Responsa in a Moment, Volume 16, Number 1
Is it permissible or required for the State of Israel to extradite a wanted criminal to another country? (Yoreh Deah 157:1)
In memory of my mother and teacher
Devorah Golinkin z”l
who passed away on 27 Tevet 5772
on her tenth yahrzeit.
May her memory be for a blessing!
Question: Since the Malka Leifer affair made the headlines in 2008, we have heard from various rabbis that, according to Jewish law, it’s forbidden to extradite her to the Australian authorities. In the meantime, she was finally extradited in January 2021. Is the halakhah really opposed to extradition in such cases? (1)
Responsum: In the responsum below we shall prove that not only is extradition not forbidden in such cases, but that halakhah requires extradition in such cases.
I) The Background of the Case (2)
Malka Leifer served as principal of the Adass Israel Hassidic School for girls in Melbourne, Australia from 2000-2008. In February 2008, Dassi Erlich, a former pupil who had made Aliyah in 2007, accused Leifer, saying that from the time she was fifteen years old, Leifer used to hug her and kiss her on the lips, touch various parts of her body, and subsequently to engage in sexual assault and even rape for years. In March 2008, the school administration confronted Leifer and she denied all the charges. However, instead of filing a complaint with the police, the school administration ordered Leifer to leave Australia and that very night ordered and purchased plane tickets to fly her and four of her eight children to Israel.
The struggle to extradite Leifer to Australia lasted 13 years, from 2008 to 2021. It’s possible that she may have continued to engage in sexual assault in the Israeli town of Immanuel where she lived. In Australia, they filed a 74-count indictment against her for crimes committed during the years 2004-2008. In 2012, a warrant for her arrest was issued in Australia and she was arrested in Israel in August 2014, but she was released to house arrest in Bnei Brak with electronic bracelets. The extradition process was stopped in June 2016 due to the claim that Leifer was suffering from mental stress and panic attacks and was not fit to stand trial.
In February 2018, she was arrested again after it was proved that she was faking and continued to lead a normal life. Afterwards, she was released from jail in March 2018 with the help of Rabbi Yitzhak David Grossman, but he quickly removed himself from the matter and she was returned to prison. In July 2019, the Jerusalem District Court ruled that Leifer’s mental illness was a fabrication. In May 2020, that same court ruled that she is fit for extradition to Australia and she was finally extradited in January 2021.
Parallel to all of this, in 2015, the Supreme Court of Victoria awarded Ehrlich AU $1.27 million in damages from the Adass Israel School, while Leifer was ordered to pay AU $150,000 in exemplary damages.
Australian Prime Minister Malcolm Turnbull brought up the issue of extradition with Prime Minister Binyamin Netanyahu in November 2017; Prime Minister Scott Morrison also spoke to Netanyahu in order to expedite the extradition. Two Premiers of Victoria also brought up the issue with Israeli authorities. In July 2017, a petition with 17,000 signatures from Caulfield was presented to Israeli lawmakers.
This is not the first time in which the State of Israel prolonged the extradition of an Israeli Jew to a foreign country. Cases from the past include the extradition of the convicted murderer Willam Nakash (1983-1987), the Manning case (1991-1993), and more. But from the point of view of Israel’s image, this was apparently the worst case, which lasted from 2008 until 2021. Indeed, the English article about this case in Wikipedia refers to 68 reports, not just in Australian and Israeli newspapers such as Ynet, The Times of Israel, The Jerusalem Post and Ha’aretz, but also in world media such as The New York Times, Reuters, and ABC News.
Finally, the Israeli police began to question then Deputy Health Minister Ya’akov Litzman in February 2019 on the suspicion that he had made illegal use of his authority in order to prevent Liefer’s extradition. It was alleged that Litzman pressured doctors to falsify psychiatric evaluations that deemed Leifer unfit to stand trial. He apparently did so because both he and Leifer are Gerer Hassidim. In April 2021, Israeli police recommended prosecution of Litzman for misleading a witness, fraud and breach of public trust.
