Under this heading, the following questions will be investigated:
Whether and under what circumstances does a pre-emptive strike come under the heading of self-defence? What happens if it is later found that the information on which the person committing the pre-emptive strike relied, was incorrect? Should one attempt to flee from the scene rather that utilise a pre-emptive strike? May one utilise a pre-emptive strike to save a third party? What is the ruling if excessive force is used during the pre-emptive strike?
Anyone who was in Israel during the Six Day War and the weeks preceding it will never forget that period.
The Egyptians moved their forces into the Sinai Peninsula. Nasser ordered the United Nations to remove their peace keeping forces from Sinai resulting in the immediate compliance by the United Nations, the closing of the Straits of Tiran to Israeli shipping, King Hussein of Jordan signing a defence treaty with Egypt - in short the tightening of a noose around Israel.
Great tension was felt by the Jews in Israel (and indeed Jews all over the world) during that period. On the Thursday before the Six Day War the Israeli Rabbinate declared a fast and the Synagogues were filled with worshippers. Parents in the Diaspora who had children in Israel constantly telephoned them imploring them to return home. It was even reported that in Israel over 30,000 graves were dug in expectation of the Israeli casualties.[278]
At that period I was living in the Tel-Aviv area and on Monday 5 June, I overslept and was awoken by the wail of a siren at about eight o�clock. When I got to work I was told that the war had started. All during the day we ran in and out of the air-raid shelters at the bidding of the sirens. A rumour circulated later that day that Israel had destroyed 400 Arab aircraft. Everyone dismissed this as wishful thinking. My immediate reaction was that someone had added a few noughts. Oh what a wonderful dream. How we wished it could be true!
That night as soon as it got dark, the sirens sounded again and once again we ran to the shelters where we remained for an hour and a half. I could hear bangs in the distance and I assumed that Tel-Aviv was being bombed. When I came out of the shelters I could see a fire in the distance and assumed Tel-Aviv was burning. I went to bed full of apprehension.
The next day was completely different! Indeed it was reported that Israel had destroyed about 400 Arab aircraft.[279] The dream of yesterday was now a reality.
Nasser of Egypt and Hussein of Jordan were incredulous that Israel could destroy their aircraft. To save face they decided in a telephone conversation (which was intercepted by Israel and later broadcast around the world) to concoct a story that the British and the Americans had participated in the attacks.[280]
The official Israeli communique at that time said that Egypt had attacked Israel who had therefore acted in self-defence in destroying their aircraft.
Five years later however, the �cat was let out of the bag� by the publication by the Prime Minister Golda Meir, of the Cabinet decision of 4 June 1967. This decision stated that �The Government resolves to take military action in order to liberate Israel from the stranglehold of aggression which is progressively being tightened around Israel...�[281] A few days earlier, in an interview to the press, General Ezer Weizman of the Israel Air Force, who was Chief of the General Staff Branch in the 1967 War (and later President of the State of Israel) said: �We had to attack because the enemy, intentionally or not, brought about a situation in which he tried to force upon us basic political decisions under the threat of military force.�[282] According to Weizman�s statement Israel made a pre-emptive strike against Egypt even though Egypt�s attack could not necessarily be described as imminent.[283]
In his autobiography, another general of this war, Chaim Herzog admitted that �the air force made a pre-emptive strike.�[284] Likewise the official website of the Israel Defence Forces quoting from the book by Colonel Benny Michelsohn relates: �Israel resolved to defend itself with a pre-emptive strike against the Arab armies.�[285]
This was not the only pre-emptive strike made by the State of Israel in her short history. At the end of October 1956, Israel colluded with Britain and France, signed a secret protocol in the French city of Sevres and made a pre-emptive strike against Egypt, which became known as the Sinai Campaign.[286]
In 1981, Israel made a pre-emptive strike against Iraq, when she bombed Iraq�s nuclear reactor.[287] A year later Israel made another pre-emptive strike when she entered Lebanon together with massive air strikes and ground forces and penetrated as far as Beirut.[288]
The use of self-defence by both a country and an individual is a basic human right, and is clearly permitted in both international and domestic law. A question which has been hotly debated is whether pre-emptive strikes are permitted and whether there is there a legal difference between a pre-emptive strike by a country and a pre-emptive strike by an individual.
