Simon Jackson
Legal Advisor to Torah Mitzion
Injustice and Local Law
In the Aloni case, where a Jew killed an Arab, even if he was not himself a member of a terrorist organization (which is not at all certain), the terrorists will undoubtedly consider themselves obligated to avenge his blood. It cannot be stated with certainty that the judges will not be pressured into treating the suspect more severely than the law warrants. Therefore, argues Rav Yisraeli, the Jewish defendant could not be extradited under Jewish Law. Indeed, from our first article in this series, it will be recalled that under section 2B of the Israeli Extradition Law, 5714-1954, a wanted person may not be extradited where the request for his extradition arises from racial or religious discrimination
Furthermore, argues Rav Yisraeli, were he to be tried in Israel, before Jewish judges, it might be discovered that the victim was actually a rodef (one who pursues another with the intent to kill him), who had threatened to retaliate were he to be handed over to the police. It will be recalled that the victim who was murdered by the Jew would eat and drink at the nightclub owned by the Jew’s brother and then refuse to pay, threatening violence as a result of which no complaint was lodged with the police. Only a Jew, who has felt the power of organized terror and is sensitive to it, can be expected to understand an argument of this sort, argues Rav Yisraeli. Hence, by extraditing him, his verdict is liable to be unjustifiably harsher.
Finally, Rav Yisraeli questions, who can say that one of the judges will not be affected by a touch of anti-Semitism, in a country [France] where anti-Semitism was rife not so many years ago? Even if the judges are personally upright, the general atmosphere of society may affect them as well.
We noted Justice Elon’s rejoinder on this point in the context of the Bach’s responsum which he contended showed that Rav Yoel Sirkis was willing to rely on the integrity of the judicial system of his day in Poland, which was not, of course, subject to any supervision by the Jewish community. This surely can be assumed, Elon argues, in regard to a country whose judicial system can be monitored by observers sent from Israel, both before and after the signing of the extradition treaty. Moreover, he asserts, according to the extradition law, in modern-day Israel 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.
The Merits of the Land of Israel
One final point, Rav Yisraeli argues, has been completely ignored in Justice Elon’s analysis. The Rambam (Hilchot Sanhedrin 13:8, based on Makkot 7a) states: “If one has been convicted in court outside of Israel and flees to a court in Israel, we overturn his verdict.” The Kesef Mishne (ad loc.) explains: “Because of the merit of the Land of Israel” (Rashi – perhaps they will find a point in his favor).
If this applies to one who has been convicted in a Jewish court, where it may be assumed that strenuous efforts were made unsuccessfully to find points in his favor, how much more so should it be applied to one who has neither been tried nor convicted, and where the court outside of Israel is a non-Jewish one. Extradition from the Land of Israel is therefore definitely prohibited, argues Rav Yisraeli.
One further factor that needs to be considered, Rav Yisraeli argues, is that while it is true that the accused, in the Aloni case, does not face the death penalty, a prison sentence in a foreign jail constitutes a much more severe penalty than a comparable sentence in Israel. Aside from the isolation from his family, friends, and normal way of life implicit in any jail sentence, imprisonment in a foreign country estranges him from a Jewish way of life, from festivals and Shabbat, and from every thing Jewish. Being forced to live in confinement with non-Jewish criminals means that he is completely cut off from the Jewish people, and constitutes a form of spiritual death. As King David said when he was forced to leave the Land of Israel: “For they have cast me out today from abiding in the inheritance of God, saying: Go serve other gods.” If the criminal deserves a prison sentence, why should he be doubly punished?
In this context, we noted earlier Justice Elon’s mention of 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 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 punishment is thus imposed on the family of the prisoner, above and beyond the suffering inherent in having a family member in prison. Indeed, in 1999, the Israeli Extradition Law was amended in precisely this spirit A person may now only be extradited from the State of Israel where the requesting state undertakes to transfer him back to the State of Israel for the purpose of serving his prison sentence.
Danger to the Extradited Criminal
It will be recalled that in the Aloni case, the Israeli Justice Minister declined to carry out the extradition, citing fears concerning the physical safety of Nakash in a French jail at the hands of fellow inmates. Several MKs appealed the decision to the High Court of Justice, which decided to overturn the Minister’s decision. The majority opinion ruled that Nakash’s extradition should only be avoided in the event of a high probability of danger to his life. By contrast, Justice Elon, in the minority, ruled that a reasonable doubt concerning the accused’s safety, were he to serve his sentence in a foreign country, would be sufficient to prevent his extradition. Justice Elon argued that: “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 contra-indication to extradition.”
Extradition to the USA
It is hoped that this series has provided food for thought when considering the Israel Supreme Court’s decision to accede to the US Government’s request for Zeev Rosenstein, a suspected Israeli mob boss, described by US prosecutors as one of the world’s most wanted drug traffickers, to be extradited to the United States. “The United States is the country which was hurt by the evil acts which were committed … and how just and right it is, that it should be the United States which judges him and sentences him (should he be convicted),” the Supreme Court stated, and Israeli prosecutors described the decision as “good for the country and good for the cooperation between countries against international crime.” Even assuming that any sentence imposed on Rosenstein could, in fact, be served in Israel, would Halacha agree with these sentiments?
