Citation: 30 Isr. L. Rev.

60 1996
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THE DOGMATIC STRUCTURE OF CRIMINAL LIABILITY IN
THE GENERAL PART OF THE DRAFT ISRAELI PENAL CODE -
A COMPARISON WITH GERMAN LAW
Claus Roxin*
I. Introduction
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 Conti-
nental-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.
Unfortunately I must admit that I am hampered in my ability to form
an opinion on the draft by having only the bare English text at my
disposal. There is neither a translation nor explanations for the differ-
ent formulations. Furthermore, I have intimate knowledge of neither
the dogmatics of contemporary Israeli criminal law nor of the case law.
Because I do not have these aids to help me understand the draft, there
is always the possibility that I may understand and interpret the
provisions incorrectly, as the intrinsic meaning of legal concepts can
* Professor of Law, Ludwig-Maximilians-Universitait, Munich.
Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 61
only be understood against the background of the legal tradition, juris-
prudence and practice of a specific country.
This colloquium should, therefore, be seen as only the starting point
for a debate on this matter. We can expound our views, but at the same
time we must try to penetrate deeper into the spirit of Israeli criminal
law so as to understand fully the ideas that underlie each paragraph of
the draft. We might find that we have reached this goal at the end of
the colloquium, and then we can continue with our exchange of ideas.
II. Rules-of Evidence, Strict Liability
The draft code deviates most noticeably from the German Criminal
Code in that the provisions relating to the substantive law are not
treated separately from the rules of evidence. So, for example, section
20(c) provides that a person is deemed to be aware of the existence of
certain circumstances "if he suspects the possibility of their existence
and refrains from clarifying the matter". According to German law this
would not be an issue for the general part, but rather a question to be
decided by the judge, during the proceedings, in accordance with the
principle of the free evaluation of evidence (such decisions are not
subject to preset rules, 261 StPO). Furthermore, according to German
law one would not automatically infer a perpetrator's awareness from
such evidence. Someone aware of a possibility may, due to mere
thoughtlessness or carelessness, refrain from further inquiry. In such
a case, there would be "unawareness" and consequently only negligence.
In practice, this means that in German law the judge has more say in
determining where the border between intent and negligence lies.
Accordingly, in certain circumstances grounds for the exculpation of the
accused exist that are denied him by the Israeli evidentiary provision.
The Israeli provision ensures more legal certainty; the German offers
more elasticity and gives the judge greater discretionary scope. Which
of the two systems is the better is a key question which can be debated,
but the importance thereof should be kept in mind.
The provision of strict liability (section 22), something totally un-
known in German law, as well as in other European criminal law
systems, also amounts to a rule of evidence. According to German law,
punishing someone for crimes for which neither intent nor negligence
has been proven would be a violation of the principle of culpability
which presupposes that a perpetrator can only be punished if he could
ISRAEL LAW REVIEW
have avoided the consequence. Since the principle of culpability is
safeguarded in the German constitution,' a strict liability rule would be
declared null and void in our country.
The details of the Israeli draft, however, show that the legislature is
aware of this problem and has mitigated the consequences of punish-
ment for such offences. If it is proven that there was no culpability,
there can be no strict liability (section 22b). Furthermore, if there is no
proof of culpability, a person may not be sentenced to imprisonment
(section 22c). What remains is the possibility of non-custodial punish-
ment based on suspicion. That, however, still implies a violation of
justice, because the law allows the conviction - albeit in a limited
fashion - of someone who could possibly be innocent. Perhaps the
Israeli legislature should consider avoiding strict liability where indi-
viduals are concerned (punishment for corporations falls in a different
category), because, except for Anglo-American legal systems, no other
country accepts this principle. Even in the United States its constitu-
tionality is at issue; legal writers criticize it, and the Model Penal Code
of 1962 disapproves
of it.
2
As for the punishment of corporations (section 23), the situation is
different. Admittedly, German law has until now not recognized the
criminal liability of corporations (even though corporations could be
fined according to the Ordnungswidrigkeitengesetz, 30) because Ger-
man criminal law is built upon the concept of individual human culpa-
bility. Thus, there is also in this regard a basic structural difference
between German criminal law and the Israeli draft. Here, however, the
Israeli draft code has progress on its side, because there is no question
that holding corporations liable for crimes committed within their sphere
of responsibility is a criminal policy imperative. Because corporations
are not human beings and cannot be held liable in a human sense,
different rules for accountability must be developed for their punish-
ment, and these rules must be based upon corporate failures or mistakes
and not on individual responsibility. This is expressed very clearly in
section 23(a)2 and (b) of the Israeli draft. The German legislature will
probably be unable to avoid introducing a similar ruling in the near
1 See Roxin, AT 1 = Strafrecht Ailgemeiner Tel, Band 1, (1992) 3 Rn. 46 if. with
further references.
2 See Schmid, Strafverfahren und Strafrecht in den Vereinigten Staaten (2nd ed., 1993)
186 ff.
[Is.L.R. Vol. 30
Nos. 1-2, 19961 CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 63
future. I doubt, however, whether such a sanction against corporations
should be called a punishment, but that is an academic question and not
so much of an issue for the legislature.
III. Justification and Excuse
A second structural difference lies in the treatment of the concepts
of justification and excuse; these concepts are not treated as central
systematic categories in the Israeli draft as they are in German law.
