Extradition in Jewish Law
Prof. Menachem Elon
Extradition in Jewish Law*
Prof. Menachem Elon
Reprinted with permission from "Crossroads: Halacha and the Modern World, Vol. I," Published by Zomet Institute (Alon Shvut-Gush Etzion, Israel)
Since Israeli law mandates the inclusion of the principles of justice, freedom, and peace of the Jewish heritage as part of the legal system of the State of Israel, it is worthwhile examining traditional Jewish sources concerning the issue of extradition, especially in regard to the discretionary authority of the executive branch of government. Extradition involves not only the punishment of crime, but impinges on the international relations between states, and hence on the relationship of two different legal systems, as well as the relationship of a state and its citizens. For instance, most contemporary legal systems do not allow extradition for a crime committed elsewhere while the perpetrator was already a citizen of the country of residence; rather, he will be tried in his own country for the crime committed in the other country. The Israeli law was amended in 1978 to include the following: "An Israeli citizen will be extradited only for crimes committed before he became an Israeli citizen."
In Jewish law, throughout history and dispersion. the issue of "extradition" -- delivering a Jewish criminal to the non-Jewish authorities of the host country - was examined from several aspects: justice; the relations of the Jewish community with the non-Jewish host nation; and the relationship of the community with its "citizen", the Jew, whether a member of the local community or not, who had committed the crime. Jewish legal autonomy, which was the rule in all Jewish communities until the end of the eighteenth century, included a measure of authority in criminal matters as well, even at times in capital cases, especially for the crime of informing, as well as, more rarely, murder.1 However, in most cases, the non-Jewish authorities reserved the power to judge serious crimes, such as murder, as well as those of particular interest to the state, such as currency forgery, crimes against the Christian religion, etc.
In this context, the question arose whether to aid the government in apprehending Jewish criminals, to hide them, or to turn them in. The problem is formally based on the fact that the criminal will be judged by the non-Jewish court according to non-Jewish law. In the background lie serious misgivings of the Jewish community concerning the fate of a Jew facing non-Jewish justice, in light of the hatred, persecution, and discrimination which characterized relations between the two groups, as well as the corruption endemic to the non-Jewish courts of those times. We shall trace the development of the Jewish attitude toward this question and examine the conclusions that may be drawn for our own situation today. We shall begin with the basic principle in Jewish law concerning a fugitive from justice and his punishment.
B. Biblical Sources
The basic position of Jewish law on this question is based on two explicit verses~in the Torah. It is not surprising that the seventeenth century father of international law, Hugo Grotius, based the principles of extradition, including his famous saying, "Aut dedere aut punire" (either extradite or punish), on Biblical law.2
First, the Torah states: "Do not deliver to his master a slave who has escaped from his master. He shall dwell in your midst with you, in the place he shall choose in one of your gates, where it is good for him; you shall not oppress him" (Deut. 23,16-17). A person who flees slavery may not be returned to his master, as human freedom is an ultimate value which supersedes any legal claim of enslavement. Thousands of years would pass until this principle of human freedom and the abolishment of slavery would be accepted by the
civilized world. In this case, the only "crime" of the fugitive is his enslavement by another. On the other hand, the Torah states: "If a person shall maliciously kill another with guile, he shall be taken to die (even) from my altar" (Ex. 21,14). The Torah abrogated the rule, widespread in the ancient world, whereby entering sacred grounds protects a criminal from just punishment. The Torah declares that temple sanctity does not suspend sanctity of life.
The Rambam (Moreh Nevuchim 3,39) summarizes these two principles as follows:
Murder is the gravest of offenses: "Nothing is as objectionable to the Torah as bloodshed... which entails the destruction of society" (Rambam, Hilchot Rotzeach 1,4; 4,9).
C. Talmudic Period
1. R. EIazar b. R. Shimon (BM 83b)
In the Talmudic era, under Roman rule, certain sages were highly critical of collaboration with the government in the apprehension of criminals, whereas others not only did not condemn it, but even collaborated themselves. The Talmud (BM 83b) relates that R. Elazar b. R. Shimon (mid second century, after the defeat of the Bar Kochba rebellion) "would seize thieves and robbers" and hand them over to the Roman administration. R. Yehoshua b. Korcha said to him: "Vinegar son of wine, how long will you continue to deliver the people of Cod to death?" The answer of R. Elazar b. R. Shimon was: "I am eliminating weeds (thorns) from the vineyard." R. Yehoshua replied: "Let the owner of the vineyard (God) come and eliminate his weeds." The Talmud tells of another sage, R. Yishmael b. R. Yose, who was appointed by the Romans to apprehend thieves. Eliyahu the prophet asked him: "How long will you continue to deliver the people of God to death?" He replied: "What can I do, it is a royal command?" Eliyahu advised him to move to another district.
