EXTRADITION


Biblical Sources

EXTRADITION OF SLAVES

The Torah relates directly to the issue of extradition in the context of a slave who flees from his slavery, prohibiting 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" (Deut 23:16–17). Some Biblical commentators have interpreted this passage on the basis of the context in which it appears, viz. as referring to a slave who during battle escapes from the enemy camp to the Israelite camp, the reason for the prohibition on his extradition being that it is better for the slave to remain in the Israelite camp than to return to worshipping idolatry. An additional reason proposed is a practical one, deriving from the aforesaid battle context – namely, the danger that the slave will "learn the way into the city," so that to return him to his master would constitute a danger to the security of the city (Naḥmanides. ad loc.; Ibn Ezra, ad loc.). A case in which the question of extraditing a slave at a time of battle arose in 1 Samuel 30:11–16: David and his men, in pursuit of the Amalekites, found an Egyptian slave who had been forsaken by his Amalekite masters. The slave agreed to show David and his men the location of the Amalekite troop, in return for David's promise that he would not return him to his masters.

According to the Talmud, the prohibition against ex-tradition applies to a Canaanite slave who has fled from Jewish masters outside the Land of Israel into the Land of Israel (Bavli, Gittin 45a; Maim., Yad, Avadim 8.10). Rabbi Judah the Prince is of the opinion that the prohibition applies to a person who purchases a slave on condition that he emancipate him, and later regrets his act and seeks the slave for himself.

EXTRADITION OF AN ESCAPED CRIMINAL

The Torah rejects the possibility that an escaped criminal may acquire refuge from punishment by entering sacred grounds: "If a person shall maliciously kill another with guile, he shall be taken to die (even) from my altar" (Exod 21:14). In this manner, the Torah abrogated the rule, widespread at that time and even later (1 Kings 2: 29–32), that entry upon sacred ground can spare a murderer from his just punishment. Biblical commentators emphasized that this law is intended to serve as a contrast to the law of one who committed inadvertent manslaughter, who is given a special place to live and guaranteed protection from persecution by the blood avenger (see *City of Refuge). A murderer with malice aforethought has nowhere to seek refuge, not even the altar. Maimonides (Guide 3.39) emphasizes the difference between the Torah's command against delivering an escaped slave, regarding whom we are commanded to have mercy and to grant protection and care for all his needs, and a malicious person, whom we are commanded not to pity and not to protect, and who must be turned over to the officer of justice even if he grasps hold of the altar.

INSTANCES OF EXTRADITION IN THE TORAH

The Book of Judges (15:9–13) relates that, after Samson smote the Philistines, the Philistines retaliated against Israel, in order to capture Samson and to take revenge for his deeds. The men of Judah went to Samson and told him that they had come to take him so as to extradite him to the Philistines. Samson asked the men of Judah to swear to him that they themselves would not harm him but would only extradite him to the Philistines. They duly did so, binding Samson with ropes; however, as soon as he was delivered to the Philistines he flung off the ropes with which he had been bound and once again struck down a thousand Philistines. Some halakhic authorities classified Samson's extradition as performed under duress, for had the men of Judah not given Samson to the Philistines, the Philistines would have killed them (Or Sameah on Maim., Yad, Yesodei ha-Torah 5.5). From the commentary of Radak (II Samuel 20:22), it follows that extradition was only possible due to Samson's consent, but that they would not have been entitled to extradite him against his will.

Following the incident involving the concubine at Gibeah (Judges 19–21), during which people from the town of Gibeah in the territory of Benjamin perpetrated an act of rape and murder, the other tribes of Israel gathered together and demanded that the clans of Benjamin turn over the perpetrators of the atrocity, in order to "eliminate the evil from Israel" (ibid. 20:12–14). The Benjaminites refused to extradite the men and went to war against the other tribes of Israel. Nahmanides, in his Torah Commentary (Gen. 19:8) states that the Benjaminites were not obligated to deliver the sinners from Gibeah into the hands of the other tribes of Israel, because the responsibility to take action lay exclusively in the hands of the tribal court of Benjamin, each tribe having jurisdiction over its own members.

Another incident relating to extradition appears in I Samuel 23:10–12, when David, fleeing from Saul, together with his followers, came to the aid of the townsfolk of Keilah, saving them from the Philistines. After David had smitten the Philistines at Keilah, Saul heard that David was situated there, and went with his army in order to capture him. David inquired of God, through the ephod (sacred oracle) held by the Abiathar the priest, as to whether the heads of Keilah would deliver him into the hands of Saul. God responded that they would extradite him, whereupon David left the city. The text implies that, in this case as well, the delivery of David into the hands of Saul by the people of Keilah, had it occurred, would have been one of extradition under duress, as had they not turned David over to Saul, Saul would have destroyed the town.

