Is it permissible or required for the State of Israel to extradite a wanted criminal to another country?

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 16^th 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:

1. Judges 15:1-17: Samson avenged himself against the Philistines, “and he smote them hip and thigh, a great blow”.

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.

2. Judges 19-21: B’nei beliya’al [= a depraved lot] in the town of Givah raped and abused the concubine of a Levite, causing her death. The story continues (20:12-14):

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.

3. II Samuel 20:14-22:

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.

4. Vayikra Rabbah 19:6, ed. Margaliot, pp. 431-433 (cf. Bereishit Rabbah 94:9, ed. Theodor-Albeck, p. 1185; and Yerushalmi Shekalim 6:3, fol. 50a):

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.

5. Yerushalmi Terumot 8:10, fol. 46b (ed. Akademia, cols. 251-252; cf. Bereishit Rabbah loc. cit., 1184):

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:

1. Tosefta Terumot 7:20 (ed. Lieberman, 148; cf. Yerushalmi Terumot 8:10, fol. 46b, ed. Akademia, cols. 251-252):

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)

2. Mishnah Terumot 8:12

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.

3. In Yerushalmi Terumot (see above), they quote a similar baraita to the one found in the Tosefta, along with a disagreement of the Amoraim:

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

1. The Rambam, for some reason, ruled according to Resh Lakish and according to Elijah the Prophet mentioned above (Hilkhot Yesodei Hatorah 5:5):

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.

2. Sefer Hassidim, which is attributed to Rabbi Judah the Hassid (Ashkenaz, d. 1217; ed. Wistinetzky, Berlin, 1891, paragraph 258, p. 85 at the top) preferred the “act of piety” of Elijah the Prophet in Yerushalmi Terumot. (But see below for an opposite ruling from Sefer Hassidim.)
3. The Maharam of Rothenburg (Ashkenaz, d. 1293) apparently defended the Rambam against the author of Hagahot Maimoniot (see below), but it’s difficult to know exactly what he said.(6)
4. Rabbi Menahem Hameiri (Provence, 1249-1316), apparently ruled like the Rambam in his Hibbur Hateshuvah (ed. Sofer, New York, 1950, p. 177), but we shall see below that he ruled according to Rabbi Yohanan at length in his commentary to the tractate of Sanhedrin.
5. Rabbi Alexander Zusslein Hakohen (Erfurt, d. 1349; Sefer Ha’agudah, Yerushalmi Terumot, end of chapter 8, ed. Cracow, 1571, fols. 191b- 192a = ed. Brizel, Jerusalem, 1969, p. 153) ruled according to Resh Lakish: “A group of people… they should not hand him over. But if they specified one, they should hand [him over] to them, and they conclude in the Yerushalmi: provided that he is liable to the death penalty like Sheva ben Bikhri”. Our Yerushalmi does not contain such a conclusion; perhaps he had a different reading in the Yerushalmi.

C. Poskim who ruled according to Rabbi Yohanan

However, Rabbi Meir Hakohen of Rothenberg (Ashkenaz, end of 13^th 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:

1. Rav Shalom Gaon, a Gaon in Eretz Yisrael (ca. 900; published from a manuscript by Irving Agus, Sura 1 [1954], p. 23 ff; quoted at length by Ayali, pp. 35-36 and briefly by Lieberman, p. 422, end of note 141) ruled in the case of a Jew who cursed the king, that he should be saved via bribery and, if that doesn’t work and the entire community is in danger, it’s permissible to hand him over to the king’s official for death, based on Yerushalmi Terumot quoted above.
2. Rabbi Moshe of Lunel (Remakh, Provence, 12^th century) wrote in his Hassagot to the Rambam (quoted in Kessef Mishneh ad loc.; ed. Atlas, pp. 2-3): Indeed it says in the Talmud (Pesahim 25b = Yoma 82b = Sanhedrin 74a) that if the governor said to him to hand over so-and-so, he should be killed and not hand him over, because who says that your blood is redder than his. But here “this logic does not apply, for behold they will all be killed including the wanted man, and it’s better that the wanted man be killed, and that they should not all be killed together with him”.
3. As opposed to the opinion quoted above, in another place in Sefer Hassidim (ed. Margaliot, Jerusalem, 1957, paragraph 700 = ed. Wistinetzky, Berlin, 1891, end of paragraph 253, p. 83) it says that “if [there is] a wicked person among them who puts all of them in danger, who fights with the non-Jews… and is not afraid, and he killed a non-Jew, you give him to the non-Jews in order not to be killed, for behold he put himself and all of them in danger”.
4. Rabbi Samson of Sens (France and Eretz Yisrael, ca. 1150-1216) wrote in his commentary to Mishnah Terumot 8:12 quoted above (ed. Vilna, fol. 43a) about non-Jews who demanded to defile a Jewish woman: “In the Yerushalmi it is proved that if they specified one woman, they hand her over”.
5. Rabbi Avraham ben Azriel (Bohemia 13^th century), a disciple of Rabbi Elazar of Worms, author of Sefer Rokeah (d. 1236) and a teacher of Rabbi Yitzhak ben Moshe of Vienna, author of Sefer Or Zarua (d. ca. 1250), discussed our topic at length. After quoting the sugya from Yerushalmi Terumot in its entirety, he rules according to Rabbi Yohanan (Sefer Arugat Habosem, Urbach, Vol. 3, Jerusalem, 1963, pp. 197-198; partially quoted in Hagahot Harema to the Mordechai, end of tractate Sanhedrin, end of paragraph 718, ed. Vilna, fol. 23b).
6. We have already seen above the surprise expressed by Rabbi Meir Hakohen of Rothenberg (Ashkenaz, 13^th century) in his Hagahot Maimoniot against the Rambam
7. Rabbi Pinhass Halevi of Barcelona, the older brother and teacher of Rabbi Aaron Halevi of Barcelona (Spain, 13^th century), (7) wrote in his Sefer Hahinukh (ed. Chavel, paragraph 268, p. 353): “and furthermore [our Sages] of blessed memory said that even if there were a few thousand Jews and violent men said to them: give us one of you and, if not, we will kill you all, they should all be killed and not hand over one Jewish soul. But this is specifically if they said it without specification, but if they specified explicitly, saying: give us so-and-so and, if not, we will kill all of you, they are allowed to give him, as in the well-known matter of Sheva ben Bikhri”. In other words, he apparently rules according to Rabbi Yohanan.
8. Rabbi Menahem Hameiri mentioned above (Provence, 1249-1316; Bet Habehirah to Sanhedrin 72b, ed. Ralbag, Jerusalem, 1971 p. 209 = ed. Sofer, Frankfurt am Main, 1930, pp. 270-271) quoted and explained the sugya from Yerushalmi Terumot and ruled: “And it seems that the ruling follows Rabbi Yohanan, for behold every time the two of them [=Rabbi Yohanan and Resh Lakish] disagree, the halakhah follows him, how much the more so in his Talmud” [according to the tradition that Rabbi Yohanan edited the Talmud Yerushalmi]. Later on, he interprets the Rambam according to Resh Lakish and rejects his opinion.
9. Rabbi Moshe Halawa (Spain, ca. 1290-1370) discussed our topic in his commentary to the passage in Pesahim 25b about “who says that your blood is redder than his” (ed. Jerusalem, 1966, pp. 73-74). He quotes the baraita from Yerushalmi Terumot and the story about Ula bar Kushav and Rabbi Yehoshua ben Levi. In his opinion, Elijah the Prophet said to Rabbi Yehoshua ben Levi “and is this the Mishnah of the pious!” specifically because Rabbi Yehoshua was a Hassid, “but for a regular person — it’s permissible… therefore if he [=the wanted criminal] is liable to death whether by Jews or by Gentiles — it is permissible”. In other words, in his opinion, one can learn from the story about Ula bar Kushav and Rabbi Yehoshua ben Levi that it’s permissible to hand over a Jew who is liable to the death penalty to whoever ask for him under any circumstances.