This controversy is based on an aversion to turn over a Jew to the Roman government, which was suspected of hostility to Jews, persecution of their persons and property, and a lack of commitment to the principle of fair trial.3 The Meiri, commenting on the above passage, writes that a Jew should not accept a police appointment in the service of the non-Jewish government as "one who does so, causes the death of many people according to the law of the land and not in accord with Torah law." Replying to the suggestion that he should only arrest those who would be liable according to Torah law, the Meiri states that this is impossible, as "he would violate the laws and regulations of the land, and this is also prohibited." As a government appointee. he is obligated to act according to government regulations.
2. R. Tarfon (Nida 61a)
An incident concerning R. Tarfon, a member of the San hedrin of Yavne, is extremely interesting for our discussion.
Why did R. Tarfon refuse to help the suspected criminals? Of what specifically was he suspicious? Rashi explains that R. Tarfon told them, "perhaps you killed, and it is forbidden to save you." Tosafot disagrees, and, citing the She'iltot, explains, "perhaps you killed, and if I hide you. I will forfeit my life to the king." According to this explanation, R. Tarfon's refusal to help them was due to concern for his personal safety rather than moral objections. The Rosh (ad.loc. 9,5) rejects Rashi's explanation for the following reason: "Is it possible that because of a mere rumor that someone sinned it will be forbidden to save his life?" He therefore accepts the explanation of the She'iltot. The Maharshal (ad.loc.), commenting on the She'iltot, writes:
This story, together with all the various commentaries (of which only some have been cited above) embodies the different attitudes toward the question of harboring a murderer. Rashi maintains that it is prohibited, even if there is merely a doubt whether he committed the crime; Tosafot contends that R. Tarfon refused them help because of concern for his own safety and not because it was intrinsically prohibited; the Rosh supports harboring one who is only rumored to have committed a crime; and the Maharshal states unequivocally that one should not help a murderer, except where there is a doubt concerning his guilt, in which case we apply the principle that he retains his presumption of innocence.
3. "Deliver One of You" (Tosefta Terumot)
In this context, it is worth examining the Tosefta in Terumot (7,20):
The Yerushalmi (Ter. 8,4) cites a controversy concerning this passage: "R. Shimon B. Lakish said: This applies if he is deserving death like Sheva ben Bichri. R. Yochanan said: "Even if he was not deserving of death like Sheva ben Bichri."
Sheva ben Bichri (2 Sam. ch.20) revolted against King David. Yoav led the loyalist army and beseiged Sheva at Avel Beit Maacha. The "wise woman" of the city convinced the townspeople to save the city by killing Sheva, who was guilty of a capital crime, and handing over his body to Yoav. This story served as the source for the subsequent halachic discussion whether it is permissible for a group or community to save~itself by sacrificing an individual. The Tosefta establishes the principle that we may not save a community by sacrificing an individual, unless the original demand was for a specified individual. R. Shimon b. Lakish adds the condition that the specified individual be deserving of death because of a crime he committed. There are many different interpretations of the Tosefta and the controversy between R. Shimon b. Lakish and R. Yochanan in the commentaries and codes.4
The case of the Tosefta does not directly pertain to our discussion. The Tosefta refers, not to a case of an individual being sought for trial, but to a terrorist group which threatens to kill many unless an individual is handed over to them. The case is one of extortion. The question is whether, and under what conditions, the lives of many may be saved by sacrificing an individual. Our discussion concerns the delivering of a suspected criminal to the authorities in order to try him for his crime. More germane to our case are those incidents in the Talmud where a government uses threats against the community in order to secure the apprehension of an individual.5 Later commentators derived from this Tosefta and other sources, by analogy and induction, several halachot and principles that are relevant to our case, as we shall see.
D. Post-Talmudic Period
1. Delivering a Criminal Who Endangers the Community
These differing Talmudic opinions recur in the works of post-Talmudic commentators. One school of thought rejects informing or cooperating with the non-Jewish authorities in the apprehension of Jewish criminals, unless the crimes are liable to injure the community and endanger it. In the latter case, the criminal has the status of rodef (one who "pursues" another in order to kill him), and the principle of self-defense permits injuring or even killing him. Many other scholars opposed protecting Jewish criminals from the authorities, not because of the danger to the community from this course, but because the criminal should be punished, especially for a crime as serious as murder. This conclusion was based either on the principles of Jewish law, or because of the principle that the "law of the land is law." We shall examine only the highlights of this extensive literature.
