Thursday, August 24, 2006
After asking "Where the heck is Kobi Alexander?" (earlier post here) the answer is:
Sri Lanka -- Namibia. Check an updated blog post here. The rest is what was written on August 24: Israeli newspaper Ma'ariv reports (Marketwatch story here) that a private investigator tracked Alexander through an internet telephone call he recently placed to his daughter in Israel. Assuming he has not left the jurisdiction, the United States and Sri Lanka have an extradition treaty so there is a chance that he will be detained and then returned to the United States to face the conspiracy and securities fraud charges filed against him in Brooklyn related to options-timing at the company he founded and served as CEO, Comverse Technologies.
One issue in an extradition proceeding against Alexander will be whether the crimes charged are covered by the treaty (here), which provides in Article 2: "An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty." The treaty entered into force in 2001, and is fairly flexible on determining whether there is dual criminality, providing in Article 2(3) that it is an extraditable offense
(a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or
(b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the malls or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
It is very typical for countries to incorporate a dual criminality provision within a treaty. The rationale for the dual criminality rule is "to make certain that extraditable crimes are serious offenses. Having the conduct as criminal in both countries helps to assure that it is a crime that both countries consider sufficiently wrongful." Podgor, Understanding International Criminal Law 99 (2004) In determining whether the crime is the same in both countries, the name of the crime is not determinative. Courts also will defer to the surrendering country in its "reasonable determination that the offense in question is extraditable." United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995).