Nevertheless, these terms appear throughout the draft in connection,
for example, with what the draft describes as "indirect-author" (section
29(c), 5) and "instigator" (section 30). The term justification appears in
the margin of a section which encompasses various defences (section 49),
and abandonment of attempt (section 28) is referred to in the margin
as "excuse".
However, no systematic deductions are made on these grounds. This
is made clear by the fact that in the third title of the general part, which
deals with situations where criminal liability is excluded, "defences" is
used without further subdivisions. In the individual provisions the
expression, "a person shall bear no criminal liability" is used indiscrimi-
nately, without regard as to whether the point under discussion is self-
defence, mental illness or abandonment of attempt. This is in itself not
so strange if one remembers that the Anglo-American law approaches
the differentiation between justification and excuse with great hesita-
tion. It should also be recalled that this systematic distinction was not
made in the German Criminal Code until 1975. However, the fact that
this distinction is not made in the Israeli draft code leads to considerable
practical problems, which I shall illustrate with three examples.
1. The provision relating to private or self-defence (section 46) does
not clearly demarcate the limits of non-punishable defences, because the
question as to which defences are justified and which perhaps are only
excused is not answered. According to section 46 the actor will bear no
criminal liability "for an act done by him to repel an unlawful attack".
There are no limitations as to the scope of the defence such as those
attempted in the German provision ( 32StGB) by the concepts of
"Erforderlichkeit" (necessity) and "Gebotenheit" (not more harmful than
necessary). Section 52, however, attempts to make up for this by barring
the application of the self-defence provision if the act is not a verniunftiges
Mittel (reasonable means) of preventing injury or damage. Since this
ISRAEL LAW REVIEW
provision, however, covers not only self-defence but also all instances of
necessity, it is not clear to what extent it draws boundaries between
justification and excuse.
It would be important to know this because even when the limits of
justification are exceeded, the possibility still remains that the actor
may escape criminal liability. In such cases, however, the defensive act
would itself constitute an "unlawful attack", and the original assailant
would be allowed to respond with self-defence. Furthermore, a concept
like verniinftiges Mittel (reasonable means), which does not differentiate
between justification and excuse is very vague. An extremely agitated
victim has a different opinion as to what constitutes a "reasonable
means" of defence than does a rational judge. A clause which can be
interpreted in so many different ways, especially when the clause is
used to regulate circumstances in which anyone can easily become
involved, such as situations of self-defence, is to my mind not conducive
to legal certainty.
German law makes a distinction in this respect. According to 32
StGB, acts of defence are only justified when they are "erforderlich"
(necessary) for the warding off of an attack and also "geboten" (not more
harmful than necessary) in light of socio-ethical viewpoints. If the
person who is attacked exceeds these limits because of confusion, fear,
or fright, he is under 33 StGB exempt from punishment, but only on
the basis that his conduct is excused. This means that the attacker
would, in turn, have a right to act in self-defence in response to this "act
exceeding the limits of self-defence by the attacker". It should also be
noted that a person exceeding the limits of self-defence escapes liability
only when the excess is the result of fear; if a person exceeds the limits
of justifiable defence because of aggressive emotions (anger, indigna-
tion, bellicosity) he remains criminally liable - in my opinion the
correct decision from a socio-psychological viewpoint. The Israeli draft
consequently contains no provision governing the exemption from pun-
ishment of excessive self-defence because such a provision presupposes
the differentiation between justification and excuse. One wonders
whether the introduction of this differentiation in the Israeli draft
would not perhaps result in a more precise exposition of the rules
relating to self-defence.
2. In sections 47 and 48 the Israeli draft does, however, distinguish
between general necessity and necessity resulting from duress, but the
differentiation between justifiable and excusable necessity, so clearly
[Is.L.R. Vol. 30
Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 65
drawn in 34 and 35 of the StGB, is not found here. Therefore, it is
not clear whether someone who did not participate in bringing about the
situation of necessity but who is affected by the act of necessity has the
right to act in self-defence. It appears reasonable to deny the affected
person the right to act in self-defence if someone has seized the person's
property (e.g. a car) in order to save his own life. However, the right
to act in self-defence must be granted if the person acting in necessity
has endangered the affected person's life or limb.
It is only when there is a clear distinction between justification and
excuse that such decisions can be made and the scope of acts of necessity
that are exempt from liability determined. If one recognized a justifi-
cation when the interest protected by the person acting in necessity
significantly outweighs the interest which he harms, as does 34 StGB,
the intrusive action can be undertaken on behalf of any person and any
legal interest whatsoever. However, if the actor has no significantly
important interest on his side, the rescue of only those legal interests
that are especially highly valued (life, limb, liberty) should be excul-
pated, and even then only when the actor himself or persons especially
close to him are endangered. This situation is so regulated in 35 of
the German Criminal Code, I am therefore of the opinion that distin-
guishing between justifiable and excusable necessity makes possible
proper differentiations whose importance should be reconsidered by the
Israeli legislature.
3. Finally, for crimes of participation (Teilnahme), the lack of a clear
systematic distinction between justification and excuse has the result
that the extent of accessories required in the Israeli draft is unclear.
Sections 30 and 32, which deal with instigation and abetting, do not
state whether mere unlawful conduct suffices for participation or whether
participation requires that the perpetrator act culpably. As "criminal
liability" is otherwise used throughout the draft, it may be assumed that
at least one culpable principal act is required, and therefore that "ex-
treme Akzessorietat" (extreme accessories), as it is called in Germany,
applies.