The first opinion is summarized succintly by the Shulchan Aruch (ChM 388):
The Rama adds:
The note of the Rama contains a reference to the ruling of the Shulchan Aruch in ChM 425,1:
To this the Rama adds:
Using the argument of rodef, the Maharach Or Zarua (Responsa 142) ruled in the thirteenth century that one
The Taz (YD 157,8) relying on the principle of rodef and the case of Sheva ben Bichri, concludes:
There is here a distinct widening of the principles of the Tosefta in Terumot and that of rodef. The Tosefta speaks of a band of brigands, or the non-Jewish government, which directly threatens the lives of the members of the community if they will not deliver a specified individual. The law of rodef, as well, refers to someone who directly threatens the life of another. Later scholars widened these principles to include permitting the delivery of someone who violates any law of the local authority, if the community is liable to be endangered as a result.
2. The Responsum of the Bach
A different line of reasoning appears in the works of other scholars. They maintain that someone accused of serious crimes can be delivered to the authorities by virtue of the crime itself and not necessarily because of danger to the Jewish community. Let us examine several decisions of this school. First we shall consider the responsum of the Bach (43), which established the general principles of extradition.
The community of Kalisch approached the Bach with the following question. In 1620, a Jew was executed - he "sanctified the name of God" - on the charge of stealing a crucifix. According to the local authorities, before being executed, he managed to pass the crucifix to his father-in-law, who was one of the leaders of the Jewish community. The latter fled and was hiding in the home of another Jew. The comm unitv was asked to deliver him to the authorities in order to stand trial.8
I shall cite the question in its entirety, both because of its historical interest, and in order to clarify the background and reasoning of the Bach's ruling.
The Bach initially compares this case with the Tosefta. The community is asked to deliver a specific individual or else they will be judged in his place. The Bach, after analyzing the details of the case, concludes that the man accused of taking the crucifix is obligated to appear before the court to stand trial, since he, through his actions, is responsible for the accusation against him.
The Bach then refers to the statement of the Rambam (Hilchot Yesodei Ha Torah 5,5) that even when it is technically permitted to deliver an individual in order to save the group, we avoid ruling that way as it is not the way of the pious" (based on the Yerushalmi Terumot 8,4). The Bach states that in the present case, we may rule without reservation (lichatchila) to deliver the accused to the non-Jewish authorities, and this for a very interesting reason.
The Bach concludes:
These rules apply only where we have received evidence that the specified person has committed the crime attributed to him, as the Bach concludes:
The demand of the authorities to hand over an individual, accompanied by the threat of sanctions against the entire community if the demand is not met, was the subject of discussion in Talmudic sources, as we have seen. The Bach widened and defined the relevant principles. Delivering an individual is permitted if it may be assumed that the court will attempt to determine truthfully whether the accused committed the crime. The Bach was prepared to concede that the court of his time might fulfill that condition. Furthermore, delivery is permitted unreservedly only if a death sentence, although possible, is not a certainty. Finally, it is forbidden to deliver the accused without ostensible proof that he did indeed commit the alleged crime.
3. In Order to Eliminate Evil from Our Midst
From the same period as the Bach, we have a responsum of R. Yair Bachrach (Chavot Yair 146), which is very pertinent to our topic, in regard to both the facts of the case and the author's conclusions.
A significant portion of this responsum is devoted to the claim that the relatives of the victim have a special status allowing them to deliver the murderer to the non-Jewish court. The Chavot Yair totally rejects this claim. On the other hand, he supports the local scholar's objections to saving the accused from the punishment of the court.
The same source concerning the Galileans and R. Tarfon, cited by the Chavot Yair, served as the source for a similar ruling, even more extreme, of R. Yaacov Emden (She'ilat Yaavetz 2,9).
To this R. Yaacov Emden answered:
Rav Shlomo Kluger (nineteenth century) was equivocal on this matter. On one occasion (Responsa Tuv' Taam Va-Daat 1,193) he limited the possibility of delivering a Jew to the non-Jewish authorities to a case where he was "liable legally (midina)", i.e., according to Jewish law, or a rebel against the government; and even in those cases, the principle is that "it is the law, but we avoid ruling that way." On another occasion (Chochrnat Shlomo YD 157,~), he reached a different conclusion.