Talmudic Period

Following the era of the Talmud and thereafter, in periods during which Jewish communities found themselves under the suzerainty of a heathen ruler, whether in Israel or in the various Diaspora communities, the issue of extradition was considered from various angles: the criminal justice aspect of the offender's acts; the relationship between Israel and the other nations of the world; the relationship between the Jewish legal system and the non-Jewish legal system; and the relationship of the Jewish community towards its own members who had deviated from the right path. Jewish legal autonomy, while containing a not-insignificant measure of juridical competence even in the field of criminal law, was nevertheless restricted with respect to the majority of cases concerning serious offenses and offenses of interest to the authorities, in which areas the authorities retained the right of adjudication and the right to punish. We will now deal with the main problems and questions discussed in the talmudic literature in this regard.

THE SEIZURE AND EXTRADITION OF JEWISH THIEVES AND ROBBERS

During the talmudic period, the Sages encountered cases in which they were requested by the Roman administration to hand over Jewish criminals. We find differing opinions among the Sages regarding the question as to whether such ex-tradition is prohibited or permitted, or possibly even desirable. The Talmud relates how R. Eleazar b. Simeon seized thieves and robbers on behalf of the Roman administration, and the dispute that arose in this regard with R. Joshua b. Korha. R. Joshua b. Korha reacted to R. Eleazar b. Simeon's acts with the words: "Vinegar son of wine: how long will you continue to deliver the people of God to death?" R. Eleazar b. Simeon answered by way of a parable: "I am eliminating thorns from the vineyard" to which R. Joshua b. Korha retorted: "Let the owner of the vineyard [i.e., God] come and eliminate his thorns" (TB, BM 83b). A further discussion of the same issue appears in the sequel to this talmudic passage, which records that R. Ishmael b. Yose would also apprehend offenders at the bidding of the authorities. These controversies reflect the aversion to turning over a Jew to the Roman government, which was suspected of not conducting fair trials, hostility to Jews, and persecution of their persons and property.

SAVING JEWS SUSPECTED OF SERIOUS CRIMES

An additional incident discussed by the Talmud and its commentaries (Bavli, 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 Sages had stated that one should take heed of an evil rumor, viz. that they were in fact murderers. Talmudic commentators are divided as to the reason for R. Tarfon's refusal to hide them. According to Rashi (ad loc.), 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. Aḥa Gaon (She'iltot de-Rav Aḥa §129; Tosafot, ad loc.), R. Tarfon's suspicion did not emanate from the fact that he was forbidden to save them, but rather from the danger to which he would be exposed were he to save them. R. Asher b. Jehiel (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 Asheri's words, it follows that, when it is clear that the person has indeed committed a crime, it would be forbidden to save him even according to Rashi's disputants. R. Solomon Luria (Yam shel Shelomo on TB Nid. 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 to judge, 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 savior in doing so.

Post-Talmudic Period

Over the centuries during which Jews were in various Diasporas and subject to the whims of foreign rulers, many and varied questions arose concerning the interrelationship between the Jewish community and the Jewish legal system and between the authorities and the local legal system. Within this reality, and in view of the need to grapple with the phenomenon of criminality that existed within the Jewish community, the question often arose as to the need to hand over Jewish criminal offenders to the authorities. In post-ralmudic and responsa literature, various aspects of this topic are considered.

