5.4 Situation of Private Defence Caused by the
5.4.6 The Israeli Case Law
I shall conclude this tour of the rules that have been established in various legal systems with a short consideration of the pertinent Israeli case law. The leading ruling was handed down in the Horowitz affair. Because of its great importance as well as because of the interesting situation it presents, the detailed facts of the case are presented here as set forth by the court.1258
The appellant, who was 18 years old at the time of commission of the offence, was entrusted by his father with the management of a snooker club . . . on the date of 2.3.71, during the evening hours, a dispute arose between the appellant and one of the club’s vis- itors . . . whose nickname was Sabi, a young man, 21 years old. The dispute commenced when the appellant prevented Sabi from playing, and also demanded that he repay a loan that he had received from him. Sabi got angry and interfered with the appellant when the appellant began to play. They reached the stage where each of them grabbed the shirt of the other. The appellant said to Sabi: ‘I’ll show you’, he went out to the yard near the club, where he kept a hidden gun to be used when necessary to guard the club, he took the gun out of there and loaded it, with the intention of continuing the dispute with Sabi and in order to frighten him with the gun. However before he returned to the club he changed his mind and went out to the street to wait for his friend, named Ze’evi, with whom he had an appointment. The friend didn’t appear, and the appellant therefore decided to leave the location by himself. He decided to go back into the club to let the person who was meant to replace him know. On the stairs he again met Sabi by chance.
The latter went up to him and said to him while holding him by the chin: ‘You’re a kid for me. I’ll beat you up’. The appellant responded to this: ‘If you’re a man, come and fight with me at the sea’. The intention was to hold a fistfight on the beach. Sabi accepted the challenge and he and the appellant and a third person, Rahamim Harosh . . . went in the
1256 In contrast to the misleading discussions that can be found on this matter. For a similar opin- ion, see the correct rule that was determined in R v Field (1972) Crim LR 435.
1257 See also the text above following the reference to n 869.
1258 Translated by the author, from the ruling, CA 410/71 Horowitz v The State of Israel PD 26(1), 624 at 626–27.
direction of the beach. On the way Harosh beseeched Sabi to leave the appellant alone, but Sabi replied: ‘No, I have to send him to the hospital’. Sabi suggested to the appellant that the fight would take place in one of the backyards in the vicinity. The appellant agreed to this, and the three of them continued on their way to a nearby yard . . . Sabi was stronger than the appellant . . . The district court determined that the appellant did not intend to use the gun during the fight but only in a situation of compulsion, perhaps in order to deter by means of the threat of the gun . . . The appellant intended a fight on the beach, in a lit place where there were passersby. Sabi’s proposal to transfer the arena of the fight to one of the yards was liable to add to the severity of the struggle, and it can be assumed that this was Sabi’s intention. The appellant did not resist this proposal, perhaps because he didn’t want to be considered a coward. Immediately after they arrived in the yard that was appointed to be the battle field, Sabi picked up a broken bottle that was lying on the ground and advanced towards the appellant brandishing the bottle. The appellant feared that Sabi would do him severe bodily harm with the dangerous weapon that he had in his hand. He drew out the gun and told Sabi: ‘Don’t come near. I’ll kill you’. Sabi replied to this: ‘Stop your nonsense’, meanwhile using the bottle in his hand to raise the hand of the appellant that was holding the gun upwards. The appellant then squeezed the trigger and the bullet that was shot struck Sabi’s forehead with an injury that caused his death.
In the Horowitzruling the Supreme Court established the famous rule accord- ing to which:
It cannot be imagined that the argument of defensive action must always be discussed in detachment from the events which preceded the situation . . . This waiver should not be made in favor of one who knowingly and illegally placed himself in the situationthat caused the attack on him . . . The very fact of entering into a fight or a duel is an illegal action.
In this judgment, the Supreme Court also established two exceptions to the rule.
The first—when the opponent of the actor breaches the ‘rules of the game’(for example: when the duel is determined as unarmed wrestling, and then one of the combatants suddenly draws out a deadly weapon and attacks the actor). The sec- ond exception—when the actor clearly demonstrates, by a retreat or by any other means that he wishes to cease the struggle, but his opponent persists with the conflict and continues to attack.1259
Thus the court took the rigid approach of completely negating private defence in light of the actor’s prior guilt, apart from two exceptions, rooted, as we saw ear- lier, in the American law. This approach is difficult, inter alia,because it consti- tutes the law’s avoidance of the duty to protect even one who has endangered himself, and a determination (in effect) that the life of the person who endangers himself may be disregarded. It is interesting to note that even if this rigid approach of the court is accepted, nevertheless denying the accused private defence in the
1259 See Horowitz v The State of Israel PD 26(1), 624 at 629–30.
case of Horowitzand convicting him for manslaughter were erroneous decisions.
It seems to me that in the circumstances of the case, the two exceptions to the rule that the court had already determined did in fact exist: the first—the alteration in the ‘rules of the game’ happened when the opponent picked up the broken bottle and used it as a weapon, and the second—a demonstration of the wish to cease the conflict occurred when the accused threatened his opponent with a gun and warned him not to advance (it should be remembered that even one of these exceptions is sufficient). Moreover, it is questionable whether it was correct to view Horowitz as a person who put himself, by his own guilty action, into a situa- tion where he had to defend himself or whether it would have been more correct to view him as one who was dragged into the conflict by his opponent against his will.
