Commentary Magazine


Abu Daoud and the Law

On January 7 of this year, Abu Daoud, a Palestinian revolutionary and leader of Al Fatah, was arrested in Paris, where he had arrived to attend the funeral of another Palestinian. Abu Daoud had entered France using an Iraqi passport and an assumed name. Officers of the French counterintelligence service, the DST, made the arrest pursuant to an international warrant and after receiving pertinent information about the suspect from the West German police.

Abu Daoud was suspected of having masterminded the massacre of eleven Israeli Olympic athletes and six other persons in Munich on September 4, 1972, and he was accordingly wanted both in Israel and in West Germany. On January 10, the Jerusalem Magistrates Court issued a warrant for Abu Daoud’s arrest and on the same date Israel submitted an urgent request to the French authorities for the provisional detention of their prisoner pending extradition proceedings. West Germany also submitted a request for extradition.

The West German request was rejected by France on technical grounds (improper identification of the prisoner), and on the grounds that West German officials had not formally confirmed the request through diplomatic channels. As for Israel’s request, after deliberating for twenty minutes the French court ruled that Israel had no right to demand extradition since the crimes in question had not been committed on Israeli soil or by an Israeli citizen. It further held that the extradition agreement between France and Israel was not applicable to the present case because the acts had been committed prior to the effective date of the agreement.

The French action in the Abu Daoud affair provoked a worldwide storm of protest that has not yet abated. France has been condemned for the precipitous haste with which it acted, the callousness it displayed toward the families of the slain athletes, and its cowardice in the face of Arab pressure. Still, although France stands morally accused in the eyes of the world, it seems to be generally accepted that in acting as it did the French court was well within the bounds of France’s international legal obligations. In fact, however, the action of the French court in releasing Abu Daoud constituted nothing less than an illegal breach of those obligations.

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On November 12, 1958 France and Israel signed an extradition treaty which was ratified and went into effect on November 14, 1971. On the basis of this convention Israel has granted extraditions to France since November 1971, and pursuant to it Israel requested the extradition of Abu Daoud. The relevant article of the treaty required France to keep the subject in provisional detention for a period of up to sixty days, pending a formal request for extradition. Such provisional detention is in the nature of a “holding action,” designed to maintain the status quo, much as in a civil action a temporary restraining order keeps a situation stable pending formal proceedings. As a criminal suspect “wanted” by two separate nations, Israel and West Germany, Abu Daoud would have been held until one or the other of the requesting nations had followed through on its request for extradition.

Provisional detention is an infringement on a suspect’s liberty, but this must be balanced against the irreparable damage which can result if a suspect is not held at least until the matter can be examined thoroughly. Abu Daoud was a wanted suspect for a heinous crime—in fact, in February 1973 he had publicly confessed over Jordanian television to his part in the Munich massacre—and holding him for a formal inquiry would not have been an extraordinary step for the French court to take. Moreover, since he had entered the country using a false name and under a foreign passport, he could have been detained anyway for eighteen days, time enough in which to begin formal extradition procedures.

The French claimed that their extradition treaty with Israel did not go into effect until 1975, and that since the acts attributed to Abu Daoud had been committed in 1972, the treaty did not apply to them. In fact, not only did the extradition treaty go into effect in 1971, but Article 23 of the treaty expressly states that its provisions apply even to crimes committed prior to its coming into force. Since the acts in question were crimes when they were committed, the procedures delineated in the treaty for extraditing persons to and from the signatory nations were fully applicable to the case of Abu Daoud; there would have been no unlawful ex post facto application of the statute.

When Adolf Eichmann was abducted from Argentina and taken to Israel for trial in 1960, no extradition treaty was in force between Argentina and Israel. Argentina claimed, correctly, that its territorial sovereignty had been breached by the Israeli action. As it happens, Israel’s jurisdiction over Eichmann was upheld by the international legal community and Argentina soon acknowledged that no damage had been done to its citizens or territory by the abduction (Eichmann was an illegal alien).1 Nevertheless, had Israel and Argentina in 1960 been signatories to a pact such as the one in effect between Israel and France, Israel would have been hard-pressed to show why it had bypassed the treaty’s mechanisms and unilaterally taken the suspect into custody. In the present instance, however, not only had the mechanism for extradition been set up, it had even been used by the two nations prior to the Abu Daoud affair. Thus when Israel put the process into motion once again, it had every reason to believe that it would be carried forward according to the terms of the treaty. The frightening implication of France’s failure to administer the law is that next time the mechanism of the law may be bypassed altogether.

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In addition to the extradition treaty in effect between Israel and France, another document relevant to the Abu Daoud case is the European Convention on the Suppression of Terrorism, worked out by the Council of Europe and adopted unanimously on November 10, 1976. This treaty has not as yet been ratified and therefore is not binding statute. The fact, however, that France’s foreign minister was among those who adopted it is a powerful reason to regard it as germane to the Abu Daoud case. International law is comprised of custom as well as treaty, and the adoption of a convention like the one on the Suppression of Terrorism certainly represents a formalization of the community’s intentions, well on the way from custom to statute. The French, moreover, have lately been advocating stricter measures for handling terrorists. Abu Daoud’s part in the Munich massacre can be seen as falling well within the scope of the convention’s coverage.

Article 1 of the convention lists, among the offenses which are not of a narrowly “political” nature, attacks against the life of internationally protected persons and diplomats, kidnapping and taking of hostages or any unlawful detention, or complicity in any of these acts. Article 2 gives contracting states the right similarly to recognize “other serious acts of violence against persons” as “non-political” offenses, and here again accomplices are included.