What is the international law regarding pre-emptive strikes against an enemy country?
This can be found in the Charter of the United Nations. [This organisation was founded in 1945 as a successor to the League of Nations. Membership was open to �peace loving� nations which were then defined as states who had declared war on the Axis powers by the beginning of March 1945. The United Nations had its own charter, which was finalised in San Francisco.[289]]
According to Article 51 of this Charter: �Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations...�[290]
International lawyers are divided on the question of whether a country must actually wait for another country to attack before attacking it.
Professor Josef Kunz writes that �the �threat of aggression� does not justify self-defense under Article 51.�[291] In a similar vein Professor Hersch Lauterpacht holds that �a State would be acting in breach of its obligations under the Charter if it were to invade or commit an act of force within the territory of another State, in anticipation of an alleged impending attack...�[292]
On the other hand Professor Julius Stone in an article on this subject (with particular reference to the start of the Six Day War) writes: �The action of the State of Israel on June 5, 1967, even if its forces were to be taken to have crossed the frontier first, would still be within the protection of the reserved right of self-defence under Article 51 .... An �armed attack� may already exist when one side (in this case the Arab States) has deliberately set up a military situation in which the only options given to the opponent are either to defend itself immediately or submit to almost certain destruction.�[293] Similarly Dr. Allan Gerson has said: �... common sense dictates to any observer of state practice that a strict interpretation of article 51 can only lead to creation of a �credibility gap� for the Charter�s provisions. States have demonstrated that they are not prepared to be �sitting ducks� willing to risk sustaining imminent and potentially devastating strikes so that their actions may be justified as �lawful�.�[294]
We have already illustrated that following this latter view, namely permitting a country to make a pre-emptive strike, has repeatedly been the actual practice of the State of Israel during its short history.[295]
We shall now see, that as far as domestic law is concerned, an individual has as much, or even greater, latitude to make a pre-emptive strike as a country has.
Professor Alf Ross writes that �even internal law recognises that acts committed in self-defence to avert an illegitimate attack which has commenced or is impending are legitimate.�[296] Professor Kunz, whom we above showed does not permit a country to make a pre-emptive strike, goes on to write regarding an individual: �Now in municipal law self-defense is justified only against an actual danger, but it is sufficient that the danger is imminent.�[297] (emphasis in original).
Israeli law on self defence, in force on Purim 1994, was governed by an amendment of 1992 to the Penal Law. This amendment states: �A person is not criminally responsible for an act or omission if he acted as he did against an attacker in order to repel an unlawful attack which placed his life, liberty, body or property, or that of another, at risk of injury...�[298]
The danger of an attack invariably begins before the actual physical attack.[299] The question is at what stage can one utilise the right of self defense. Must one wait until actually touched by the attacker, or may one act before this stage, when one is already in danger? Would, for example, the assembly of the attackers fully armed at the place of the proposed attack be regarded as the beginning of an attack and hence permit an act of self-defence?
A study of the wording of this 1992 law shows that it does not include the need for the immediacy of the act of self-defence before the physical attack. An amendment requiring this immediacy which was proposed by the Minister of Justice Dan Meridor and member of Knesset David Libai during the second reading in the Knesset was defeated.[300] In addition almost all of the various drafts of this bill which were submitted included the need for immediacy but this point was not accepted.[301]
The Hebrew word used in this law for the unlawful attack is �takifa�. In his book, Professor Feller (who proposed two drafts for this law and also worded a later version of this law which was passed by the Knesset in the summer of 1994) gave his definition of the word �takifa�.[302] Although this definition does not directly deal with the �threat of force,� Professor Aharon Enker (who is a recognised authority in criminal law) and Dr. Ruth Kanai consider that this definition of Professor Feller�s includes the threat of force.[303] In other words, one can utilise the right of self-defence as soon as one is in imminent danger from the threat of force.
