The Foundations of Criminalizing Behaviors against Foreign Security and Its Limitations in Iraqi law

Abstract

Criminalization cannot be based on a single foundation or theory; rather, it is essential to consider integrated or hybrid theories for criminalizing crimes, as this is more efficient and effective in justifying and explaining principles, and it eliminates the drawback of a singular perspective. The Iraqi legislature, taking into account the current needs of Iraqi society and the threats facing the country today, as well as considering current global security and military structures, has criminalized certain behaviors that constitute a threat to the country's internal and external security. Accordingly, the necessity of preserving the government and public order, the principle of public interest and benefit, and the preservation of the Iraqi system, along with their importance and impact on society, constitute the most important criteria for criminalizing crimes against external security in criminal law. Consequently, the principles of legality of crime and punishment, individual responsibility, non-expansion of criminalization, the non-criminalization of criminal thought, the non-criminalization of preparatory acts, proportionality of crime and punishment, and the specificity of punishment are the most important principles governing the criminalization of crimes against external security.

This article, which employs a descriptive-analytical approach and a critical perspective on Iraqi criminal policy legislation, is based on the premise that Iraqi criminal law, by deviating from certain fundamental human rights values, has violated important principles of criminal law under the pretext of maintaining the state's external security. The most prominent features of "security-oriented criminalization" in Iraqi criminal law include: the criminalization of criminal thought, the criminalization of preparatory acts (before the commission of a crime), vagueness in the wording of the law, and the unchecked expansion of the powers of the police and security court judges.