4. Honoring the Law of the Land
Some of the authorities who opposed obstructing the apprehension of criminals by the non-Jewish authorities based their opinion on the legitimate right of local government to enforce its laws, under the halachic principle of "dina d'malchuta dina" ("the law of the land is law"). Let us examine some of these opinions.
In a fascinating and detailed responsum of the Rashba11, we read:
The Ritva (BM 83b), a disciple of the Rashba, uses this principle of dina d'malchuta dina to explain the compliance of R. Elazar b. R. Shimon and R. Yishmael b. R. Yosi with the edict appointing them as policemen. R. Shmuel di Modena (Responsa Maharashdam ChM 55) summarizes this principle as follows:
R. Moshe Schick (Responsa Maharam Schick ChM 50), in an interesting responsum, also utilized this principle of dina d'malchuta dina. A woman, whose husband had died suddenly, was suspected of "having given him poison. There was some circumstantial evidence to this effect, and a partial confession. She was also suspected of (having a relationship with) another man, who apparently had conspired with her in this matter." The Maharam Schick was asked by another scholar why the case had been suppressed and not reported to the authorities. "Why is there silence? In their opinion, it is a mitzva to eradicate evil, and not to protect them. It is written, 'a life for a life,' and 'Whoever sheds man's blood, by man shall his blood be shed."'
The Maharam Schick first addresses the question whether the woman could have been convicted according to Jewish law. His conclusion is that this is uncertain, and therefore he writes: "Since it is prohibited to kill her, we are not permitted to deliver her to non-Jewish justice, which judges and executes on the basis of a confession. So it ostensibly appears." However, he subsequently reaches a different conclusion.
We shall return below to the conclusion of this responsum.
In summary: As we have seen, it is indisputable that in principle, just as one should not return a runaway slave who has fled to freedom, so one should not harbor criminals who have fled justice; rather we are obligated to see that they face trial. The source of this double principle is in the Torah itself: "Do not deliver a slave to his master," on the one hand; and "He shall be taken to die from my altar," on the other. The principle of just punishment is especially fundamental in the case of a murderer: "Nothing is as objectionable to the Torah as bloodshed... which entails the destruction of society."
In the historical context of the Jewish people after the loss of self-rule, different opinions arose concerning this principle of bringing the fugitive to justice. As we mentioned at the beginning, the Jews enjoyed a large measure of judicial autonomy in the areas of civil and public law throughout history, in all lands, until the end of the eighteenth century; that is, until the period of emancipation in Europe. In oriental countries, such as Turkey and North Africa, this judicial autonomy was preserved until the nineteenth century, and, in certain cases, such as Morocco, until recently. However, in the area of criminal law, the autonomy of the Jewish community was limited, to one degree or another, depending on the time and place. Those crimes in which the government was not particularly interested, such as crimes against property or physical assault of a minor degree, were left to the jurisdiction of the Jewish court, while more serious crimes, such as murder, as well as crimes which affected the general economy, such as currency fraud, were generally, although not exclusively, tried by the non-Jewish court. This situation gave rise to serious reservations among halachic scholars whether to aid the government in bringing Jewish criminals to justice before non-Jewish courts. These reservations were justified by the nature of Jewish-gentile relations in the medieval world, anti-Jewish discrimination, and corruption and injustice within the non-Jewish courts, especially regarding a Jewish defendant. Hence, some scholars objected to Jews aiding in the apprehension of their coreligionists, arguing that it would be better if "the owner of the vineyard" -God - "would come and eliminate the weeds from the vineyard," rather than delivering the "weeds" to the hands of the non-Jewish authorities who show no regard for the property or persons of Jews, who pervert the law, and are not committed to justice. Other scholars disagreed, and themselves supported the efforts of the government to "eliminate the weeds from the vineyard," especially refusing to harbor accused murderers. They maintained that it is permitted to deliver a particular individual being sought by the authorities if he is guilty of a capital offense, and this only if the government threatens to otherwise injure or punish the community as a whole. Some scholars declared that it is preferable not to follow this course, as it is not "the way of the pious."
In the course of time, even the objectors agreed to hand over without reservation criminals whose actions could lead to injury to the community, using the category of rodef(self-defense). Some scholars supported handing over criminals accused of serious crimes, such as murder, due to the gravity of the crime itself. The Bach was prepared to assume that the non-Jewish court of his time was capable of conducting an honest investigation and reaching a truthful verdict, and ruled that an accused should not be turned in unless proof exists that he committed the crime and there is at least a possibility that the sentence will not be death. Other scholars perceived delivery of criminals as a necessity in order to maintain social order and the rule of law, based on the principle of dina d'malchuta dina.