In contract, as is shown unambiguously in 26, 27 and 29 of the
StGB, German law is based on the limited form of accessory liability
3
according to which the perpetrator's act need not be culpable but only
unlawful. What are the practical implications of this distinction? In
3 LK11-Roxin = Leipziger Kommentar, (11th ed., 1993) vor 26 Rn. 23 ff.
ISRAEL LAW REVIEW
most instances where a perpetrator's act is not culpable, the master-
mind can be punished as indirect-author. Since the Israeli draft ac-
knowledges indirect-authorship and also describes it fairly precisely,
there is no reason to create a crime of participation (Teilnahme) with
regard to an act committed without culpability. Section 29(d) deals in
a surprising way with situations in which, according to German law,
indirect-authorship of the master-mind, who makes use of a Werkzeug
(tool) acting without culpability, fails because the master-mind lacks the
specific offender characteristics required by the offence. Under this
provision indirect-authorship arises even when only the direct perpetra-
tor satisfies the required offender characteristics. In this way, a gap in
the assignment of criminal liability, caused by the failure to recognize
limited accessory liability, is filled. It is not easy, however, to under-
stand how someone can be an author if he does not have the character-
istics of an author. Were limited form of accessory liability acknowl-
edged, one could, in such a case, simply proceed with the crime of
instigating a non-culpable act.
However, there are still deficiencies. What is the situation, for
example, when a person takes advantage of another's unavoidable
mistake of law? In such a case, the direct actor, even according to the
Israeli draft (section 55), is exempt from punishment. According to
German law, this would be treated as indirect-authorship. I doubt
whether the Israeli draft would also regard it as such (under section
29(c),4). If not, then at least participation should be assumed, some-
thing possible only if a limited form of accessory liability is acknowl-
edged. Furthermore, what is the situation when someone persuades a
mentally ill person, whom he wrongly assumes to be normal, to commit
an act, or helps him to commit such an act? It is hard to see indirect-
authorship in this instance because the person committing the act is, in
the mind of the master-mind, not a person "which serves as a tool in the
first person's hands", as it is described so aptly in section 29 (c). In this
instance one must, indeed, acknowledge a crime of participation, but
this is only possible if one agrees that the requirements of participation
are satisfied by the commission of a merely unlawful act.
The examples that I have used are not exhaustive, but they suffice
to indicate that the difference between unlawfulness and culpability is
not a theoretical question that the legislature may disregard. Indeed,
the application of this differentiation that arise from the separation of
unlawfulness and culpability, which I have illustrated with a few exam-
ples, are essential to, or merely desirable, for a penal code.
[Is.L.R. Vol. 30
Nos. 1-2, 19961 CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 67
IV. Similarities in the Structure and Content of the Israeli Draft
and German Law
After this discussion of structural differences, I would like to turn to
those areas that reflect the considerable affinity between the Israeli
draft and middle European legal traditions, the German legal tradition
in particular. As I cannot address all the issues, I will concentrate on
three important areas, (1) intent and negligence, (2) parties to crime,
and (3) the preclusion of criminal liability.
1. Criminal Liability, Intent and Negligence
a) The Anglo-American concept of mens rea, exemplified in section 20
of the draft, can have a variety of meanings. Here, however, it can
simply by interpreted along the lines of the German concept of intent.
The Israeli provision distinguishes between "intention", "indifference"
and "rashness". "Intention" encompasses what in German terminology
is called intent (Absicht) and dolus directus. Section 20(b) makes clear
that for the purposes of dolus directus, it suffices if the actor considered
the consequences as almost certain to occur. In addition, after intention,
the draft lists indifference to the possibility of bringing about the
consequences. Up to this point the scope of mens rea corresponds
directly to the conception developed by Engisch in his well-known
"Untersuchungen iuber Vorsatz und Fahrlassigkeit im Strafrecht" (1930).
Likewise, according to the overwhelmingly dominant opinion in Ger-
many today, "indifference" leads to punishment for intent; indifference
is seen as a manifestation of dolus eventualis.
However, in addition to "intention" and "indifference", the Israeli
draft also includes "rashness" in intent. A person has acted rashly if he
or she has assumed an unreasonable risk as to the possibility of bringing
about the consequences, hoping that it will be possible to prevent them.
This corresponds to the expansion of the scope of intent, fundamentally
recognized by German jurisprudence in the "Lederriemen" (Leather-
strap) case
4
and widely accepted in the scholarly literature,
5
according
4 BGHSt 7, 363 = Entscheidungen des Bundesgerichtshofs in Strafsachen, Band 7, p.
363.
5 For in depth treatment see Roxin, AT 1, 12, Rn. 21 ff. with further references in
n. 32.
ISRAEL LAW REVIEW
to which someone who takes seriously the possibility of bringing about
the consequences, counts on their occurrence, or is resigned to them,
despite the hope that they will not occur, acts within the scope of dolus
eventualis. One might think that the Lederriemen case served as a
paradigm for the Israeli definition of rashness, because it illustrates
exactly this situation: the offenders, both of whom choked the victim
with a leather strap, were aware of the unreasonable risk to the life of
the victim, yet still hoped that the victim's death could be avoided.
The Israeli draft may extend the scope of mens rea further still.
German case law, as well as the majority of the scholarly opinion,
recognizesg a volitional as -well as an intellectual element of intent.
