Disclaimer: While this is strictly
a blog for spreading Torah, this particular post is light on Torah sources as the
source for much of this material is common sense. The main Torah-related claim
here is that no part of the Torah contradicts anything I have written here - if anyone disagrees (and I know that they do), I would be happy to hear their arguments and
refute any such reading of Torah sources.
Introduction
Every nation produces criminals,
and the Jewish People is no exception. When we have lived autonomously, we have
always had methods of fighting crime internally, whether through the
punishments that exist within halacha or through the power given to our
leadership to institute extra measures where necessary.[1]
Over the past few hundred years, Jews were gradually granted the same protection given by states to their non-Jewish citizens.[2] The flip side of this was the loss of Jewish autonomy, and the need to rely on the state for law enforcement. I already wrote in You shall pursue justice that under these circumstances, provided that the non-Jewish (or non-religious) criminal courts act fairly, reporting crime to the relevant authorities is certainly permitted (not doing so would usually be irresponsible).
Even in modern countries today, there are some cases where non-Jewish courts do not act fairly. In one case a few years ago, the Jewish fraudster Sholom Rubashkin was sentenced to jail for a disproportionately long period in the US and appropriately, a long and ultimately successful campaign was fought to secure his release.[3] Just as parents should love and care for their children despite any misdemeanours that they might commit, the Jewish People must not turn its back on Jewish criminals.
This is, however, no excuse for treating criminals as heroes. Sadly, much chilul Hashem has been caused by Rubashkin going on several well-attended speaking tours of Jewish communities across the world (for the avoidance of doubt, his talks are about trusting in Hashem and not about doing teshuva for his crimes).
Other cases are less clear-cut, for various reasons. This post will deal with a few examples of some high-profile Jewish criminals and alleged criminals, and the issues that they raise.
Espionage
Jonathan Pollard is viewed in Israel in an overwhelmingly positive light. Not only was he imprisoned for an anomalously long period, the popular view is that the only crimes he committed were to mitigate misconduct on the part of the US government, who were endangering Israel's security by withholding information. If this were true, his actions were wholly justified and there would not be much to discuss.
This narrative is strongly disputed, and the reality is that the nature of the field prevents us from knowing the whole truth. We can however point out a few general principles. Firstly, in theory, espionage should never be necessary between true allies. Information that is critically important to know should be shared, and this should not cause any damage to either party. Similarly, just as individuals are entitled to privacy where appropriate, countries should respect each other's right to keep some information private where it is not critical for security.
In practice, 'true allies' are at best hard to find and possibly non-existent. It is a well-known adage that countries have no friends or enemies, only interests. If espionage is an established feature of international politics, no-one should be surprised or appalled if they become a victim of it. If enlisting a citizen of an allied country to spy on that country is a tactic used by the US, imposing such a severe penalty on a US citizen for performing the same service for an allied country is morally problematic.
Either way, in this case Israel decided to conduct espionage of this nature. Whether this was right or wrong, the country owes a debt of gratitude to the person who helped them. It is therefore understandable that the country honours Jonathan Pollard, and that Israeli citizens trust the judgement of their government regarding an issue that is subject to many unknowns.
Extradition
Sometimes it is clear that an individual should face trial for a crime committed (or allegedly committed), but there is a question as to where this trial should take place. Typically, this will occur when a criminal flees the country in which the crime was committed. At least in principle, most countries accept the idea of forcibly returning the offender, so that they can be tried by the relevant country's legal system.
The reason for this is that different laws apply in different countries. Some actions may be illegal in some countries and permitted in others (e.g. jaywalking or bigamy); even heinous crimes like murder are treated with varying severity depending on the country. States generally accept the jurisdiction of other states over crimes committed within their borders, so that the laws of each country only apply within that country's borders.
It is therefore usually not legally possible for a court in one country to try someone for crimes committed in another. This has the potential for allowing criminals to escape justice by fleeing, and in order to prevent this, many countries enter into extradition treaties.
From a Torah perspective, halacha governs all relationships between Jews, and the jurisdiction of beis din extends to crimes committed all over the world. There may be questions over which beis din should try a case, but this is probably dependent on where the defendant lives rather than on the place the crime was committed.[4] It would therefore seem that at least in an ideal world, where crimes are tried by beis din, there is no halachic basis for extradition.[5]
As has already been mentioned, in the non-ideal world that we live in, batei din have no jurisdiction over criminal cases and we rely solely on the secular legal system to enforce law and order. Extradition is a part of this system, and until the restoration of Torah law, we likely have no choice but to accept it.
