¹ Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391.

² Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. I.

³ See, e.g., Strafgesetzbuch [StGB] [Penal Code], Nov. 13, 1998, BGBl. I at 3322, as amended, §§ 63, 64. It is also possible to impose preventive detention on highly dangerous offenders who have acted in a fully culpable way (Sicherungsverwahrung), id. §§ 66, 66a, 66b. At present, there is an ongoing battle between the European Court of Human Rights and the German courts about the question whether preventive detention may be applied retroactively. If the answer is no, dangerous persons must be released immediately. See M v. Germany, Bundesgerichtshof [BGH] [Federal Court of Justice] Dec. 17, 2009, Neue Juristische Wochenschrift [NJW] 240, 2011Google Scholar. However, this dispute is not about preventive detention in general. The European Court has no general objections against preventive detention, provided that the court that convicts also decides about preventive detention at the time of conviction.

⁴ CrimA 476/81 Eisenberg v. the State of Israel 37(1) PD 819 [1983].

⁵ See Penal Code, 5737-1977, SH No. 2302, § 300A(a).

⁶ Id. § 34H.

⁷ This alternative was only inserted into the Israeli Penal Code (in § 34H) by Amendment No. 39 in 1994, but the norm had been recognized by the Supreme Court since the 1950's. See, e.g., CrimA 118/53 Zalman Mandelbrot v. Attorney General 10(1) PD 281, 287 [1956].

⁸ Eisenberg, supra note 4.

⁹ Compare to German law: section 20 of the German Penal Code presupposes that the offender is capable of “appreciating the unlawfulness of his action and to act in accordance with such an appreciation” (Einsichts- und Steuerungsfähigkeit). This psychological background constitutes culpability in a narrower sense. If a pathological mental disorder, a serious consciousness disorder, debility, or any other serious mental disorder precluded that the offender could appreciate the unlawfulness or act accordingly, he acts without guilt (StGB § 20).

¹⁰ Eisenberg, supra note 4.

¹¹ It should be noted that the court ruling was given before the addition of section 300A(a) to the Israeli Penal Code (see supra note 5), so once the defendant was convicted of murder, the judges did not have any choice but to impose life imprisonment. However, our disagreement with the ruling concerns the conviction itself—the punishment only enhances the injustice.

¹² See the words of Supreme Court Justice Agranat in the Mandelbrot case (supra note 7). According to Agranat, it is not reasonable to convict and punish a person who could not act differently than he did. The conviction or punishment of such a person would not be useful as a preventive element. Even if it was, judges must make their decisions based on justice and not on utility.

¹³ See The German Criminal Code: A Modern English Translation (Bohlander, Michal trans., 2008).Google Scholar

¹⁴ See Parush, Adi, The Claim of Irresistible Desire and the Agranat Doctrine, 27 Isr. L. Rev. 139 (1993)CrossRefGoogle Scholar. Parush presents another reason for the current situation. According to Parush, the courts are concerned that if the law exempts every person who was not able to conquer his impulse from criminal responsibility and does not minimize the exemption to cases in which the impulse is a cause of mental illness, it will create a breach in the law that may be abused by other defendants and severely harm the power of the law's deterrence. Parush continues and criticizes this assumption by saying that these situations are so rare that it would be extremely hard to assume that it would have a severe effect. Not to mention the fact that, if an accused acted illegally only due to this situation, without culpability, it is unfair to convict and punish him for his behavior regardless of whether he suffered from a psychotic disruption or any other disruption at the time of the act.

¹⁵ The defenses of duress and necessity in relation to murder are extremely limited in England. The English courts have excluded murder from the boundaries of the defense all together. See, e.g., R. v. Gotts [1992] 2 AC 412; R. v. Howe, 85 Crim. App. 32 (1987); and R. v. Dudley and Stephens (1884) 14 QBD 273, 15 Cox CC 624 (Eng. QB). For a different viewpoint, see Law Commission, Partial Defences to Murder: Final Report (2004), http://www.justice.gov.uk/lawcommission/docs/lc290_Partial_Defences_to_Murder.pdf (last visited Mar. 8, 2010).