Accordingly, anyone who recognizes the risk of the consequences but
carelessly relies on this non-occurrence acts not intentionally but with
conscious negligence. This means that a distinction is made between
Hoffen (hope) and Vertrauen (reliance): whereas a mere hope, by defi-
nition accompanied by uncertainty, that consequences recognized as
possible will not occur does not eliminate intent, reliance on the possi-
bility of avoiding the consequences, even if the reliance is irrational,
does eliminate intent.
I do not find this subtle differentiation in the Israeli draft in the
borderline area between intent and negligence. Accordingly, negligence
is defined in section 21 as "unawareness", and the so-called conscious
negligence alternative is not mentioned anywhere. As I see it, this is
an indication that the Israeli draft does not recognize a volitional
element of intent. Rather, it considers intentional all cases in which the
offender is aware of possible consequences, thereby taking a position
which is attracting more and more followers in Germany as well.
6
It is,
in any event, a tenable decision, well within the spectrum of interna-
tional opinion, with the additional advantage that it avoids the great
practical difficulties in differentiating between dolus eventualis and
conscious negligence.
Nevertheless, I will allow myself to ask-whether it is indeed proper
to punish simple carelessness according to the rules governing inten-
tional acts. Let us take the example of a driver who prepares to execute
a risky passing maneuver, is warned by his passenger of the danger, and
6 See, e.g., Schmidhauser, Strafrecht Allgemeiner Teil, Lehrbuch (2nd ed., 1975) 10/
89 ff. with further citations; critical Roxin, AT 1, 12, Rn. 39 ff.
[Is.L.R. Vol. 30
Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 69
answers carelessly, "Nothing will happen!". If an accident occurs, has
this driver acted with mens rea, as would be the case under the Israeli
draft, or is the driver merely negligent, as would be the case in Germany
according to the .prevailing opinion? I leave to the discussion the task
of finding an answer to this question.
b) Section 21 of the draft deals with negligence. The definition is
geared to predictability but rules out liability for negligence for the
person engaged in a reasonable risk. From a legislative perspective, this
is technically a very successful description of negligent behavior and is
also easily reconcilable with the doctrine of objective accountability
(objektive Zurechnung) which currently dominates German negligence
doctrine. It is especially when consequences and circumstances can be
anticipated and the actual behavior is not considered a reasonable risk,
that the offender has created a prohibited danger whose actualization,
as seen by the newer doctrine, embodies the essence of negligence. Of
course special problems of accountability in negligence cases remain
open - such as unusual causal chains and issues associated with the
protective goal of the duty of care. However, such details can hardly be
regulated by legislation and can always be left up to the case law.
The major issue of the Israeli regulation is whether to measure
negligence objectively or subjectively. The draft presents two versions
for discussion: the first finds negligence if a reasonable person under the
circumstances, could have been aware of the possibility of the conse-
quences of the act; the second version focuses on whether the offender
himself "could have been aware of it".
It appears to me that the solution lies in the middle. If a person
suddenly finds himself in a situation in which, because of nearsightedness,
senility, or other physical deficits, he cannot recognize certain circum-
stances that a "reasonable person" would have noticed, it would be
unjust to hold him responsible for consequences that he personally could
not avoid. Holding him responsible would violate the principle of
culpability; therefore, the second version of section 21 is, in this respect,
preferable.
The situation is different, however, when the actor, despite aware-
ness of his own defects, puts himself in a situation which can only be
mastered by a person in an intact psycho-physical condition. Let us
assume a situation in which someone knows that he suffers from severe
nearsightedness or that his ability to react has been slowed by old-age
and that he is, therefore, no longer capable of coping with the risks of
modern traffic. If, despite his knowledge, he takes the wheel and, due
ISRAEL LAW REVIEW
to his physical deficiency, brings about an accident, unavoidable under
the circumstances, he must be held responsible for a negligent act. In
this case the bad driving itself is not negligent; rather, the act of taking
the wheel is negligent. We can speak here of a culpability in assumption
(Ubernahmeverschulden)
that establishes the basis for negligence.
7
For the Israeli draft, this means that the second version could be
adopted and supplemented with a clause, according to which the of-
fender is liable for negligence even if he could not avoid the conse-
quences in the actual situation causing the accident when he negligently
placed himself in danger of bringing about the consequences. Such a
legislative regulation recommends itself that much more because it
would perfectly correspond to the solution provided by the Israeli draft
for "entry into a situation by improper behaviour" in case of absence of
voluntariness (Handlungsunfahigkeit) and necessity (section 50).
All in all, the regulation of intent and negligence in the Israeli draft
is a very successful legislative accomplishment. Because of the contro-
versial nature of the subject, the German Criminal Code contains nei-
ther mention of the different manifestations of intent nor of negligence.
Instead, it leaves further clarification up to judicial opinion and schol-
arship. In contract, the Israeli draft regulates the essential questions
in an understandable and substantively appropriate way, even though
it is possible to argue over details and borderline questions.
2. Parties to Crime
Another special gem of the Israeli draft are the provisions concerning
parties to crime. As I have already discussed the problem of accessoriness,
I will restrict myself here to a discussion of the types of parties to crime
that are described in the law.
a) With regard to the doctrine of authorship, a special achievement
of the draft lies not only in the fact that joint-authorship and indirect-
authorship are acknowledged, but also that their criteria are described
in detail.
