Comparisons within the field of sanctions have a long established tradition. Yet, at the same time, they are of a particular difficulty. In our search for the standards governing the system of sanctions we are referred to the general standards of civilization and culture. Perhaps, more than anything else in the criminal justice system, sanctions form part of the cultural pattern of society and, in turn, help creating or reinforcing a particular social pattern. As Garland puts it: “Punishment is one of the many institutions which help construct and support the social world by producing the shared categories and authoritative classifications through which individuals understand each other and themselves”. The particular cultural orientation and ambiance of sanctions do not allow for the light-handed transplant of elements of the system of sanctions from one jurisdiction to another. On the other hand, within a field of law which is, to put it mildly, not exactly characterized by an overflow of solutions and categories, an international and cross-cultural exchange of information has always been considered indispensable for the development of one's own system. Moreover, the concept of Human Rights has come to operate as a cross-cultural yardstick of comparison despite continuing discussion about its universalizability. Notwithstanding existing cross-cultural and individual differences, the measure of pain which States may impose on an individual in reaction to an offence is a matter of universal concern.

The sanctioning policy of a given society may be analysed on a number of levels. It may focus on the actions of the legislative body in the adoption of statutes, or on the legislative and administrative measures taken by the ministers and policy-makers who derive their formal powers from such statutes. Alternatively it may focus on the decisions of the courts, either by examining these on a statistical level or by analysing the content (the rhetoric as well as the substance) of their decisions. The present article will focus primarily upon the legislative policies of the Knesset in the matter of sanctions since the establishment of the state.

Before beginning the analysis of legislative policy in this area, two preliminary observations may be made regarding the informal constraints influencing the formulation of legislative policy in relation to the penal system during the formative years of the state.

In the Israeli legal system, trial courts determine offenders' punishments. Israeli law only sets maximum penalties for crimes and offenses, and rarely provides for mandatory punishment. Even the few instances of mandatory punishment are subject to the judicial discretion recently bestowed by amendment 39 of the Penal Law authorizing the court to impose a sentence lighter than the mandatory punishment, under special circumstances. The broad discretion bestowed by amendment 39 created a situation in which in practice the law would no longer provide for substantive mandatory sentencing. In view of this, the reform of amendment 39 was revised before it went into effect by Amendment 44 of the Penal Law. The current law stipulates that under mitigating circumstances the court may set a penalty lighter than the mandatory one prescribed by law, but that the court must state its reasons for so doing. Discretion is witheld in cases of mandatory life imprisonment for murder, the most important instance of mandatory punishment in our legal system. The law further stipulates that only in three well-defined circumstances may the court pass a reduced sentence for murder.

The role of the victim within the public criminal justice process has traditionally been one of supporting public prosecution. Without the victim's cooperation, police and prosecutors would neither be informed about the occurrence of crimes, nor be able to bring sufficient evidence to secure convictions or extra-judicial settlements. In Germany, for instance, about 90% of all prosecutions are initiated by private complaint.

Compared to what the victim gives the state, the state traditionally gives little to the victim. While the victim's procedural position has been strengthened in Germany in recent decades, namely by the expansion of the right to join the prosecution as a collateral complainant, procedural participation alone has not been sufficient to satisfy the victim's need to be made whole. Victimological research indicates that the victim has a profound interest in compensation of damages. However, since according to our traditional understanding, the victim's claims and the State's claims against the offender are inherently different in nature, they ought to be governed by different types of principles and proceedings. Doctrinally, the criminal courts settle the State's conflict with the offender, while the victim's conflict with the offender is a matter for the civil law and the civil courts. Therefore, the legal consequences of crime, it is believed, reflect primarily the needs of the general public and not the “private” interests of the victim (whether defined as to receive: compensation; reparation; satisfaction; vindication).

According to our programme, this session is to serve as a “general introduction” to our colloquium. Experience shows that assignments of this sort face two grave dangers: they are either confined to the trivial or they bite off more than they can chew. In order to avoid these pitfalls, I have chosen to present an historical review of the major stages of criminal law reform in Germany. Because Israel is also in the process of reforming its criminal law, it might be interesting for the Israeli participants to hear about the reform process in our country. In the course of my presentation I shall, of course, pay particular attention to those aspects of the law which will be dealt with during this conference.

This being a presentation of a legislative enactment, not explanatory notes or a commentary on its provisions and certainly not a theoretical, comprehensive analysis of the topics considered therein, it is bound to be most concise and selective. The reader will thus encounter below a brief reference to the main subjects dealt with by the Proposal, with emphasis on the significance of proposed solutions.

The reasons why Israel requires a new penal code, generally, and, for a start, its Preliminary and General Parts, in particular, are inherent both in the process whereby the existing Law has developed, and the quality of that Law.

