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Extradition and Prosecution of Israelis by Foreign Courts

Blog - Israelis' Extradition

In recent weeks, numerous news articles have reported on the arrests of Israeli citizens resulting from foreign investigations conducted abroad. In one instance, more than 20 employees of a Tel Aviv-based company engaging in forex investment marketing were arrested following an FBI investigation.


Later reports indicate that European countries have arrested many other suspects as part of the same investigation, led, apparently, by the United States. This incident, among many others, demonstrates that the US keeps increasing its enforcement efforts against criminals who defraud American investors, no matter where in the world they commit their crimes.


One cannot help but wonder whether the United States would have invested the same volume of resources against Israelis suspected of involvement with binary options or forex marketing fraud crimes had Israel’s law enforcement authorities stepped up their own efforts and prosecuted Israeli suspects for these crimes in Israel.


Israel’s lax law enforcement policy regarding international white-collar crimes could have a number of implications, some which are not trivial. Some major ones to consider are the repercussions of facing criminal prosecution in a foreign country which in some circumstances can occur even without an extradition proceeding beforehand.


Lee Elbaz and Yukom Communications versus Elizabeth Holmes and Theranos 

Within this context, it is interesting to recall the indictment against Lee Elbaz, an Israeli woman and the former CEO of Yukom Communications. Elbaz was prosecuted in the United States on charges of orchestrating a conspiracy to defraud US investors by offering them binary options.


Elbaz was tried before an American jury, despite not being an American citizen, not speaking English as her mother tongue, and never having resided in the United States.


Since cases of women being prosecuted for economic fraud schemes are rare, one cannot help but compare Lee Elbaz’s trial to the trial of Elizabeth Holmes, the former CEO of Theranos. Holmes is currently also being prosecuted on charges related to defrauding investors relating to the lack of veracity of the supposedly revolutionary blood test Theranos developed.


During the coverage of Holmes’ trial, there have been frequent reports of numerous juror replacements due to various difficulties experienced by the jurors relating to the possibility of their contribution to Holmes’s conviction. Put simply, “their conscience bothered them.” The court even tried to convince some jurors to remain on the jury panel, stressing that the judicial system needs greater diversity of opinions and views because it contributes to achieving justice.


One cannot help but wonder if an American judge and an American jury are capable of feeling that same sense of identification and compassion when the defendant is a foreign citizen. Unlike Elizabeth Holmes, Lee Elbaz was not born in the United States, nor was she raised in Washington DC; her father was not a Vice President of Enron, her mother was not a staff member of the United States Congress, and Elbaz did not study at Stanford. She does not even speak fluent English.


This issue demands considerable rethinking of the origin and purpose of the right to be tried before an impartial jury, as incorporated into the sixth amendment of the US constitution. This constitutional right originates from the right previously anchored in the Magna Carta, which is the right to be tried by a jury of one’s peers.


Therefore, several important questions arise: Can a jury from a country other than that of the defendant and who shares no common cultural background or language with that defendant really be considered “an impartial jury” or “a jury of one’s peers”? Two additional salient questions follow: Do Israeli law enforcement authorities owe a certain moral duty to their citizens not only to ensure that offenders come to justice, but also, to ensure that they come to justice before an Israeli court whenever there is a nexus between the crime and the Israeli public interest? Do Israeli law enforcement authorities have a certain moral duty to do so even if the evidence was collected during an investigation conducted by another country, in order to avoid prosecution of Israeli citizens before a foreign court? Lastly, are Israeli courts obligated to consider the repercussions of prosecution of Israeli citizens before foreign courts before granting extradition, even in cases where the requesting country is one with a judicial system that is recognized as “procedurally fair” according to Israeli law?


One does not need to refer to literature or research to corroborate what we already know instinctively: we feel less empathetic towards anyone who doesn’t belong to our own “social or cultural camp.” On the one hand, one can argue that when a defendant from another country is on trial, the jury may be more objective. On the other hand, it is hard not to deduce that prosecuting a foreign citizen in a US court contradicts the US Constitution’s objective in anchoring the right to be tried by “a jury of one’s peers,” a term American case law has interpreted as “a jury comprised of fellow citizens.”


Arrests in Israel during the FBI’s forex fraud investigation

Another interesting difference between Elbaz and those arrested in Israel during the FBI investigation relates to extradition laws. Elbaz entered the United States of her own will for a private visit. Consequently, the United States acquired jurisdiction without having to file a motion for extradition. However, unlike with Elbaz, if the United States will want to prosecute and try the suspects the FBI recently arrested in Israel, it will first have to file a motion for extradition.


Thus, there are significant differences between the situations of those arrested in Israel and Elbaz’s situation, even though the suspicions on which their arrests were based (according to press articles) may result in similar indictments.


For example, inter alia, Elbaz is serving out a long sentence in federal prison in the United States because she did not get to benefit from the rule whereby a country that wants to extradite a person from Israel must commit to return that person to serve his or her sentence in Israel if found guilty and sentenced to incarceration. If Elbaz will want to be transferred to Israel, she will have to file a motion for that purpose and withdraw the appeal of her conviction.


These circumstances have a dramatic outcome – the difference between serving a long prison sentence in a country that is not your home, where you have no family to visit you and do not speak the native language – all because of a meaningless and arbitrary factor, such as voluntarily entering the United States, as opposed to being extradited from Israel to the United States to stand trial.


Considering these various issues, it appears warranted to reconsider the relative ease with which foreign countries acquire jurisdiction over foreign citizens, the repercussions of being prosecuted in a foreign country on the rights of suspects and defendants, and finally, the impact of Israel’s lax law enforcement efforts related to offenses with international aspects on the rights of Israeli suspects and defendants.


These issues also highlight just how important legal representation is during the stages of arrest in a foreign country or during extradition proceedings, especially the ability to present arguments before the courts that will compel them to consider the implications of sending a person to stand trial in a foreign country.



Adv. Hadar Israeli is a partner in Barnea Jaffa Lande law firm and represents individuals and companies in a wide range of criminal and administrative enforcement proceedings, as well as complex commercial litigation, in Israel and the US.