6. Jewish-Gentile Relations After the Emancipation
It is instructive to note the statements of several great scholars at the end of the nineteenth century and the beginning of the twentieth, in the context of the change in the relations between Jews and non-Jews after the emancipation.
Already in the thirteenth century, the Meiri, a resident of Perpignan in Provence, proposed a novel approach to the problem of Jewish-gentile relations in his period. The Meiri, referring to many Talmudic laws which discriminate between Jews and non-Jews, distinguished between Talmudic times, when "those nations were idolaters, and were sullied in their actions and vile in their ways", "were not bound by religious norms and ordinances," and did not fulfill the seven Noachide laws; and his own times, when the non-Jews were "bound by religious norms and ordinances and are free of those vile practices," fulfill the seven Noachide laws, and are not, therefore, bound by the Talmudic restrictions.12 However, even the Meiri, who was in any event alone in his opinion in his own time, opposes cooperation with the non-Jewish government in the apprehension of Jewish criminals, although his opposition is somewhat muted (see Meiri, BM 83b).
In the middle of the nineteenth century, we find the following statement by R. Yechiel Michel Epstein (Aruch HaShulchan ChM 388,7):
This statement of the Aruch HaShulchan appears in the same section of the Shulchan Aruch in which the statements of Rav Yosef Karo and the Rama prohibiting delivery of a criminal to the non-Jewish authorities, which we cited earlier, appear. The Aruch HaShulchan considered the monarchies of Europe in his time to be governments which guarantee to all their inhabitants, including the Jews, security in person and property, and hence he ruled that the laws of informing and delivery, which were formulated against ancient governments characterized by "robbery and extortion", do not apply. His optimism seems exaggerated regarding several European governments, especially in the period of the Holocaust and immediately afterwards. However, in principle, the approach of this great Torah scholar to our problem and his bold, explicit reasoning is very important.
A similar approach to an analogous problem is found in a later Polish scholar, Rav Meir Dan Plotzky. The topic is the prohibition of having recourse to a non-Jewish court. After a lengthy analysis of this prohibition, observed throughout the history of Jewish autonomy (and a very important factor in maintaining that autonomy), he states:
E. Conclusion: The Law of Extradition Accords With Jewish Law
What conclusion may be drawn from our discussion of the issue of delivery to a non-Jewish authority in Jewish law, to the status today of the extradition law and its application?
There are two conditions for the extradition of a resident of the State of Israel to another country: One - the existence of a mutual extradition treaty between the two states; Two - the alleged offense is a crime under the laws of Israel, is included in the list of crimes appended to the extradition law, and is not of a political nature. Extradition is therefore not a unilateral demand of one state of another, but is a mutual agreement, contracted freely by the two parties.
An additional requirement of the law is that no one shall be extradited to a country where he will face the possibility of a death sentence, if the crime does not bear a death sentence in Israel. Hence, a person will not be extradited for murder to a country where the death penalty is in force. Finally, proof sufficient to base an Israeli indictment for the alleged crime must be brought before the Israeli court.
These regulations accord completely with the categorical stand of Jewish law against the possibility that a criminal will evade punishment, especially if the crime is murder, and in favor of bringing him before the proper legal jurisdiction to stand trial.
As we have seen, many Torah scholars approved of cooperation with non-Jewish courts, even where this was coerced on the Jewish community by the non-Jewish authorities, as in the rulings of the Bach, Chavot Yair, and R. Yaacov Emden, which were based on Jewish law itself, or the opinions of the Rashba, the Ritva, and the Maharashdam, based on the principle of dina d'malchuta dina, in order to establish social order and the rule of law.
Extradition is all the more justified when it is executed freely by a sovereign Jewish state, equal in rights to the state requesting the extradition, under the conditions of the law of extradition as detailed above, where the accused cannot be tried in Israel. The Bach was willing to rely on the integrity of the judicial system of his day in Poland, which was not subject, of course, to any supervision whatsoever by the Jewish community. This surely can be assumed in regard to a country whose judicial system can be monitored by observers sent from Israel. Moreover, according to the extradition law, a person cannot be extradited at all for a crime where he may face the death penalty, whereas the Bach accepted the possibility that there would not be a death sentence as sufficient to allow extradition.
