As noted above, although there is an almost decisive consensus with regard to the need for some sort of requirement of immediacy, there are also opponents who suggest that this requirement should be negated or—frequently—that it should be significantly eased.660Robinson, faithful to his general school of thought, accord- ing to which the absence of social damage is sufficient to establish justification, opposes the rigid requirement of immediacy within the framework of private defence.661In his opinion, a requirement of the ‘immediacy of the danger’, and even a requirement that the defensive force should be ‘immediately necessary’, are both undesirable, but, rather, it is adequate to view the immediacy as a (non- decisive) factor in estimating the necessity.662 With regard to the commonly accepted claim that the immediacy requirement is very important for the preven- tion of sweeping authorisation for the individual to independently make value judgments that are usually left to the legal and judicial authorities, Robinson answers that in a situation of private defence, the option of choosing who will suffer the damage is not available for the actor anyway, since he is only permitted to use force against the aggressor himself.663 The context for the immediacy
literature concerning this issue and its possible influence on the rule of private defence in general, it will be discussed further on, separately and in depth—see Ch 5.5
An additional issue that some people connect with the issue of immediacy is that of preparatory activitiescarried out by the person who might potentially be attacked in preparation for the defensive action, such as equipping himself with a weapon despite the lack of the required licence. This issue was discussed above in its appropriate place—within the discussion of the scope of the application of pri- vate defence—see the text above accompanying n 523.
A typical case that raises a question regarding the second point in time—from which private defence will no longer be justified—is the recapture of property following its dispossession. It is accepted that after the passage of a long period of time from the seizure of the property by the aggressor, the legal holder of the property who was dispossessed is not permitted to take the law into his own hands, but he should request relief from the court. There are legal systems that permit recapture on the condition that it is close to the dispossession—immediately after it or as part of a ‘hot pursuit’ after the aggres- sor-usurper. A possible way to solve the difficulty with the requirement of immediacy that arises from such permission is to say that the holding of the property by the aggressor-usurper soon after the dispossession constitutes a direct continuation of the attack and not a stage that comes after it.
This issue—in all its aspects—will be discussed within the setting of the broad discussion of defence of property—see Ch 4.3.2 below.
660Thus, eg, Williams suggested viewing the question of immediacy as (only) a consideration in the evaluation of necessity and not as a separate requirement—see Williams (1983), n 1 above, at 503–4;
Yeo notes the softening of the requirement for immediacy in Australian case law—in the spirit of the proposal by Williams—see Yeo, n 228 above, at 491–92; Gordon notes that Hume claimed that no requirement for immediacy should be imposed in self-defence against a criminal—see Gordon, n 1 above, at 752.
661See Robinson (1975), n 37 above, at 280 fn 53.
662See Robinson (1984), n 37 above, vol 2 at 4, 76–78, 566.
663Ibidat 78 fn 27. In this way, Robinson ignores other decisions that remain in the hands of the actor, such as the type of defensive force and its degree. In practice, the very use of defensive force itself is also at the actor’s discretion.
requirement is—in his opinion—solely within the framework of the excuse defences—as opposed to the justification defences—since the excuse is given when there is a situation that is so pressing that there is no time for contemplation.664In order to support his opinion that it is undesirable to include the immediacy requirement within the framework of justification, Robinson presents two exam- ples that are frequently—following his use—discussed in the literature. The first:
Suppose a ship’s crew discovers a slow leak soon after leaving port. The captain unrea- sonably refuses to return to shore. The crew must mutiny in order to save themselves and the passengers. If the leak would not pose an actual danger of capsizing the vessel for two days, should the crew be forced to wait until the danger is imminent, even though the disabled ship will be too far out to sea to reach shore when it is? Or should they be able to act before it is too late, even though it may be several days before the danger of capsizing is present?