As characterized in section 29(b), "joint-authors" are persons partici-
pating in the commission of an offence "while doing acts for its commis-
sion". I interpret this to mean that joint-authors must have undertaken
7 Roxin, AT 1, 24, Rn. 34 ff., 110 ff. with further references.
[Is.L.R. Vol. 30
Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT.ISRAELI PENAL CODE 71
acts in furtherance of the crime. This stance rejects the position taken
in German judicial opinions and frequently supported in the literature,
and which I have always fought against, that preparatory acts can serve
as the basis for a joint-authorship.
8
For additional clarification, the
statement is included that it is immaterial if all acts are undertaken
together or if some are undertaken by one person and some by others.
This, it appears to me, corresponds exactly to my conception of joint-
authorship as "participation with division of labor during the commis-
sion of an offence". I would be pleased if German judicial opinion, which
often still works with unclear subjective criteria, could arrive at such a
position.
The definition of indirect-authors (section 29(c)) adopts the concept,
common in German doctrine, of the perpetrator as a Werkzeug, a tool in
the hands of the master-mind. It describes the perpetrator, the person
directly performing the act, as someone "which serves as a tool in the
first person's hands". The draft does not leave it at this vivid charac-
terization. Instead, it lists its five acknowledged cases of indirect-
authorship: first, criminal incapacity of the perpetrator due to young
age or mental condition; second, when the tool lacks voluntariness
(Handlungsfahigkeit); third, when the direct actor acts without mens
rea; fourth, when he acts without awareness of the true state of things;
fifth, when he is controlled in a manner amounting to duress (section
48) or justification (e.g., section 49(1) and (2)). Since the first and the
fifth cases each contain two conditions, the Israeli draft recognizes seven
possible forms of indirect authorship.
Indeed, the recognized forms of indirect authorship are treated com-
prehensively in the Israeli draft. The German legislature, however, has
not risked making a similar list, because many issues are controversial
in this area. The case of what in Germany is called the qualifikationsloses
doloses Werkzeug (the perpetrator, or tool, who lacks the special offender
characteristics that are elements of the crime) is absent from the list in
section 29(c), to my mind rightly so, because in such a case the direct
perpetrator is in fact not a "tool" in the hand of the master-mind.
Rather, he is simply someone who lacks the requisite offender charac-
teristics (Tdterqualifikationen). It appears to me that section 29(d) does
not encompass this case either. Section 29(d) addresses exactly the
8 LK11-Roxin, 25, Rn. 179 ff. with further references.
ISRAEL LAW REVIEW
opposite case: for an offence that can only be committed by specific
persons, the requirements of indirect-authorship according to section
29(c) addresses exactly the opposite case: for an offence that can only be
committed by specific persons, the requirements of indirect-authorship
according to section 29(c) can be satisfied even if only the direct perpe-
trator fulfills that condition. It is not clear to me how the Israeli draft
would deal with a case in which the perpetrator lacks the requisite
offender characteristics, such as a case in which a public official uses a
non-official to perform an act which constitutes a criminal act only if
carried out by a public official. Perhaps a clause should be added to
section 29(d) that, according to my doctrine of duty crimes (Pflichtdelikte),
9
would recognize an exceptional case of indirect-authorship. Another
option would be to add to the instigation section a provision according
to which someone can be considered an instigator of an offence requiring
special offender characteristics even if the instigator alone, and not the
perpetrator, possesses these characteristics.
These are very complicated questions of detail that may be the result
of a misunderstanding on my part. A further inquiry concerns section
29(c)(4), which refers to a perpetrator who apparently acts intentionally
but "without being aware of the true state of things". What sort of cases
fall into this category? Mistakes of fact unrelated to the elements of the
offence but which, nevertheless, conceal from the perpetrator the true
nature of his actions? If so, we have before us a case that I have
described as an error concerning the meaning of the act ("konkreter
Handlungssinn"),
10
concrete meaning of the acta proposition that is
highly controversial in Germany. Above all, the distinction between
these types of errors and a perpetrator's mere errors in motivation,
errors that would not lead to indirect-authorship on the part of the
master-mind, is subject to a great deal of controversy. It is not clear to
me what knowledge, according to the Israeli draft, should belong to an
"awareness of the true state of things". I also do not know if this
provision encompasses only mistakes of fact or if it also applies to mere
cases of mistake of law on the part of the perpetrator. This would be
interesting to know because several years ago German judicial opinion
recognized as indirect-authorship a case in which the master-mind
9 Roxin, Tdterschaft und Tatherrschaft, p. 352 ff., 651 ff.; Roxin, LK11, 25, Rn. 37
ff., 134 ff., both with further citations.
10 Roxin, ibid., at 212 ff., 639 ff.; Roxin, LKII 25, Rn. 96 ff.
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engineered the perpetrator's avoidable mistake of law.
1
In Germany,
scholarly opinion remains divided on this point.
12
I have mentioned these points so that they can be addressed during
the discussion. Clearly, even the most thorough of laws cannot solve all
problems of interpretation. Besides, many issues can be clarified in the
legislative commentary. However, the possibility that the text of the
law itself could be more precise must always be considered. In any case,
it must be said, in conclusion, that the regulation in the Israeli draft of
authorship of crime is especially successful, and that it is easily recon-
cilable with the doctrine of Tatherrschaft, the theory of parties to crime
that is dominant in Germany.
b) Instigation is defined in section 30 as the prompting of another to
commit an offence by demanding its commission, by urging or encour-
aging the actor, or by any other means that do not amount to duress or
justification. The latter two situations are clearly examples of indirect
authorship. Here, too, the vividness achieved through the use of exam-
ples is striking and is of considerable importance for interpretation.
