The Abu Daoud Case
To the Editor:
I would like to add a few remarks to Sandra E. Rapoport’s analysis of the legal aspects of the Abu Daoud case [“Abu Daoud and the Law,” March].
Critics of the French action contend that under the Franco-German treaty the French government was obligated to detain Daoud for a minimum of twenty days, and that under the Franco-Israeli treaty Daoud should have been detained for an even longer period—sixty days. The French reply was that the twenty-day limit “applies only to the transmission of the dossier supporting a request for provisional arrest, provided the request has been confirmed through diplomatic channels. This not being the case four days after the arrest, the French court had no choice.” Though this reply is correct in the sense that the French government was not obligated to detain Daoud for a minimum of twenty days, neither was it obligated to release him on the fourth day, as it did. For nothing in the applicable extradition treaty or law deprived the government of its discretion to hold him longer, especially in view of the magnitude of his alleged crimes and the fact that he could also have been prosecuted for the crime of entering France on a false passport.
But even if one agrees that the French court was technically correct in its ruling in the Franco-German instance, no such agreement is possible in the Israeli case. In contrast to the formal defect found in West Germany’s provisional arrest request, the court could find none in Israel’s request, which fulfilled all the technical requirements for provisional arrest, including diplomatic notification. On learning of Daoud’s presence in France, the Jerusalem court had immediately issued an arrest warrant on January 10, and a request for provisional arrest was transmitted to the French authorities through Interpol and through the Israeli ambassador in careful compliance with the procedure set out in Article 10 of the 1971 Franco-Israeli extradition treaty. Accordingly, the reasons cited by the court for rejecting the Israeli request went to the merits of its actual extradition application—which Israel had not yet submitted—not simply its request for temporary arrest pending receipt of that application. The French prosecutor acted prematurely in referring the case to the court before Israel, as the requesting state, had forwarded its formal extradition application.
Presumably because French court decisions are typically laconic, the reasoning in the decision on Israel’s extradition request was not spelled out. Nor have subsequent statements from official French sources furnished the missing explanations, either as to the court’s view of the status and effect of the 1971 Franco-Israeli treaty—which the decision merely cited as a “given” without further comment—or why it considered that the 1975 statutory extension of the court’s competence (beyond the limits of the 1927 law) to enable it to try extra-territorial crimes by foreigners against French-men—obviously a key issue—could not be applied retroactively. As to the latter holding, the decision merely gave the question-begging explanation that to do so would prejudice the situation of the “foreigner who is the subject of the present proceedings.”
The skeletal nature of the decision has obliged commentators to hypothesize as to the reasoning. Mrs. Rapoport, for example, imputes to the court the view—which she correctly declares is mistaken—that the Franco-Israeli treaty did not enter into force until 1975 and therefore could not apply retroactively to the Munich crimes of 1972, when the fact is that it was in force in 1971. Actually, however, this was not a link in the court’s chain of reasoning which, more likely, concerned the question of double-criminality, which Mrs. Rapoport does not discuss: namely, whether the acts attributed to Abu Daoud were triable crimes in both the requesting and requested states, the court’s conclusion being that since French courts were not competent to try them, even though the Israeli courts were, the double-criminality requirement of the otherwise applicable treaty was not fulfilled.
That the court’s reasoning was faulty is not difficult to establish. To begin with, though the first paragraph of Article 2 of the 1971 treaty, providing for extradition in the case of “any offense punishable under the law of each Contracting Party,” suggests a requirement of double-criminality, this is not at all true of later paragraphs of the same article. Several of these specifiy offenses which are made extraditible without reference to the law of the requested state (France).
This interpretation is consistent with the view expressed by the eminent French jurist Maurice Rolland, who (in an article in Le Monde, January 15, 1977) criticized the Chambre d’Accusation for laying down “a principle of reciprocity which is not written in the texts. It should simply have verified if an Israeli law was applicable,” as in fact was the case, i.e., Israel’s law of March 28, 1972. Israel’s demand was legitimate, he asserted, “since it is the legislation of the demanding state, in this instance Israel, which alone should be taken into consideration in such a case.”
But even assuming that M. Rolland is in error and that the treaty should indeed be interpreted to require double-criminality, the court was mistaken in the way it applied this concept. For it applied it to require that the accused—a foreigner who committed his alleged crimes on foreign soil—be triable in both the requested and requesting states, when all it need have determined was whether, at the time of the extradition proceeding, his “acts” would be considered crimes if committed on the territory of each. Surely there was no question that the horrible killings—whether of aliens or nationals—of the kind that occurred at Munich would be considered at that time crimes if committed inside either France or Israel—or indeed in any country. And surely, extradition to Israel would not have put France in the morally questionable position of having to turn over the accused to another state for punishment for acts which were not “wrongful” or “criminal” under France’s own concepts of criminality at that time. From this perspective, the court introduced an irrelevancy in basing its judgment on the jurisdictional issue, on its competence to try such an individual.
But apparently, the court did apply the double-criminality rule in this sense to require as a condition of extradition that the accused—a foreigner who committed a crime on foreign soil—be triable in the courts of France as well as of the requesting state. Since he was not triable in France under its 1927 law—the court reasoned—and since this law was not superseded by the 1975 statute enlarging the court’s competence to enable it to try such persons (i.e., to recognize the “passive-personality” principle), the double-criminality requirement was not met and therefore extradition could not be granted.
But this reasoning is also mistaken. As explained by M. Rolland, “The court overlooked one of the great principles of our penal code, in accordance with which only the retroactivity of offenses should not be acceptable, whereas the laws relative to penal procedure, notably those concerning competence, are immediately applicable to any trial in progress.” . . .
In short, the court should have upheld the applicability of the 1975 law to the crimes of Munich, thus giving the French court competence, fulfilling the double-criminality requirement of the 1971 treaty, and hence mandating extradition.
Mrs. Rapoport quite properly draws attention to the 1976 European anti-terrorism convention as germane to the Abu Daoud case, even though the convention is not yet in force. She focuses on the critical principle in this treaty depriving accused terrorists of the exemption based on the claim that their acts were “political” in nature. It is to be hoped that this treaty will receive before long the ratifications needed to bring it into force, despite the glaring loophole in Article 13 which permits states to ratify with a reservation allowing them to opt out of this very commitment: i.e., permitting them to regard terrorist offenses as “political,” requiring only that they undertake to “take into due consideration . . . any particularly serious aspects of the offenses.” That France will not resort to this reservation is far from certain.
Mrs. Rapoport would apply to terrorists the international legal principle of “universal jurisdiction” as applied to “pirates” who are recognized as the “common enemies of all mankind.” Regrettably, the fate of efforts to date to persuade the UN to agree on meaningful measures to deal with international terrorism does not suggest that the international community has endorsed this principle or is anywhere near doing so. At the suggestion of the UN Secretary-General following the Munich events, the General Assembly set up an ad-hoc committee to consider measures to cope with international terrorism. On the insistence of the Arab members, backed by the Communist and radical Third World members, the Assembly requested the committee to study at the same time the “root causes” of terrorism. The debates that have taken place at meetings of this committee in the last few years reveal how far indeed the international community is from such agreement. . . . The participants in these exchanges talk past one another with no expectation of agreement. France, be it noted, is not among the leading spokesmen for forceful international action in this field.
New York City