In the United States of America, in most states, it was determined, either by legislation or by the courts, that the necessity defense shall not apply in cases of murder, though the defense does apply to murder cases in the Model Penal Code (§ 2.09). For states that have a legislation on this matter, see Ariz. Rev. Stat. Ann. § 13-412(C) (2001); Colo. Rev. Stat. Ann. § 18-1-708 (West 2004); Ga. Code Ann. § 16-3-26 (2003); Ind. Code Ann. § 35-41-3-8 (LexisNexis 2004); Kan. Stat. Ann. § 21-3209 (1995); La. Rev. Stat. Ann. § 14:18(6) (1997); Me. Rev. Stat. Ann. tit. 17-A, § 103-A (1983); Mo. Ann. Stat. § 562.071 (West 2004); Or. Rev. Stat. § 161.270 (2003); Wash. Rev. Code Ann. § 9A. 16.060 (West 2004); see also Cal. Penal Code § 26 (West 1999) (disallowing duress defense for capital crimes); Idaho Code Ann. § 18-201 (4) (2004) (same); 720 Ill. Comp. Stat. Ann. 5/7-11 (West 1993) (same); Mont. Code Ann. § 94-3-110 (2005) (same); Nev. Rev. Stat. Ann § 194.010(7) (LexisNexis 2004) (same). For states where the matter was determined by the courts, see, for example, Pittman v. State, 460 So.2d 232 (Ala.Crim.App. 1984) (duress not a defense to murder); Brewer v. State, 72 Ark. 145, 78 S.W. 773 (Ark. 1904) (same); Luther v. State, 255 Ga. 706, 342 S.E.2d 316 (Ga. 1986) (legislature's exclusion of murder from crimes to which coercion defense applies does not violate equal protection); People v. Doss, 574 N.E.2d 806 (Ill.App.Ct. 1991); McCune v. State, 491 N.E.2d 993 (Ind. 1986); Kee v. State, 438 N.E.2d 993, 994 (Ind. 1982) (defense not available for attempted murder); State v. LeCompte, 327 N.W.2d 221 (Iowa 1982) (defense not available for aiding and abetting murder); State v. Chism, 436 So.2d 464 (La. 1983) (accessory after the fact to murder); State v. Capaci, 154 So. 419 (La. 1934) (capital offenses); Wentworth v. State, 349 A.2d 421 (Md. 1975); People v. Dittis, 403 N.W.2d 94 (Mich.Ct.App. 1987) (first degree murder); Watson v. State, 55 So.2d 441 (Miss. 1951); State v. Perkins, 364 N.W.2d 20 (Neb. 1985) (first degree murder); State v. Finnell, 688 P.2d 769 (N.M. 1984) (first degree murder and attempted murder); State v. Cheek, 520 S.E.2d 545 (N.C. 1999); Pugliese v. Commonwealth, 428 S.E.2d 16 (Va. 1993); State v. Ng, 750 P.2d 632 (Wash. 1988); Burnett v. State, 997 P.2d 1023 (Wyo. 2000).

¹⁶ SeeModel Penal Code § 2.02(9) (1985); but see Grace, Bruce R., Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392 (1986)CrossRefGoogle Scholar (discussing a development in the US courts' rulings).

¹⁷ Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe 43–62 (2005)CrossRefGoogle Scholar; see also Zimring, Franklin E., Penal Policy and Penal Legislation in Recent American Experience, 58 Stan. L. Rev 323 (2005)Google Scholar.

¹⁸ See, e.g., BGH, Apr. 9, 2010, NJW 2595, 2010. However, the courts also punish for negligence if the offender who lacks competence for a certain task should not have accepted the task in the first place.

¹⁹ 6 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [Decisions of the Federal Constitutional Court] 389 (439); 45 BVerfGE 187 (228); 50 BVErfGE 205 (215); 86 BVerfGE 288 (313); 96 BVErfGE 245 (249); 120 BVErfGE 224 (254).

