(YD 157, Turey Zahav, subparag. 8)
Various current Rabbinic voices have been raised to the effect that it is forbidden according to the halakhah to return a convicted murderer named William Nakash to France because there is a danger to his life in a French prison. A brief halakhic investigation will prove that not only is such a transfer not forbidden, but the halakhah actually requires it.
There are five precedents in the classical literature: Three in the Bible, one in the Aggadah, and one in the Talmud Yerushalmi. Even though turning over the demanded person involved mortal danger to that person’s life, in four of the five instances the requested individuals were turned over. (In at least two cases, it was with the person’s clear consent; in one case he was killed first). The single instance in which there was a refusal led to a terrible civil war and the deaths of tens of thousands. However, one might argue that in the above instances there was a physical danger to the general populace if the requested individual was not turned over – something, which is clearly not the case with Nakash, who therefore need not be extradited.
Our response: Granted that neither Nakash on the one hand, nor the State of Israel on the other, is in physical danger. Nakash is being sought for imprisonment in France not for judicial execution and many French rabbis have testified that the French prison system is safe. On the other hand, even though lack of extradition will not endanger Israel physically, failure to extradite would create various actual dangers for the State of Israel: Hillul Hashem, danger to the rule of the law in the state of Israel, encouragement to Jewish lawbreakers all over the world to view Israel as a haven, damage to public morality, danger to Israel’s legal status among the nations with which it has signed extradition agreements, and a danger to its own populace from this particular breaker of the law if he is permitted to run free. Thus, we are required to follow the majority of precedents and surrender the particular identified individual in the interest of the general welfare. (Note: This is not to be confused with a generalized demand from a hostile power “for one of you”. The latter is to be thoroughly resisted.)
Throughout Jewish history many authorities have dealt with this issue on the basis of passages found in Tosefta and Yerushalmi Terumot. Most rule that a Jew may be handed over to Gentiles to be executed even if he is only liable according to gentile law and even if he is not liable to death like Sheva ben Bichri (II Samuel 20:14-22). If this is the halakhah in a case of extradition for execution, it is certainly the halakhah when the criminal involved is only going to be imprisoned!
Part of the concept of Hillul Hashem created by a refusal to extradite, would be the appearance of condoning the killing of non-Jews by Jews. And so, turning William Nakash over to French judicial authorities is thoroughly in accordance with the demands of halakhah and raises Israel’s moral stature in the world. It is an act of Kiddush Hashem, the sanctification of God’s Name in the world.
Rabbi David Golinkin
Approved Unanimously 5747
Notes and Additions to Rabbi Golinkin’s Responsum
Two Talmudic sources are cited which attest to turning criminals over to the secular government and refusing to grant asylum to suspected murderers. Further evidence is cited for the appropriateness of turning over the alleged criminal in that he may be compared to the rodef (pursuer) whose wicked acts endanger the community. (The rodef must be stopped at all costs – including the cost of his life). There is much evidence that this was not merely a theoretical consideration but that many communities in the Middle Ages did indeed routinely turn over Jewish criminals to the non-Jewish government. It is further emphasized that a Jew who has committed a grievous crime such as murder must not be helped to escape. A contemporary event is cited: Some twenty years ago an American Jew, sentenced to life imprisonment for spying, fled to the State of Israel. The Israeli Court ordered his return to American jurisdiction.
Rabbi Tuvia Friedman