case in Israel of an inmate opening fire inside a secured compound. The circumstances of the shootout are currently under investigation.
Sheinbein will be remembered, however, not only for being the first inmate who shot and injured guards in an Israeli jail. Sheinbein will be mainly remembered in connection with the amendment of Israels domestic extradition law and its extradition treaty with the United States.
The United States Request for the Extradition of Sheinbein
The circumstances of the offense which resulted in Sheinbeins incarceration in the Israeli prison, are quite disturbing. On September 16, 1997, at the age of seventeen, Sheinbein, a U.S. national, with his former classmate, Aaron Benjamin Needle, killed another teen by the name of Alfredo Enrique Tello, Jr., in Montgomery County, Maryland. They then dismembered Tello’s body and burned it. Sheinbein fled to Israel shortly after the body was found. Needle, however, had been arrested and committed suicide in a U.S. jail just before his trial was to start in April 1998. The U.S. proceeded with the request to Israel to extradite the fugitive.
The U.S. request for Sheinbeins extradition was rejected. Sheinbein was found to have dual nationality, U.S. and Israeli. Under Israeli domestic law in force at that time, Israel could not extradite an Israeli national. Instead of being extradited, Sheinbein was convicted of murder by an Israeli court in accordance with a plea bargain and sentenced to imprisonment for a period of twenty-four years, seventeen of which he had completed by the time of his death.
The Israeli refusal to extradite Sheinbein raised resentment and anger in the U.S. The non-extradition of a brutal murderer to the U.S., a country considered by many as one of Israels closest allies, seemed difficult to comprehend not only to Americans, but also to the Israeli public.
An Israeli taxi driver with whom I had a conversation shortly after the U.S. extradition request had been turned down, expressed dismay that Israeli taxpayers would have to fund Sheinbeins incarceration for a crime that had nothing to do with Israel, especially considering that the perpetrator was an American with very few ties to Israel except for being born to a father that held Israeli nationality in addition to his American one.
Sheinbein, it turned out, was a prolific complainer against Israeli prison authorities (displaying good command of Hebrew, a language in which he was not proficient when he fled to Israel). His complaints extended from lack of access in jail to additional TV American movie channels in English, to even criticizing the credentials of a newly appointed prison superintendent (absolute chutzpa, in my view; court decisions on his complaints are available at the Nevo Legal Data Base at www.nevo.co.il [by subscription, in Hebrew]). The use of Israeli taxpayer money to imprison Sheinbein, and the waste of courts time reviewing his multiple complaints, not to mention his extensive furlough privileges, have been viewed as very disturbing by many Israelis.
So what was the legal basis under Israeli law that prevented Sheinbeins extradition in the first place, and is it still on the books?
The Legal Basis Preventing Sheinbein’s Extradition to the U.S.
The reason Israel could not extradite Sheinbein at that time had to do with a 1978 amendment of Israels Extradition Law that prohibited the extradition of Israeli nationals but subjected them to Israeli adjudication (see Offenses Committed Abroad (Amendment of Enactments) Law, 5738-1978, 32 L.S.I. 63, (5738-1977/78)). According to Israel’s Supreme Court decision in the matter of Sheinbein, the amendment introduced by Prime Minister Menachem Begin reflected his concern that Jewish defendants in foreign countries might not enjoy equal treatment (Crim.A. 6182/98 Shinbein v. the Attorney General, 53(1) P.D. 625, par. 4 (5759/60-1999)). Scholars similarly suggested that the motivation behind the 1978 amendment was the former Prime Minister’s personal experience as a holocaust survivor, and his fear of anti-Semitism in foreign courts. They noted that [c]elebrated cases such as the Dreyfus affair and the anti-Zionist show trials in the Communist bloc undermined Israeli trust in the fairness of foreign judicial systems toward Jewish defendants (see A. Abramovsky and J. Edelstein, The Sheinbein Case and the Israeli-American Extradition Experience: A Need for Compromise, 32 Vand. J. Transnatl L. 305 (1999). The 1978 amendment, though, clearly achieved unwanted results in the case of Sheinbein.