The second example:
Consider the case of the bomb maker X, whose construction plans require a ten day period for building the weapon. Suppose further that the actor, D, knows that X is going to set off the bomb in a school. He also knows that X’s construction plans require ten days to build the weapon, and that the police and other authorities are unavailable to intervene. Under the simple requirement that the conduct be ‘necessary’, the actor could trespass upon X’s property and abort the plan by disabling the bomb at any time, includ- ing the first day, as long as such action was the least drastic means of preventing the pro- ject’s completion. Under the ‘immediately necessary’ restriction, the actor would be obliged to wait until the last day, presumably until the last moment that intervention would still be effective.665
On this subject, it is interesting to note the special experience accumulated in Israeli law. In the original version of Article 22 of the Penal Code, there was no explicit requirement of immediacy. Court rulings nevertheless established that immediacy of the danger is required, deriving this requirement from the require- ment of necessity that appeared in this article, and especially from the condition that the actor ‘did not act as he did except to prevent the results that it was not pos- sible to prevent in another manner’. This determination was made despite the fact that an explicit requirement for immediacy (‘a reasonable fear that if he does not
664 See Robinson (1984) at 57.
665 See Robinson (1984), n 37 above, vol 2 at 56–58.
Two additional interesting examples are presented by Kadish and Schulhofer. The first is very simi- lar to the second example given by Robinson that was presented above: A husband who imprisons his wife’s lover with the intention of killing him several months later—when the disappearance of the lover drops from the headlines. The second—the State v Schroeder199 Neb 822, 261 NW 2d 759 (1978)—a prisoner who stabbed a sleeping prisoner who had threatened to perform an act of sodomy on him by force as partial payment for a debt he owed the threatening prisoner. The prisoner was convicted and his conviction was affirmed on appeal. It is interesting to note the minority opinion, arguing that the accused could not stay awake continuously each and every night until the expected attack. See Kadish and Schulhofer, n 640 above, at 869–70.
succumb he will be killed immediately or will immediately suffer severe injury’) already appeared in Article 21 of the Penal Code, in which the ‘duress’ defence was established. The requirement of immediacy in Article 21 cited here implies the existence of the negative framing of this requirement regarding the matter of immediacy that appears in Article 22. An explicit requirement of immediacy of the danger (or of the injury) was provided both in Israeli legal literature and in Israeli draft laws, and it appeared to be undisputed. This was the situation until 1988, when part of the report of the Commission of Inquiry on the subject of methods of interrogation of the Israeli General Security Services regarding hostile terrorist activities (a committee chaired by Justice Landau; hereinafter: ‘the Landau Report’666) was published. Although the report primarily addressed the ‘necessity’
defence and not private defence, the determinations made in the report are very important for the subject of our discussion. The central situation that is discussed in the report is the use of force against a person under interrogation in order to extract information from him that is liable to be useful for the protection of the public from terrorists (those other than the person being interrogated himself). In the Landau Report, the requirement of immediacy was rejected for both the mat- ter of ‘necessity’ and of private defence, with regard to which it was written as fol- lows: ‘Although the typical case of self-defenceis to counter immediate danger to the person attacked, this too is not an insurmountable condition’.667To support their conclusion regarding the absence of a requirement of immediacy, the authors of the report noted the following arguments: (1) The immediacy require- ment did not appear in Article 22 of the Penal Code; (2) Williams and Robinson oppose, as mentioned, the independent requirement of immediacy of the danger;
(3) The two examples set forth by Robinson presented above, that—in the authors’ opinion—point to the difficulty of the immediacy requirement.668In the opinion of the authors, Article 22 (that established a framework for both ‘neces- sity’ and for private defence) was based on the idea of ‘perception of the lesser evil’, without specifically demanding immediacy. An additional example that was noted by the authors was the example presented by Zuckerman regarding the torture of a person interrogated in order to extract information from him that might save human life following the placing of a bomb in a crowded building. On the basis of this example, and also in consideration of Robinson’s examples, the authors of the report raised the question:
[W]hen the detonation clock that is attached to the explosive device is already ticking, what is the difference, regarding the need to act, between the certain activation of the
666Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Chairman Justice Landau, 1987) (Hebrew). Parts of the report are translated into English at (1989) 23 Israel Law Review146–88.
