The Legal Nature of Self-Defense

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Asst. Lecturer Mohammed Hamza Aidan College of Administrative Sciences – Department of Financial and Banking Sciences / Al-Mustaqbal University Self-defense has not been given a specific definition in criminal legislation or in judicial rulings. However, legal scholars have provided several definitions. Some have defined it as “the use of the necessary force to repel an imminent danger arising from a crime against one’s person or property, in the absence of any other means to repel it, and when it is impossible to resort to public authorities to prevent the imminent danger. Self-defense is considered, by consensus of legislation, jurisprudence, and the judiciary, one of the grounds for justification.” It has also been defined as “the force used by any individual to repel an assault or prevent the danger of an act that constitutes a crime against the person or property, whether the assault threatens the defender himself or another person.” From the above, it becomes clear that self-defense is a right granted by law to individuals to use the necessary force to prevent any unlawful attack on the person of the defender or others, or on their property, when no other means exist to repel the attack and when it is impossible to resort to public authorities to prevent or stop it. From a legal perspective, the nature of self-defense is that it constitutes a right. It is not a personal financial right, but rather a public right established by the legislator against all individuals, who in turn are obligated to respect it and not obstruct its exercise. Therefore, any act that hinders the exercise of this right is considered unlawful. Some scholars view self-defense as a social duty driven by the need to preserve socially significant rights. However, the Iraqi legislator considers self-defense a right, based on Article (42) of the Iraqi Penal Code No. (111) of 1969, as amended. It is clear that the nature and effects of self-defense fall entirely within the scope of the grounds for justification. Self-defense is an absolute justification available to any person, including accomplices, and it applies to all types of crimes, negating their unlawfulness. This is evident from the wording of the article, which begins with the phrase “No crime…”, indicating the absence of the legal element of the offense—namely, the illegality of the conduct. Thus, the offense is negated and the conduct becomes lawful. However, this right is restricted by conditions set forth by the Iraqi legislator in Articles (42–46) of the Penal Code.