23 Fall 2024 in the perpetration of an original offense … must take into account that matters could go awry and involve the perpetrator in further offenses as well … beyond his or her control.7 A Supreme Court ruling has also recognized that spontaneous cooperation may be considered coperpetration8 and even presence at a crime scene may in itself display the behavioral element both of aiding and abetting an offense and of coperpetration. Applying the above to the matter of Hamas terrorists and their accompanying mob, it would not be complicated to prove that the terrorists were captured near the Gaza Strip in Israeli territory where the crimes were committed. A national border was violated through a sabotaged barrier, and the horrors that were perpetrated are clear, even if they did not jointly plan the attack. Thus, regarding the “group offenses” of a lynch mob, the Supreme Court ruled that In principle I agree … that for group offenses such as those in this case, the presence of each member of the mob that aided and abetted those perpetrating the offense … and even those who did not physically participate in wreaking the damage, or in igniting the objects, incurs responsibility as accessories to the offenses.9 Use of the coperpetration concept will obviate the need to prove the awareness and intent of each person present with respect to the deeds of the others present, and indeed it will be possible to convict whoever was present at the site for the perpetration of all the behavioral offenses, including rape, theft, and breaking and entering. Although a mens rea of “intent” cannot be attributed to a different or additional offense according to this principle, still for the basic crime of murder, as stipulated in Clause 301(a) of the penal law, the mens rea of “indifference” justifies conviction. For some of the defendants who will stand trial, it is possible to use the principle of coperpetration so that under existing rules of evidence, the mob that arrived to kill, injure, and destroy may be convicted of murder. The Substantive Criminal Law to be Applied to the Defendants The substantive law to be applied will depend, first and foremost, on the decision regarding the tribunal that will try the terrorists. The district courts would proceed in terms of “Israeli” criminal offenses, primarily under the penal law and with additional legislation invoked as well. The military courts would proceed in terms of security offenses as set forth in the Defense (Emergency) Regulations. It is uncertain whether reference to existing criminal offenses would suffice or whether after the most horrific terrorist attack that it ever underwent, in terms both of scope and of character, the State of Israel should pass special legislation regarding coordinated offenses. Regarding special legislation, the most significant question deals with the issue of retroactivity – specifically, the prohibition against a retroactive (ex post facto) law of greater harshness. Such a law would violate the constitutional principle by which the punishment must be promulgated in advance of the offense (nulla poena sine praevia lege poenali), which applies especially in the context of identifying substantive offenses and less in the context of evidentiary and procedural matters. Because these were crimes against humanity, it may be said that no “red flag of warning” was necessary to explain that the deeds were obviously not permissible. Israel legislated similarly with the Nazis and Nazi Collaborators (Punishment) Law of 5710/1950, which was applied to Eichmann and Demjanjuk. That was in fact an ex post facto law because it dealt with deeds that preceded its passage and even preceded the founding of today’s State of Israel. We will now briefly consider the main unusual offenses (omitting the “classic” penal offenses such as murder, injury, and rape) that may be attributed to the terrorists as charged under existing law. Clause 97(a) of the Penal Law stipulates that “A person who, with intent to impair the sovereignty of the State, commits an act calculated to impair such sovereignty is liable to the death penalty or to imprisonment for life.” Clause 97(b) provides that “A person who, with intent that any area be withdrawn from the sovereignty of the State or placed under the sovereignty of a foreign state, commits an act calculated to bring this about is liable to the death penalty or to imprisonment for life.” 7. Khatib v. State of Israel, HCJ 3293/09 (Isr. 2009). 8. Yemini v. State of Israel, HCJ 2247/10, ¶ 22 (Isr. 2010). 9. State of Israel v. Azizian, HCJ 807/99 (Isr. 1999).
RkJQdWJsaXNoZXIy MjgzNzA=