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HomeCurrent EditionThe Importance and Philosophy of the Right of Self-Defence Part II (concluded)

The Importance and Philosophy of the Right of Self-Defence Part II (concluded)

The Importance and Philosophy of the Right of Self-Defence Part II (concluded)

The Importance and Philosophy of the Right of Self-Defence Part II (concluded) – Miki Egba, Jurist (PHD in International Law)

In continuation of our political-historical journey of the right of self-defence, we shall now turn over to the legal status of self-defence.

Self-defence in accordance with § 32 sec. 2  Strafgesetzbuch (German criminal law) states that the defence is required in order to turn away or prevent  a present illegal attack of itself or another.

As it is with various laws of self-defence, this paragraph has its prerequisites:

The self-defence action is justified, when a self-defence situation is given and the person attacked must be conscious of his right to defend himself (the so called self-defence situation and self-defence action).

The right of self-defence include the followings:

right to life,

right of freedom from bodily harm

right of self-dignity or honour

right of property

right of freedom

the attack must be immediate, continuous but not yet concluded

the attack must be illegal (every attack is illegal that has neither justification nor authorized by law)

the self-defence action is inevitable to ward off the attack

The degree of the entire defence mechanism is based or determined by the entire circumstances. The attack and the subsequent defence must be carried out in such a way that the defence must be effective enough to counter the attack. If the defender has at his or her disposal many alternatives to neutralize the attack, he is expected to choose the mildest form to effectively ward off the attack. However, he is not constrained to use a less dangerous means if its effect is inconsequential for the defence.

To buttress this salient condition for self-defence, see the judgements of Bundesgerichtshof (German highest court for criminal law), from 01.06.1994 – 2 StR 195/94, BGH 30.10.1986 – 4 StR 505/86 and BGH 30.10.2007 – ORDINANCES ZR 132/06:

The fragile A is attacked by B who is physically superior to him. A can defend himself with an extremely dangerous action (if necessary with a weapon) even if he is attacked by B only with fists. However for the use of firearm he must give a warning shot.

The application of self-defence according to the philosophy of § 32 sec. 2 StGB includes not only defence to life but also to property, honour and possessions. An extreme force or weapons could be used also to neutralize such illegal attacks. The attacked can either call the cops or run away.

The self-defence of § 32 is subsidiary and therefore disposable if a police official can be called or summoned to defend the attacked.

It should be noted that the necessity for self defence is based on objective judgement ex ante i.e. the attack situation, extremity and the sustainability of the attack and the defence means applied by the defender in a given situation. And more importantly every use of a deadly weapon in self-defence must be based on ultima ratio principle.

More than 100 people have been killed in racist violence in Germany since unification in 1990. The worst incidents, including the 1992 firebombing of an asylum-seekers’ hostel in the eastern port of Rostock where onlookers clapped in delight as the inhabitants struggled to flee, or the 1993 arson attack on the home of a Turkish family which killed five in the western town of Solingen, were followed by public outrage.

Police clampdowns on far-right groups and publicity campaigns promoting tolerance ensued, and the pogrom-style attacks on foreigners have stopped.

Miki Egba, Jurist (PHD in International Law)

 

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