Later in their paper Professor Enker and Dr. Kanai discuss in detail whether this law requires immediacy, but they did not come to a definitive answer.[304] However, Judge Dan Bein, who is a judge in the Haifa District Court wrote that some people read in the law of self defence �a condition of the immediacy of the danger, even though this condition did not appear in the language of the section, but this view was not accepted.�[305] (emphasis added).
Judge Bein based support for his statement [306] on the Report of the Commission set up in the 1980s (under the Chairmanship of a former President of the Israel Supreme Court, Judge Moshe Landau) to investigate revelations of torture (euphemistically called �physical pressure�) being used by the Israeli General Security Service (�Shabak�) in their interrogation of suspected Arab terrorists. In their Report, the Commission ruled that under Israeli law, immediacy of danger is not required in order to utilise the right of self-defence.[307]
Likewise, Professor Nahum Rakover, who was Deputy Attorney General of the State of Israel and Professor of Jewish Law at Bar-Ilan University wrote regarding the interpretation of this law, �[It] provides that one may legitimately fend off an attack even when the danger is not immediate. The degree of the immediacy of danger from an assault is not a relevant criterion governing the legitimacy of rescue in a given situation. A danger may exist which is not immediate, but still definite and in no way diminished by its lack of immediacy.�[308]
The legal principle �in dubio pro reo� obliges a court in case of doubt over a point of interpretation of a law to adopt that version which is most lenient for the accused. Judge Bein writes that this view is held by Judge Aharon Barak (who is now President of the Supreme Court).[309] Later this principle became paragraph 34(21) of the 1994 Penal Law.
An example of a court judgment on the matter of immediacy is the case of Kaminsky. Kaminsky inflicted serious bodily harm and permanent damage on someone because he believed this person wanted to harm him and thus his act was one of self-defense.. The District Court accepted this plea by the accused. [On appeal the Israel Supreme Court reversed the acquittal, not because it was a pre-emptive strike, but on the grounds that in this particular case the accused had ample time and opportunity to escape from his attacker since the attack occurred in the open. The Court added that this should not be taken as a general rule since in some cases a person would not be able to escape from those planning to attack him.] [310]
[In Britain there is a body called the Privy Council. It consists of several hundred distinguished persons drawn from all walks of life whose function is to give private advice to the Sovereign. A major function of this Privy Council, exercised through its Judicial Committee, is the provision of a final Court of Appeal for a number of British Commonwealth countries. The members of this Committee are Privy Councillors who have held high judicial office.[311] ]
A case on the subject of pre-emptive strikes came before the Privy Council in 1987 on appeal from the Court of Appeal of Jamaica. In their judgment the five Privy Council judges ruled: �A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.�[312]
An earlier English case was that of Weston. Weston was brought to trial after shooting and killing somebody. In his judgment, the judge ruled that if �the prisoner resorted to the gun in order to defend himself from serious violence, or under a reasonable apprehension of it, and so used it in necessary self defence he would be justified.� (emphasis added). Later in his judgment, the judge explained �the reasonable apprehension� as being �induced by the words and conduct of the deceased.�[313]
From another English judgment on this subject, �Blackstone�s Criminal Practice� writes: �A person can use force to ward off an anticipated attack provided that it is anticipated as �imminent�.�[314]
The High Court of Australia has ruled, on at least two occasions,[315] on the question of pre-emptive strikes. Judge Mason, the Chief Justice of Australia ruled that the defence of self-defence could be applicable if �when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made on him.�[316] (emphasis added).
In Canada, the Ontario Court of Appeal ruled (in a case involving the use of excessive force), that to utilise the defence of self-defence: �The accused must have been justified in using some force to defend himself against an attack, real or reasonably apprehended.�[317] (emphasis in original).