II) Hillul Hashem and Increasing Crime
Now let us answer the question. First of all, it should be emphasized that non-extradition of Leifer to Australia already led to 13 years of international Hillul Hashem [=desecration of God’s name] and Hillul Hashem is a negative commandment.(3) On the other hand, the 13 years of foot-dragging in Leifer’s extradition are liable to encourage Jewish criminals from all over the world to move to Israel. They will view Israel as a “city of refuge” for criminals of every stripe. These fears are not new.
As Rabbi Theodor Friedman z”l wrote (see the Bibliography below), it’s evident from Niddah 61a that it’s forbidden to hide a Jewish suspect fleeing from the authorities. The Talmud relates that there was a rumor that some Galilean Jews had murdered someone. They fled to Rabbi Tarfon and asked him to hide them. Rabbi Tarfon refused and told then to hide themselves. Rashi explains (s.v. meihash): “lest you murdered and it’s forbidden to save you” (but see Tosafot ibid., s.v. atmerinkhu for a different explanation).
The two fears mentioned above were already expressed explicitly in the 16th century by Rabbi Meir b”r Avraham Zack, son-in-law of the Maharshal (Poland, d. 1573). He discussed the issue of Reuven who came to Shimon’s house in the dead of night and injured him with a sword. He then proceeded to beat Shimon with a heavy club, murdering him in front of his son and daughter. Reuven also injured the son when he tried to save his father from the assailant. After Reuven was arrested, there was an attempt to bribe the authorities to release him, following his statement that he wished to repent. Rabbi Meir Zack warns against any such step, writing:
This is a hilul hashem! For people will say: the Jews don’t consider bloodshed a punishable sin. And if a gentile were to kill a Jew, God forbid, would they not rule to avenge his blood!? I am constantly screaming at the top of my lungs at the leaders of our generation who try to intercede through bribery for the release of every thief or sinner thrown into prison. Due to our many sins, this increases crime and theft! Everyone does what his heart desires – and the number of such violent people has increased, and we see, due to our many sins, many Jewish thieves! Therefore, God forbid, do not give as much as a penny in order to release him from the death penalty! (See the sources below in paragraph V.)
III) The five classic cases of extradition in the Bible and Rabbinic literature
Before we present the five classic cases of extradition in ancient times, it’s worth citing one verse which expresses the general attitude of the Bible to our topic: “If a man schemes against another to kill him treacherously, you shall take him from My altar to be put to death (Exodus 21:14; cf. I Kings 1:50-53; 2:13-25). In other words, there is an assumption that when someone murders another intentionally, he must be put to death even if he is “grabbing the horns of the altar” as a form of refuge.
There are five classic passages dealing with extradition: three in the Bible, one in the Midrash, and one in the Talmud Yerushalmi. In four of these cases, the Jewish community complied and turned over the wanted person. Only in one case did they refuse, with disastrous results. And if you say, why are these cases important, one may reply that they are actual cases which have much power in Jewish law, according to the principle that ma’aseh rav, a practical decision serves as a legal precedent. (4)
Here are the five cases:
9The Philistines went up and camped in Judah, spreading out near Lehi. 10The people of Judah asked, “Why have you come to fight us?” “We have come to take Samson prisoner,” they answered, “to do to him as he did to us.” 11 Then three thousand men from Judah went down to the cave in the rock of Etam and said to Samson, “Don’t you realize that the Philistines are rulers over us! What have you done to us?” He answered, “I merely did to them what they did to me.” 12 They said to him, “We’ve come to tie you up and hand you over to the Philistines.” Samson said, “Swear to me that you won’t kill me yourselves.” 13 “Agreed,” they answered. “We will only tie you up and hand you over to them. We will not kill you.” So they bound him with two new ropes and led him up from the rock.
In other words, the Philistines demanded Samson’s extradition, the people of Judah acceded to their demand and even Samson agreed.
