1 The Criminal Code Ordinance was promulgated by the British High Commissioner and became effective in 1936. It was based on the English common law and is much the same as criminal legislation introduced by the British in other colonies. The history and sources of the Criminal Code Ordinance were uncovered and described in two important articles: Abrams, , “Interpreting the Criminal Code Ordinance, 1936: The Untapped Well”, (1972) 7 Is. L.R. 25 CrossRefGoogle Scholar; Shachar, , “The Sources of the Criminal Code Ordinance 1936”, (1979) 7 Iyunei Mishpat 75 Google Scholar.

Section 16 of the Law and Administration Ordinance, 5708-1948, provides a streamlined procedure for publishing a Hebrew translation of Mandatory laws in effect at the time the State of Israel was established, to be called the New Version. Upon completion of the procedure, the Hebrew New Version becomes the official version of the law, replacing the English Mandate text. The New Version is prepared by an advisory committee consisting of a judge, the Attorney General or his representative, a representative of the government ministry charged with administering the law at issue, a practicing lawyer and an academician. Approval of the proposed New Version is by decision of the Knesset's Law and Constitution Committee.

In 1977, work was completed on the New Version of the Criminal Code Ordinance. Since by then many provisions of the special part of the Ordinance had been amended by the Knesset, it would have been somewhat misleading to call the Code a “New Version” of the Criminal Code Ordinance. It was, in fact, in part, a New Version of the Mandatory Ordinance and, in part, original Israeli legislation. The Committee chose to call the code the Penal Law, 5737-1977. But despite the name, sections 21 and 22 of the Penal Law were not new Knesset legislation. They were merely a New Version of sections 17 and 18 of the 1936 Criminal Code Ordinance, which had governed duress and necessity since 1936.

2 Section 17 continues to be the governing law, in its Hebrew New Version. It is now section 21 of the Penal Law 1977. See n. 1, supra.

3 This matter was dealt with at length in Enker, , Duress and Necessity in the Criminal Law (Bar Ilan Univ., 1977)Google Scholar.

4 This provision no longer is part of the Law. It was amended in 1992. See part C below.

5 Section 18 also provided the source in Israel law for self-defense. In this case, too, the legal literature proposed to solve the problem by interpreting the requirement of proportionality differently in cases of necessity and in cases of self-defense. Feller, , “Necessity ‘Stricto Sensu’ as Negating the Illegality of the Act”, (1972) 4 Mishpatim 5 Google Scholar; Enker, supra n. 3, at 97-105.

6 See Stephen's, History of the Criminal Law of England, vol. 2, (1883) p. 107 Google Scholar.

7 R. v. Dudley and Stevens, (1884) 14 Q.B. 273. In the fourth edition of his Digest of the Criminal Law, published after the decision in the Dudley case, Stephen, expressed the opinion that he could “discover no principle in the judgment” (p. 25)Google Scholar.

8 Feller, supra n. 5; Enker, supra n. 3, at 97-105.

9 Section 200, renumbered in later editions as section 305.

10 Shachar, supra n. 1.

11 Attorney General v. Patniev, (1949-50) 2 P.D. 424, at 447.

12 Feller, supra n. 5; Enker, supra n. 3.

13 “Article 200: Private Defence.

The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that….” (Emphasis added.)

14 Enker, supra n. 3, at 117-125.

15 Ibid.

16 Afanjar v. The State of Israel, (1979) 33(iii) P.D. 141.

17 Special Military Tribunal 2/91, The Chief Military Prosecutor v. Lt. Col. “R”, at p. 8.

18 Attorney General v. Kaminsky, (1955) 9 P.D. 54.

19 Ashwal v. Attorney General, (1952) 6 P.D. 1116.

20 Kaminsky, supra n. 18.

21 See, e.g., Enker, supra n. 3; Feller, S.Z., Elements of Criminal Law, vol. 2 (1987) para. 494, pp. 393–94Google Scholar; Fletcher, , “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory”, (1973) 8 Is. L.R. 367 CrossRefGoogle Scholar; Kremnitzer, , “Proportionality and the Psychotic Aggressor: Another View”, (1983) 18 Is. L.R. 178 CrossRefGoogle Scholar.

22 Section 22B.

23 One such case arose recently in the United States. Twins were born joined together at the chest with one heart. There was no chance that both could survive. Surgery enabled the physical separation of the twins and reconstruction of the heart so that one might be saved. The other died immediately after the surgery was performed. No one has suggested that the surgeon who performed the operation, or the parents who permitted it, might be guilty of murder. Indeed, such surgery has been permitted according to Jewish law as well.

24 A court might be able to overcome this problem by holding that the term “cause” implies fault or blame in this context. But, for reasons I shall not go into here, this is at best a partial solution to the problem.

25 Section 46.

26 Section 48.

27 Section 47.

28 Section 52.

29 The point is made in the explanatory comments to section 52.

30 Herewith is an unofficial translation of the new Code provisions dealing with the three defenses.

“Self-Defense

34J. A person shall not be criminally liable for an act that was immediately necessary in order to repel an unlawful assault involving a tangible danger of injury to his life, his freedom, his body or his property, or that of another; provided, however, that a person does not act in self-defense if he brought about the attack by his own improper behavior, foreseeing that matters might so develop.

Necessity

34K. A person shall not be criminally liable for an act that was immediately necessary to save his life, his freedom, his body or his property, or that of another, from a tangible danger of severe injury that derives from a given set of circumstances at the time of the act, and he had no other way but to do it.

Duress

34L. A person shall not be criminally liable for an act that he was commanded to do under threat involving a tangible danger of severe injury to his life, his freedom, his body or his property, or that of another, in consequence of which he was coerced to do the act.

Placing Oneself in the Situation by an Improper Act

34M. (a) The provisions of sections … 34J and 34K do not apply if the actor was aware, or an ordinary person in his situation could have been aware in the circumstances, before the creation of the condition in which he did his act, that he might do it in such condition, and he placed himself in that condition by his improper and controlled behavior; provided that the act done in the conditions set forth in sections 34K and 34L did not concern the saving of a third person's interest.

….

Exceeding the Reasonable

34P. The provisions of sections 34J, 34K and 34L do not apply if the act was not reasonable in the circumstances for the purpose of preventing the injury.”