ATTY. GENERAL: PA HAS TO HAND OVER MURDERERS
- PA COURT IRRELEVANT

Aaron Lerner 5 August, 1998
"I don't care what the lawyers say, I negotiated Oslo and I am telling you that I never thought the Palestinians would ever extradite a terrorist to Israel."
So explained MK Shimon Peres to Minister of Justice Hangbi on the final "Popolitica" television broadcast.

For the benefit of those who do care about what lawyer say about legal documents, IMRA presents below the complete legal opinion which was issued by the Attorney General's Office during the Rabin administration which states that the Palestinian Authority cannot avoid its obligation to extradite terrorists via its now infamous quickie trials.

Background: On July 18, 1995 terrorists murdered two Israeli youth, Ori Shahor and Ohad Bachrach, while they were hiking in Wadi Kelt. The two suspects escaped to Jericho immediately after the killing, where they were hastily tried by the PA to forestall an Israeli transfer request. Both were sentenced to 12 years in prison.

Eight months later, on February 27, 1996, then Prime Minister Peres told Bachrach's father that the two convicted murderers were out of jail and free in Jericho.

The following is IMRA's English translation of that legal opinion.
It is presented in its entirety:

[Cover Letter]
The Attorney General
Jerusalem, 22 Elul 5755
17 September, 1995
(54711)
Our file: 450, 4-898
M: 213
(In reply please cite file number)

To:

Minister of Justice
Solicitor General
The Legal Counsel to the Prime Minister
The Legal Counsel to the Foreign Ministry

Re: Interpretation of Paragraph 7f(2) in Annex III of the Agreement on the Gaza Strip and the Jericho Area

Enclosed is the legal opinion of my assistant, Attorney Noam Solberg.

This opinion is acceptable to me and I thank you if you would act according to it.

Regards,
M. Ben-Yair

====================

State of Israel Ministry of Justice
Office of the Attorney General
Jerusalem, 18 Elul 5755
13 September, 1995
(54587)
Our file: 450, 4-898
M: 213
(In reply please cite file number)

To: The Attorney General

Re: Transfer of Suspects held by the Palestinian Authority to Israel

(1) Paragraph 7f(2) (Article II of Annex III - Protocol Concerning Legal Matters) of the Agreement on the Gaza Strip and the Jericho Area (hereinafter - the Agreement) states:

"If the individual requested is detained in custody or is serving a prison sentence, the side receiving the request may delay the transfer to the requesting side for the duration of the detention or imprisonment."
Therefore, taken simply, it would appear, that the Palestinian Authority may delay the transfer of the Wadi Kelt murder suspects, until the completion of the prison term which they were sentenced to in a speedy trial, last night.

In my opinion, this is not the case.

(2) Paragraph 1 (In Article I of Annex III of the Agreement, Criminal Jurisdiction) states:

"The criminal jurisdiction of the Palestinian Authority covers all offenses committed in the areas under its territorial jurisdiction (hereinafter, for the purposes of this Annex, "the Territory") subject to the provisions of this Article."
In contrast to the claims heard recently, the murder in Wadi Kelt, there is no coinciding legal jurisdiction. Criminal legal jurisdiction in this matter, is given exclusively to Israel. If the Palestinian Authority acts to try the suspects in this act, such a "trial", if it takes place, is void, and any punishment which the suspects in the murder are serving, if they are serving, is not valid.

In other words: Paragraph 7f(2) above has no application where it is speaking of serving a punishment of incarceration which was sentenced in a trial which took place without authority. There is, therefore, no place to talk of postponing the transfer of suspects because they are serving the punishment of incarceration.

(3) In addition to the above, I wish to note that the instruction of Paragraph 7f(2) quoted above, permit the delay in transfer only in those cases that the suspect is detained or imprisoned, for carrying out a different crime which is not connected to the criminal act for which transfer is requested. The reason for this is based on interpretation of the context and logic of the instructions of Paragraph 7 of the Agreement. The Paragraph which arranges the matter of transfer of suspects and convicts:

(A) Paragraph 7b of the Agreement states:

"Where an individual suspected of, charged with or convicted of an offense that falls within Israeli criminal jurisdiction is present in the Territory, Israel may request the Palestinian Authority to arrest and transfer the individual to Israel."
The correct "geographic" location for establishing the Palestinian claim in the Agreement, if there was a basis for their claim, is the end of Paragraph 7b. This Paragraph sets the principle. The principle is sweeping. The principle establishes that Israel can request suspects of a crime, which is carried out under Israeli criminal jurisdiction, from the Palestinian Authority. In order to limit this sweeping principle, it would be necessary to have a qualification immediately next to it. This was not done. The instructions in this section (c - e) go into the procedural details. After them, there is an incontrovertible instruction in Paragraph 7f(1):
"Both sides, upon receipt of a request in accordance with this Article, shall effect the arrest and transfer requested."
Paragraph 7f(2) establishes an exception. But this exception cannot be an exception to Paragraph 7b which relates to the specific incident which is the subject of the request for transfer: this is an exception to Paragraph 7f(1). An exception to the execution of the transfer because of a different crime, which is not related to the crime for which the transfer was requested. A reading of the text of the section in question in the entire Agreement, and its order, shows that everything relating to the details of the transfer request (procedure, evidence, arrest orders, etc.) is discussed in the paragraphs before Paragraph 7f(2). Paragraph 7f(2) is an exception to Paragraph 7f(1). It does not relate to the incident for which the transfer request was made.