²⁰ It is reasonable to presume that judges have been affected by their knowledge that in practice a life sentence is not life imprisonment, just as they were influenced by the very broad nature of the manslaughter felony, which took away from it the nature of a felony of great severity.

²¹ See CrimA 46/54 General Attorney v. Segal 9 PD 393, 395 [1955]; CrimA 686/80 Siman Tov v. the State of Israel 36(2) PD 253; see also Kremnitzer, Mordechai, Premeditation or Normal Intent—Murder with Premeditation—On the Element of “Without Provocation” in Murder Premeditation, 1 Criminal Law, Criminology, and Police Science 10 (1987)Google Scholar. The courts acted in this manner despite the fact that in other situations the judicial attitude toward legislative restriction of judges' discretion in sentencing was the opposite—interpreting the restrictions narrowly in order to minimize their effect.

²² See 30 BGHSt 105; 45 BVErfGE 187.

²³ See, e.g., 48 BGHSt 207.

²⁴ See 45 BVErfGE 187 (259-60); 95 BVErfGE 96 (130-31); 109 BverfGE 133(171).

²⁵ Kant, Immanuel, Foundations of the Metaphysics of Morals 421 (Beck, Lewis White trans., 1969) (1785)Google Scholar (the page number refers to the page numbers of the so-called Akademie edition).

²⁶ See Kremnitzer, Mordechai & Ghanayim, Khalid, Book Review, 34 Isr. L. Rev. 302, 315 (2000)Google Scholar (reviewing Jeschenck, Hans-Heinrich & Weigend, Thomas, Lehrbuch des Strafrechts Allgemeiner Teil (5th ed. 1996))Google Scholar.

²⁷ See KANT, supra note 25 (“counter-utilitarian idea that there is a difference between preferences and values and that considerations of individual rights temper calculations of aggregate utility”).

²⁸ For an assessment of the dramatic increase in the imposition of life sentences in US courts, see Mauer, Marc, King, Ryan S. & Young, Malcolm C., The Meaning of “LIFE”: Long Prison Sentences in Context (2004)Google Scholar. For a detailed discussion on indeterminate sentencing by US courts, see Kittrie, Nicholas N., Zenoff, Elyce H. & Eng, Vincent A., Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice 209 (2d ed. 2002)Google Scholar; see also Whitman, supra note 17, at 43-62.

²⁹ Even in this case, the special importance of human dignity (even when not absolute) should not be ignored.

³⁰ The practice of most states is to treat this case with special severity. For example, in Israeli law, killing intentionally in order to ensure escape from arrest or punishment for committing another crime is one of the alternatives constituting murder (Penal Code, 5737-1977, SH No. 2302, § 300(a)(4)). In German law, killing in order to cover up the commission of another crime is part of the definition of murder, as opposed to voluntary homicide (StGB § 211). In French law, a murder committed in order to escape after committing another crime is one of the aggravated forms of meurtre, which is punishable by a life sentence (Code Pénal [C. Pén.] art. 221-2). In the Netherlands, manslaughter committed while seeking impunity from another criminal offense is punishable by life imprisonment, like murder (Wetboek van Strafrecht (Sr) (Criminal Code) § 288). The California Penal Code sets a mandatory life sentence without parole for murder in the first degree committed for the purpose of avoiding lawful arrest (Cal. Penal Code § 190.2 (West 1999)).

³¹ StGB §§ 178, 251.

³² Id. § 227.

³³ Gur-Aryeh, Miriam & Weigend, Thomas, Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives, 44 Isr. L. Rev. 63 (2011)CrossRefGoogle Scholar.