It would appear that if we were asked to extradite someone for the crime described in the responsum of the Bach - stealing a crucifix - in all probability the request would be denied, because of the religious nature of the crime (section 4 of the French-Israeli extradition treaty). Even those authorities who opposed cooperation with non-Jewish courts unless the crime posed a danger to the Jewish community as a whole, because they weighed the possibility of a miscarriage of justice as greater than the need to punish the criminal, would not object to extradition performed by a sovereign Jewish state, able to observe and verify the nature of the legal system in the other country, both before the signing of the extradition treaty and afterward. Compare this to the similar reasoning of the Meiri (BM 83b) cited above, concerning the "weeding of the vineyard," from which it follows that a suspect can be extradited if he would have to stand trial under Israeli law for the alleged crime, and there is an evidential basis, according to Israeli rules of evidence, for the indictment.
F. Additional Conditions
1. Danger to the Extradited Criminal
In my opinion, if the life of the accused would be in danger in a foreign jail, there is no need to prove a high probability of danger (as was claimed by my colleague, the Chief Justice). A reasonable degree of danger is sufficient to prevent the extradition. It is a basic principle of Jewish law that the possibility of danger suspends laws and mitzvot of the Torah. In our case, a reasonable degree of danger, demonstrated through verified, objective evidence, may serve as a contraindication to extradition.
2. Abandonment of Wife
The wife of the accused argued that the state of abandonment (igun) to which she would be subject is a sufficient reason not to extradite. In my opinion, this argument is not sufficient to cancel the extradition, under section 18 of the law, but it could serve to delay the extradition, under section 20, "special circumstances which defer execution of extradition." I shall explain.
The accused's wife, because of the danger of igun, has sued for divorce in the rabbinic court, and has obtained a writ preventing exit from the country. What is the nature of this danger? In order to understand this, we must examine divorce in Jewish law, which is completely different than divorce in other legal systems. Divorce in the Halacha is effectuated by the husband giving a writ of divorce (get) to the wife. The decision of the court does not effectuate the divorce, as in other systems. In other words, it is not constitutive, but declarative; that is, it announces the obligation of the couple to divorce, while the execution of the divorce must be performed by the husband. If the get is not given by the husband to the wife, the couple remains married. Therefore, if a man refuses to give a get (or if he is legally incapable), his wife cannot remarry, even though a court has ruled that a get should be given. (The same situation can result if a husband disappears, and his death cannot be proven.)
The consequences of abandonment for a woman led, since the earliest halachic times, to efforts by the sages to expedite proof of death in order to permit a woman whose husband has disappeared to remarry. The basic judicial principle is that the judge is obligated to do his utmost to free the woman from the bonds of igun.
In the sixteenth century, R. Shlomo b. Shimon Duran of Algiers received the following question. A man, who had abandoned his wife, appeared in another city. The local court wished to obligate him to issue a get, although the wife, who presumably did not know where her husband was, had not sued for a divorce. Since it is a principle of Halacha that a court does not deal with a case without a plea from the affected party, the court asked R. Shlomo Duran for guidance (Responsa Rash bash 46). His answer was: "In my opinion, the court is qualified to do so, even though she has not sued him, as all Israel are (qualified) litigants because of igun."
Does this consideration of preventing igun serve in principle as a sufficient and justified reason for the Minister of Justice to decide, under section 18 of the extradition law, not to extradite someone? At first glance, the answer appears to be affirmative. The reasons for nonexecution of a judicial extradition order by the Minister of Justice are first and foremost humanitarian, "extra-normative (considerations), which the judiciary is not qualified to consider,"13 such as:
There is no hint in the extradition law that the humanitarian consideration applies only to the accused himself. On the contrary, common sense dictates that serious humanitarian injury to someone else, who is not a criminal, ensuing necessarily from the extradition, will surely result in "public repugnance," and therefore should be a proper consideration for the Minister of Justice according to section 18.
The halachic laws relevant to freeing a woman from igun are part of the Israeli legal system, in which laws of marriage and divorce are governed by Jewish law. The special sensitivity of the legislator to the problems of igun is reflected, among other places, in section 6 of the law of the rabbinic courts, which empowers a district court to imprison a man in order to compel compliance with a divorce decree of a rabbinic court. It is well-known that the object of this regulation is to free a woman from igun by compelling her husband, on pain of imprisonment, to grant her a divorce. It therefore appears only reasonable that the Minister of Justice, when considering humanitarian reasons to disallow an extradition, should consider the problem of the igun of a woman whose husband will serve a prison sentence outside of Israel. The importance of having the husband remain in Israel consists in allowing the rabbinic court to exercise its authority to compel him to give a get. Only in Israel does a rabbinic court have the legal authority to do so, as recognized by Israeli law. In the country of extradition, a rabbinic court has no legal standing and cannot compel the husband to appear before it or obey its decisions.