One can assume that cases, controversial in Germany, in which an act
is induced by the arrangement of an enticing situation or through the
telling of tempting stories about crimes committed by others,
13
are not
considered instigation by the Israeli draft. Since these fact situations
do not contain the element of prompting that is common to all the
statutory examples, they also cannot be deemed to belong to the "other
means" found in section 30.
In a similarly illuminating way, section 32 defines abetting, I have
written in the Leipziger Kommentar that "the contribution of the abettor
makes possible, facilitates, intensifies, or ensures realization of the
crime".1
4
The Israeli draft has chosen almost exactly the same definition
in its charge that abetting is "to enable, facilitate or ensure the commis-
sion or to prevent the apprehension of the offender, the discovery of the
offence or the loot" (whereby the last examples describe situations which
in Germany would be treated as the independent crimes of obstruction
of justice (Strafvereitelung) or accessory after the fact (Begiunstigung).
In addition to the catalogue of the most important cases is a clause
11 BGHSt 35, 347.
12 See Roxin, supra n. 9, at 193 ff., 637 ff.; Roxin, LK11, 25, Rn. 83 ff.; both with further
citations.
13 LK11-Roxin, 26, Rn. 3ff., 58 ff.
14 LK11-Roxin, 27, Rn. 2.
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according to which other contributions "to the creation of conditions
favorable to the commission of the offence" are also considered to be
abetting. This all-encompassing formulation can lead to the conclusion
that abetting is seen as "causal risk-enhancement" (kausale
Risikoerhahung) corresponding to the modern German doctrine - or at
least to my view.
15
I have no doubt that such a comprehensive provision
for abetting is of much more use to practical application than is the
German law. Whereas the German 27 StGB says that "whoever has
rendered aid... shall be punished as an abettor" - a tautology without
meaning, the Israeli provision renders commentary practically unnec-
essary.
3. Grounds for Exemption from Punishment
Finally, I would like to discuss the grounds for exemption from
punishment. This is an extensive subject and one about which many
habilitation theses could be written. Here only short comments are
possible, and they can be kept concise because I have already addressed
the central issue of the separation of justification and excuse. To
summarize, I would simply like to repeat that in this area every legis-
lature is faced with a fundamental decision of significant consequences,
and that it might be advisable to distinguish legally and treat separately
necessity as justification, necessity as excuse, "private" or self-defence
as justification, and excessive self-defence as excuse. The Freiburg
Institute has collected a great deal of comparative legal material that
could be of help in the decision-making process.1
6
1 restrict myself in the
following remarks to a discussion of the specific grounds for exemption
from punishment, regardless of systematic problems of principle.
a) The Israeli draft in section 42 begins with "absence of voluntari-
ness", addressing physical coercion, reflexive and spasmodic reactions,
sleep, hypnosis and all other instances of uncontrollable bodily move-
ments. These are exactly the cases that are treated by German schol-
arship as non-actions (Nichthandlungen) and therefore, in an assess-
ment of criminal liability, eliminated even before determining whether
15 LK11-Roxin, 27, Rn. 1 ff. with further citations.
16 See Eser and Fletcher, eds., Justification and Excuse, Vols. 1 and II, (1987/88).
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or not the elements of the crime have been fulfilled:
1
7 the fact that in
cases of hypnosis the ability to act is generally affirmed and only
culpability is denied is not a fundamental difference. The irrelevance
to the criminal law of the consequences brought about by an "absence
of voluntariness" is quite obvious. Therefore, one might ask whether
section 42 is really necessary. Since the Israeli draft also bases criminal
liability on an act (section 18), of which here there is none, one would
have to arrive at exemption from punishment independent of section 42.
Naturally, however, the inclusion of this additional explanation does no
harm.
b) According to section 43, criminal responsibility begins at age
twelve. This is surprisingly early. In Germany the age of criminal
majority has been 14 years ( 19 StGB) since 1923. Even so, many voices
argue that the age should be raised to 16 years.' I cannot get into the
aspects of juvenile criminology that should be determinative here.
Nevertheless, I suggest a reevaluation of the age limit in light of the
current state of international discussion on this matter.
c) Section 44 regulates "mental incapacity" and corresponds to Ger-
man law in that the actor must either have lacked the ability to recog-
nize the wrongfulness of the act or he must have been unable to act
according to this realization. The underlying circumstances are simpli-
fied in Israeli law in that only illness and mental defects are mentioned.
But this does not lead to a fundamental difference because the findings
of fact in both codes are so broadly formulated that all cases in which
normative responsiveness is absent can be subsumed within them.
In contrast, it is striking that, unlike the German law ( 21 StGB),
the draft does not provide for mitigation of punishment in cases where
the offender's capacity for accountability is considerably diminished.
This, along with the age of majority and the fact that the draft does not
completely implement the principle of culpability, shows the greater
severity of the Israeli law. In German law the fact that mitigation of
punishment is merely optional in cases of limited culpability is highly
controversial: it is assumed, at the very least, that mitigation is man-
17 See Roxin, AT1, 8 with further citations.
18 Schaffstein, "Straftindigkeit ab 16 Jahren?", inFestschriftfirSchiuler-Springorum,
(1993) 371; Frehsee, "Strafreife - Reife des Jugendlichen oder Reife der Gesellschaft?"
in Festschrift fir Schiler-Springorunm, (1993).
