Dutch Supreme Court Ruling on Israeli Criminal Jurisdiction in the West Bank

By Eugene Kontorovich
Wednesday, July 15, 2015, 9:41 PM

It has been an interesting few weeks for surprising cases about occupied territories. A recent ruling by the Dutch Supreme Court concerning Israeli-controlled territories adds a new and surprising twist.

The case concerned an extradition request by Israel for a rabbi accused of multiple sex crimes. The rather unusual case had seen the rabbi, Eliexer Berland, hop across countries and continents (Morocco, Zimbabwe, and South Africa) before landing in the Netherlands last year.

Israel requested extradition - and Berland raised an interesting defense. The allegations involve conduct at his yeshiva in Jerusalem's Old City, and in the city of Beitar Illit, both across the 1949 Armistice Line with Jordan by a few hundred meters. The former has been annexed by Israel.

Berland claimed the Israel does not have jurisdiction over the conduct, as it occurred in areas recognized by the international community, the UN, the EU, etc., as being not in Israel but rather in the "Occupied Palestinian Territories."

Some context is helpful here. In recent years, the European Union has begun to claim that its treaties with Israel can have no application to areas under Israeli de facto jurisdiction, but where the EU does not recognize Israeli sovereignty. Thus it claims dairy products from the Golan Heights or West Bank cannot enter the EU, because the EU simply cannot recognize Israeli phytosanitary certificates there. In other words, the EU is increasingly claiming that the non-recognition of sovereignty leads to the non-recognition of administrative jurisdiction. The Commission claims this is both an interpretation of the territorial provisions of the relevant treaties and required by general principles of international law.

As it happens, the Dutch-Israeli extradition treaty provides that a country may only request the extradition of people who committed crimes "within the jurisdiction" of the requesting state.

So Berland would seem to have a receptive audience for his argument that Israel cannot be understood to apply to crimes committed across the Green Line.

However, the Dutch Supreme Court came to a different conclusion (adopting the opinion of the Court's Attorney General). It began by establishing the relevant presumptions. In considering an extradition request pursuant to a treaty, a court can only reject it if the requesting state's lack of jurisdiction is clear on the face of the papers. That is, if the lack of jurisdiction is manifest without further investigation.

While the Court noted the state of international opinion on the issue, it said that Israel's lack of territorial jurisdiction in East Jerusalem and Beitar was not one of these black-and-white issues that it could in effect take judicial notice of. One would imagine that if China requested extradition regarding a crime that occurred in Spain, this would be one of the "clear" case that fall outside the presumption.

To be sure, the Court made no pronouncement on Israel's borders, and indeed suggested it would be inappropriate to do so in an extradition case. It simply decided that the lack of territorial jurisdiction is not an apparent, day vs. night, judicial notice kind of fact. Even given the presumption in favor of finding territorial jurisdiction, the fact that it was not overcome under the present circumstances is quite noteworthy. To put it simply, the conclusion that the anti-jurisdiction argument does not overcome the presumption means the argument is not a 100 percent unquestioned winner.

Indeed, it suggests that the International Criminal Court may face difficulties in exercising jurisdiction over Israeli settlements. If these are within Israeli territorial jurisdiction (albeit not sovereignty), there is no basis for the Court to act. Here again, the Court would have to overcome very high presumptions to exercise jurisdiction, because Israel is a non-member state and because of the Monetary Gold principle. While extradition is presumptively valid, jurisdiction in the ICC needs to be affirmatively established, rather than disproved.

The Court also ruled that it had an alternate, and easier route to the the same outcome: Israel had jurisdiction based on the active nationality or passive personality principles.

The Court was right that the question is not easy. While the international community does not recognize Israeli sovereignty, jurisdiction is another matter. Under the Oslo Accords and subsequent agreements, Israel exercises criminal jurisdiction over the settlements. The Agreement was signed by the European Union as witnesses. (See, e.g., Interim Agreement: art. XVII.1.a, art. XVII.2.c, art. XVII.4 (1995).)

Despite alleged breaches by both sides, the Agreements have not been cancelled. Recent events have reaffirmed the applicability of the jurisdictional provisions. Indeed, earlier this year, a Palestinian judge in Jericho apparently drew the wrong conclusions from the proclamation of a "State of Palestine" and concluded that the Oslo Agreements were thus void, and he could thus exercise criminal jurisdiction over Israelis in circumstances forbidden by the accords. He was promptly removed from office by Ramallah, and his decision repealed.

One might speculate why the Court did not go along with what "everyone knows." Extradition treaties, like Holland's with Israel, only require extradition from "within the territory" of the sending state. If the Court clearly concluded these areas are not even within the de facto territorial jurisdiction of Israel, they certainly could not be "within the territory" of Israel. That would mean that anyone who commits crimes in Holland would be able to find safe refuge in eastern Jerusalem, and Israel would have no extradition obligation. Thus the narrow reading of territorial jurisdiction in treaties between European countries and Israel will impose costs not just on the latter.