Research and development in criminal law and criminology

Research and development in criminal law and criminology

“Imperfect Self – Defense and the Intention-Based Theory (An Analysis of Note 2, Article 302 of the Islamic Penal Code)”

Articles in Press

Document Type : Original Article

Authors
Nima Moravej
Mohsen Borhani
University of Tehran
10.22034/jclc.2026.2087174.1325
Abstract
"Prior to the enactment of the 2013 Islamic Penal Code, the approach of the judiciary—particularly that of the courts of first instance—in cases involving homicide in the context of Self - Defense was largely binary. Either the Self - Defense was established with all its legal requirements (including the existence of an unlawful attack, the current or imminent nature of the threat, the necessity of defense, and proportionality), in which case the defender who committed the homicide was exempted from qisas (retaliation), diya (blood money), and ta’zir (discretionary punishment); or, if even one of the legal requirements was not met, the perpetrator was sentenced to the severe penalty of qisas. This approach persisted until the Supreme Court of Iran, in numerous cases, found the defendant undeserving of qisas despite the failure to satisfy one of the requirements of legitimate defense (particularly the requirement of proportionality).

In line with this judicial trend and supported by certain authoritative jurisprudential (fiqhi) rulings, the legislature in 2013 departed from this binary approach by enacting Note 2 of Article 302. For the first time, albeit concisely, it recognized “imperfect Self – Defense” as a possible defense for individuals charged with homicide—a defense that would preclude the imposition of qisas. Nevertheless, the legal dimensions of this Note remain ambiguous, as its interpretation depends on understanding the two vague terms, ‘the essence of defense’ (nafs-e defa) and ‘the levels of defense’ (marateb-e defa), employed within its text.

This article seeks, through an examination of the jurisprudential and legal foundations justifying Self – Defense, to interpret ‘the essence of defense’ and the circumstances under which ‘defense is deemed valid.’ Ultimately, by adopting the ‘intention-based theory,’ these two terms are interpreted based on the ‘defender’s intention.’ It is demonstrated that a defender who commits homicide with the intent of self-defense—even if this intent is based on a mistaken belief in an attack—may benefit from the exemption stipulated in Note 2 of Article 302."
Keywords
Self-Defense
Imperfect Self-Defense
the essence of Self-Defense
levels of Self-Defense
Intention-Based Theory
Subjects
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Research and development in criminal law and criminology

Articles in Press, Accepted Manuscript
Available Online from 24 May 2026