This is translated from an article written by Rav Shaul Yisraeli [who was Rosh Yeshivas Mercaz Harav]
A. Introduction
The facts of the case, as presented to me, are as follows:
A Jew deliberately murdered another in a foreign country because the latter was harassing his brother who owned a nightclub. The victim would eat and drink, and then refuse to pay. Apparently, he threatened to use violence, as a result of which they did not complain to the police. After the crime, the Jew fled to Israel.
The country in which the crime was committed has an extradition treaty with Israel. A request for extradition was consequently forwarded to the Israeli authorities. It may be assumed that he faces the possibility of a long prison term in the foreign country (there is no death penalty). After being tried in several courts, the matter reached the High Court, which ruled in favor of extradition.
The decision of the High Court was accompanied by a survey of the attitude of Jewish law toward the problem of extradition, authored by Justice Menachem Elon. The purpose of the present article is to analyze that survey and determine if its conclusions do indeed accord with Torah law.
Following the survey, our discussion will be divided into three parts:
Does the prohibition of adjudicating before a non-Jewish court apply today?
What is the authority of local (non-Jewish) law in foreign countries and what are its limits?
May a Jew be extradited from the State of Israel to a foreign country in order to be tried there?
B. Non-Jewish Courts
1. The Reason for the Prohibition
The Shu1chan Aruch (ChM 26,1) states: "It is forbidden to litigate before non-Jewish judges or in their courts, even if they rule in accordance with Jewish law, and even if both litigants have agreed to litigate before them." On the verse Ex. 21,1), "And these are the statutes that you shall set before them," the Sages comment: 'Before them' - and not before idolaters" (Cit. 8~b). "Anyone who forsakes Jewish judges and appears before non-Jewish ones has first denied God and secondly denied the Torah, as is written (Deut. 32,31), 'For their rock is not as our Rock, and our enemies are judges"' (Comm. of the Vilna Gaon, ShuIchan Aruch, op.cit., citing the Midrash Tachuma).
It is obvious that the term "idolater" which appears in the printed texts is a deliberate emendation in place of "non-Jew," designed to avoid problems with non-Jewish readers, as the prohibition is derived from "before them" - before the Jews, implying that all other judges are prohibited. 1
The reason for this prohibition is not our fear of injustice in the foreign court, as it is forbidden even if it is clear that the court will follow Jewish law. and even if both parties agree in advance to accept the ruling, as stated above. In contrast, an agreement to litigate before Jewish laymen, ignorant of the law, would be valid and there would be no objection to the proceedings (cf. Ramban, Ex. 21,1). The prohibition, then, is absolute, and is of Torah status, as it is derived from a verse. It is therefore not dependent on time or place, nor on the attitude of the non-Jews to the Jews, or the rights accorded the Jews as citizens of the particular country.
This prohibition was observed in all Jewish communities until the Holocaust. In cities with large Jewish populations, regular courts were in existence. In smaller communities, the local rabbi acted as a judge (av beit din), and all civil disagreements were brought before him and not before the local non-Jewish courts.
2. The Halacha does not change
This is not the opinion of Justice Elon. He believes that this prohibition was transformed in the second half of the nineteenth century and the beginning of the twentieth, against the background of the emancipation and its ramifications for Jewish-Gentile relations.
His conclusion is based on a theory he has developed, according to which the prohibition was enacted in comparatively late times. with the loss of Jewish sovereignty. and as part of an attempt to preserve communal and judicial autonomy. Hence, after the emancipation, when the Jews were accorded equal rights, there was no need to preserve that autonomy, which was willingly abandoned. However, this theory is nothistorically valid, and has no basis in Halacha. as we explained above.
3. The Effects of Censorship on Jewish Legal Texts
Justice Elon cites two great Torah scholars, Rav Yechiel Michel Epstein, av beit din of Novaredok (i.e., the judge. as well as rabbi), aud Rav Meir Dan Plotzky, av beit din of Ostrova, who apparently agree with his contention that the emancipation has changed the attitude of' the Halacha to this law. How then do I dare to disagree with him? Let us examine closely the sources cited. The first is from the Aruch Hashulchan (ChM 388). It appears as an addendum to the text, and not in the legal sections themselves.
