The current conflict in Gaza is undoubtedly having a significant impact on daily life not only in Gaza but also around the world. Whilst both boycotts and protests have been prevalent in the UK, perhaps one unexpected consequence is the impact that it could have upon the law surrounding extradition. More specifically whether extradition requests made to the UK from a jurisdiction involved in an armed conflict can be upheld.

What is extradition?

It is the process whereby one state seeks the surrender of a person from another state in order to either prosecute them for an offence or to make them serve a custodial sentence.

An extradition request can be made from EU countries, which are referred to as Part 1 cases, or from other countries whom the UK have an extradition treaty, which are referred to as Part 2 cases.

All extradition requests made to the UK from another country are governed by the Extradition Act 2003.

Recent Israeli extradition request

Hodge Jones & Allen has recently been instructed to represent an Israeli national that was subject to an extradition request made by the Israeli authorities for his return.

This is the first Israeli request to be issued since the 7 October 2023 Hamas led attack on Israel and the subsequent conflict.

Such an unprecedented case lead to the following issues being raised to oppose the person’s extradition to Israel:

Article 3 of the ECHR – Prison Conditions/Armed Conflict

The law states that extradition cannot take place if there is real risk of a breach of Article 3 of the European Convention on Human Rights. This Article provides protection against torture and inhuman or degrading treatment or punishment. It also provides protection for individuals against being detained in facilities with poor conditions and from being subjected to violence whilst in custody.

Israel is neither a member of the EU or Council of Europe. Therefore, it is not entitled to presumptions of compliance with the ECHR that are attached to those states that are within those groupings. The UK courts have only considered prison conditions in one Israeli case and it is clear that the circumstances have changed significantly due to recent events.

A report by the Israeli Public Defender’s Office of Human Rights indicates that some Israeli prisons have been declared to be in a state of emergency following severe overcrowding and that the maximum capacity will be reached in a number of weeks. According to the report, since the start of the war on 7 October at least 3,400 people have been imprisoned.

It is said that this overcrowding has resulted in the violation of basic rights of prisons and that the arrest of hundreds of Palestinian prisoners has led to increased tensions and inter-prisoner violence.

The report indicates that since the start of the war, prisoners have been prohibited from going out into the yard, preventing them from seeing sunlight for days at a time. There has also been an indefinite blanket bans on family visits, restrictions on lawyers’ visits, prohibiting access to medical care, cutting off electricity in several prisons and transferring a number of prisoners to isolation.

There was a further unusual issue in relation to Article 3 concerning whether it would be a breach of a person’s Article 3 rights to extradite him to a country which is currently involved in an armed conflict.

Article 8 of the ECHR – Disproportionate Interference with Right to a Private Life

Under Article 8 of the ECHR there is a right to private and family life:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ‘

In order for the level of interference for Article 8 to outweigh the interest in extradition, the consequences must be exceptionally serious. This is determined by the Court undertaking a balancing exercise. The Court will have regard to numerous factors, most importantly the impact that being extradited in the midst of an armed conflict might have on a person’s emotional/physical wellbeing and the possibility that they may be subject to forced to conscription into the Israeli army.

Conclusion

For unrelated reasons, the case concluded before the court had the opportunity to grapple with these issues. The question of whether a person can be surrendered to a jurisdiction involved in an armed conflict will therefore need to be resolved when another similar extradition request is made to the UK.

If you have concerns about extradition to Israel or any other foreign state please call to speak to one of our extradition experts for an initial free and private consultation. Call 0330 822 3451 or request a callback.