6 Tevet 5722 (13 December 1961)

Presiding Judge: I declare the one hundred and twentieth Session of the trial open.

I should like to indicate a further clerical error to which our attention has been drawn, this time in the wording of the conviction, which has been corrected by adding the words "and into France" at the end of the fifth count in the conviction. The last line will become: "the Reich area itself into the German-occupied area in the East and into France." The reason is that, due to an oversight, the reference was omitted here to the deportations from Baden and the Saar-Palatinate, which are described in detail in the Judgment, and this has now been corrected.

Please proceed, Mr. Attorney General, on the sentence.

Attorney General: With the Court's permission, most of the points that can be made in an argument on sentencing have already been made in this trial. What was said by the Court yesterday and on the previous day in its Judgment still reverberates here in the courtroom and will continue to reverberate throughout the entire world. There will also remain engraved in our memories and in our hearts the testimony of some one hundred Holocaust survivors, who have conveyed to this very courtroom the sea of blood and tears, and I shall not add to what has been said.

He who dealt with the satanic labour of extermination day after day, month after month, for years on end, and did this out of internal conviction, with cruelty and obstinacy, out of an urge to bring about ruin and destruction, after preparing the slaughter through all possible methods of terror, trickery and deceit - he who was the centre of this bloodsoaked enterprise - deserves but one sentence.

I shall deal first with the legal significance of the penal provisions of Section 1 of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950. 1 {1 Sefer Ha-Hukim No. 57, 1950, p. 281} As the Law itself indicates, the legislator determined that those who commit crimes against the Jewish People, crimes against humanity, or war crimes - are liable to the death penalty. But the problem still remains as to whether this punishment is mandatory and the only option, and whether, whatever the circumstances, light or grave, the Court is obliged to impose on the offender this sentence and no other; or whether the Court still retains a discretion to impose a death sentence in a heinous case, and a different sentence in mitigating circumstances.

It is well known that the penalties prescribed for crimes are usually maximum sentences, and the court may impose them, but it retains the discretion to impose a lighter penalty. But in my opinion, thi is not the case in Section 1 of the Nazis and Nazi Collaborators (Punishment) Law.

In order to determine the legislator's intention, I shall briefly consider the history of this Law. When the Bill was published at the beginning of 1950, 2 {2 Hataz'ot Hok No. 36, 1950, p. 119} it was originally provided that anyone committing such offences would be liable to the same punishment as a person found guilty of murder, or a less severe penalty. But when the Bill came before the Knesset for its final approval, the penal section appeared in the form in which it appears today, and was passed accordingly.

The penal section in the Law on the Prevention and Punishment of the Crime of Genocide 5710-1950 underwent exactly the same development. This too contained similar provisions in the Bill,3 {3 Hataza'ot Hok, 1950, p. 37} while in the Law itself4 {4 Sefer Ha-hukim, 1950, p. 137} the provisions of the penal section were similar to those in the Nazis and Nazi Collaborators (Punishment) Law.

The reason why I am stressing this point is two-fold: firstly, because the two Bills were debated within a short space of time in 1950, and secondly because the Court stated explicitly in its Judgment that the Law which we are discussing derived its inspiration in respect of this important point from the other Law to which I have referred.

When the Genocide Bill had its final reading in the Knesset, it was stated explicitly...5 {5 Knesset Proceedings, Vol. 4, p. 1230}

Presiding Judge: By whom?

Attorney General: By the Chairman of the Constitutional, Legal and Justice Committee, Member of Knesset Nir, when he moved the Bill on behalf of the Committee - that the maximum and sole penalty for a person found guilty of genocide would be capital punishment, but in special mitigating circumstances, the penalty would be a ten year prison term.

The same applies to the law with which we are dealing.

In Section 11 of the Nazis and Nazi Collaborators (Punishment) Law it says that, when determining the punishment for a person who has been found guilty of an offence under this law, the court, in imposing the penalty, may take into account certain special circumstances as a mitigating factor, but if it was an offence under Section 1, the penalty shall be a prison sentence of at least ten years.

This shows that in the absence of these special circumstances, the Court has no discretion to impose anything other than the maximum sentence. If the legislator's intention were other than this, and if the maximum sentence were not a mandatory one, there would be no reason or need to provide that precisely in mitigating circumstances the minimum sentence of a ten year prison term was to be imposed as a mandatory penalty. Mitigating circumstances are meant to render the penalty less harsh, not more so. When the legislator lays down a minimum penalty, he does so out of a desire to be severe, when he knows that the maximum sentence laid down for that offence is not a mandatory one. This is so in several laws6 {6 Law amending the Penal Laws (Attacking Policemen) 5712-1952, Sefer Ha-hukim, 1952, p. 144; III, Gideon, p. 1377, S. 1, 2, 3} 7 {7 Traffic Ordinance (New Version). Laws of the State of Israel, New Version, p. 173: XI Gideon 6024, S. 63} 8 {8 (Fisheries Ordinance, Official Gazette 1937), TRS' A, p. 157 (English); G. Hochman (Laws IV, p. 1628; 3 Gideon, p. 1264, Secs. 10(d) (11)(a)} which lay down minimum penalties for cases in which the legislator considered a harsher sentence to be justified.

