Poland’s prisoner dilemma

Having to reconcile between its obligation to extradite an alleged Mossad agent to Germany and its commitment to fight terrorism,Poland now finds itself in an awkward position.

By SHAI BAITEL
Brodsky 311 (photo credit: Courtesy)
Brodsky 311
(photo credit: Courtesy)
The case of an Israeli citizen arrested in Poland and wanted in Germany for document fraud in connection with the assassination of a senior Hamas commander in Dubai in January brings up a fascinating question: How can a conflict between national interest with regard to two friendly countries and the application of the law be reconciled? How do you maintain friendship and an understanding between the three countries – Poland, Germany and Israel – who are bound by shared values and a sensitive past, if enforcing a certain law might rock the foundation of that friendship? On June 4 an Israeli citizen, identified as “Uri Brodsky,” suspected of illegally acquiring a German passport in 2009 for one of Hamas leader Mahmoud al- Mabhouh’s alleged assassins, was arrested at Warsaw’s airport after Germany issued a European arrest warrant for him.
The mutual relations between Israel, Germany and Poland are unique. Germany and Poland share a painful history and experience of World War II and the Holocaust, which were catalysts for the establishment of the State of Israel. Germany’s acknowledgment of the horrors inflicted by the Nazi regime and Poland’s owning up to some dark chapters of its history – while also being a victim of Nazi Germany – were the cornerstones of the deepening relationship between the three countries. Germany’s and Poland’s solid support is evidence to their unwavering commitment to Israel’s existence and security.
Over the years the three countries have collaborated in a vast range of areas, such as economy, science, culture and also security matters, promoting shared democratic values which stand in stark contrast to the experience of World War II. The protection of these values has led the free world to a uniting consensus over the most challenging campaigns of all times – combating terrorism.
This campaign marks the strong alliance between Israel and the West at the end of the 20th century into the 21st of facing the challenge of international terrorism and the various means to fight it successfully. This sentiment was only strengthened after the tragedy of 9/11 and positioned the fight more centrally in the delicate chapter of international relations.
POLAND IS a democratic country with a clear separation of the three branches of government.
Bound by an international treaty of extradition while heavily invested in a campaign against terrorism, it is facing a conflict that arises from the case of a friendly country fighting terrorism. How can the judicial system make a decision that will not contradict Poland’s role and commitment to combat terrorism? Poland, having to reconcile between its European obligation to extradite and its commitment to fight terrorism internationally now finds itself in an awkward place morally. Its commitment to Israel’s existence and security might contradict with a legal decision to hand over an Israeli citizen to German authorities. This is bound to raise eyebrows and will likely be viewed as a turn of a cold shoulder by Poland. Even if found guilty, the Israeli citizen was operating in the context of fighting terrorism.
Based on the above, one would reasonably assume that the Polish government hands him over to his country’s authorities.
This would reflect a just decision by the executive branch, represented by a leadership committed to Israel and to the international consensus to combat terrorism.
However, this case is handled by the judicial branch which can easily extradite him within the European Union, without taking into consideration values, standards and other elements relevant to Poland’s national interest, which are broader than the letter of the “dry” law.
A legal decision to fulfill Germany’s request and extradite has the potential, even the likelihood, to embarrass the Polish government greatly, and possibly create tensions with world Jewry.
The justice system in Poland would be doing the government a big favor if it would inject into its deliberations the values and standards that it is expected to consider, morally and historically.
These may not be found in the dry law but are in compliance with Poland’s unwritten commitment to Israel, and with the international effort of fighting terrorism effectively, so that terror is prevented not just in Israel today but also in Poland and Germany tomorrow.
The writer has served in the Justice Ministry and at the UN. He holds an LLM in international law as well as degrees in law and Middle East studies.