Since freeing the woman from the bonds of igun is a humanitarian value of the highest degree in Judaism and in the legal system of the State of Israel, "a decision not to extradite the accused, despite the fulfillment of all the conditions of extradition, should not be understood as an affront to the state (which requested the extradition) or as a breach of the unconditional international obligation between the two countries to extradite, if and when these conditions are fulfilled."15
I agree with my fellow justices that the suffering of the accused as a result of the separation from his wife due to the extradition cannot serve as a reason not to extradite, especially if the marriage was contracted subsequent to his flight from justice in his previous country. The suffering of his wife, however, who has committed no crime, is completely different. The fact that she was aware of her husband's deeds prior to the marriage is irrelevant to this conclusion, as she was surely not aware that as a result of an extradition procedure she was liable to find herself in a situation of igun.
3. Delay of Extradition Rather than Annulment
On further examination, it appears to me that the need to free a woman from igun can justify, in the present case, a delay for some specified period of time in the execution of the extradition notice, but not the annulment of the extradition. The need to free the woman mandates that the husband remain in Israel for the time necessary to arrange a divorce. It may be assumed that this period of time, taking into account all sorts of delays, persuasions, and other customary problems, is limited. There is no justification, nor is it reasonable, 'for the Minister of Justice to totally annul the extradition of the accused in order to realize this goal. The extradition of the accused fulfills both the goal of having him stand trial for his serious crime in the country where it was committed, and the obligation which the state has accepted in respect to the foreign state requesting the extradition. These both are worthy goals, which should be furthered and fostered; and there is a disproportionality between the annulment of these two goals and the need for the accused to remain in Israel, for a limited period of time, even in order to free his wife from a state of igun. There is definitely no justification to cancel the extradition, if as a result he will not stand trial, either here or in the foreign country. Furthermore, and this point is conclusive: The goal of freeing the woman from igun can be met through another means recognized by the extradition law, and hence there is no need to cancel the extradition entirely.
What other means are there? Section 20 of the extradition law reads as follows:
This section includes all that is necessary to free the woman from igun. An extension is possible if there are "special circumstances", which undoubtedly includes the prevention of igun. The law leaves the determination of the duration of the extension to the judgment of the court, that is, the amount of time necessary to bring a divorce hearing to a successful conclusion. It is reasonable to assume that the time necessary, including all possible delays, will not exceed one year. If the granting of a divorce - or alternatively, a waiver of the divorce petition by the wife - does not occur within a year, it is reasonable to assume that it will not occur in the near future. In such a, case, the obligation to execute the extradition will revive. It is possible that it will not be necessary to grant an immediate extension of a year; instead shorter periods can be granted, according to the specifics of the case. There is no limit in the law to the number of extensions that can be granted. I would also like to add that during the period of the extension the accused will remain in jail, as a valid outstanding extradition order against him remains in force.
G. Serving Foreign Sentences in Israel
Aside from all the reasons we have listed, there exists in the case before us an additional, compelling principle. Non-extradition of the accused in this case entails his escaping all punishment for the crime of which he has been charged, as there is no possibility of trying him in Israel for a crime committed in a foreign country during a time when he was not an Israeli citizen. Releasing him from the obligation to stand trial and allowing him to go free would constitute a grave offense against the principle of Jewish law that criminals should be tried and punished, especially when the crime is murder. The Torah objected to this crime, which takes the life of another and undermines society, more than any other. In this context it is worth mentioning the proposal of the Minister of Justice to allow a criminal sentenced by a foreign court to serve his sentence in an Israeli jail. Such an arrangement is practiced in a majority of the democratic countries of the world. The reason for this arrangement is simple. Serving a prison term in a foreign jail constitutes, aside from the limitation on liberty, an additional punishment of having to spend time in an environment whose customs and language are foreign. Additional suffering is imposed on the family of the prisoner, above and beyond the suffering inherent in having a family member in prison.
Such an arrangement is generally conditional on the agreement of the country in which the trial was held, the country in which he is to serve his sentence, and the criminal himself. In my opinion, it would be desirable to enact a law in Israel which would allow such an arrangement to exist here.