DELIVERING A CRIMINAL WHO ENDANGERS THE COMMUNITY

When a given individual's criminal conduct constituted a danger to the entire Jewish community, such as when the non-Jewish authorities are liable to harm the entire Jewish community on account of the acts of an individual offender, or when only the non-Jewish authorities have the power to prevent the offender continuing in his socially unacceptable conduct, he may be extradited to the non-Jewish authorities. Thus, already in the 13th century it was ruled that the non-Jewish authorities could be informed, and extradition was permissible, in the case of a violent man who regularly assaulted others, or a person whose criminal acts encouraged gentiles to contrive plots against the Jewish community, in order to remove the danger from the entire Jewish community (Maharah Or Zaru'a, #142). The Shulḥan Arukh rules (ḤM 388) that a Jew who harasses the community, and not merely one individual, could be delivered into the hands of the non-Jews in order "to beat, imprison or fine him." R. Moshe Isserles adds, in his glosses to the Shulḥan Arukh (ad loc.) that even a Jew who is engaged in forgery – if there is a danger that the Jewish community will be harmed by his activities, and he fails to take heed of the warnings made to him – may be delivered to the authorities, in order to demonstrate that only he, the offender, engages in forgery, and no other member of the community does so. Elsewhere, Isserles writes that the permission to deliver such offenders to the non-Jewish authorities is based upon the principle of "rodef "– i.e., that any Jew is permitted, if necessary, to kill a person who is pursuing his fellow with the aim of killing him, in order to save the life of the pursued: "One who endangers the community, e.g., if he engages in forgery in a locality where the authorities forbid it, has the status of a rodef and it is permitted to deliver him to the authorities" (Rema, ḤM 425.1). R. David Halevi, in his commentary Turei Zahav on the Shulḥan Arukh (ḤM 157.8) similarly rules that anyone who transgresses and rebels against the local law in a manner that endangers the Jewish community may be turned into the authorities, even if the authorities do not demand that he be handed over.

WHEN THE COMMUNITY IS THREATENED IF THE WANTED PERSON IIS NOT DELIVERED

The Tosefta (Terumot 7.20) deals with a case in which non-Jews demanded that a group of Jews hand over one of their number to be killed, or else they would all be killed. The Tosefta rules that it is forbidden to deliver a single Jewish soul; rather, they should all be killed. However, if a specific person was designated to be handed over, they should deliver that individual rather than allow all of them to be killed. The Jerusalem Talmud records an amoraic controversy as to whether such a person can only be delivered if he is in fact deserving of death, as was Sheba son of Bichri who rebelled against King David's rule (2 Samuel 20). In other words the story of Sheba is seen as the source of the ruling by the Tosefta. The alternative view is that he should be handed over request, even if he is not liable to the death penalty. It is noteworthy that the case of the Tosefta does not discuss the issue of extradition – i.e. deliverance of a suspected criminal for the purpose of trying him – but only (translating it into the contemporary context) the case of a terrorist group which threatens to kill many people unless an individual is handed over to them. Nonetheless, the halakhic authorities relied on it in cases where the non-Jewish authorities required the handing over of a specific individual and threatened the lives of other Jews in the event that he was not delivered. Maimonides (Yad, Yesodei ha-Torah 5.5) ruled that, if the wanted person is deserving of death, he may be handed over in order to prevent the killing of the remainder of the group; however, "we avoid ruling this way where possible." In a case brought before R. Joel Sirkis (Responsa Ba"ḥ ha-Yeshanot §43), the leaders of the Jewish community were asked to deliver to the Christian authorities for trial a Jew who, according to the authorities, had collaborated in the desecration of Christian religious artifacts. The authorities demanded his extradition, stipulating that, if he was not extradited, the community leaders would have to take his place for any punishment that was decreed. Sirkis ruled that the words of Maimonides – that a person who is liable for the death penalty may be extradited – apply even where the non-Jewish authorities have grounds to kill him under their laws, even if he is not deserving of death according to Jewish law. In such a case, it was not certain that handing over the Jew would result in his death, because the authorities intended to conduct a trial, and the possibility existed that he would be proven innocent. Hence, R. Sirkis ruled that his delivery to the non-Jewish authorities was permitted even de jure, in contrast to Maimonides' ruling that we avoid ruling that way where possible. Furthermore, in this case too permission to deliver the accused was given only because there was prima facie evidence of his guilt, and that the grounds for which the non-Jews sought to judge him were thereby substantiated; hence, the accused himself was considered responsible for the allegations made against him.

SAVING JEWS SUSPECTED OF SERIOUS CRIMES FROM THE LAWS OF THE AUTHORITIES

R. Jair Ḥayyim Bacharach (Resp. Ḥavvot Yair §146) was asked about a case involving a Jewish youth, a fugitive murderer, who was later caught by the authorities. R. Bacharach rejected the possibility that he could be delivered to the non-Jewish court, even by the relatives of the murder victim (by virtue of the a fortiori argument thatthey could in any event deliver him to the authorities based on the law of the blood avenger; see *Blood Avenger). At the same time, based on Rashi's interpretation of the talmudic passage about R. Tarfon, he rules that it is forbidden to save the youth from the authorities, because of the duty to "eradicate all evil from your midst." He then raises the possibility that, even though it is forbidden to save him, it may be permitted to give him advice on how to escape. In suggesting this possibility, R. Bacharach relies on the words of R. Tarfon in the talmudic story, who told those people who sought refuge with him that they should hide themselves – what may have amounted to advice on the part of R. Tarfon. R. Jacob Emden (Resp. She'ilat Ya'avetz II. 9) rejects this possibility out of hand, ruling that it is forbidden to give advice to a murderer on how to evade the judgment against him. In the case brought before him, after one Jew who had murdered another Jew was arrested by the authorities, he was given the possibility of acquitting himself by swearing a solemn oath that another person killed the victim and he was not the murderer. The local rabbi ruled that the murderer should save himself from death by swearing falsely. R. Emden vehemently rejects this advice and states that "it is forbidden to save him from death through any means, even an [otherwise permissible one]," and certainly not through making a false oath.