667Ibidat 49.
668Ibidat 48–50.
device in five minutes time and its certain activation in another five days? The time fac- tor is not what is decisive but, rather, the comparison between the severity of two evils.669 The explanation that was presented at the beginning of this chapter in support of the immediacy requirement can also be use to critique the Landau Report. The purpose of the compulsion defences is limited—provision of a suitable response to a difficult and pressing situation, ie, to a situation of compulsion. In such a sit- uation, it is not practical to base the decision solely on the value judgment of the legislator, and there is therefore a willingness to allow the individual to exercise a certain value judgment—subject to important restrictions—by himself. However, the compulsion exceptions are not suitable to be used as a systematic replacement for the value judgment of the legislator with regard to situations that allow an action based on this judgment. It could be that there is a need for special rules that will apply to interrogations within the framework of the war on terror in particu- lar, and situations of warfare in general. However, such rules must be made by the legislator alone, with full awareness of their significance, and the existing compul- sion defences should not be distorted to provide a response for such cases. After all, it should be remembered that even if the waiver of the immediacy requirement is accepted with regard to a certain situation, its complete removal from the com- pulsion defences would lead to the individual being able to act in innumerable different ways, while injuring the interests of others, based, to a certain extent, on his own value judgment,670because the compulsion defences have general appli- cation to (almost) all the specific offences, and not only to those that were discussed in the report.
A few words with regard to the examples that were presented in the Landau Report. I am of the opinion that all of the examples in effect involve immediate danger, even if the expected result is not immediate. In the case of the hole that was made in the ship: although the result—the sinking of the ship—is ‘only’ expected two days hence, from the facts of the case it appears that if the crew waits for these days to pass, the ship will by then be far out at sea and it will no longer be possible to rescue it. Thus the danger is immediate from the moment that the hole in the ship is created.
In the case of preparation of the explosive device: it is difficult to imagine how such a situation could occur—the preparation of an explosive device throughout 10 days, during which entire period neither the police nor any other authorities are able to intervene. But if indeed this is the situation, an important question, which
669 Ibid.
670 The normative guidance that can be obtained from the law, because of the generality of its drafting, is restricted. Because of the special circumstances of each and every case, the direction that it is possible to receive from court decisions is also limited. Consequently, at the time of action, the actor primarily uses his own judgment.
cannot be answered within the circumstances of this case, should be noted: Can D wait and neutralise the device at later stages of the 10-day period? If it is not cer- tain (or near certain, since the future is usually uncertain) that he can do so in the last days of this period, then the danger is already immediate in the first days and he is entitled to act. If, on the contrary, it is certain that he could intervene even on the 10th day in an effective manner, I do not see what is absurd in directing him by law to wait.671At any rate, given the fact that in examining the proportionality requirement the balance will tend almost decisively to the side of the many lives which are likely to be injured by the explosive device—lives against which is posed, apparently, only the property of the person who assembles the device, and perhaps his privacy—it is reasonable to assume that the court would be satisfied with a level of immediacy that is not high (since, as mentioned, I am of the opinion that the question of immediacy is not a question of yes or no, black or white, but that there are various degrees of immediacy). The case would be more difficult if the actor must, in order to neutralise the device, kill the assembler, for then—if it were pos- sible to wait without any great risk—the direction of the law according to which it is indeed necessary to wait is, in my opinion, reasonable. After all, perhaps—as Robinson himself noted regarding this example—the assembler will regret his plans, and will cease preparation of the explosive device.