Everyone who is who is familiar with history knows that in ancient times, in distant lands, no man was safe in his person or property from robbers and extortioners, even if they bore an official title, as is known even today in some lands in Africa, where the government officials commit robbery and theft. We commend the kings of Europe, especially our Master His Royal Highness the Czar, his ancestors the czars, and the kings of Britain, who extended the rule of their governments over distant lands in order that each and every man be secure in his person and property, so that the rich need not conceal themselves in order that their property not be taken and they be killed. All the laws of informers and delivery (of jews and their property to non-Jews) in the Talmud and the codes which we shall presently explicate revolve around this point. as one who informs on his fellow and delivers him into the hands of these robbers is pursuing him in his person and property, and therefore we save him (at the expense of) the life (of the pursuer).
Justice Elon comments on this passage:
The Aruch HaShulchan considered the monarchies of Europe 2in 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.... However. in principle. the approach of this great Torah scholar to our problem and his bold. explicit reasoning is very important.
It is quite ridiculous to see statements. which anyone can immediately perceive to have been made only in order to placate the government censor (who was usually an apostate Jew). quoted seriously. The Aruch HaShulchan, in order to publish his work, must effusively praise the Czar. In order to give his statement the appearance of sincerity, he included the other rulers of Europe. Anyone familiar with Jewish literature published at that time in Russia knows that statements and declarations to the effect that "these times are different than ancient times, thanks to the kings under whose protection we live," appear universally. and the real nature and purpose of these declarations is obvious to all. Nonetheless. Justice Elon builds an entire theory on the basis of this statement. perceiving an "important approach" and "bold reasoning", to the effect that a prohibition "observed diligently throughout the Diaspora until the emancipation" has been annulled in modern times.
Proceeding from this erroneous conception, he discovers a similar approach in a statement of R. Meir Dan Plotzky. The statement is found in his homiletic commentary to the Torah, Kli Chemda (and not in a legal work), before Parshat Mishpatim, and appear in parentheses, in order to distinguish between it and the main body of the text. He writes:
There is, however, no practical application of this law, as it does not apply to the judges of our time, who are not, God forbid, idolaters.... It is evident that we should litigate before them, because of dina d'malchuta dina. I outlined (the laws) only in order to apply them to those distant lands, such as China and Japan, where they worship idols and their courts (are forbidden).
Is it not obvious that he has not extensively expounded all the details of this law simply in order "to apply them to distant lands, such as China and Japan," where, if I am not mistaken, no Jews lived in his time? Can there be any doubt that a statement such as, "it is evident that we should litigate before them" is nothing more than lip service?
It seems to me that a high degree of naivete is required to believe that the Ku Chemda maintained that the prohibition of non-Jewish courts did not apply in his time and place. It is clear and indisputable that the prohibition to litigate or deliver a Jew to a non-Jewish court remains in force, except under the conditions which I shall explain in the following section.
C. Local Law Outside of Israel and its Limits
I. Local Law
The Shulchan Aruch (ChM 388,9) rules: "It is prohibited to deliver a Jew, both his person and his property, into the hands of non-Jews, even if he was wicked and a criminal." This prohibition is a very serious one, and is in force at all times, including our own, as shown above.
There is one case where it is permitted to hand over a criminal to a non-Jewish authority - where he is liable to cause injury to the community, and there is no other way to prevent him from doing so. He may be delivered in that case to the jurisdiction of the local law, even though the rules of evidence are less strict than in Jewish law, and the punishment may be more severe. The Beit Yosef (ad.loc.) cites a responsum of the Rashba, who explains that in such cases, the law of the king is legally binding, parallel to Jewish law. The Rashba writes:
Furthermore, R. Elazar b. R. Shimon would catch robbers and criminals on the authority of the government, and they would be punished and killed. R. Yishmael b. R. Yosi would do the same.... We cannot consider them to be completely in error concerning an explicit law.... God forbid (such a thought) concerning such pious and great sages of Israel.... It is clear that it is as we stated - if he is appointed by the king, he acts in these matters according to the law of the realm, for the king establishes stability with these laws.
The Rashba maintains that the law of the land is valid according to the Torah, and exists parallel to Jewish law. It may be applied wherever it is necessary for the good of the community. Hence, it exists in foreign lands as well, as protecting the community from criminals is the responsibility of the king (government), who "establishes stability with these laws."
2. Priority of Jewish courts
From the reasons given to justify the delivery of Jew to a non-Jewish authority, we can derive the limits of this procedure, namely:
It is only permitted when the criminal cannot be tried under our own laws. This was the situation during the lifetimes of R. Elazar b. R. Shimon and R. Yishmael b. R. Yose, when the Romans did not allow the Jews autonomy in criminal matters. Under those conditions, there was no alternative to delivering criminals to the Roman authorities. It was the only way "to eliminate weeds from the vineyard."