12 And the tribes of Israel sent men through all the tribe of Benjamin, saying: “What wickedness is this that is come to pass among you? 13 Now therefore deliver up the men, the base fellows that are in Givah, that we may put them to death, and put away evil from Israel.” But the children of Benjamin would not hearken to the voice of their brethren the children of Israel. 14 And the children of Benjamin gathered themselves together out of their cities unto Givah, to go out to battle against the Children of Israel.
The Children of Israel fought the Children of Benjamin and, as a result, tens of thousands of the Benjaminites were killed.
Sheva ben Bikhri rebelled against King David and fled. Yoav ben Tzeruyah pursued him:
14 And he went through all the tribes of Israel unto Abel, and to Beth-maacah, and all the Berites; and they were gathered together, and went in also after him. 15 And they came and besieged him in Abel of Beth-maacah, and they cast up a mound against the city, and it stood in the moat; and all the people that were with Yoav battered the wall, to throw it down. 16 Then cried a wise woman out of the city: “Hear, hear; say, I pray you, unto Yoav: Come near that I may speak with you.” 17 And he came near unto her; and the woman said: “Are you Yoav?” And he answered: “I am.” Then she said to him: “Hear the words of your handmaid.” And he answered: “I hear.” 18 Then she spoke, saying: “… 19 We are of them that are peaceable and faithful in Israel; do you seek to destroy a city and a mother in Israel? Why will you swallow up the inheritance of the Lord?” 20 And Yoav answered and said: “Far be it from me that I should swallow up or destroy! 21 The matter is not so; but a man of the hill-country of Ephraim, Sheva ben Bikhri by name, has lifted up his hand against the king, even against David; deliver him only, and I will depart from the city.” And the woman said unto Yoav: “Behold, his head shall be thrown to you over the wall.” 22 Then the woman went to all the people in her wisdom. And they cut off the head of Sheva ben Bikhri, and threw it out to Yoav. And he blew the shofar, and they were dispersed from the city, every man to his tent. And Yoav returned to Jerusalem to the king.
In other words, a wise woman convinced the people of the city to kill Sheva ben Bikhri and to throw his head over the wall to Yoav, thereby saving the entire city from death.
They said: when Nebuchadnezzar went up to destroy Jerusalem, he went up and sat in a suburb of Antioch. The Great Sanhedrin went down towards him. They said to him: has the time for the destruction of this House come? He said to them: no, but Yehoyakim the King of Judah has rebelled against me; give him to me and I will go. They went and said to Yehoyakim: Nebuchadnezzar wants you! He said to them: is this what is done, to push off one soul for the sake of another, to push off my soul and sustain your souls?! Does it not say (Deut. 23:16) “You shall not turn over a slave to his master”?! They said to him: did not your ancestress do this to Sheva ben Bikhri – “behold his head shall be thrown to you over the wall” (II Samuel 20:21)? Since he did not listen to them [=agree to be turned over], they stood up and took him and lowered him over the wall. How did they lower him?… Rabbi Elazar said: they lowered him alive… Rabbi Shmuel bar Nachman said: they lowered him dead… Rabbi Yehoshua ben Levi said: I can uphold the words of both of them, they lowered him alive, but he was spoiled and died while in their hands.
In other words, Nebuchadnezzar demanded the extradition of King Yehoyakim and, if not, he would destroy the Temple. The Sanhedrin told Yehoyakim to give himself up and, despite his objections, they handed him over: some say alive, some say dead, and some say alive and he died while in the hands of the Babylonians.
Ulla bar Kushav was wanted by the Romans. He fled and went to Lod, to Rabbi Yehoshua Ben Levi. They came and surrounded the city. They said: if you don’t give him to us, we will destroy the city. Rabbi Yehoshua ben Levi went to Ulla and persuaded him [to give himself up] and gave him to the Romans. Elijah the prophet was used to revealing himself to Rabbi Joshua, but he did not reveal himself. So Rabbi Joshua fasted a number of fasts and Elijah appeared to him. Elijah said to Rabbi Joshua: should I reveal myself to informers!? Rabbi Joshua said to him: but did I not do according to the Mishnah [=the baraita we shall quote below from the Tosefta and Yerushalmi]? Elijah said to him: and is this the Mishnah of the pious?