The careful language of Article 2 has its basis in the well-established principle which exempts political offenders from extradition. In theory, the reason for this exemption is that a true political offense—for example, sedition, treason, or espionage—is directed exclusively against the state, and has no element of an ordinary crime. What the convention is saying is that in the face of such acts as the seizure of aircraft, the taking or unlawful detention of hostages, the use of bombs or firearms or other serious acts of violence against persons, the possible “political” nature of the crime is to be disregarded in favor of extradition. The adopting countries are in effect stating that the policy against terrorism supersedes the state’s need to retain autonomy over criminal “political” offenders.

Thus, even if Abu Daoud had claimed that the nature of the Munich crimes was “political” and therefore immune to extradition, France was already on record as having rejected such a defense. In fact, however, Abu Daoud made no claim to “political” immunity to extradition. Instead, his defense rested on the purported absence of a jurisdictional link between Israel—the requesting state—and the crimes in question. Abu Daoud’s only claim to immunity was based on his status as a member of the delegation sent by the Palestine Liberation Organization to attend a funeral in France. This point was not even ruled upon by the French court. It would have made, indeed, a complete mockery of criminal justice if it were possible to cloak oneself with such “immunity” in order to avoid apprehension for past crimes.

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But what about the issue of jurisdiction? The French court claimed that Israel lacked jurisdiction over Abu Daoud because the crimes in question had not been committed on Israeli soil, or by an Israeli citizen. In so ruling the court was basing itself on one or more tenets of international law that apply to the right of extradition.2 Thus, according to the “territorial” principle, a state is prevented from exercising its power in any form in the territory of another state, “failing a permissive rule to the contrary.” This principle entitles a person to be tried where his offenses are charged to have been committed. According to a second tenet, the “nationality” principle, a state has jurisdiction over its own citizens or nationals even when they commit crimes outside that state’s territory.

In the case of Abu Daoud, the “territorial” principle would have been the basis on which West Germany would have claimed jurisdiction and extradition, had that country’s lengthy extradition procedure been completed. As for the “nationality” principle, Abu Daoud holds an Iraqi passport, and is generally termed a “Palestinian” national, but it is clear that no Arab nation claimed or claims jurisdiction over him for purposes of prosecution for the Munich massacre.

But these are not the only tenets of international law upon which jurisdiction may be based in extradition cases. The “protective” principle permits a state to try criminals, including aliens, for crimes committed outside that state’s territory, if those crimes are “against the security, territorial integrity, or political independence of the state.” The Munich massacre of eleven Israeli athletes does not fall squarely into any one of these categories, but may be seen as an aspect of all three: Abu Daoud was acting as a member of the “Black September” (Al Fatah) terrorist group, which is dedicated to the destruction of Israel. As one tactic in this overall strategy, the Munich massacre was likewise aimed at destroying Israel’s security, territorial integrity, and political independence.

Finally, the “passive-personality” principle allows a state to exercise criminal jurisdiction over an alien if the latter’s victim was a citizen of the requesting state. This was the principle followed in the Eichmann case, when Israel’s jurisdiction was established on the basis of the “quasi-nationality” of Eichmann’s victims—i.e., Jews—even though at the time the crimes in question had been committed those victims were not citizens of the state claiming jurisdiction (nor was that state yet in existence). Since eleven victims of the Munich Olympic massacre were Israeli citizens, the “passive-personality” principle solidly applies.

On the basis of these two principles of international law, Israel’s jurisdiction over Abu Daoud would seem to be irrefutably established.

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France, then, was under an international legal obligation to hold Abu Daoud pending extradition procedures. But even if it had done so and then decided not to extradite him, France was bound to try Abu Daoud itself. The 1976 Convention on the Suppression of Terrorism contains a provision making it incumbent upon the state holding a fugitive to charge and try him if he is not extradited. This provision carries the policy of the agreement to its logical end: terrorist acts must be stopped, and a forum for trials of the accused must be supplied.

Aside from the provisions of the Convention on the Suppression of Terrorism, international law provides universal jurisdiction over “pirates,” those who are recognized as the common enemies of all mankind: hostes generis humani. This long-standing principle is the basis of an extraordinary exercise of jurisdiction, since it allows such common enemies to be detained and brought to justice even by states that bear no jurisdictional nexus to the criminal. The reason is that they are a threat to every state, and may be treated as outlaws. It is no doubt this theory which lies behind the provision in the convention which places the duty of charging and trying the accused, if all else fails, on the nation that holds him.

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The release of Abu Daoud following a private proceeding in a French court was a monumental breach of France’s legal obligations to the sovereign states of Israel and West Germany. As Israel’s Foreign Minister, Yigal Allon, said in the Knesset on January 11, France was put to an “elementary test between minimal courage and maximum cowardice.” France failed.


Footnotes

1 At the time of the Eichmann case, the relevant law was articulated by two U.S. Supreme Court cases. Known as the Ker-Frisbie doctrine, it held that in the absence of an extradition treaty the manner in which an accused was brought to trial in no way affected the competence of that court to try him. Since 1960, however, the law has moved away from that notion to the position that illegal seizure may indeed taint a court's competence to try a defendant.

2 See George R. Parsons, Jr., “International Law: Jurisdiction over Extraterritorial Crime,” 46 Cornell Law Quarterly (1961), p. 326.

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