(B) The prohibition against putting a defendant under "double jeopardy" is accepted in Israeli law and international law. If the claims of the Palestinians are correct according to which Paragraph 7f(2) applies also to the serving of a punishment of imprisonment relating to the same incident for which the transfer request was made, then the right to postpone the execution of the transfer is vague and has no substance. It is completely unreasonable to interpret Paragraph 7f(2) according to the Palestinian interpretation because of the principle that a defendant won't be judged twice for the same act. There is no sense or value to talk about postponing the transfer, when the transfer is meant to try the suspect for the same acts for which he has already been judged. A "hint" of the principle of double jeopardy is found in Paragraph 7k of the Agreement:

"Both sides may agree that an individual convicted in the courts of one side shall serve his sentence in a prison of the other side..."
There is here, if one wants, a kind of negative arrangement: mutual agreement regarding serving the sentence by the other side - possible, agreement on double jeopardy - not possible. An explicit statement regarding the principle of double jeopardy is found in Paragraph 7 (of Article 1 of Annex III) which talks of "due regard to the principle that no person can be tried twice for the same offense." In any case, the Agreement cannot be above a basic principle. There cannot be a situation of carrying out the transfer after serving the sentence, in order to be retried for the same act. From here also comes the conclusion that Paragraph 7f(2) relates to something other than for what the transfer was requested.

(C) There is no need to be verbose on the obligation to fulfill agreements in general, and this Agreement in particular, in good faith and accepted ways. What are accepted ways? It is the way according to which "the poor of your city get precedence." In other words, the criminals of your city, those which were judged in the past for previous violations relating to other activities, will first complete their obligation to the society they did their crime against. Only after they have completed serving the sentence, the transfer is to be carried out, thus allowing that the judgment on the other criminal act may be served. This is the intention of paragraph 7f(2), in the English version, which its the obligating version:

If the individual requested is detained in custody or is serving a prison sentence, the side receiving the request may delay that transfer to the requesting side for the duration of the detention or imprisonment."
(D) Paragraph 7b quoted above talks of the arrest of the suspect in order to transfer him to Israel. Also Paragraph 7f(1) talks about arrest before transfer. Always, right before transfer the suspect is under detention. Paragraph 7f(2) sets, recall, in the beginning of it:
"If the individual requested is detained in custody or is serving a prison sentence..."
What is the meaning of "if"? This form of condition is not proper as long as one is talking about a transfer request. Because there always is a situation of arrest for transfer. This is an integral part of the process, and the use of the word "if" is not appropriate.

From this it is clear that the word "if" in Paragraph 7f(2) relates to a situation in which the same wanted suspect is found detained or imprisoned for a prior other matter.

(E) Paragraph 7i states:

"Each side may, upon the request of the other side, detain, for no more than seven days, an individual in respect of whom a request for arrest and transfer is to be made, pending the submission of such a request."
So therefore, detention can take place also before the submission of a request for arrest and transfer. The Palestinian interpretation could yield absurd situations. The Palestinians won't have to hear from the media that they are about to receive a request for transfer. The Palestinians would hear it explicitly and directly from Israel. Israel submits to the Palestinians a request for the arrest of a person for seven days until the presentation of an official request for arrest and transfer. During the course of this detention, which is completely geared to aid and make possible the execution of the transfer, the Palestinians will judge the man, and will thus foil the transfer. There is no choice but to interpret Paragraph 7f(2) as referring to the detention or incarceration relating to a different matter.

[Parenthetically I would point out that we should check, if in practice, a request per the above mentioned Paragraph 7i was submitted).

(4) The above mentioned difficulty in interpretation - I concede - is in the fulfillment of Paragraph 7f(2). With this, it appears to me to be best if Israel does not rush to concede that in the interpretation of the Palestinians there is the correct interpretation. A different interpretation is not impossible.

More so: it is anchored in the intentions of the parties, the internal logic of the Agreement, and the internal and international principles of jurisprudence on this matter. Namely: the detention or imprisonment referred to in Paragraph 7f(2) is detention or incarceration for matters other than the subject of the request for transfer.

More so: It was said at the beginning of these things, that exclusive Israeli jurisdiction on the matter of the murder in Wadi Kelt applies. The trial which will take place - if it takes place - by the Palestinian Authority, has not validity.

It follows from the above: In my opinion, the legal processes carried out by the Palestinians are not valid and do not release the Palestinian Authority from its obligation according to this Agreement. The obligation of the Palestinian Authority to transfer the suspects to Israel, when a request is submitted to them to do so, without delay, stands.

Regards,
Noam Solberg
Special Assistant to the Attorney General
==================================


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