In other words, the Roman government demanded that the Jews of Lod turn over a wanted Jewish criminal by the name of Ulla bar Kushav and, if not, they would destroy the city. Rabbi Yehoshua ben Levi convinced Ulla to hand himself over to the Romans on the basis of the baraita we shall quote below. Elijah the prophet was not happy about this because in his eyes this was not “the Mishnah of the pious”.
It should be pointed out that in two of the cases above (2 and 3), Jews were extraditing a Jew to other Jews; while in three cases (1, 4, and 5), Jews were extraditing a Jew to non-Jews.
In summary, in 80% of the cases in the Bible and rabbinic literature, they extradited the wanted criminal to those who demanded his extradition and sometimes they even killed him before turning him over (case 3, and case 4 according to Rabbi Shmuel bar Nahman). Only in one case did they refuse extradition of the wanted criminals (case 2), and that refusal led to a terrible calamity for an entire tribe of Israel.
However, it could be claimed that in all the above cases there was no other choice: faced with danger to the entire community versus danger to a single individual, the community was forced to sacrifice the individual. But in the present case, there is no physical danger to the State of Israel. There are two answers to this claim: although the State of Israel is in no actual physical danger, neither is the accused. If Leifer is convicted by an Australian court, she will not be executed but rather will serve time in prison where her life will not be in any danger. On the other hand, while it’s true that there is no physical danger in this case to the State of Israel, there are certainly many other dangers: the danger of hilul hashem and of increased criminal activity as explained above, danger to the rule of law in Israel, danger to the children of Immanuel or in whatever city she will reside, and undermining Israel’s legal status vis-a-vis countries with which she signed extradition agreements.
Thus, while in the present case there is no real danger to the criminal, there is very real danger to Israeli society. There is no doubt that we must follow the majority of the above precedents and extradite the individual for the good of the many.
IV) Halakhic Sources in Rabbinic Literature
In addition to the actual cases described above, there are a number of classic halakhic sources in rabbinic literature which discuss extradition:
A group of [Jews], and Gentiles said to them: “Give us one of your group so that we may kill him; otherwise, we will kill all of you!” – they should all be killed, and they should not hand over a single Jewish soul. But if they specified [a specific Jew], as they specified Sheva ben Bikhri, they should hand over that person and they should not all be killed…(5)
Similarly, if Gentiles said to [Jewish] women: “Give us one of you that we may defile her, and if not, we will defile you all”, let them all be defiled rather than hand over to them one Jewish soul.
Many rabbis have attempted to interpret these passages, yet one thing is absolutely clear: the major objection to extraditing a Jew pertains to a general, non-specific demand, such as “one of you.” But when the demand is for a specific individual, as in the case under discussion, the objection disappears. The Tanna ruled in the Tosefta “they should hand over that person and they should not all be killed…”. And so ruled Rabbi Yehoshua son of Levi in practice in case No. 5 above (“but did I not do according to the Mishnah!”) and this was also the practice in Biblical times as we have seen above.
We have learned in a baraita: Groups of [Jews] who were walking on a road, and Gentiles met them and said to them: “Give us one of your group so that we may kill him; otherwise, we will kill all of you!” – even if they should all be killed, they should not hand over a single Jewish soul. But if they specified [a specific Jew] such as Sheva ben Bikhri, they should hand over that person and they should not all be killed…
Said Rabbi Shimon ben Lakish: provided that the person [specified] is liable to the death penalty like Sheva Ben Bichri.
Rabbi Yohanan said: even though he is not liable to the death penalty like Sheva ben Bikhri.
In other words, according to the opinion of Resh Lakish, one only extradites a specified wanted criminal if he is an extremely serious criminal like Sheva ben Bikhri, while according to Rabbi Yohanan, one extradites any specified criminal.