Indian law recognises pre-emptive strikes. Paragraph 102 of the Indian Penal Code reads: �The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.�[318]
The American Law Institute wrote what is known as a �Model Penal Code,� which includes a section entitled �Use of Force in Self-Protection.� This states that the use of force on another person is justifiable when the person �believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.�[319]
In the added official �Comments� to the Code, the Institute states that the above quoted section �does not limit the privilege of using defensive force to cases where the danger of unlawful violence is �imminent� ... [the person] must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be used immediately.�[320] (emphasis added). In 1989, the English Law Commission brought out a draft �Criminal Code for England and Wales.� Included in this code is a provision very similar to the provision quoted above from the Model Penal Code.[321]
Likewise the English legal scholar, Professor Glanville Williams writes: �The use of force may be immediately necessary to prevent an attack in the future.�[322]
There is a very important question in this context: What is the situation when a considerable period elapses between the threat of danger and the results from such a danger? In other words, how long before the results of a danger actually occur might one be permitted to take pre-emptive action? Thirty seconds... two minutes... half an hour? Professor Paul Robinson, Professor of Law at Rutgers University, gives and discusses an example where the time gap could even be a week! He writes: �Suppose A kidnaps and confines D with the announced intention of killing him one week later. D has an opportunity to kill A and escape each morning as A brings him his daily ration. Taken literally, the imminent requirement would prevent D from using deadly force in self-defense until A is standing over him with a knife, but that outcome seems inappropriate.�[323]
In the same vein, the Israeli legal scholar, Dr. Boaz Sangero readily accepts the fact that it is possible to find oneself already in danger, although the result of this danger will not be felt for a number of days. He thus concludes that �immediacy� cannot be defined as �yes or no� or as �black or white� - there are different degrees of immediacy.[324]
Massive tomes have been written on the interpretation of laws by, inter alios, the President of the Israel Supreme Court, Judge Aharon Barak.[325] To assist the judiciary, the Knesset passed in 1980 a �Foundations of Law� act. Initially there are three pillars to interpretation of Israeli law: statute law, case-law (precedents) and analogy.[326]
So far we have considered statute law and case law with regard to pre-emptive strikes. Let us now look at a case involving the use of analogy. In this case, which was one of duress, a person called Chakak used a pre-emptive strike. The matter reached the Israel Supreme Court and in their judgment (using the ruling of a English case), the Court said that �a danger of an attack in the future can and will exempt the accused from criminal responsibility, provided that the threat against him at the time of his action was such as to destroy his will.�[327] The expression �destroy his will� was explained in this English case as: �he was driven to act by immediate and unavoidable pressure.�[328]
If however, an Israeli Court does not succeed in coming to a conclusion using either statute law, case law or analogy, the �Foundations of Law� act legitimises a fourth method, which is based on the fact that Israel is a Jewish state. This method is referred to in this law as �Moreshet Yisrael� (Jewish heritage).
[Why did the lawmakers use this expression �Moreshet Yisrael� which is not as well defined as the term �Jewish [Religious] law�? On this, former Supreme Court Judge Menachem Elon, who was Deputy President of this Court writes: �It may be assumed that the ill-defined term moreshet Yisrael was the result of a compromise between different legislative proposals. However it is clear that the core denotation of this term is Jewish [Religious] law; this is confirmed by the Preamble to the bill which refer to �Jewish heritage� and �Jewish law� interchangeably.�[329] ]
In the case of pre-emptive strikes there is the Talmudic principle: �If a man comes to kill you, rise early and kill him first.�[330] This principle is learnt from the Torah which declares it legitimate to kill a burglar who is prepared to commit murder.[331] It is also to be learned from various Midrashim,[332] about the war against the Midianites who were to be regarded as dangerous enemies.[333] This principle has been used in a number of Rabbinic Responsa[334] and also by the Israel Supreme Court.[335]
Various questions on pre-emptive strikes and self-defense
A question which can arise especially with pre-emptive strikes is, what if one has an honest belief that a person or persons intend to attack and on this basis one reacts and then afterwards it is found that the belief was incorrect. Does the defense of self defense become invalid?
In Israeli law, as at Purim 1994, this was covered under paragraph 17 of the Penal Law of 1977 which reads: �... a person who does ... an act upon an honest and reasonable, but mistaken, assumption as to a state of things is not criminally responsible to any greater extent than he would be if the state of things were such as he assumes it to be.�[336] We can see from this law that the mistake must be both honest and reasonable.