The case of the time bomb: If indeed there is certainty (as appears from the facts of the case) that the explosion is expected in the distant future, then it is actually possible that the time factor could be decisive. Although the ticking clock beside the explosive device has strong and frightening psychological influences, if it is definitely clear that the device will not explode before a significant period of time passes, a range of different actions may be considered to address the (not immedi- ate) danger, such as evacuation of the building and professional treatment of the device. I am of the opinion that this example, which is discussed in the Landau Report, activates intuitions that many of us have with regard to an explosive device that is attached to a ticking clock; these intuitions are founded on life experience, according to which the period of time that is ‘assigned’ by the clock is not a year, but indeed, very brief. However, if the period of time is very long, such that during this period it would be possible to safely neutralise the device, it is actually possible to establish that the danger is not immediate, with all that this means regarding lack of authorisation for the individual to violate the prohibitions estab- lished in law regarding the neutralisation of the device. An additional feeling that exists for some of the public and that also influences their attitude with regard to this example of planting a bomb, is that it is desirable that the security forces be equipped with the tools (not only physical tools, but also legal ones) that are
671In passing, it should be noted that if the preparation of the device was within the scope of a
‘crime’, it is possible that the law itself would require its immediate prevention—see, eg, s 262 of the Israeli Penal Code 1977. In certain cases, there could also be influence of the ‘Thou shalt not stand against the blood of thy neighbour law’, 1998.
required for their success in their war on terror. However, as mentioned, my opin- ion is that the legislator must treat this issue directly—with an examination of all its aspects and conscious adaptation of a fitting solution. There should not be any distortion of the general compulsion defences in order to achieve this solution, such as would permit an action even in the absence of immediate danger. The dan- ger embodied in the waiver of immediacy is great, since such a waiver makes the historic fear present in English law that anarchy could be caused by the compul- sion defences very realistic.672It has been said that there is no place for this fear when an immediacy requirement exists. However, in the absence of this require- ment of immediacy of the danger, when no emergency, situation of pressure, or situation of compulsion is involved, the fear that anarchy will prevail is actually very realistic if individuals are invited to contravene criminal prohibitions by relying solely on their own personal value judgment, according to which the cost of their action (that is forbidden by law) is preferable to the cost of avoiding it (a danger that is not necessarily immediate).
The dangers involved in the use of the compulsion defences for non-intended purposes while relinquishing the immediacy requirement—were noted by many scholars who vehemently opposed the opinion of the authors of the Landau Report. A significant portion of this writing is collected in Vol 23 of the Israel Law Review, where two of the volume’s three issues were devoted to this subject.673I shall not detail the opinions that are expressed there, especially since most of them digress from the subject under discussion, by relating first and foremost to the issue that was then in question (the torture of persons interrogated by the security services) and to the ‘necessity’ defence (and not to private defence). It is interest- ing, however, to note that even Robinson, on whose opinion, that no independent requirement of immediacy of the danger should be demanded, the authors of the Landau Report relied, expressed his reservations in a letter to the editor of the journal with regard to the results arrived at by the authors.674
The last word in this interesting evolution in Israeli law has been declared, in the meantime, by the legislator, who established an explicit requirement of immedi- acy both regarding necessity and self-defence, although he did so in a relatively weak formulation, which refers to the immediacy of the necessity of the action (‘immediately required’) and not to the immediacy of the danger.675
672 See n 285 above and accompanying text.
673 See Israel Law Review, vol 23 (1989) where the articles by Gur-Arye; Robinson; Dershowitz;
Feller; Kremnitzer; Moore; Kadish; Zuckerman and Zamir appear. See also Gur-Arye, n 13 above, at 233–34.
674 See PH Robinson, ‘Letter to the Editor’ (1989) 23 Israel Law Review189.
675 Arts 34j (self-defence) and 34k (necessity) of the Israeli Penal Code 1977 as determined in Amendment no 39, 1994. To complete the picture—the ruling delivered in 1999 by the Israeli Supreme Court sitting as the High Court of Justice, in the appeal of The Public Committee against Torture in Israel, The Association for Civil Rights in Israel et al v the Israeli Government, the General Security Services et al, PD 53 (4) 817. In this ruling, it was determined, inter alia: ‘The exception of “necessity” does not serve as authority for the investigators of the General Security Services to use physical means during