ISRAEL LAW REVIEW
datory if the limited culpability is not compensated by other circum-
stances that increase culpability.
9
If one considers that, in practice,
borderline cases of "mental incapacity" are frequent, it appears to me
that, regardless of the principle of culpability, it would be worthwhile
to consider adding a middle level of accountability between full respon-
sibility and the exemption from responsibility.
d) Section 45 is a special regulation for all cases of "intoxication". The
fundamental idea is that an actor who is not accountable because he was
intoxicated at the time he committed an act can nevertheless be pun-
ished if he consciously and voluntarily became intoxicated. The German
law comes to similar conclusions through the construction of actio libera
in causa,
0
whose intentional realization roughly approximates section
45 (c) of the Israeli draft, and through another special provision that
criminalizes intentional or negligent intoxication if an offender commits
a crime while in such a condition ( 323a StGB). The German provision
has been subject to general criticism
21
and cannot be recommended for
international emulation. The Israeli section 45(b) that, if I understand
it correctly, fundamentally recognizes anticipatory culpability
(Vorverschulden) as sufficient basis for punishment, corresponds to an
international trend, as well as to the theses put forward in Germany by
Neumann in his book Zurechnung und Vorverschulden.
22
The Israeli
provision is preferable to the German regulation, even though one must
admit that it only partly takes the culpability principle into account. No
country has yet developed a method, completely satisfactory from a legal
perspective, of dealing with criminal problems associated with intoxica-
tion.
e) Section 46 regulates "private defence", whose systematic and
structural characteristics have already been discussed. This regulation
makes an essential departure from German law in its designation of
legal interests that may be protected by private or self-defence. Accord-
ing to the German perspective, self-defence is for the protection of
individuals. As a result, all legal interests of individuals, such as
domiciliary rights, privacy, honour, property, may be protected by self-
defence, and not only life, freedom, body, or property, as in the Israeli
19 See Roxin, AT 1, 20, Rn. 36 ff.
20 See Roxin, AT 1, 20, Rn. 55 ff.
21 Roxin, AT 1, 23, Rn. 8 if. with further citations.
22 MUnchener Habilitationsschrift, (1985).
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draft. On the other hand, according to the predominant opinion in
Germany,
23
the security interest of the state, a legal interest of the
general public, may not be the object of self-defence. This last point is
not of great import, in that under German law actions undertaken in
extreme emergencies on behalf of national security are in any case
justified by necessity.
24
It is not entirely clear to me, however, why self-
defence should not be allowed for unlawful attacks on all individual
legal interests. Granted, in cases of attacks of lesser importance the
defence should be measured, and one should not immediately cause the
attacker serious harm. But the Israeli draft already takes this into
consideration in section 52, according to which only reasonable defence
is permissible.
f) A discussion of the provisions regulating necessity (sections 47, 48)
can be omitted here because I have already commented on them in part
III, above.
g) Under the title "justification", section 49 treats six instances which
are almost invariably viewed as grounds for justification by German law
as well, although only some of them are actually regulated in the code:
acts based on legal authorization or duty; the carrying out of an order,
as long as the order does not plainly require the commission of an
offence; presumed consent in the case of actions that are necessary to
save life, bodily integrity and health; consent in cases of medical inter-
vention and treatment; actions taken for educational purposes; and
finally, behaviour consistent with the rules of sports and games.
It is not possible for me to address all of these instances in detail;
therefore, I will restrict myself to remarks that I hope will promote
further thought.
Under German law (Military Penal Code 5 I), the carrying out of
an order is only punishable if the actor recognizes "that an illegal act
is involved or the illegality is obvious in light of the circumstances
known to the actor". However, the legislature does not conceive of this
regulation as grounds for justification, but rather treats it unequivocally
as grounds for exemption from culpability - indeed, as a special case
of mistake of law.
25
Viewed objectively, an act that consists of the
commission of an offence is always illegal. I believe that the German
23 Roxin, AT 1, 15, Rn. 35 ff. with further citations.
24 Roxin, AT 1, 15, Rn. 40
25 See Roxin, AT 1, 21, Rn. 70
ISRAEL LAW REVIEW
regulation is more suitable to the case: to be sure, it can hardly be
carried over into Israeli law so long as Israeli law does not recognize a
distinct separation between justification and excuse.
Consent and presumed consent are not regulated in the German
Criminal Code (except for the single provision 226 a StGB). Never-
theless, the statements made by the Israeli draft in this context are
praiseworthy and correspond to German judicial opinion and doctrine.
The question remains, however, why the Israeli draft, since it does
address these matters, gives them such fragmented attention. Consent
and presumed consent play a role not only in crimes against the person
but also in the realization of the elements of countless other offences,
and it is certainly possible to make general statements in this area.
26
In
cases of medical intervention, on the other hand, so many special
problems arise, such as the duty to inform the patient, that there is
something to be said for treating these cases in the Special Part, subject
to a specific rule.