However, even according to secular law, extradition is not automatic. The host country will usually also take reasonable steps to ensure that the criminal or alleged criminal will be treated fairly before turning them over. For example, some countries will not extradite when there is a risk of the death penalty being imposed. Some countries never extradite their own citizens, usually instead allowing prosecution of citizens for crimes committed abroad.[6]
Israel is slightly anomalous in this regard. Israeli law allows extradition of its citizens subject to certain conditions, while also allowing prosecution of Israeli citizens for crimes committed abroad (this requires the approval of the Attorney General). Where relevant, the first option is preferred.
This raises serious halachic and moral questions, as leaving Eretz Yisrael on a long-term basis is forbidden.[7] Although there are exceptions to this, forcing a Jew out of Eretz Yisrael is certainly not permitted. Returning to our earlier comparison, this is like parents evicting a child from their home. It would seem that we should make every effort to change this law.
The reality is that the law did used to prohibit extradition of Israeli citizens. In 1997, Samuel Sheinbein committed a horrific murder in the US and fled to Israel, where he had dual citizenship. The high court ruled that he could not be extradited, and he was instead given a jail sentence and imprisoned in Israel (he was later killed in a shootout after opening fire on prison officers with a smuggled gun).
This whole episode caused a rift between Israel and the US, and eventually led to the law being changed. In 1999, the law was amended to apply only to Israeli citizens who were also resident in Israel. In 2001, a further amendment was made to allow the extradition of Israeli residents for trial, on condition that the criminal would return to Israel to serve any jail sentence.[8]
This last amendment passed in the Knesset without objection, either from religious or non-religious parties.[9] One can only assume that there was a consensus that preserving a good relationship with the US was worth the price of forcing one or two criminals out of Israel. If even one life was saved by this, I would agree.
Jewish Oligarchs
In the past weeks, many individuals and entities with links to Vladimir Putin and the Russian Government have been sanctioned by much of the international community. The aim is to prevent those who aid the atrocities committed by Putin and Russia in Ukraine, either directly or indirectly, from being able to live as normal. The hope is that this will pressurise these individuals, and Putin himself, into ceasing their actions.
Israel has been faced with a difficulty in relation to some of the Jewish oligarchs close to Putin. Many of these have Israeli citizenship, and some may already be living in Israel. The tax breaks offered to new olim have long been an incentive for these individuals to reside in Israel or to base their assets here, and this has presumably been of some benefit to the Israeli economy.
While it is right that Israel's doors are open to all Jews, it should be obvious that this should not obstruct efforts to stop the mass murder of Ukranians (some of whom also happen to be Jewish).[10] There is not even any conflict between the two – if Jewish Russian oligarchs want to live in Israel, they have the option to make this possible by cutting ties with Putin and the Russian government.
To date, Israel has failed to impose the same sanctions imposed by other countries. In my view, the only possible justification for this is the belief that this may allow Israel to act as a mediator between the Russians and the Ukranians, ultimately limiting the murder. I have serious doubts as to whether this is the case or even plausible, but I am no expert.
Some are arguing that avoiding animosity with the Russians is necessary to preserve our own interests. Our military operations against Iranian targets in Syria are made possible by the Russians turning a blind eye, and thus antagonising the Russians endangers our own security.
I reject this argument. While I do not know the fine details of the relationships between Iran, Syria, Russia and Israel, I believe that it is safe to say that any threat posed by Russia to Israel is not remotely on the same scale as the real and present danger to Ukrainians. Appeasing the Russians at a time like this for speculative gains in the long run, is not a position becoming of the people who are supposed to be a light unto the nations.
וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים
וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי
אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:
(ישעיה ב, ד)
"He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”
(Yeshaya 2:4)
[1] See Choshen
Mishpat siman 2
[2] During
the same period, the protection granted to non-Jews greatly increased, with the
rise of democracy and the view that governments exist to serve their citizens rather
than the other way round.
[3] This is one
form of the mitzvah of pidyon shvuyim (redeeming captives).
[4] Chazal discuss situations where two litigants disagree on which beis din to go to for civil disputes, and the halachos are summarised in Choshen Mishpat siman 14. At least in principle, the claimant usually has the right to decide where to go (see Sanhedrin 31b), although there are several factors involved and in practice, it is usually the other way round.
Criminal law is different, as the only 'litigant' is the defendant and there is no claimant (while there may be a wronged party who wants vengeance, he or she is not relevant to the judicial proceedings). Chazal do not discuss explicitly which beis din should try an alleged criminal, but a number of sources suggest that each person is primarily under the jurisdiction of the beis din of their home city. This starts from the Torah itself in Devarim 19:12 and 25:8.
[5] Even
if a person commits a crime in their hometown and then flees elsewhere, as long
as they plan to relocate permanently and their new hometown has a competent and
just beis din, it should not be a problem for this beis din to try them.
[6] See https://en.wikipedia.org/wiki/Extradition#Own_citizens
for a list of such countries.
[7] See Leaving
Eretz Yisrael.
[10] Although this
would certainly be true even if no Jews were in danger.
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