فصلنامه پژوهش حقوق کیفری
پیاپی 37 (زمستان 1400)

There was serious controversy in the 1996 negotiations on the drafting of the ICC Statute on putting aggression on the list of crimes under the jurisdiction of the tribunal, which in turn stemmed from disagreements over the terms of Exercise of the ICC’s jurisdiction. The Review Conference's amendments in 2010 and Assembly state parties 2017 introduced specific rules regarding ICC’s jurisdiction for aggression that differ from the usual jurisdiction of the Court in respect of other crimes within its jurisdiction. It also lacks a clear and precise explanation for ICC’s specific jurisdiction over the crime of aggression, which has sometimes led to disagreements among jurists. Therefore, this paper will examine the ambiguous points of this jurisdiction regime in the Statute as well as the difficulty of applying ICC’s jurisdiction over the crime of aggression after July 17, 2018.

Iran's civil law allows the finder (lost property) to possess it under certain conditions. However, the question that arises is whether it is a crime if the person who found the property seizes the property. There is disagreement among lawyers about this question. Some believe that illegal seizure is a crime, but there is no consensus on what a criminal offence is. Some believe in theft, some in abuse of confidence, some in the transfer of property of others, and some in the acquisition of property through illegitimate means. On the other hand, some jurists believe that the illegal seizure of property is not a crime. The results of the present study indicate that the opinion of the second group is stronger and seizure of property is not a crime even if it is against the law.

In recent years, utilizing polygraph technology has drawn the attention of some legal systems in the world. However, some individuals have refused to accept it by arguing that using this technology is in conflict with the defendant's right to remain silent, which violates human dignity and interferes with people's privacy. Despite the proposed disadvantages and the existing challenges in this area, polygraphs can be regarded as scientific evidence to prove the culpability or innocence of the defendant, and by amending the law, it can be considered as another legal evidence to prove a criminal case. In addition, by taking into account the system of spiritual reasons, the legal authorities operate actively in obtaining legal evidence and use whatever reason that makes them certain about a case (even if they contradict legal evidence) and bases their decision-making process on such evidence. Polygraph results can serve as supporting evidence or substantial evidence to offer a judge the necessary information to issue the right verdict, and thus, by evaluating other proofs, it can determine their precision and validity to systematize them to help the judicial authorities with making the right decision.

Proof of sexual crimes discussed under the prescribed punishment, including adultery in Islamic jurisprudence, is subject to certain restrictive rules. One of the important issues in this regard is the ability to prove this crime based on the pregnancy of a woman who cannot be attributed to a legal marriage. According to Imamia jurisprudence and the majority of Sunni jurisprudential Schools, pregnancy does not suffice to prove a crime. However, Maliki and a minority of Hanbali jurists have considered pregnancy as one of the other shreds of evidence for adultery punishable by prescribed punishment. The differences in these jurisprudential approaches have affected the criminal justice systems of Islamic countries. Some countries, influenced by Maliki's jurisprudence, have considered pregnancy as one of the shreds of evidence for adultery. Although some did not consider it to be proof of prescribed punishment, they ruled that the accused could be punished through Ta'zir. Another group considers pregnancy to be out of pieces of evidence that can lead to punishment. In the present paper, with a descriptive-analytical method, while explaining the jurisprudential theories in this field and evaluating their reasons, we have examined the position of the legal and judicial system of several Islamic countries in this field.

Takfiri terrorism, as a political phenomenon for those claiming power in form of religious groups is expanding in Islamic countries and has become the greatest challenge for the Islamic world. Misuse of jurisprudential rules named "Tatarros" and "Avoidance of Taghut" is the most abject mental and practical approach that is being practised by this group. The present article adopts library and descriptive-analytical methods to examine major principles of Takfiri terrorism from the perspective of jurisprudence and law. The purpose of this study is to prove that the main principles of Takfiri terrorism, namely the jurisprudential rule of "Tatarros" and "Avoidance of Taghut", seek aggression and other forms of terror in Islamic countries and that the killing of Muslims by Takfiris is unrelated to the rule of Tatarros. The question is what conditions govern these rules according to Islamic jurists and whether these rules entail suicide attacks and the killing of civilians.