V) The Attitude of the Geonim, Rishonim and Aharonim
A. Poskim [=halakhic authorities] who did not decide
A number of important poskim quoted the opinions of Rabbi Yohanan and Resh Lakish without giving a ruling. See, for example Rabbi Moshe of Coucy (France, d. 1236), Sefer Mitzvot Gadol, Mitzvot Lo Ta’aseh, No. 165, fol. 59d; Rabbi Moshe Isserles, (Cracow, 1530-1572), Yoreh Deah 157:1; Rabbi Mordechai Yaffe (Poland 1530-1612), Levush Ateret Zahav, Yoreh Deah 157. Rabbi Yosef Caro (Safed, 1488-1575) quoted both opinions at length in his Bet Yosef (to Yoreh Deah 157, s.v. tenan, Hatur Hashalem, volume 9, p. 347) but did not arrive at a clear ruling. Apparently, this is why he omitted the entire matter from his Shulhan Arukh.
B. Poskim who ruled according to Resh Lakish
Women whom idol worshippers said to them: give us one of you and we will defile her and, if not, we will defile all of you, let them defile all of them and let them not hand over one Jewish soul. Similarly, if idol worshippers said to them: give us one of you and we will kill him and, if not, we will kill all of you, they should all be killed and not hand over one Jewish soul. But if they specified him for themselves and said: give us so and so or we will kill all of you, if he was liable to the death penalty like Sheva ben Bikhri, they should give him to them, but one does not rule in this fashion before the fact, and if he is not liable to the death penalty, they should all be killed and not hand over one Jewish soul.
C. Poskim who ruled according to Rabbi Yohanan
However, Rabbi Meir Hakohen of Rothenberg (Ashkenaz, end of 13th century; Hagahot Maimoniot to the Rambam, ad loc., paragraph 6) already expressed surprise at the Rambam’s ruling: “This requires further study, for he ruled according to Resh Lakish and against Rabbi Yohanan, who said: even if he is not liable to the death penalty”. In other words, Maimonides ruled here against a well-known Talmudic principle, that when Rabbi Yohanan and Resh Lakish disagree, the halakhah follows Rabbi Yohanan, except for three cases (Yevamot 36a and parallels; Yad Malakhi, paragraph 568).
Indeed, most of the Geonim, Rishonim and Aharonim ruled according to Rabbi Yohanan and other sources that if they specified a specific Jew, they should turn him over and not be killed, even if that Jew is not liable to the death penalty like Sheva ben Bikhri. It should be stressed that in these cases they are not only speaking of Jews accused of murder, but of other crimes as well. Similarly, the poskim sometimes ruled that one must extradite the Jew for judgment or death by the Gentiles even if he was only liable according to non-Jewish law and not according to Jewish law
There follows a brief summary of these poskim in chronological order:
There are a number of contemporary rabbis who opposed extradition of a wanted Jewish criminal overseas – see Rabbis Gershuni, Yisraeli, and Rabinowitz-Teomim. However, these distinguished rabbis do not have the power to push aside the precedents from the Bible and rabbinic literature which are ma’aseh rav [= a practical decision serves as a legal precedent], the well-known principle that the halakhah follows Rabbi Yohanan when opposed by Resh Lakish, and the opinions of all the poskim cited above.
VI) Summary and Practical Halakhah
In conclusion, Jewish law required the extradition of Malka Leifer to Australia for many reasons: not extraditing her caused tremendous hilul hashem and could lead to increased criminal activity; this is how our ancestors acted in such situations in the Biblical and Talmudic periods in most such cases, even though the accused faced certain death; this is the simple meaning of the baraita found in the Tosefta and Yerushalmi; so ruled Rabbi Yohanan and the halakhah follows him when he disagrees with Resh Lakish; and so ruled the majority of the poskim who discussed this topic throughout the generations. Extraditing an accused criminal such as Malka Leifer overseas is required by the laws of the State of Israel, is required by Jewish law, and is a kiddish hashem, a sanctification of God’s name.