EXTRADITION BASED ON THE PRINCIPLE THAT "THE LAW OF THE LAND IS LAW"

In the rulings of the great halakhic authorities of Spain from the 13th century onward, the authority of the local non-Jewish government is accepted also in matters of penal law, by virtue of the principle that "the law of the land is law" (see *dina de-malkhuta dina), and not only regarding matters of local administration and civil law. The Rashba, in a responsum cited by the Beit Yosef on the Tur (ḤM 388), discusses a case in which the Jewish community was asked by the non-Jewish authorities to determine whether a particular Jew had transgressed a criminal offense; if so, he would be punished by the authorities. The Rashba, relying upon the principle of "dina de-malkhuta dina," sets forth the following 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 above-mentioned talmudic cases involving R. Eleazar Simeon and R. Ishmael b. Yose, that anyone who is appointed by the king is permitted to turn in Jewish criminals to the king. The Ritva, a disciple of the Rashba, also explained the acts of the aforesaid tannaim on the basis of the principle of "dina de-malhuta dina," whichapplies even in the realm of criminal law (Ḥiddushei ha-Ritva ha-Ḥadashim, at BM 83b).

R. Samuel de Modena (Salonika, 16th century; Resp. Maharshdam ḤM 55), relying on a responsum of the Rabad, rules, on the basis of the principle of "dina de-malkhuta dina" that acts of the government concerning the punishment of criminals are legally binding just as the government has authority to enact laws in the city.

In the 19th century, R. Moses Schick (Resp. Maharam Schick, HM 50) utilized the above-cited rulings of Rashba and Ritva in relation to a case in which the Jewish community suspected, albeit without any conclusive evidence, that a woman had murdered her husband. The question was asked whether there was any obligation to report the case to the authorities. Maharam Schick determines, in relation to the legitimacy of governmental enactments in punishing criminals, that "…anything they do whose purpose is to benefit society, their law is law," and that the woman could be reported to the authorities, albeit he concludes that great scholars should not initiate this matter, but rather do nothing – neither save nor extradite the suspect.

The State of Israel

The Extradition Law, 5714 – 1954, determines the ways and means by which a person can be extradited from the State of Israel to another country that requests his extradition. Amongst the provisions set down in the Law, compliance with which is essential to perform the extradition, are the following: the existence of a reciprocal agreement between Israel and the requesting state; that the offense concerned not be of a political nature; that the extradition be to a state, the fairness of whose judicial proceedings the State of Israel acknowledges; and, that no person shall be extradited who has already been brought to trial in the State of Israel for the same offense.

In the Aloni affair (HCJ 852/86 Aloni v. Minister of Justice, PD 41 (2)1) the issue of extradition was heard by the Supreme Court of the State of Israel, together with an examination of the existing legal framework in Israel in light of the principles of Jewish law. The Court 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 execute the extradition order, due to fear of danger to the life of the defendant by prisoners in the French prison in the event of his extradition. Justice Menachem Elon analyzed the position of Jewish law on the topic of extradition at length and in great detail, based on the above-cited and other sources. His conclusion was that the provisions of the Extradition Law accord, first and foremost, with the categorical stand of Jewish law, which negates the possibility that a suspect in the commission of an offense evade accountability for his acts, particularly if the alleged crime is murder. Justice Elon relies on the justifications in favor of extradition approved by the great halakhic authorities, even where extradition was forced on the Jewish community by the non-Jewish authorities. These justifications were based either on substantive Jewish law itself, or on the principle of "dina de-malkhuta dina" – i.e., in order to establish social order and the rule of law. According to Elon, the sources of Jewish law indicate that throughout Jewish history extradition was permitted in specific cases, even when no supervision of the judicial system or the penalty prescribed was performed by the Jewish community. Therefore, it is all the more justified today when it is executed freely by a sovereign Jewish State, with rights equal to those of the state requesting the extradition, and when the Jewish State has the ability to monitor the integrity of the judicial system in the other state and to annul the extradition treaty with it in the event that the said judicial system lacks such integrity. Elon suggests that this view would be concurred with even by the authorities who opposed cooperation with non-Jewish courts unless the crime posed a danger to the Jewish community. This opposition was based on their fear of a miscarriage of justice being caused by the extradition, a fear that was regarded as more significant than the benefit gained in punishing the criminal. These being the reasons for their opposition to extradition based on cooperation with non-Jewish courts, the same authorities would not object to extradition performed by and with the advantages afforded by a sovereign Jewish State.

