Simon Jackson
Legal Advisor to Torah Mitzion
In 1986, the Supreme Court of the State of Israel was asked to decide the issue of whether the State should be ordered to extradite to the French authorities a man who was wanted in France for murder. The accused was declared extraditable according to the Israeli Extradition Law, pursuant to a treaty between the two states, but the Justice Minister decided not to carry out the extradition, due to the fear of danger to the accused’s life by prisoners in the French jail. Justice Menachem Elon analyzed the position of Jewish Law on the topic of extradition at length, ultimately concluding that it is possible, even under Jewish Law, to extradite a criminal to a foreign government.
The position adopted by Justice Elon aroused controversy. Amongst his disputants was the famed Rav Shaul Yisraeli z”l, the Rosh Yeshiva of Mercaz Harav and Dayan on the Supreme Rabbinical Court in Jerusalem, who emphasized the prohibition of litigating before non-Jewish courts. As we cite the Talmudic and Halakhic evidence adduced by Justice Elon in support of his position, we will cite the arguments of Rav Yisraeli against this position, followed by Elon’s rejoinder to these arguments. Both positions are published in vol. 8 of the Halakhic journal, Techumin (Research Articles Concerning Torah, Society and State), and make fascinating reading!
Biblical Sources
According to Justice Elon, the basic position of Jewish Law to extradition is based on two explicit verses in the Torah, in the context of a slave who flees from his slavery, which prohibit a person from returning to his master an escaped slave who is now in his custody: “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” (Devarim 23:16-17). [SMJ – Comment: In truth, these verses do not prohibit the extradition of an offender; they only prohibit returning an innocent slave to his previous enslavement].
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” (Shemot 21:14). Entry onto sacred grounds cannot, therefore, protect a criminal from just punishment. The Rambam (Moreh Nevuchim 3:39) expands the duty to extradite, from a situation in which an offender flees to the assumed safety of the Temple and grasps hold of the altar, to the more common case of any fleeing offender who asks for our protection:
“An innocent slave must not be delivered to his master. Rather, we must grant protection to one who has requested our protection… However, when sinners or evildoers seek our assistance, no mercy must be shown to them, even if they are the greatest and noblest of men… [Rather], they must be turned over to the officer of justice from whom they fled… It is not proper to grant them protection or to pity them, for pity for the evil-doing wicked is cruelty to the rest of mankind.”
Indeed, murder is the greatest of offenses: “Nothing is as objectionable to the Torah as bloodshed… which entails the destruction of society” (Rambam, Hilchot Rotzeach 1:4; 4:9).
Talmudic Period
Justice Elon notes that following the era of the Talmud, Jewish communities both in Israel and in the Diaspora often found themselves under the suzerainty of a heathen ruler. Jewish legal autonomy, while containing a not-insignificant measure of juridical competence even in the field of criminal law, was nevertheless limited in the majority of cases regarding serious offences and offences of interest to the authorities, in which areas the authorities retained the right of adjudication and the right to punish. Justice Elon proceeds to deal with the main problems and questions discussed in the Talmudic literature in this regard.
1. The Seizure and Extradition of Jewish Thieves and Robbers
During the Talmudic period, the Rabbis encountered cases in which they were requested by the Roman administration to hand over Jewish criminals. We find differing opinions among the Rabbis regarding the question as to whether such extradition is prohibited or permitted, and possibly even desirable. The Talmud (Bava Metzia 83b) relates how mid-second century Tanna, R. Elazar ben R. Shimon “would seize thieves and robbers” and hand them over to the Roman administration, to which R. Yehoshua ben Korcha retorted: “Vinegar son of wine: how long will you continue to deliver the people of God to death?” R. Elazar answered by way of a parable: “I am eliminating thorns from the vineyard” (i.e. I am acting in the public welfare) to which R. Yehoshua retorted: “Let the owner of the vineyard [i.e., God Himself] come and eliminate His thorns!” R. Yehoshua’s position clearly reflects the aversion to turning over a Jew to the Roman government, suspected as it was of hostility to Jews, persecution of their persons and property, and a lack of commitment to a fair trial.
2. Saving Jews Suspected of Serious Crimes
An additional incident discussed by the Talmud and its commentaries (Niddah 61a) reflects the divergent approaches to the issue of granting asylum to a murderer. In this case, certain persons who were suspected of murder approached R. Tarfon with the request that he hide them from the authorities. R. Tarfon’s response was that he could not hide them, for the Rabbis had stated that one should take heed of an evil rumor, i.e. the possibility that they were in fact murderers.
The Talmudic commentators are divided as to the reason for R. Tarfon’s refusal to hide them. According to Rashi, R. Tarfon suspected there might be truth to the rumor that they had murdered, in which case it would be forbidden to save them. According to R. Acha Gaon (She’iltot de-Rav Acha §129), R. Tarfon’s suspicion did not emanate from the fact that he was forbidden to save them, but rather from the danger he would be exposed to, were he to save them. R. Asher b. Yechiel (Rosh, on Niddah 9:5) adopts the She’iltot’s explanation and rejects that of Rashi because, according to his view, it cannot be forbidden to save a person’s life merely because of a rumor that he has sinned!
From the Rosh’s words, it follows that, when it is clear that the person has indeed committed a crime, it would be forbidden to save him and obligatory to extradite him, even according to Rashi’s disputants. R. Shlomo Luria (Yam shel Shlomo on Niddah 61a) states unequivocally that a distinction must be made between the case of one who has definitely murdered, whom it is forbidden to save and who must be handed over to the authorities for trial, and the case of a rumor, which gives rise to a mere suspicion, in which case the individual, who is presumed innocent until proven guilty, must be saved, provided there is no danger to the rescuer in doing so.
Based on the above Talmudic precedents, Justice Elon concludes that, according to Jewish Law, one should neither offer refuge to criminals nor assist them in escaping prosecution by the state. Indeed, Elon argues, we are enjoined to actively deliver Jewish offenders to the non-Jewish authorities. Do you agree with Justice Elon’s conclusion based on the above sources?