10. Rabbeinu Nissim Gerondi (Spain, ca. 1320-1376) discussed our topic in his commentary to the Rif on the tractate of Yoma (ed. Vilna, fol. 4a, v. umihu) and rules: “Nevertheless, if non-Jews said: give us so-and-so who is amongst you and, if not, we will kill you all… they should hand him over and not all be killed, since if they will not do so, he and they will be killed” and then he quotes the sugya from Yerushalmi Terumot. In other words, his logic is similar to that of Rabbi Moshe Hakohen cited above.
11. Rabbi Meir b”r Avraham Zack mentioned above ruled in 16^th century Poland in the case of a Jewish murderer, one should not pay even one penny to the authorities in order to free him from death (quoted in Responsa Eitan Ha’ezrahi by Rabbi Abraham Hakohen Rapoport, Ostraha, 1696, No. 45, and from there by Ya’akov Bazak, Proceedings of the Fifth World Congress of Jewish Studies, 3, Jerusalem, 1972, pp. 43, 46 = Sinai 68 [5731], pp. 282, 284).
12. Rabbi Yoel Sirkes (Cracow, 1561-1640) wrote a lengthy responsum about extraditing a Jewish shamash [=sextant] to the authorities in the city of Kalisch in the year 1620 (Responsa Ba”h, 43, printed only in the Frankfort edition of 1697) and he summarized his opinion in his Bayit Hadash to Tur Yoreh Deah 157 (end of subparagraph um”sh bishat hashemad, Tur Hashalem, Vol. 9, p. 349). He permitted extraditing the shamash — even though he ruled according to Resh Lakish and the Rambam — because it was clear that the shamash did indeed do what the Gentiles attributed to him. Furthermore, he maintains that it’s permissible to hand over the Jew to the authorities even according to the “Mishnah of the Pious” of Elijah the Prophet, because there it was a case of handing over a wanted criminal for the purpose of death, but here it is a case of handing him over for trial. (See a thorough analysis of this responsum in Rabbi Schochet’s book and more briefly in Elon, pp. 271-273.)
13. Rabbi Natan Neta of Ostraha, Poland, was asked in a responsum penned ca. 1626-1639 (quoted from a manuscript by Ayali, pp. 37-38) if it’s permissible to extradite a Jew who had converted to Christianity and subsequently run away from the Christians back to the Christians. The Christians were threatening the entire Jewish community, but it’s not clear if their intent was only to return the Jew to Christianity, to torture him or to kill him. Rabbi Natan Neta ruled that he should be handed over to the Christians and that they need not endanger themselves for his sake. He added that in the large Jewish community of Cracow “they handed over a school child to the gentiles, who said: give us this child for idol worship”. I have not yet seen this responsum in its entirety, but it would seem that he ruled according to Rabbi Yohanan that if they specified a Jew, they may extradite him to the Gentiles, whether he is guilty as in the first case or not guilty as in the second.
14. Rabbi David Halevy (Poland, 1586-1667) was the son-in-law of Rabbi Yoel Sirkis (the Ba”h) quoted above. He learned (Turei Zahav to Yoreh Deah 157, subparagraph 8) from the story about Sheva ben Bikhri that one should turn over a Jew to the authorities “even though according to Torah law he was not liable to death, but only according to secular law”, and from this we learn that “even in our time, he who commits a crime and rebels against the king, they hand him over, and the same holds true for other crimes… such as one who engages in counterfeiting or other things which entail danger, it is obvious that they hand him over and it’s appropriate to hand him over, even if they did not specify him, since he is a rodef [=a pursuer] of the rest of the Jewish people by his evil actions which he does with criminal intent, so it seems to me…”. In other words, in opposition to many of the poskim quoted above, the Ta”z rules that one should hand over a Jewish criminal even if they did not specify him, since he is endangering the entire Jewish people according to the laws of moser [=informers] and rodef [=pursuers]. (8)
15. Rabbi Ya’akov Emden (Altona, 1698-1776; Sefer Birat Migdal Oz, Evan Bohan, Pinah 1, paragraphs 70-75, Jerusalem, 1969, pp. 58-59) wrote that the opinion of the Rambam is not necessarily proven. He prefers the approach of Rabbi Yehoshua ben Levy in Yerushalmi Terumot that a wanted criminal should be extradited if he was specified “and it seems more [correct] that this is definitely the law and thus one rules”. In other words, he rules against the Rambam. And later on he writes: “In any case, it’s a widespread law among the Jewish people that whoever puts others in danger through criminal intent, one does not worry about him and one hands him over to the gentiles”, and then he quotes the Ta”z.
16. Rabbi Yishayahu Karelitz (Lithuania and Eretz Yisrael, 1878-1953) wrote in the Hazon Ish to Sanhedrin (Section 25, fol. 203a; quoted by Rabbi Friedman, p. 59): “As for the law, it’s appropriate to rule according to Rabbi Yohanan”.