The obvious conclusion is that when mitigating circumstances led the legislator to lay down a minimum sentence, it follows that his intention was that the standard penalty, in the absence of these circumstances, would be mandatory and exclusive.

I now go back to the Law on Genocide.

In Section 2 it says...

Presiding Judge: On which page?

Attorney General: Page 137.

Presiding Judge: Thank you.

Attorney General: In Section 2 of the Law on Genocide it says:

A person found guilty of genocide shall be sentenced to death, but if he committed the offence in circumstances which, but for Section 6, would have absolved him of criminal liability, or would have served as grounds for excuse and he did his best to mitigate the severity of the effects of the action, the penalty shall be imprisonment for a period of no less than ten years.

It must be remembered that when these two Laws were passed by the Knesset, Section 42 of the Criminal Law Ordinance9 {9 Official Gazette 1936, Appendix A, p. 285 (English), as amended: Official Gazette 1946, Appendix A, p. 230 (English)} was still in force, and applied to both these Laws (Section 7 of the Nazis and Nazi Collaborators (Punishment) Law, and Section 7 of the Law on Genocide).

In Section 42 it says that when the death penalty is provided for a crime, this shall be the sentence to be imposed exclusively, unless it is explicitly stated otherwise.

Neither of the two laws in question contains any other stipulation, whether explicitly or by inference.

Furthermore, without any need to base ourselves on the aforesaid Section 42, and from the provisions of the Nazis and Nazi Collaborators (Punishment) Law - from the comparison I have made between its Sections 1 and 11, from the similarity to the Law on the Punishment of Genocide - it results that the death penalty is the only punishment intended by the legislator for an offence under Section 1 of that Law.

When the case of Yehezkel Ingster came before the court (Criminal Case 9/51), he was found guilty by the Tel Aviv District Court of an offence under Section 1 of the Law, i.e. of a crime against humanity, and the Court sentenced him to death.10 {10 P"H 9/51 - V District Judgments, p. 152, 177, 178-180} That was at the beginning of 1952.

Attorney General: It should be pointed out that Ingster was acquitted of this offence following his appeal to the Supreme Court,11 {11 Crim. App. 5/52 - not reported} and consequently the Supreme Court was not required to interpret the penal provision of Section 1 of the Law. I have here an authenticated copy of the Supreme Court judgment, which has not been reported elsewhere.

Presiding Judge: Was this the judgment or were the reasons given as well?

Attorney General: The court was to give its reasons, but did not do so.

However, the District Court's ruling in Ingster on the penalty which is to be imposed for that offence is worthy of consideration.

The Tel Aviv District Court stated explicitly that the accused before it was not himself a Nazi or identified with this wicked regime, because Ingster was a persecuted Jew and lived in inhuman conditions just like his victims. But he was a "Kapo." He maltreated the inmates and was found guilty of injuring four people. For this offence he was sentenced to death.

The Court also stated explicitly that there were far worse "Kapos" than he, and that his actions were not among the worst, and had it been entitled to take this into consideration, it would have sentenced him only to a ten year prison sentence. It also said that if it were free to do so, it would take into account the fact that the accused had already been punished by God: His right leg had been amputated as a result of a malignant disease, his other leg was paralyzed, and he was afflicted with many other ailments. Nevertheless, the District Court ruled that it saw no alternative before it but to sentence the accused to death, and that it did not consider itself entitled to take into account any mitigating circumstances.

The District Court also ruled that Section 11 of the Nazis and Nazi Collaborators (Punishment) Law stated exhaustively the circumstances which it could take account, and because it did not find that the accused Ingster could not benefit from any of these circumstances, the death sentence was mandatory, and it passed sentence accordingly, as I have explained.

The judges were unanimous on this point. Judge Lamm disagreed with his colleagues, Judges Avissar and Levin, concerning the verdict of guilty of a crime against humanity. This verdict was adopted by the majority. But all three judges came to the conclusion that after a verdict of guilty, the only sentence which the court could impose under Section 1 was the death sentence, since nothing in favour of the accused had been found under Section 11.

As I have already mentioned, Ingster was acquitted by the Supreme Court of the charge of a crime against humanity. The Supreme Court gave him a two year prison term for the other offences under that Law. He went to prison and died there.