³⁴ See CrimA 4424/98 Pedro Silgado v. the State of Israel 56(5) PD 529 [2002]. The result of the case is the outcome of a peculiarity in the General Part of the Israeli Penal Code, according to which one of the forms of murder is killing in the course of performing another offense, while not requiring any specific purpose with regard to the other offense. If the law of murder is amended in such a way that a requirement of this nature is added, such cases will no longer automatically result in a murder conviction. For a general criticism of section 34A, see Ohana, Daniel, The Natural and Probable Consequence Rule in Complicity: Section 34A of the Israeli Penal Law, Part I, 34 Isr. L. Rev. 321 (2000)CrossRefGoogle Scholar and Part II, 34 Isr. L. Rev. 453 (2000)Google Scholar.

³⁵ It is clear that adding three years of imprisonment (the maximum punishment for negligent killing under Israeli law) to the 20-year sentence “gained” for the armed robbery has no chance of influencing the behavior of the other perpetrator.

³⁶ See Kretzmer, David, Judicial Review of Demolition and Sealing of Houses in the Occupied Territories, Klinghoffer Book on Public Law 305–57 (Zamir, Itzhak ed., 1993)Google Scholar.

³⁷ “Schuld ist Vorwerfbarkeit. Mit dem Unwerturteil der Schuld wird dem Taeter vorgeworfen, dass er sich nicht rechtmaessig verhalten, dass er sich flier das Unrecht entschieden hat, obwohl er sich rechtmaessig verhalten, sich filer das Recht haette entscheiden koennen. Der innere Grund des Schuldvorwurfs liegt darin, dass der Mensch auf freie, verantwortliche, sittliche Selbstbestimmung angelegt und deshalb befaehigt ist, sich filer das Recht und gegen das Unrecht zu entscheiden.” 2 BGHSt 200.

³⁸ For a broad discussion of the history and legality of the measure of home demolitions in the Occupied Territories, see Gil, Elad, Tuval, Yogev & Levi, Inbal, Exceptional Measures in the Struggle Against Terrorism: Administrative Detention, Home Demolitions and “Assigned Residence” 189–254 (2010)Google Scholar; Farrell, Brian, Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation, 28 Brook. J. Int'l L. 871 (2003)Google Scholar; Simon, Dan, The Demolition of Homes in the Israeli Occupied Territories, 19 Yale J. Int'l L. 1 (1994)Google Scholar; Carroll, Martin B., The Israeli Demolition of Palestinian Houses in the Occupied Territories: An Analysis of Its Legality in International Law, 11 Mich. J. Int'l L. 1195 (1990)Google Scholar.

³⁹ There is no such sanction in the German Penal Code, and it would be considered a serious violation of the culpability principle.

⁴⁰ Defence (Emergency) Regulations (1945), § 119.

⁴¹ See, e.g., HCJ 2006/97 Ganimat v. Head of the IDF Central Command 51(2) PD 651, 652-55 [1997].

⁴² In the Sahwil case, for example, the Court indicated that we are dealing with “an unconventional penalty act.” HCJ 434/79 Sahwil v. IDF Commander in Judea and Samaria 34(1) PD 464 [1979]. Furthermore, in the Hamri case, the Court ruled that “we're dealing with a ‘penalty provision.’” HCJ 361/82 Hamri v. IDF Commander in Judea and Samaria 36(3) PD 439 [1982]. In a case involving the Association for Civil Rights in Israel, the Court repeated this and indicated that “everybody agrees that a demolition of a building is a tough and severe penalty measure. The preventive power which is concealed inside property demolition does not change the fact that the sanction is punitive.” HCJ 358/88 The Association for Civil Rights in Israel v. Head of the IDF Central Command 43(2) PD 529 [1989].

⁴³ HCJ 126/83 Abu Alaan v. Minister of Defense 37(2) PD 169 [1983].

⁴⁴ HCJ 798/89 Shukri v. Minister of Defense [1990] (unpublished).

⁴⁵ HCJ 698/85 Daglas v. IDF Commander in Judea and Samaria 40(2) PD 42 [1986].

⁴⁶ AdminA 11/65 Gadisi v. Attorney General 20(1) PD 57, 68 [1965].

⁴⁷ Rawls, John, A Theory of Justice 3–4 (1971)Google Scholar.