* Since the establishment of the State of Israel and the signing of extradition treaties with other states, there have been repeated requests to extradite Jews from Israel to countries where they are accused of crimes. This topic has been discussed from the perspective of Jewish law several times; cf. Rav Binyamin Rabinowitz-Teomim in Noam 7:336-360); Rav Yehuda Gershuni in Or HaMizrach (21 :69-78) and in Torah She-b'aI Peh (14:79-88). In 1986. the problem arose once again in the case of William Nakash, who was wanted in France for murder. William Nakash's brother, who operated a nightclub in the town of Besancon in France, was being bothered by an Arab, who did not pay for his drinks, etc. He asked his brother William to come from Paris to help him, William arrived with two Arab friends, ambushed the victim as he left the nightclub, pursued him, and finally shot and killed him. Nakash then fled France and arrived in Israel. Israel and France signed a treaty of extradition iii 1958. whereby a criminal can be extradited after a judicial hearing. An Israeli court found Nakash to be extraditable. The claim that the crime was political and therefore excluded from the extradition treaty was rejected by the court.
The Minister of Justice has the final say whether to carry out the extradition. In this case, he declined to do so, citing fears concerning the physical safety of Nakash in a French jail. Several MP's and jurists appealed the decision to the High Court of Justice, which decided to overturn the decision of the minister, because it had been based on inadequate investigation of the facts. The court ruled that the minister's authority to rescind an extradition order is limited to certain extraordinary cases.
Justice Menachem Flon, in a minority opinion, rejected the appeal due to lack of standing of the appellants. If his opinion would not be accepted, he suggested delaying execution of the extradition order for a year, in order to devise in the meanwhile a solution for the abandonment of Nakash's wife that would result from his being imprisoned in France. In principle, he agreed with the majority opinion that the extradition order was valid. Inter alia, he reviewed the attitude of Jewish law to extradition, and concluded that it is possible to extradite a criminal to a foreign government.
Unlike the majority opinion, which required a great likelihood of mortal danger in order to defer an extradition, Justice Elon ruled that a reasonable doubt concerning the criminal's safety is sufficient. He also suggested that the government pass a law whereby an Israeli citizen convicted in a foreign court could serve his sentence in Israel, even if the crime was committed before he became an Israeli citizen. The entire decision was published in the Decisions of the Israeli High Court of Justice, v.41, part 2. p.1ff . Justice Elon's opinion appears on pp.65-99.
We are publishing an edited translation of Prof. Elon's review, together with a response by Rav Shaul Yisraeli, without reference to the particular details of the Nakash case. - ed.
1. See Menachem Elon, HaMishpat Halvri, v.1, p.11; p.36; ibid. n.112; v.2, p.647.
2. See H. Grotius, De jure Belli Ac Pacis Libri Tres, translated by F.W. Kelsey, New York and London, 1964, pp.522-545.
3. Cf. BK 11 7a: "If the property of a Jew falls into the hands of a gentile, they have no mercy on him": also Taz, YD 157,8.
4. See Rambam, Hilchot Yesodei Ha Torah 5,5, and commentaries ad.loc.: Shulchan Aruch YD 157.1. and commentaries ad.loc.: Yad Ramma and Meiri. San. 72a-b; Ritva and Maharam Chalava. Pes. 25a-b: Ran (on the Rif) Yoma 82a: Chazon Ish ChM. San. 25: Rashi and the Radak. 2 Sam 20.22: Tosefta Kifshuta. Ter. p. 420-42 3: cf. D. Taube. Collaboration with Tyranny in Jewish Law, Oxford, 1965.
5. Cf. Yerushalmi. ibid., the case of Ulla b. Kushbi: Bereishit Rabba 94: and the debate between Nevuchadnetzar and the sanhedrin concerning the handing over of King Yehoyakim.
6. This is the correct reading. and not "who informs"; cf. Shach ibid., 19.
7. The reference is to currency fraud or debasement.
8. The responsum appears in the Frankfurt edition (1697) and was generally excised from later editions by the censor. It has recently been reprinted, together with an extensive discussion. In E.J. Shochet. A Responsum of Surrender; Translation and Analysis. Los Angeles (1975).
9. The district governor. who was the government representative in the district capital.
10. This conclusion, without the responsum. is cited in the Bach. YD 157.
11. The responsum is cited by the Beit Yosef, ChM 388, Koenigsburg edition, but was omitted in later editions. It is also not found in the various collections of the responsa of the Rashba. It was printed by Kaufman in Jewish Quarterly Review. v.8 (1896), p.228.
12. Meiri (Beit HaBech ira) AZ 22a; BK 37b; and elsewhere; cf. Y. Katz, "Sovlanut Dat it". in Y. Katz. Halacha Ve-Kabbala. 1984, p.29 1ff.
13. S.Z. Feller. Dinei HaHasgara (The Harry Sacher Institute of Legislative Research and Comparative Law, 1980). p.445.
14. ibid. p.154.
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