27 Tevet 5782
Atlas — Rabbi Prof. Shmuel Atlas, HUCA 27 (1956), Hebrew section, pp. ב-ח
Ayali — מאיר איילי, “התוספתא ‘סיעה של בני אדם’ והשתקפותה בספרות השו”ת”, מחקרי תלמוד ג’ (2005), כרך א’, עמ’ 41-29
Batzri — הרב עזרא בצרי, “טובת הפרט מול טובת הציבור”, תחומין ט’ (תשמ”ח), עמ’ 67-63
Bleich — הרב יהודה דוד בלייך, “בענין הסגרת יחיד מתוך קבוצה”, תחומין ג’ (תשמ”ב), עמ’ 286-275
Bleich — הרב יהודה דוד בלייך, “הסגרת פושע לעם נוכרי”, תחומין ח’ (תשמ”ז), עמ’ 303-297
Daube — David Daube, Collaboration with Tyranny in Jewish Law, Oxford, 1965
Elon — מנחם אלון, “דיני הסגרה במשפט העברי”, תחומין ח’ (תשמ”ז), עמ’ 286-263 (וראו עוד ספרות אצלו בהערה 28)
Friedman — הרב טוביה פרידמן, “הערות והשלמות לתשובת הרב דוד גולינקין”, תשובות ועד ההלכה של כנסת הרבנים בישראל ב (תשמ”ז), עמ’ 60-59 (also available at responsafortoday.com)
Gershuni — הרב יהודה גרשוני, “אם מותר לממשלת ישראל לסגור פושע לעם אחר”, אור המזרח כ״א, ב’ (תשל״ב), עמ’ 78-69; ושוב בתורה שבעל פה י”ד (תשל”ב), עמ’ ע”ט-פ”ח; ושוב בספרו קול צופיך, ירושלים, תש״מ
Gershuni — הרב יהודה גרשוני, “בירור הלכה בענייני השואה”, קול יהודה, ירושלים, תש”ן, עמ’ תקלא-תקמב
תשובות ועד ההלכה של כנסת הרבנים בישראל ב’ (תשמ”ז), עמ’ 58-53 (וכן באתר responsafotoday.com; הנוסח המקורי של תשובה זאת) וכן בצורה אחרת תחת הכותרת “הסגרת רוצח יהודי״ בשיח מישרים 13 (ניסן ואייר תשמ״ז) עמ’ 17-15
Katz — מנחם כץ, סילבוס לקורס “מבוא לספרות הפוסקים” במכון שכטר, תשנ”א
Lieberman — הרב פרופ’ שאול ליברמן, תוספתא כפשוטה לתרומות, ניו יורק, תשט”ו, עמ’ 423-420
Metzger — הרב יונה מצגר, מים ההלכה, חלק ב’, תל אביב, תשמ”ח, סימן ק”ג
Rabinowitz-Teomim — הרב בנימין רבינוביץ-תאומים, “הסגרה למאסר נכרים”, נועם ז’ (תשכ״ד), עמ’ של״ו-ש״ס
Rakefet-Rothkoff — הרב אהרן רקפת-רוטקוף, “מסירת יהודים לידי גרמנים בתקופת השואה לאור ההלכה”, הדרום נ”ט (אלול תש”ן), עמ’ 40-33 = Rabbi Aaron Rakeffet-Rothkoff, “Surrendering Jews to the Nazis in the Light of the Halakhah”, Tradition 25/3 (Spring 1991), pp. 35-45
Ratner — הרב בער ראטנער, אהבת ציון וירושלים, לירושלמי מסכתות תרומות וחלה, ווילנא, תרס”ה, עמ’ 70-69
Schochet — Rabbi Elijah Schochet, A Responsum of Surrender, Los Angeles, 1973, 106pp.
Weinberg — הרב יעקב יחיאל ויינברג, שרידי אש, חלק שני, סימן ע”ח, עמ’ קצ”ו-ר”א
Yisraeli — הרב שאול ישראלי, “הסגרת עבריין לשיפוט זר”, תחומין ח’ (תשמ”ז), עמ’ 296-287
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.