⁴⁸ Id. at 242. It is true that such a prohibition is not entirely absolute, since it opens an outlet for the defendant to prove that the firearm was put in his house by another. But suppose that he is unable to prove it. In such a case, the prohibition becomes absolute.

⁴⁹ Feller, Shneur Z. & Kremnitzer, Mordechai, Proposal for a General Part of a New Penal Law—Introduction, 30 Isr. L. Rev. 36, 52 (1996)Google Scholar.

⁵⁰ CrimA 196/64 Attorney General v. Bash 18(4) PD 568, 572 [1964].

⁵¹ Bundesgerichtshof [BGH] [Federal Court of Justice] Feb. 1, 2005, Neue Zeitschrift für Strafrecht [N StZ] 446, 2005Google Scholar.

⁵² CrimA 385/89 Ovnat v. the State of Israel 46(1) PD 1, 7 [1991].

⁵³ CrimA 7832/00 Yaakobov v. the State of Israel 56(2) PD 534 [2002].

⁵⁴ CrimFH 983/02 Yaakobov v. the State of Israel 56(4) PD 385, 393 [2002].

⁵⁵ Bill to Amend the Penal Code (Amendment No. 39) (General Part) July 25, 1994, Book No. 40, 9826.

⁵⁶ See, e.g., CrimFH 983/02 Yaakobov v. the State of Israel 56(4) PD 385, 393-94 [2002]; CrimA 7183/04 Yakirevitch v. the State of Israel [2007] (unpublished), para. 58; CrimA 9826/05 Mahajane v. the State of Israel [2008] (unpublished), paras. 14-15.

⁵⁷ CrimA 7832/00 Yaakobov v. the State of Israel 56(2) PD 534, 547 [2002].

⁵⁸ Penal Code, 5737-1977, SH No. 2302, §§ 34(11)-34(12).

⁵⁹ As it appears that the judges in the cases of Dudley and Stephens assumed (R v. Dudley and Stephens [1884] 14 QBD 273 DC).

⁶⁰ Penal Code, 5737-1977, SH No. 2302, § 34(12).

⁶¹ The discussion regarding the relationship between the principles of the culpability doctrine and the exemptions from criminal liability is not exhausted within the range of this paper. There are other contexts that are relevant to the discussion, such as: minority; self-defense as an excuse that by interpretation may be considered within the realm of self-defense under Israeli law; the conflict between opposing duties that, according to the Israeli law, are not recognized as a separate defense but instead are viewed as a form of necessity; justification due to obedience to a military command; and an error in law that could not have been reasonably avoided. See, e.g., Penal Code, 5737-1977, SH No. 2302, § 34(13).

⁶² 6 BVerfGE 389 (439); 45 BVerfGE 187 (228); 50 BVerfGE 205 (215); 86 BVerfGE 288 (313); 96 BVerfGE 245 (249); 120 BVerfGE 224 (254).

⁶³ 20 BGHSt 264 (266-67); 24 BGHSt 132 (134).

⁶⁴ Report of the Committee for Examining Methods for Structuring Judicial Discretion in Sentencing (Government Press, 1997) (in Hebrew)Google Scholar.

⁶⁵ See 45 BVerfGE 187 (228); 109 BVerfGE 133 (150); 113 BVerfGE 154 (162).

⁶⁶ The German Constitution lists modes of and limits on constitutional change. See GG art. 79.

⁶⁷ See, e.g., Degenhart, Christoph, in Grundgesetz Kommentar art. 102, nos. 7-8 (Sachs, Michael ed., 2d ed. 1999)Google Scholar.

⁶⁸ 45 BVerfGE 187.

⁶⁹ Kant, who created the “merely as a means” approach, was strongly in favor of the death penalty. See Kant, Immanuel, Metaphysik der Sitten, Rechtslehre, E. Vom Straf- und Begnadigungsrecht (1797)Google Scholar.

⁷⁰ 45 BVerfGE 187.