As far as the section regarding activities in sports and games is
concerned, the lack of punishability, in my opinion, follows from section
21(a)2: if the law and the rules of the game are upheld, the only
negligent acts that could be considered here present a "reasonable risk"
as defined by section 21.
h) Sections 50 and 51 are exceptions from the exemption from pun-
ishment in cases of incapacity and necessity. Section 50 is concerned
with the culpable creation of incapacity or necessity and, for such cases,
largely revokes release from punishment. On the whole, this corre-
sponds to the provision concerning intoxication, so I can refer the reader
to the comments made on section 45. All in all, the regulation is worthy
of approval. In the case of necessity as excuse ( 35 StGB), the German
legislature considers culpability in the creation of the situation; in the
case of necessity as justification ( 34 StGB), however, this is not
considered. This is a well thought out distinction. Due to the lack of
differentiation between the two instances of necessity, this distinction
cannot be realized in the Israeli draft.
Noteworthy is the fact that the Israeli draft regulation of self-defence
does not provide any restrictions for cases where the situation calling
for self-defence was culpably created by the actor. German judicial
26 For an in-depth discussion of consent and presumed consent see Roxin, AT 1, 13
and 18 A.
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opinion has developed a complicated system of sozialethische
Notwehreinschrankungen (socio-ethical restrictions on self-defence) for
such situations, as well as for cases where the initial aggression is
carried out by children or the mentally ill. Looking to the Israeli draft,
section 52 could perhaps be of assistance here, if one were to condition
a finding of "reasonable means" of defence upon the fulfillment of certain
requirements. However, the fact that section 52 also applies to necessity
argues against the validity of this suggestion, since there is a special
provision that regulates the culpable creation of a situation of necessity
(section 50).
i) Section 51, according to which the exemption from punishment
does not apply where the person concerned is obligated to face threat or
danger, is unproblematic. The German law contains the same provision
in 35 Abs. 1 Satz 2 StGB. All the same, it is worth mentioning that,
logically, section 51 applies only to necessity as excuse and not to
necessity as justification. This distinction has managed to make itself
felt to a certain extent without the assistance of the Israeli legislature.
j) Section 52 limits the exemption from punishment in cases of self-
defence and necessity to the use of "reasonable" means of defence. I have
already discussed this provision in connection with justification and
excuse above, in part III and would like to reiterate here that it appears
to me too vague. For example, it is not clear if the defence should be
limited to that which is "necessary" or that which is "proportional".
k) Section 53 is a very interesting provision. According to this pro-
vision there is no criminal liability if, in view of all the circumstances
and in consideration of the public interest, the imposition of a criminal
sanction appears to be inappropriate. Apparently the provision is
meant to exclude petty crime from punishment; the comment in the
margin reads: "no liability for trifles". As regards its content this
provision is worthy of approval. However, it seems to me that the
provision belongs not in the General Part of a Criminal Code but in the
procedural law because the circumstances upon which criminal liability
depends can only be determined by law enforcement agents -they are
not based on the law. Hence the corresponding provision in Germany
is located in the Code of Criminal Procedure ( 153 StPO). The Israeli
provision is based on the somewhat careless blend of substantive and
procedural law which I pointed out in connection with the fundamental
differences in structure between the Israeli draft and the German law
(part II). Indeed, one might consider unimportant the question of where
something is regulated. But even the Israeli draft accepts the principle
ISRAEL LAW REVIEW
of the certainty of law (section 1). How can this principle be reconciled
with the fact that in case of section 53 criminal liability is determined
by the judge?
27
1) Finally, sections 54 and 55 constitute the doctrine of error. Section
54 regulates mistake of fact and in such cases bars punishment for
intentional acts. Apparently the provision covers mistake of fact as well
as mistaken assumption of the existence of justifying circumstances.
This deserves unqualified agreement and also corresponds to the pre-
vailing doctrine and judicial opinion in Germany. Furthermore, section
54(b) is correct in banning punishment for offences of negligence for the
case "that the mistake is reasonable". The subsequent special regulation
for strict liability offences has already been discussed.
The following regulation of mistake of law (section 55), like 17 of
the German Criminal Code, exempts from punishment only unavoidable
mistakes of law. In this area, the Israeli provision is better formulated
than the German one, in so far as the exemption from punishment,
rather than being dependent upon complete unavoidability, is extended
even if "the mistake could not reasonably have been avoided". That is,
no more than the law-abidingness of a reasonable person is required.
This is a good solution.
2
It is remarkable that no mitigation of punishment is planned for
avoidable mistakes of law. To be sure, this conforms with the severity
of the Israeli law already apparent in the absence of a mitigation of
punishment for limited accountability. Accordingly, I would like to
argue for, at the very least, the addition of an optional mitigation of
punishment provision. Even if one does not feel bound to the strict
demands of the principle of culpability, it appears to be appropriate,
from a policy perspective, to consider the fact that an actor, acting under
a mistake of law, is not flouting the law, i.e., is not consciously acting
in a criminal fashion. It is possible that the Israeli draft has considered
this point of view in the law of sentencing, to which, however, I do not
have access.
With this I have come to the end of my comparison. I have been able
to address many questions only superficially, but given the unusual
breadth of the material, and the limits of time and space, nothing more
than a general overview of the most important dogmatic aspects of the
27 The issue in German law is addressed by Roxin, AT 1, 23, Rn. 56, 59.
28 In this vein see Roxin, AT1, 21, Rn. 38, 39, 50 ff.
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General Part was possible. Perhaps the mostly cursory nature of my
nonetheless lengthy explanations will become tolerable in light of the
fact that the most important matters will enjoy thorough discussion in
the following papers. My remarks were intended more as a sort of
introduction to the discussion of the Israeli draft.