Therefore, if the criminal 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.
3. Local Law Applies only within its Jurisdiction
The authority of government law, under the principle of dina d'malchuta dina, applies only to the citizens, including the Jews, living within the borders of that particular state. The law of one land, however, does not extend to another land or its citizens. Hence, in Israel, the prohibition of delivery of a Jew to non-Jewish authorities applies, and it is prohibited to enter an extradition agreement. The treaty is not binding or valid even if signed, as stated by the Shulchan Aruch, quoted at the beginning of the article, that agreement of the parties to a suit to litigate before a non-Jewish court has no validity.
On the other hand, the Halacha does not accord a criminal sanctuary because he has crossed international borders. 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 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 as he deserves.
4. Injustice and Local Law
Delivering a Jew is permitted only if there is no danger of a miscarriage of justice. In our times, we are witness to the fact that even powerful nations and their legal systems are subject to pressures and threats from terrorist organizations which force them to distort legal procedures. In this case, where an 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.
Furthermore: 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. 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. Hence, by extraditing him, his verdict is liable to be unjustifiably harsher.
Finally, who can say that one of the Judges will not be affected by a touch of anti-Semitism, in a country 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.
5. The Land of Israel
There is one final point which has been completely ignored. The Rambam (Hilchot Sanhedrin 13,8, based on Mak. 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.
In conclusion: The possibility of delivery to a foreign authority, which exists under certain conditions, does not exist here. Extradition constitutes a very grave prohibition.
It should be emphasized that, while it is true that the accused 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?
D. Extradition of a Jew to a Foreign Land
1. The Chavot Yair and R. Yaacov Emden
The author cites three sources from the responsa literature in support of his contention that extradition is permissible: The Chavot Yair, R. Yaacov Em den, and the Bach.
In the first two cases, the subject under discussion is not extradition or delivery, but rather whether we are obligated to save someone who has been arrested by the government authorities. A man accused of murder, who is subject to the death penalty under Jewish law (which recognizes the appropriateness of the penalty, even though our courts cannot impose it under the judicial situation today), has been arrested by the non-Jewish authorities. The respondents view his situation as the imposition of the proper penalty through divine intervention in place of the penalty which should have been imposed by a Jewish court. Hence, they conclude that nothing should be done to save him. The discussion does not touch on the question whether it would be permitted to turn the accused over to the authorities, surely not in a case where, as in our situation, he could be tried by a Jewish court.
We therefore may turn to the responsum of the Bach, and examine to what extent it is relevant to our case.
2. The Bach
The case, as described by the Bach, was as follows:
A Jew was accused of (a crime concerning) their savior (crucifix), and was arrested. When he was taken away, he passed his bag to a Jew who was (standing) in the mass of non-Jews present when they took him away. Now, after he sanctified the name of God, the accusers have again charged the community with the claim that his father-in-law. who is the sexton of the community~ took the bag, containing the crucifix. from the prisoner.3 The nobles of the King's court have decided that the leaders (of the community) must produce the sexton for trial before the Wojewoda or else they will take his place for any punishment decreed by the King.
The terrible question faced by the leaders of this community was whether to deliver the accused to the local judge, who was liable to order his death, as the first Jew had been killed, or whether to defy the demand, and thereby place themselves in danger of the same fate.
The Bach compares this case to the similar one discussed by the Rambam (Hilchot Yesodei Ha Torah 5,5):
If they were told by non-Jews: Give us one of you that we may kill him, or else we will kill you all - they should all be killed rather than deliver to them a single Jewish soul. If he was deserving death like Sheva ben Bichri, they should deliver him to them. (However,) we avoid ruling this way. If he was not deserving of death, they should all be killed rather than deliver to them a single Jewish soul.
The Bach discusses the meaning of the phrase "deserving death like Sheva ben Bichri" and concludes that the Rambam ruled in accordance with the opinion of Resh Lakish in the Yerushalmi, who maintains that if the non-Jews have a reason to kill him, even though he does not deserve the death penalty under Jewish law, he may be handed over, since he is responsible for his predicament. This permissibility represents the strict letter of the law. However, the "way of the pious" is not to do so; hence, we avoid ruling this way. It is preferable that they allow themselves to be killed rather than hand him over. Based on the Rambam, the Bach rules:
...since he brought it upon himself by receiving the bag from the accused Jew in the presence of non-Jews, without considering the chance that they would accuse him as well, he has directly brought upon himself the danger that he would be brought to trial because of the bag he received. Hence, we are permitted to deliver him into their hands for trial, although there is a chance that he will be killed. Since he has been specified and he is liable under their laws, we are not responsible for his life. His blood is on his head as he brought it upon himself.
