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Not Actual “Necessity” But Possible “Justification”; Not “Moderate” Pressure, But Either “Unlimited” or “None At All”

Published online by Cambridge University Press:  16 February 2016

S.Z. Feller
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Extract

1. It is not too late, even now, to welcome the appointment of the statutory commission of inquiry, headed by former President of the Supreme Court Moshe Landau, to examine the methods employed by the General Security Service (GSS) in investigating “hostile terrorist activity” (HTA). The Landau Commission Report treats a broad spectrum of subjects, and the ordinary reader, such as myself, must bear in mind that he encounters only the first part of the Report, while there is also a second, confidential part which doubtless comprises discussions, conclusions and recommendations that cast additional light upon the first part and make for its fuller understanding.

Even Part One of the Report, with its references to Part Two, constitutes in and of itself a major contribution to the effort to crystallize clear legal models of conduct for the special governmental organs involved in the sensitive area of the investigation of HTA cases. Raising the subject on the public agenda, the revelation of the facts involved, and examination of the attendant problems by a commission of such standing constitute an important step toward finding appropriate solutions. Although the Commission's approach is open to dispute on some points, dispute precedes all progress, at least the dispute between the new course and its predecessor.

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Articles
Information
Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 201 - 215
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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References

1 Number of page given refers to the official Hebrew report. Numbers in square brackets refer to the English translation provided by the Israeli Government Press Office. Excerpts of the Report in its English translation appear on p. 146 ff. The English quotations in this article are based upon that version, although we have deviated therefrom where we believe it inaccurately reflects the original.

2 Our writings to which the Report refers are: “Necessary Striati Sensu as a Situation Negating Criminality” (1972) 4 Mishpatim 5 and Elements of Criminal Law (Jerusalem, 1987, in Hebrew) vol. II, p. 387 ff.

3 Malicious assault deprives the attacker of any legitimate claim to the protection of his interests, if repulsing the attack requires their infringement. Normal civil rights are restored only upon cessation or repulsion of the attack.

4 See also sources cited in the Report itself, as well as Feller, S.Z., “L'état de nécessité” (1970) 17 Isr. Rep. to the VIII Congress of Comp. Law 204–217Google Scholar; Feller, S.Z., “Defence of ‘Necessity’ and Its Limitations” (1971) 6 Is. L.R. 417–421.Google Scholar

5 It even states that “it is built entirely upon the idea of ‘the concept of the lesser evil’.” (emphasis added).

6 Even as opposed to “putative necessity”, which is contingent upon a certainty of the danger, though it be mistaken due to an inaccurate perception of reality. This is clearly distinct from surmised necessity, in which reality is correctly perceived, and the mistake allowed for (if “reasonable”) regards the evaluation of the need to use force to prevent a greater danger.

7 That the interrogator acted in order to prevent massive loss of life and of property which could not otherwise be avoided.

8 Williams, Glanville, Textbook of Criminal Law, (London, 2nd ed., 1983) 503.Google Scholar

9 Ibid., at 503–504.

10 Robinson, Paul H., Criminal Law Defences, (West, 1984) 56–57.Google Scholar

11 See sec. 34 of the Swiss Penal Code, 1937; sec. 34 of the West German Penal Code, 1975; sec. 18 of the East German Penal Code, 1968; sec. 25 of the Greek Penal Code, 1950; sec. 54 of the Italian Penal Code, 1931; and many others.

12 Of course, discounting those rare cases such as the “ticking time bomb”.

13 See sec. 46 of the “Criminal Code Bill: Preliminary and General Parts” (1984) 14 Mishpatim 127. In that section, four additional hypotheses were included along with the two in the existing law, though some need no express mention, such as acts performed in the course of games and sports that are not contrary to the rules of those activities, or reasonable acts performed by a parent or guardian for the education of a minor.

14 A citizen may, under certain circumstances, make an arrest without a legal warrant, whereas a policeman must, under certain circumstances, make such an arrest.

15 The actual scope of values under sec. 22 is slightly different: The danger must be characterized by the possibility for inflicting grievous harm or injury upon one's “person, honour or property or on the person or honour of others whom he was bound to protect, or on property placed in his charge”.

16 Quote taken from Feller, S.Z., Elements of Criminal Law, op. cit. supra n. 2, vol. II, p. 399.Google Scholar

17 Ibid., at 482.

18 As for the underlying considerations, see the Report at p. 51 [59].

19 Supra n. 13.