JUDAICA - Wisdom In Torah

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,” which
applies 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 po-
extraDITION
litical 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 Ḥavvot 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
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 629