In the ruling in the case of Carvah,1260 the Supreme Court reiterated the Horowitz rule. In the Shukruncase it asked—in quite a long obiter dictum—to clarify the rule and set forth its foundations. The facts of the case were as fol- lows1261: the appellant and the deceased were in a discotheque. The deceased became angry with the appellant because he stared at him, and the deceased demanded that the appellant step outside with him. After they had gone out, the deceased said to the appellant: ‘You “maniac”, I’ll show you’, and later beat the appellant until he fell, kicked him in the face, picked him up and continued to hit him. At that point the appellant pulled out a knife that he always carried for eat- ing and stabbed the deceased many times, as a result of which the deceased passed away.
The first exception that was established in the case of Horowitz namely, the breach of ‘the rules of the game’, was described in the Shukruncase as ‘an unex- pected turn of events’ and dubbed ‘the surprise exception’. Thus, the emphasis was placed on the lack of anticipation by the actor of the sequence of events at the first stage, in which he caused the creation of the situation of compulsion. The second exception that was determined in the Horowitz case won the title of ‘the with- drawal exception’. The court clarified the distinction between the required ‘with- drawal’ (‘If he withdraws completely, actually and in a realistic mannerfrom the fight and expresses his honest will to stop it’), and an ordinary retreat (‘regarding one who is not the aggressor responsible for the occurrence of the fight, an honest attemptto leave the fight is sufficient’).1262
The rule that was established in the above-mentioned judgments was addressed in three completely different ways. The first—a severe criticism of the very nega- tion of private defence, through expressing the unacceptable opinion noted above that the legitimacy of private defence is absolute and cannot be influenced by prior
1260 CA 613/76 Carvah v The State of Israel PD 31 (2), 770 at 772.
1261 CA 88/83 Shukrun v The State of Israel PD 38(2), 617.
1262 Ibidat 621–24. The quotations are at 623, 624.
events.1263 The second—a view of the above-mentioned rule as the desirable adoption (in effect) of the ‘actio libera in causa’ doctrine for this matter.1264The third—support for the rule.1265
Finally, it deserves mention that the rule in the case of Twito,1266in which—in an obiter dictum implying a lack of enthusiasm regarding the rigid Horowitz- Shukrunrule—the Supreme Court requested a restriction to the rule so that it would only apply to causation of a situation of defensiveness by the specific prior behaviour of entering into a fistfight. The matter of Twitodid not involve a fight.
Rather, the appellant broke into the house of the deceased’s brother and stole property from him. The brothers suspected that the appellant was the one who had carried out the burglary and, as a consequence, violent acts took place between the parties, which were terminated when a police car arrived. Later the appellant made a number of attempts to arrange an ‘appeasement’, but failed. When he was informed the next day that the deceased and his brother were looking for him armed with a gun, he too armed himself with a gun and hid in a friend’s apart- ment. At midnight, the deceased and his brother forcibly broke into the friend’s apartment, pushing the friend out of their way, and the deceased turned to the appellant and aimed his loaded gun at him. The appellant fired three bullets at the deceased and killed him. The Supreme Court determined that he should be acquit- ted, rejecting the argument of the prosecution that the non-return of the property by the appellant should be construed as prior guilt thus denying him the right to self-defence. The court determined that the appellant had actually acted in a reasonable manner and attempted to avoid the conflict, and asked, in an obiter dictum:
Is there room, in principle, to negate the defence of self-defence because of an event, that not only because of its character, but also in terms of the time of its occurrence, took place separate from the violent event and a long time before it? Isn’t it necessary for there to be proportionality between the prior bad behavior of the accused and the reaction of the injured person toward him, in order to deny the self-defence for the defensive action of the accused against the violence of the injured person? Is it just because the accused has sinned by committing an offence, and there is room to punish him for it, that his life becomes worthless, in the sense that he will not be entitled to self-defence?1267
1263 This is Feller’s approach—Feller, n 14 above, vol 2 at 445–87.
1264 This is Gur-Arye’s approach—see Gur-Arye, n 336 above, at 82, 97. Further on, after noting the principles of this doctrine, I shall again reiterate the Israeli rule while suggesting a different interpreta- tion, according to which it should not be viewed as an adoption (at least, not a complete adoption) of the doctrine.
1265 This is Kremnitzer’s approach—Mordechai Kremnitzer, ‘Causing the Condition of Self- Defence’ (1998) 29 Mishpatim445 (Hebrew).
1266 See the holding, CA 298/88 Twito v The State of Israel PD 44(1), 151.
1267 Ibid, at 158–59, per Justice Orr.
This ruling earned very harsh criticism from Feller, who focuses on the argu- ment that there is no logical basis for the restriction to a fight in particular.
According to this extreme criticism, the Twitorule is as worthless as a rule based on the first letters of the names of the accused persons Horowitzand Shukrun. In other words, just as these holdings—by chance—involved fights, so it is, prima facie, possible to restrict the application of the Horowitz–Shukrun rule to those cases in which the surnames of the accused persons who brought the problem upon themselves start with the letters H or S.1268My opinion is that both this crit- icism and comparison are inappropriate. Firstly, the above-mentioned restriction can be explained both on a policy ground of deterring people from conducting fights and, also, because of the prevalence of the phenomenon. Secondly, there is, in fact, a strong basis for the questions raised by the court, which are quoted above.
Thirdly—and mainly—it should be noted that the court thus took a significant step in the desirable direction (even in the opinion of Feller himself) of easing the relatively rigid rule that was determined in the Horowitzand Shukrunjudgments.
Accordingly, it is difficult to see why such a fuss was made. In addition, despite my objection to the Horowitz-Shukrunrule, it is difficult to agree with Feller’s extreme view that focuses on leaving private defence intact while almost leaving a vacuum with regard to the required alternative, since an arrangement of some sort for the issue under discussion is—in almost everyone’s opinion—essential. Such an arrangement (although not perfect) was recently added to the Israeli Penal Code by the legislature.1269