Errors are not just limited to small things. From a case which came before the Israel Supreme Court we can see that even if one kills due to a mistaken belief, one may be acquitted of a criminal charge.[337]
This question of acting under an erroneous belief also appears in the penal codes of other countries.
In the United States the mistake must be both honest and reasonable According to �Wharton�s Criminal Law�: In the United States �a defendant�s use of force in self-defense is justified even though there is no actual danger; it is sufficient merely that [a] defendant believe there is danger, provided the belief is reasonable.�[338]
In England, rulings by the Courts said that the mistake had to be reasonable.[339] However with the passage of time things changed and in a later case which came before the Court of Criminal Appeal in London in 1983 this previously held requirement was relaxed. The Court ruled: �If a defendant was labouring under a mistake of fact as to the circumstances when he committed an alleged offence he was to be judged according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable.�[340]
The position taken by Israeli law that the mistaken view must also have been reasonable came under strong criticism by Israeli legal authorities[341] and an amendment came into force on 23 August 1995.[342] Under this amendment the mistake only had to be honest. However, the Israel Supreme Court ruled that if a mistake were manifestly unreasonable, it would be difficult to convince the court that it was an honest mistake![343]
Which law applies if the accused performed his action before 23 August 1995 but the judgment of the court was only given after this date? This situation is covered by paragraph 5(a) of this law which states that in the case of such a change in the law, the version more favourable to the accused will apply. We should note that the courts move very slowly and years usually pass from the time an alleged crime is committed until a court ruling is given.
The amendment of 1992 concerning self-defence replaced paragraph 22 of the law passed by the Knesset in 1977, which in turn was an almost word for word copy of paragraph 18 of the British Mandatory �Criminal Code Ordinance� of 1936.[344] The difference between the 1992 version and the previous version was that the earlier version regarded self-defence as an �apologetic act� whereas the new version considered it a fundamental human right.[345] This point was stressed by the Chairman of the Knesset Law Committee, Uriel Lynn, when reporting on the deliberations of his committee to this session of the Knesset.[346] On the basis of this amendment, it will now be up to the prosecution to prove that a person did not act in self-defence.[347]
[Incidentally, this British Mandatory �Criminal Code Ordinance� was not written specially for Palestine. It was written for Queensland, Australia by a person who was not an expert in criminal law. It was then adopted by Nigeria, which is on the western side of the African continent, then by the eastern side of that continent, then by Cyprus and only after that by Palestine.[348] ]
The 1977 Knesset Penal law stated that one could only utilise self-defence if there was no other possibility open to the person being attacked.[349] Does this mean that an attacked person is obligated to run away from an attacker and if instead he kills the attacker can be charged with committing a criminal act?
This question has been the subject of debate worldwide for hundreds of years. Numerous court rulings on it can be found in the judiciary decisions of the various countries of the world.[350]
As far as Israeli courts are concerned, we quoted above the decision in the case of Kaminsky, where the judge ruled that if it is reasonably possible to run away, one is required to do so. However, in another case, the Israel Supreme Court ruled the opposite - that there was no support in Israeli law for running away from an attacker.[351]
Although in the Penal Law amendment of 1992, this proviso of �no other alternative,� is not specifically mentioned, Professor Enker and Dr. Kanai feel that it is incorporated in the clause dealing with excessive self defence.[352]
The Penal Law amendment of 1992 states that �a person shall not be deemed to act in self-defense if he caused said attack through his own improper conduct and foresaw the possibility that matters would so develop.�[353] However, one could hardly dare to suggest that going to pray in a holy site be classed as �improper conduct�! In fact the right to pray in a holy site is enshrined in the �Protection of Holy Places Law� of 1967 which guarantees �freedom of access of the members of the different religions to the places sacred to them.�[354] Anyone preventing such freedom of access would be �liable to imprisonment for a term of five years.�[355]
The �Protection of Holy Places Law� of 1967 applies to Holy Places situated within the pre-Six Day War borders of Israel, East Jerusalem and the Golan Heights. But what about Holy Places outside these areas? These areas are covered by a similarly worded order issued by the Military Commander of the Judea and Samaria Region in August 1967.[356]