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.

David Golinkin

Jerusalem

27 Tevet 5782

Notes

1. This responsum was originally published in the Teshuvot Vaad Hahalakhah Shel Knesset Harabbanim B’yisrael 2 (5747), pp. 53-58 (also available at responsafortoday.com in Hebrew with an English summary). It appeared in a somewhat different form in Siah Mesharim 13 (Nissan/Iyar 5747), 15-17. Both of those versions dealt with the extradition of the convicted murderer William Nakash to France. (My thanks to Sara Friedman for translating my original responsum into English.) In this version, which deals with a recent case of extradition, we have totally rewritten the responsum, adding many sources and articles.
2. This section is based on Wikipedia, s.v. “Adass Israel sex abuse scandal” and on Hebrew Wikipedia, s.v. “Parashat Malka Leifer” (accessed 17.12.21). The English article contains 68 footnotes and the Hebrew version 26.
3. Regarding Hilul Hashem, see Leviticus 22:32 and many other verses; Gittin 46a; Tosefta Bava Kama 10:15, ed. Lieberman, p. 53; Bavli Bava Kama 113a-b; Yerushalmi Bava Metzia 2:5, fol. 8c; Entziklopedia Talmudit, 15, s.v. Hillul Hashem; and what I wrote in Responsa in a Moment, Vol. 3, Jerusalem, 2014, pp. 203-204, 213.
4. See Shabbat 21a and parallels; and cf. what I wrote in my book The Status of Women in Jewish Law: Responsa, Jerusalem, 2012, pp. 251, 292.
5. The baraita then quotes the opinions of Rabbi Yehudah and Rabbi Shimon. Since it’s extremely difficult to explain their opinions, I have decided not to discuss them here. See, for example, the discussions by Prof. Lieberman, pp. 420-423 and Dr. Ayali, p. 31 and note 7.
6. The end of the sentence is cut off in the printed versions of the Rambam, but is found in the Shabetai Frankel edition of the Rambam, and is quoted by Rabbi Weinberg, p. 198 and by Rabbi Rakefet, pp. 34-35. There, the Maharam of Rothenburg, the teacher of the author of Hagahot Maimoniot, tried to use the Yerushalmi to defend the Rambam, but it’s not clear exactly what he said.
7. Professor Yisrael Ta-Shema proved in Kiryat Sefer 55 (5740), pp.  787-790 = idem, Knesset Mehkarim: Sefarad, Jerusalem, 2004, pp. 196-201 that Rabbi Pinhass Halevi of Barcelona wrote Sefer Hahinukh for his son Rabbi Yehoshua.
8. Regarding the principles of Moser [informer] and Rodef [pursuer], there is a vast literature. See, for example, Hoshen Mishpat 388:12 and 425; the article by Rabbi Tuvia Freidman listed below; and what I wrote in Responsa in a Moment, Jerusalem, 2000, pp. 89-90.

Bibliography

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

Golinkin —

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                                            

All five volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.