The rationale underlying this rule may not be realized when there is no extradition relationship between the countries involved, or for some reason there is a concern that even such relations exist, a choice is not a true choice in the sense that the prosecution of a person in the requested country will be only prima facie. At that time, the competition between the legal systems may be resolved in various ways, such as laying hands on the defendant without extradition (which is highly controversial in international law), bringing the competition before an international tribunal (as in the case of The Case of the S.S. "Lotus", supra [120]) or other intervention by the international community (as happened in the case of the downing of the American plane over Lockerbie in 1988). However, not in one of these ways of resolving international law offers a rule that has the power to determine which of the legal systems involved will have priority.
International law even refrains from adopting a rule of hierarchy between the applicable affiliations recognized therein, even though ostensibly this might have helped to decide the competition. This is due to the fear that the establishment of a rigid hierarchy will lead to unjust or arbitrary results, and on the other hand, a more flexible rule, which involves the exercise of discretion, will be inapplicable in the absence of a neutral and impartial entity that has the authority to exercise it (see M. Plachta “The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare” [146], at p. 130).
The conclusion is that in the absence of a binding external norm, competition will not be able to be resolved except on the basis of the internal law of the latter, and more precisely, by the rules - including the extradition laws - of the requested state. I will now address the foundations underlying Israeli extradition laws.
Extradition Law - Material Examination
The right not to be confined
- Section 5 Basic Law: Human Dignity and Liberty, entitled Personal Freedomstates:
"A person's liberty is not taken away or restricted by imprisonment, detention, extradition or in any other way" (my emphasis - A.A., 30).