The English courts have similarly ruled on the right to be present in potentially hazardous places. In the case of Beatty, a hundred years ago, the Court held that it was no offence for the Salvation Army to march through the streets of Weston-super-Mare although they knew they would be opposed in a riotous and tumultuous manner by the �Skeleton Army.�[357] Likewise in a later case, the Court of Appeal in London ruled that �it was not the law that a man could be driven off the streets and compelled not to go to a place where he might lawfully be because he had reason to believe that he would be confronted by people intending to attack him.�[358]
The 1977 Israeli law also limited self-defence to the defence of a �person ... whom he was bound to protect.� This could preclude going to the aid of a stranger whose life was in danger as the result of an attack. For example, if you saw your neighbour being beaten to death, you could not legally do anything to the attacker in order to save the person being attacked. However this is not the Jewish view and the 1992 amendment extended the term �self-defense� to mean saving the life of any person.[359]
Both the 1977 law and the 1992 amendment limit the use of force to what is reasonably necessary to prevent the harm. However paragraph 22c of the 1992 amendment states that over reaction to threatened harm in the form of the use of force that exceeds �what was reasonably necessary� would probably be punished by a lighter sentence than would an unprovoked attack.
What is excessive force? If a person comes to you and starts tickling your nose and in order to stop him you take out your gun and shoot him dead, you have obviously used excessive force. However, a number of cases are not so clear cut.
There are cases where the lower Court felt excessive force had been used but on appeal to the Israel Supreme Court it was held that the force was reasonable. Let us look at some such cases.
Tevito, who fired three shots at his attacker, was accused of manslaughter. The District Court found him guilty, although agreeing that Tevito had a reasonable basis to believe that his life was in danger and thus the right to defend himself. Their ruling was that by firing three shots at the attacker instead of just one, he was using excessive force. Furthermore the State argued that he should have fired at the legs of the attacker and not the body. Tevito appealed to the Israel Supreme Court who overturned the conviction. The Court�s reasoning was that the danger continued to exist even after the first shot was fired and that shooting at the legs would not have been sufficient.[360]
Waldman who was being threatened by a person with a gun, hit his attacker several times. The lower courts found Waldman guilty of excessive self-defence. In contrast the Israel Supreme Court held that as long as the danger persists a man cannot be expected to measure his reactions with a spirit level and he was thus found not guilty of assault.[361]
It would thus seem from these judgments that so long as the danger still exists one can continue hitting or even shooting, if necessary, at the bodies of the attacker or attackers.
The meaning and implications of excessive force have also occupied much of the time and interest of legal authorities outside Israel and there are numerous rulings on this question. Courts (such as the courts in the United States and England) realised that under the conditions of attack one cannot weigh how much force has to be used for the purpose of defence.[362]
�Harris�s Criminal Law� says on this question: �In order to determine in a particular case what is reasonable, all the circumstances must be examined.�[363]
The assessment of a person using excessive self-defence is given in an article in the �Criminal Law Review.� �The moral culpability of the man who honestly believes that he needs to use lethal force to defend himself - no matter how mistaken his belief - is surely very much less than that of the man who kills deliberately and in cold blood.�[364]
The general consensus of opinion of the various courts throughout the world on this question is that if the attacked were to use force which he honestly believed under the strained circumstances of attack to be necessary, his plea of self-defence would be accepted in a Court of Law.
Conclusions
1. It is generally held that pre-emptive strikes are permissible, even if they involve killing, as soon as the danger of an attack is present. This could occur well before the actual physical attack.
2. If one honestly, but not manifestly unreasonably, believes that the danger of an attack is present, one may utilise force in self-defence. Even if later, the facts are found to be incorrect, this does not nullify ones defence of self-defence, even if one has killed someone in the course of one�s action.
3. If the person to be attacked has no method of escape, he can unquestionably utilise self-defence. (If there is a method of escape, it is open to debate.)
4. The definition of self-defence includes the defence of any third party.
5. One may not use excessive force in self-defence, but so long as the danger exists one may continue using force. The definition of �excessive� depends on the individual circumstances.