Israeli criminal law suffers from old age. Its direct source is the Criminal Code of Cyprus of 1928; the latter having been copied, with certain changes, from the Queensland Code of 1899, which for the most part reflected the judicial decisions of English common law, some of which were formed many years previously, and are largely outdated. Scientific standards have changed and progressed.

It is with great pleasure that I address you today at this Conference in Jerusalem. I believe that there is a profound symbolic meaning in putting the subject of victims of crime on the agenda of a conference in Israel, the homeland and the state of a people who, throughout history, have experienced much victimization.

Unfortunately, it seems that the historical collective experience of victimization does not necessarily enhance the understanding of the phenomenon of victims of crime — neither that of secondary victimization by the criminal justice system itself nor the responsibility of society to address victims’ needs and problems.

It seems that the criminal justice system in Israel, to a certain extent, is still detached from the victims rights movement which has been developing with growing impact during the last decade in the Western world. It is true that in recent years specific issues concerning victims of crime, such as violence in the family and child abuse, have been a topic of growing interest and action in Israel. As a result, legislation has been passed by the Knesset to deal with these issues and the groundwork for an infrastructure of social services is being laid. However, this does not appear to be a result of a genuine or widespread recognition of the social and legal importance of the commitment which a society should have towards the plight of crime victims. Rather, it seems to be more of a reaction to various political pressure groups.

Initially I was taken aback at the request that I express my views on the most important aspects of the general part of the draft Israeli penal code, because the draft contains Anglo-American legal concepts, such as “strict liability” and “mens rea”, which are unknown in Continental-European criminal law. At second glance, however, something quite different came to my attention; namely, that the contents of the draft reflect, to a large extent, the European legal tradition even though the terminology is in part quite different, and even though the draft only partly corresponds to the present dogmatic structures of the European legal system. Some of the passages almost sound like summaries of a middle-European textbook on criminal law. At the outset I want to offer my opinion on the draft: it is a good draft, up to the level of international discussion. It even sets out important parts of the general principles of liability much more precisely than does the German Criminal Code. Many of the draft's solutions are, of course, open to debate, but precisely for that reason we are assembled here.

In this paper, I shall address three problems: the question of content and limits of the “mens rea” elements (part II), the controversy over the correct concept of negligence (part III), as well as the problem of “divergence from the intended causal chain” (part IV). In doing so, I will compare the regulations of the Israeli draft Code (the “Israeli Draft”) not only with German law, but also with English and American law. Of course, within the scope of this paper I can neither probe deeply into the subject matter nor address all the important questions related to it.

Before starting with my questions and comments, I would like to make two introductory remarks:

1. First, I have to admit that I am unsure whether I understand correctly the regulations of the Israeli Draft (sec. 19-21, 22, 54). At least three sources of potential misunderstanding exist: first, the English version of the Israeli Draft is a preliminary translation of the Hebrew text. Any translation may shift the meaning of the original and binding Hebrew text. Second, misunderstanding may also result from my rather modest knowledge of the English language.

The use of the word “intention” has given rise to considerable uncertainty regarding criminal offenses in the Israeli justice system. The term remained undefined in the Israel Criminal Code [New Version] — 1977, despite the fact that it was used in its offense-creating provisions, and was applied by judges on a daily basis. This paper will provide a survey of Israeli jurisprudence on the meaning of the word “intention”, a comparison of relevant provisions in British law, and observations on the reform bill for Israel's Criminal Code (the General Part) of 1992.

Justice Agranat authoritatively defined “intention” in the 1952 case of Jacobovitz v. Attorney General as “foresight of a result accompanied by a desire to bring it about”. This definition has been applied throughout Israeli case law and was reaffirmed of late by Chief Justice Shamgar in Vannunu v. State of Israel.

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.

The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.

On July 31, 1996, Israel and Canada signed a Free Trade Agreement in Toronto. This Agreement, which is the culmination of two years of negotiations, will — upon its forthcoming entry into force — set the framework for future trade between Israel and Canada. This is a significant step for Israel's trade: Canada's population, as of 1995, was 28.9 million; it is the seventh largest world market: in 1994, its export was $164.3 billion F.O.B. and its import was $151.5 billion C.I.F. The Canadian trade relies heavily on the United States, and a Free Trade Agreement is in force between the two since 1989.

Israel import from Canada totaled $216 million in 1995, most of which included sales of machinery and parts, aluminum, paper and paperboard, electrical equipment and parts, pulp of wood, cereals, sulphur and asbestos, optical measuring and checking equipment, wood and man-made staple fibers. That year, Israel export to Canada was $240.8 million, consisting mainly of diamonds, mechanical and electrical machinery and equipment. Like Canada, Israel has a free trade agreement with the United States. Since 1975, Israel has also had a free trade agreement with the European Community, which is, as of January 1,1996, replaced by the recently signed Association Agreement with the European Communities.

Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.

My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.