Simon Jackson
Legal Advisor to Torah Mitzion


Law of the Land – Parallel to Jewish Law?

The Rashba, relying upon the principle of dina de-malkhuta dina (‘the law of the land is law’), sets forth the rule that, when a Jewish court operates under the government’s authority, there is no need to insist on all the normal evidential strictures of the Torah – warning, valid witnesses, etc. – even in capital matters, “for, were the Jewish court to insist on such requirements, the world would be desolate, as murderers and their companions would multiply.” The Rashba proceeds to rule – relying on the Talmudic precedents cited in our last column involving R. Elazar ben R. Shimon (and also R. Yishmael ben R. Yose), who would catch robbers and criminals on the authority of the government – that anyone who is appointed by the king “acts in these matters according to the law of the realm, for the king establishes stability with these laws,” and he is therefore permitted, argues Justice Elon, to turn in Jewish criminals to the king.

In his article published in volume 8 of the Halakha journal, Techumin (Research Articles Concerning Torah, Society and State), Rav Shaul Yisraeli disagrees with Justice Elon’s aforementioned conclusion. According to Rav Yisraeli, the delivery of a Jew to a non-Jewish authority in a case where he is liable to cause injury to the community is only permitted “when the criminal cannot be tried under our own laws. This was the situation during the lifetimes of R. Elazar ben R. Shimon and R. Yishmael ben R. Yose, when the Romans did not allow the Jews autonomy in criminal matters. Under these conditions, there was no alternative to delivering criminals to the Roman authorities.” Therefore, argues Rav Yisraeli, where the criminal (as in the case of Aloni) is presently found in the State of Israel, where he can be tried and punished by our own courts, there is no justification to deliver him to a foreign jurisdiction.

Local Law Applies Only Within its Jurisdiction

Rav Yisraeli further argues that the authority of government law, under the principle of dina de-malkhuta dina applies only to the citizens, including the Jews, living within the border of that particular state. However, the law of one land does not extend to another land or its citizens. Hence, in Israel, the prohibition of delivering a Jew to non-Jewish authorities and courts applies and it is prohibited to enter into an extradition agreement with a gentile country. While it is, indeed, forbidden to give refuge to a criminal (see the incident with R. Tarfon, quoted in our last column), this does not imply that actively handing over an individual is permitted.

Justice Elon, in his rejoinder to this argument of Rav Yisraeli (also published in Techumin, vol. 8), concedes that the principle of dina de-malkhuta dina does not apply to the laws of another state. However, he argues that the State of Israel signed an extradition treaty with France, and since Israel has a vital interest in keeping that treaty for her own security needs (e.g. the extradition of terrorists from France to Israel), that treaty is part of the law of Israel and it is binding according to the principle of dina de-malkhuta dina. Justice Elon quotes from a decision of the District Rabbinical Court in Jerusalem given by Rabbi Ezra Batzri, in considering the issue dealt with by the aforesaid Supreme Court judgment, which determined that an extradition treaty made by the State of Israel with another state has Halakhic validity by virtue of the principle of dina de-malkhuta dina, because “it is a matter of good governance that the State of Israel not become a refuge for Israeli criminals and that we should be able punish criminals who are located in other countries in Israel.”

With regards to Rav Yisraeli’s distinction between passively denying a criminal refuge and actively extraditing a criminal, Justice Elon argues that this distinction applies only to a Jewish community which is requested to hand over a criminal to the local gentile authorities. In this case, the authorities have the jurisdiction to find, to detain and to try the murderer. The distinction does not, however, apply to a case in which a Jewish community is requested to extradite a criminal to another state, which would be otherwise incapable of getting hold of the criminal by entering Israel, being that the State of Israel is a sovereign state (unless the State of Israel were to enact a law permitting the criminal’s trial in Israel as Rav Yisraeli suggests).

Serving Foreign Sentences in Israel

One particularly compelling principle exists in the Nakash case in favor of his extradition to France, argues Justice Elon. Non-extradition of the accused would entail his escaping all punishment for the crime of which he was charged, as there is no possibility of trying him 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 principles of Jewish Law that criminals should be tried and punished, especially when the crime is murder.

In this context, Justice Elon noted the proposal of the Minister of Justice to allow a criminal sentenced by a foreign court to serve his sentence in an Israeli jail, in view of the fact that serving a prison term in a foreign jail involves, aside from the limitation on liberty, additional punishment, especially to the prisoner’s family (above and beyond the suffering inherent in having a family member in prison), of having to spend time in an environment whose customs and language are foreign. (Indeed, in 1999 the Extradition Law was amended in precisely this spirit)

Rav Yisraeli commented that the Halacha does not accord a criminal sanctuary simply because he has crossed international boundaries. Therefore, it is possible and even mandatory for the legal authorities of the Jewish state to try an escaped fugitive from another country. In this way, the argument that the State of Israel would serve as a refuge for criminals can be rejected. It is proper, argues Rav Yisraeli, that a law to this effect should be enacted and a criminal fleeing his country will not escape justice in Israel, but will be tried and punished within Israel as he deserves. We will return to this argument of Rav Yisraeli’s in our next column, when we discuss his comments regarding the prohibition of litigating before non-Jewish courts.