مجله حقوقی بین المللی
پیاپی 36 (بهار و تابستان 1386)

On 26 February 2007, The International Court of Justice issued it's judgment on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).The Court finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and Serbia has not conspired to commit genocide, nor incited and complicit in genocide the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.The Court finds, on the other hand, that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995; and Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal and has violated its obligation to comply with the provisional measures ordered by the Court on 8 April and 13 September 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995.Here, we analyze the elements of the crime of Genocide in the above-mentioned judgment of the international court of justice at the comparison with the jurisprudence of the Ad Hoc international criminal courts.We can conclude that the fragmentation of the international judicial courts has not arisen to conflict decisions but those bodies endorsed the earlier decisions of each other. Consequently, there is a consistent jurisprudence on the interpretation of the elements of the crime of Genocide.It is obvious that the consistent jurisprudence can lead to the speed procedure in the trial of the suspected persons of the Genocide especially in the International Criminal Court (ICC).

One of the elements in the definition of refugee (Art. 1(A)(2) of the 1951 Convention relating to the Status of Refugees) which has envisaged a lot of debates among scholars and in national jurisprudence is "Persecution". Since the definition, scope and applicability of this element is not clear, the national jurisprudence has sought to clarify its concept by referring to its verbal meaning, some other articles of the 1951 Refugee Convention and reliance on discrimination. However, definition of persecution on account of a serious harm that is assessed by virtue of violations of human rights is the criterion with most acceptances. The admission of this definition in refugee host countries is such that one can not ignore its role as "subsequent practice" (Art. 31 (2)(b) 1969 Vienna Convention on Law of Treaties) in the interpretation of the 1951 Refugee Convention. It also substantiates the influence of the rules of human rights on the national legislation of States which was considered among matters "essentially within the domestic jurisdiction" of them for years.

Terrorism is not a new phenomenon. History is full of terrorist acts which have taken or threaten many innocent people lives. Increasing terrorist acts led the international community to expand its arrangements against them. Consequently, approval of 12 world conventions and 7 regional ones is in parallel with the arrangements. Through the UN Security Council's Resolution No. 1373 after 9/11 terrorist act in 2001 in United States, these arrangements reached their climax and the Council made a broad range of measures for states in order to combat effectively against terrorism.

The principle of "Self-Determination" is one of the principles the importance of which has been accepted for the structure of modern International Law. Article one of the UN Charter, while explaining purposes and principles of the UN, points to this principle as one of the foundations of peaceful relations and cooperation among states and nations. Yet, this principle is not as well-established as principles like equality of sovereign states or non-intervention, at least when we are speaking of "internal" Self-ِDetermination. For many years, there was discussion on legal status of the principle: "Is it a legal principle of International Law or just a political one? " Codifying the Covenants was the end of the doubts about this principle's legal status, but of course not the end of discussion; if it was a legal principle, then what was the exact meaning of "self"? Peoples under colonial regimes? Peoples under racist regimes? Or otherwise, all the peoples of the world? End of the Cold War affected the discussion on this issue, while affecting the whole arena of International Law. In fact, putting increasing emphasis on "democracy" and the values of democratic governance, "Human Rights", and rights of minorities is widening the scope of the principle, and strengthening its meaning. This article tries to study these issues and answer some of the questions.

The Criminal Justice and observance of Human Rights principles have important roles in efficiency of bodies involved in combating against terrorism. As some states like U.K. have violated several international provisions such as International Civil and Political Covenant and the European Convention of Human Rights, this article tries to verify Anti-Terrorism Crime and Security Act (ATCSA) and its critiques with International standards. This study may comprise of vital message for those states which involved in operations against terrorism. The judgments of European Court of Human Rights and General Comments of International Human Rights Committee which are of important guidelines on judicial principles in combating against terrorism are also reviewed.