Extradition from Israel of Maryland Youth
October 24, 1997
According to press reports, Secretary of State Madeleine Albright has asked for Israel's maximum cooperation in extraditing Samuel Sheinbein to the United States, so he can be tried for murder in Maryland. Apparently Sheinbein fled to Israel shortly after the body of Alfredo Tello Jr. was found in Maryland. Sheinbein claims dual Israeli-U.S. citizenship based on his father's Israeli citizenship, which apparently is open to some doubt. According to reports, if the father is an Israeli citizen under Israeli law, so is the son. Reports also indicate that under Israeli domestic law, an Israeli citizen cannot be extradited. For purposes of the discussion below, it is assumed that these reports are accurate.
There is an extradition treaty between Israel and the United States, dating from 1962. Article IV says, "A requested party shall not decline to extradite a person sought because such person is a national of the requested Party." Although Article IV is not as clear as it could be, it seems to mean that even if Sheinbein is an Israeli national, Israel could not (without breaching the treaty) decline to extradite him to the United States solely because of his Israeli nationality. If there is a conflict between domestic Israeli law on extradition and the Israel-U.S. extradition treaty, Israel will owe a duty to the United States under international law to comply with the treaty. The conflicting domestic law of a state party to a treaty is not recognized as an excuse for noncompliance with the treaty.
Article VI, Section 1, of the extradition treaty says that extradition shall not be granted "when the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished, in the territory of the requested Party [here, Israel] for the offense for which extradition is requested." The only basis Israel would have for proceeding against Sheinbein for murder would be his Israeli nationality (if he is an Israeli national), since the alleged murder did not occur in Israel. Nor did it involve an Israeli victim. Thus the nationality question could determine whether Israel prosecutes him for murder, and that in turn would determine whether he is nonextraditable under Article VI, Section 1, above.
If Israel decides that Sheinbein is an Israeli national on the basis of his father's nationality, a question could arise whether the United States has to accept that decision and recognize his Israeli nationality. Normally it is for each country to decide for itself whether and on what conditions it will grant its own citizenship. But there is an International Court of Justice (ICJ) decision, not involving extradition, that casts doubt on whether another country with an interest in the individual has to recognize such a decision if there is no genuine link between the individual and the country claiming him as its citizen. In the Nottebohm Case (Liechtenstein v. Guatemala), the ICJ decided in 1955 that Guatemala was not required to recognize the claim of Liechtenstein to represent Nottebohm, a naturalized Liechtenstein citizen who had lived in Guatemala for years and who had very few ties to Liechtenstein, when Liechtenstein claimed that Guatemala had mistreated Nottebohm. Nottebohm had insufficient links to Liechtenstein.
The U.S. government thus could try to persuade the Israeli authorities that they should not treat Sheinbein as an Israeli national (even if he arguably would be under Israeli law), since Sheinbein appears to be more closely connected with the United States than with Israel. But since the Nottebohm case did not involve criminal prosecution or extradition, it is not certain that the "genuine link" test would apply here. Even if it does, the Israeli government might decide to prosecute him anyway if it is convinced that he is an Israeli citizen under Israeli law. In that event, Article VI, Section 1 of the extradition treaty apparently would still preclude his extradition. The U.S. government might be able to do no more than protest that the Israeli government should have paid more attention to the link (or lack thereof) between Sheinbein and Israel.
Another provision in the extradition treaty says that a party may refuse extradition if the individual would be subject to the death penalty under the law of the requesting country but not under the law of the requested country. The Maryland Code contemplates the death penalty for first-degree murder, but not if the person convicted was less than 18 years old at the time of the murder. According to the newspaper report, Sheinbein is 17 years old. Thus he would not be subject to the death penalty in Maryland, and this provision in the treaty would not apply.
Frederic L. Kirgis
Law School Association Alumni Professor
Washington and Lee University School of Law
Chair, ASIL Insight Committee