In 1954, the Israeli legislator repealed the death penalty for murder, and provided that in the case of murder the offender shall be sentenced to life imprisonment "and that penalty alone"12 {12 Law Amending the Penal Laws (Repeal of the Death Penalty for Murder) 5714-1954, Sefer Ha-Hukim 1954, p. 74, 3 Gideon, p. 1378} - in the Law amending the Criminal Law. But in that law it is still stipulated that if someone is found guilty of murder under Section 2(f) of the Nazis and Nazi Collaborators (Punishment) Law, he shall be treated as was the case prior to the repeal of the death sentence for murder, and that the mandatory provisions of Section 215 of the Criminal Law Ordinance shall continue to apply to him - i.e., his sentence will be capital punishment without any possibility of commuting it to a different penalty.

I mention this because when the legislator repealed the death penalty for murder it also provided that the courts should continue to impose this punishment, and this punishment only, on the murderers of those who were persecuted during the Holocaust. The legislator did not at that time deal with Section 1 of the Nazis and Nazi Collaborators (Punishment) Law, because, as I have stated, it repealed the death penalty for murder only, but did not repeal it for other grave crimes, for which such punishment could be imposed on a criminal.

In 1954, the Law Amending the Penal Laws (Methods of Punishment) was enacted.13 {13 Law Amending the Penal Laws (Methods of Punishment), 5714-1954, Sefer Ha-Hukim 1954, p. 234, 3 Gideon, p. 1378} Section 1 of this Law lays down the principle of maximum punishment to be imposed, i.e. the court may impose any punishment which does not go beyond that set down regarding the particular offence which is before it. Section 43 of the Law states that its provisions relate to offences under any law.

We have learned that the legislator wished to guide the courts as follows: Punishments which I [the legislator] provided for offences are maximum punishments, but you [the courts] are free to act as you see fit - if you find the offence to be grave you may impose the severest penalty; if you wish you may impose a lighter sentence, according to the circumstances.

In so doing, the Israeli legislator did not introduce any innovation, since the same provision already existed in Section 42 of the above-mentioned 1936 Criminal Code Ordinance, which was repealed in 1954 together with other sections of the Ordinance and which were replaced by other provisions for methods of punishment.

However, there is no doubt that in making new provisions for the maximum section, the legislator did not intend to detract from the minimum or mandatory punishments provided for in the various laws. On the contrary, he took for granted that these would still be effective. This is clear from Section 2 of the Methods of Punishment Law which refers to the penalty of life imprisonment, but does not specifically state that this is a mandatory punishment and provides that in such a case punishment will be a twenty year sentence only. That is, where life imprisonment is mandatory, such as in the case of murder, life imprisonment remains the mandatory punishment, and no other.

This fact, that there is no intention to detract from the mandatory punishments, is also clearly implicit in that which is stated in Section 10, at the end, of the Methods of Punishment Law. It is stated there that where the Law provides for mandatory imprisonment or minimum imprisonment, the prison sentence will not be replaced by a fine. Therefore, despite the existence of Section 1 relating to the maximum penalty, the mandatory punishment and minimum penalty remain.

Thus the inference is that if in any law the legislator stated specifically that capital punishment be mandatory, the repeal of Section 42 of the 1936 Criminal Code Ordinance could have an effect, and the mandatory provision would continue to bind the courts as previously.

It should also be presumed that the legislator was aware of the rules of interpretation as regards later and earlier laws, and also general and specific laws. It can also be presumed that he was aware of the Interpretation Ordinance,14 {Laws of the State of Israel, New version, p. 2} which in Sections 14(a) and 41 provides that where another interpretation is implied, laws will not apply according to their amended version, but rather according to their original version.

The Supreme Court ruled in Haddad15 {15 Crim.App. 117/50, V Israel Law Reports 1413, pp. 1420, 1422} that an earlier law may be considered as having been repealed by implication as a result of a new law only when there is a conflict between them, and the provisions of both laws can in no way be reconciled. In the same judgment, the Supreme Court bases itself on well-known rules of interpretation, as laid down in Maxwell,16 {16 Maxwell, 10th ed., p. 176} and I would ask the Court to examine these citations as well as the other principles which are expounded in Maxwell's work concerning the interpretation of a specific earlier provision which would appear to be in conflict with a later general law. The Court will find the citations in Maxwell at pp. 176 ff., 10th edition. The well-known principle, generalia specialibus non derogant, in other words that the special provision is not affected by a later general provision, is there elaborated on in depth.

Therefore, the general Section on maximum penalties in the Law on Methods of Punishment does not detract from the validity of the special penal provision contained in the Nazis and Nazi Collaborators (Punishment) Law, and the death sentence as a mandatory penalty remains valid.

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