Having considered the U.S. extradition request in the Sheinbein case in view of the 1978 Amendment, Israel Supreme Court, in a split vote, held that Sheinbein was not extraditable. The majority Opinion, by Justice Or, with Justice Matsa and Justice Ilan concurring, held that the language of the 1978 amendment was clear regarding non-extradition of Israeli nationals. The question whether there was any logical justification for the protection of nationals who did not reside in Israel and had no real linkage to the State could be relevant, according to Justice Or, in determining the preferred law, but not for interpretation of the clear language of the existing law. He therefore rejected the minority opinion that called for interpreting the term Israeli national in the Extradition Law as a national who maintains a real linkage with the State of Israel, a condition that did not apply to Sheinbein (Id. par. 19-20 & 22).
Changes in Israel’s Extradition Law and Treaty with the U.S. After the Sheinbein’s Case
Following the termination of proceedings in the Israeli courts, the Knesset (Israels parliament) passed two amendments in 1999 (bill proposed prior and unrelated to the Sheinbein affair) and in 2001 that broadened the criteria for the extradition of Israeli nationals (for current text of the law see Extradition Law, 5714-1954, as amended, at Nevo legal database at www.nevo.co.il). Accordingly, where the requested suspect possesses both Israeli nationality and domicile at the time of the offense, the extradition will be conditioned upon a guarantee that, if convicted, the Israeli national would be permitted to serve the sentence in Israel. According to the Israeli Report to the UN Committee on Counterterrorism-27-Dec-2001, [s]uch guarantees are provided in the framework of treaties such as the European Treaty on the Transfer of Sentenced Persons, bilateral agreements or via ad-hoc arrangements to which Israel is a Party, as well as in the Protocol Between the Government of the United States and the Government of the State of Israel Amending the Convention on Extradition signed on December 10, 1962.
The Protocol between Israel and the U.S. was signed in Jerusalem on July 6, 2005. The Protocol provides for reciprocal extradition of persons charged with or convicted of an offense, including an attempt or conspiracy to commit an offense, which is punishable under the laws in both Parties by deprivation of liberty for a period of one year or by more severe penalty. The Protocol further amends Article IV of the original 1962 text that provided that the Parties could not decline to extradite a person sought because he was a national of the requested Party. Among additional provisions the Protocol prohibits extradition in cases of double jeopardy and where the statute of limitations in the requested Partys jurisdiction has lapsed.
Addressing the scope of “political offenses” that qualify as a bar from extradition, the Protocol provides for a list of offenses that will not qualify for the exclusion: murder or other violent crimes against a head of state or a member of his family; offenses for which extradition is required pursuant to a multilateral international agreement; murder and other violent offenses, kidnapping, abduction, or involvement in the making use or possession of bombs. The extension of extradition to cases involving violent offenses, and specifically those specified, prevents a claim that terrorism is politically motivated and therefore, a terrorist should never be extradited.
Israels current extradition law and its implementation reflect Israels appreciation of the need for international cooperation in the area of law enforcement. This need, according to a 2005 decision by Israels Supreme Court (CrimA 4596/05 Rosenstein v. State of Israel (Nov. 30, 2005) (available at the State of Israel, the Judicial Authority, at www.court.gov.il) arises from globalization and its impact on trans-boundary criminality and globally organized crime. The Court in that case confirmed the extradition of an Israeli national to the U.S. to stand trial on allegations of drug dealing involving the financing, export and distribution of 1.5 million pills of Methylenedioxythamphetamine (M.D.M.A, known also as Ecstasy) from Europe to the United States by operating multiple agents in various countries.
Had the Sheinbein affair taken place today, not being domiciled in Israel at the time he committed the offense, he would probably have been extradited to the U.S.; this, of course, could have prevented him from ending up in the Israeli prison where he ultimately died in the shootout.