From the above-cited rulings of Havvot Yair and She'ilat Ya'avetz, which set forth a prohibition on shielding the criminal in cases of serious crimes, Justice Elon derives that, in a sovereign Jewish state, their rulings should be understood as indicating a duty to extradite. According to Elon, in a small Jewish community the argument may be made that, while it is forbidden to conceal the offender from the authorities, there is no obligation to hand him over, and if the authorities so desire they can come and search for him. By contrast, in a sovereign state, it is impossible to simply turn a blind eye, because such is not the way of a Jewish state, which has a duty either to try the offender, if this is possible according to its laws, or to extradite him to a state which has the ability to try him, subject to the restrictions stipulated in the law. According to the aforementioned arguments, when it is impossible to try the offender in Israel, the State of Israel must extradite the offender in order to eliminate the evil from its midst.

In the same judgment, Justice Elon ruled that, in the event of a reasonable probability of danger to the life of the accused were he to serve his sentence in a foreign country, he should not be extradited. This was in contradistinction to the majority of the Court, who ruled that extradition should only be avoided in the event of a high probability of danger to his life. Justice Elon also ruled that the execution of the extradition be delayed until arrangements are put in place to ensure that the accused's wife will not find herself in a state of abandonment (iggun). It should also be noted that, in this judgment, Justice Elon recommended that the Extradition Law be amended so as to allow a criminal sentenced by a foreign court to serve his sentence in an Israeli jail; indeed, in 1999 the law was amended in this spirit.

The position adopted by Justice Elon aroused controversy. Amongst his disputants was R. Shaul Yisraeli (see bibliography), who emphasized the prohibition of litigating before non-Jewish courts. According to R. Yisraeli, the possibility of delivering a Jew to the authorities by virtue of the Law of the King and "dina de-malkhuta dina" only exists where there is no autonomous government in Israel and no possibility of trying the criminal under Jewish law. In addition, he states that the authority of government law, by virtue of the principle of "dina de-malkhuta dina," only applies to those citizens who live within the borders of that state. It does not extend to validate an extradition agreement between states, and it is therefore forbidden for the State to enter into an extradition treaty which, according to R. Yisraeli, has no validity from the halakhic point of view even post factum. R. Yisraeli also emphasizes the merits of the Land of Israel, by whose virtue arguments (for his innocence) may be found in his favor (Makkot 7a). The solution suggested by R. Yisraeli to ensure that the State of Israel does not become a "sanctuary for criminals" is for the State to enact a law according extra-territorial status to Israeli criminal law, enabling all Jewish criminals to be tried in Israel.

It should be noted that the Jerusalem Rabbinical Court, in considering the issue dealt with by the aforesaid Supreme Court judgment, 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 to punish criminals who are located in other countries – in Israel" (File 8384/5747, pp. 27–28, given on 12 Tishrei 5748, 5/10/87).

ADD. BIBLIOGRAPHY:

M. Elon, Jewish Law (1994), 4:1861, 1862; idem, Jewish Law (Cases and Materials) (1999), 369–88; idem., "Laws of Extradition in Jewish Law," in: Teḥumin, 8 (1986/7) 263–86; 304–9 (in Hebrew); S. Yisraeli, "Extradition of an Offender to a Foreign Jurisdiction," in: ibid., 287–96 (in Hebrew); J.D. Bleich, "Extradition of an Offender to a Non-Jewish People," in: ibid., 297–303 (in Hebrew); idem, "Extradition of an Offender Who Has Fled to Ereẓ Yisrael," in: Or ha-Mizraḥ, 35 (1986/7), 247–69; Y. Gershuni, "Is it Permitted for the Government of Israel to Extradite a Criminal to Another Nation?" in: Or ha-Mizraḥ, 21 (1971/2), 69–77 (in Hebrew); B. Rabinowitz, "Teomim, Extradition For Imprisonment by Non-Jews" in: No'am, 7 (1963/4), 336–60 (in Hebrew).

[Menachem Elon (2nd ed.)]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.