This conclusion agrees exactly with the ruling of the Rambam, as he understood it, whereby a specified individual who is condemned to death under the laws of the non-Jews, may be handed over; and there is no need to risk our lives in order to save him. The Bach then faced the question of the Rambam's statement that this ruling should preferably not be implemented. To this additional question, concerning the "way of the pious", he answers:
Only in the case of the Yerushalmi, where they explicitly stated their intention to kill him, should we avoid ruling that it is permitted. In other cases, where it is possible that they will not kill him (we unreservedly rule that it is permitted). In our case, it is possible that the princes intend to genuinely uncover the truth, and that is why they demanded that the Jew who received the bag should come to court, to be examined and questioned in order to catch him at his word. Alternatively, their intention was to test him - if he is guilty he will not appear so as not to be accused; if he is innocent, he will not fear and he will come to court. Accordingly, since there is not a certainty of death, they can deliver him and they do not violate "the way of the pious."
The opinion of the Bach is clear and there is nothing novel about it. There is no question here of voluntarily handing over a Jew to non-Jewish justice, nor is there any discussion of the integrity and righteousness of that system of justice. It is understood that the case was one of a libel, and the Jew is explicitly described as having died "for the sanctification of God's name." The second Jew who is being sought faces a similar fate despite being guilty of no more than foolishness in receiving the bag without considering the chance that he would be accused of complicity in the original "crime."
Clearly, there would be no question of delivering him were it not for the threat facing the leaders of the community that they will be punished in his place if he is not handed over. There is a distinct danger that they will be killed in his place. The question is whether they must risk their lives for him when he, through his own actions, is the cause of the danger. The Bach's conclusion is that the law in this case is that found in the Rambam. Only in order to remove the restriction of the "way of the pious" does he add that the lack of certainty of death in this case results in a further leniency, and he may be delivered unreservedly.
I am simply unable to understand what the relevance of the Bach's case is to ours, where no one is facing any danger if the extradition will not be executed, there is no duress to execute the extradition. and we have the ability to try him ourselves without endangering the Jewish community in Israel or elsewhere. By what logic is our case derived from that of the Bach? Justice Elon writes:
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....
What sort of reasoning is this? The Bach was willing to permit delivery of a Jew when faced with compulsion and the threat of death facing the leaders of the Kalisch community, as a result of libel. Were it not for this danger. there would not have been the slightest reason to deliver him to the mercies of the corrupt system of his time. The logical conclusion is obvious: If there is no compulsion, there should be no extradition.
E. Conclusion: A Criminal Should be Tried in Israel
The responsa of the Chavot Yair and R. Yaacov Emden have nothing to do with our case, as they discuss rescuing a Jew who is guilty and has been caught. Similarly, the responsum of the Bach, which deals with a case of compulsion and the threat of death, is not relevant to extradition from a sovereign Jewish state to a foreign government.
The correct conclusion as far as Jewish law is: It is prohibited to extradite a Jew to a foreign state, and it is obligatory to try him in the State of Israel.
Footnotes
1. In many editions of the Tachuma, the text reads "kuttim" (a common substitute for gentiles in printed rabbinic texts) in place of "idolaters." The text of the Rambam reads "Canaanites," a clear reference to non-jews. The Rome edition of the Rambam (Hilchot Sanhedrin 26.7) reads "gentile judges."
2. The statement of the Aruch Hashulchan referred not merely to the "kings of Europe" but primarily to "our Master His Royal Highness the Czar." Alexander III was known as an enemy of the Jews. The introduction of the Aruch Hashulchan to Choshen Mishpat also Contains rather fulsome praise for this individual, introduced, as here, with the words, "everyone who is familiar with history knows... "Indeed, it is weII-known to all....
3. The bag was passed to the second Jew in public. before a crowd of non-Jews. who did not react. apparently because it was understood that there was no connection between the bag and the incident. Since the Bach states explicitly at the beginning that the entire story of the stolen crucifix was false, a libel. it it clear that the accusation against the sexton is equally false.