Endangerment as a criterion for those behaviours that can potentially and potentially threaten the health and safety of individuals in the future is a criterion that considers the behaviour worthy of attention regardless of the outcome. This criterion can provide a comprehensive model in describing (wrongdoing or criminalization) behaviours against health and safety, according to the basic philosophical principles in the principle of injury by referring to possible injuries and their classification. This article seeks to answer the fundamental question of how and by what approach can a significant number of immunosuppressive behaviours be envisioned as a criterion of risk in criminal law by explaining the income based on the description of the risk criterion. It seems that the Iranian legislature, by dividing the legal instances of risky behaviours, not only deviates from the goals of systematic description, i.e. social safety, but also pays attention to the need to separate instances of error from crime and systematic possible degrees of risk in regulations and adjust the position of criminal law in ensuring safety and preventing risky behaviours.

The international community has come a long way in recognizing women's human rights. Efforts to address sexual violence as an independent human rights crime and its reflection in international and regional instruments continue. Sexual violence and its instances before entering directly into international documents have been considered in the rulings of international criminal courts and under the criminal headings of war crimes, crimes against humanity in the framework of a systematic and widespread attack. However, its formulation as a crime against humanity due to the gross human rights abuses, irrespective of it having been perpetrated in peace or war or the aggression-victim relationship, are noteworthy innovations recognized in the 2011 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, known as the Istanbul Convention. This research, with a qualitative approach and descriptive-analytical method, will examine the provisions of this convention on identifying the dimensions of violence against women, the conceptual development of the crime of rape, the envisaged mechanisms including legislative, judicial and executive, the analysis and the process from globalization to the humanization of human rights, and the changing role of international law and its impact on the protection of women against violence.

Determination of lifestyle is a natural right of every person, but absolute freedom in how to live causes the norms to be broken and the values of society to be trampled on. In liberal societies, too, such a choice is a fundamental right of individuals and a natural right; Of course, as long as it does not lead to violation of the rights of others or disturbance of order. Otherwise, the government justifies its interference in the freedoms of individuals on the principle of harm. In other non-liberal societies, the government severely restricts freedom of choice of lifestyle and deprives the right to “how to live” Ideologically. This expansion and contraction in choice are influenced by different criminal policy strategies. The result of this descriptive-analytical research is that what can be desirable in today's open and pluralistic societies and in order to protect and guarantee the rights and freedoms of individuals, is the existence of a criminal policy with a minimalist and regressive strategy. It is only in light of such a strategy that “social justice” is established, and all individuals find a constructive presence in various areas of social life.

The global problem of terrorism, which has called on all governments to fight, requires serious measures to prevent security damage in addition to effectively confronting its policymakers. Therefore, resisting terrorism without strategic planning will intensify security measures.

The present research has been applied in terms of collecting information by documentary method and by studying international documents, sources related to the subject and the obtained information has been analyzed descriptively-analytically.

The most important components of the target of terrorist attacks; exposure, vitality, symbolism, legitimacy, destructibility, crowdedness, proximity, and ease of access are all chosen by terrorists in a rational process.

In fact, each target is assessed in terms of the risk of terrorist attacks and, consequently, with police-oriented strategies such as reducing the target of crime, electronic surveillance, the physical presence of police in hot areas, controlling surveillance, identifying hot spots and potential criminals, designing an anti-terrorism environment and increasing police awareness can all prevent terrorist attacks.

On July 17, 1998, at the Rome Conference, the Statute of the Criminal Court was signed by 120 countries as an international treaty and as a result, it was decided that after the 60th day from the date of deposit of the 60th instrument of ratification, the relevant documents shall be deposited. The articles of association become enforceable. The statute addresses the provisions necessary for the establishment of an international tribunal. Among the provisions related to jurisdiction are the admissibility of lawsuits in the Court, the general principles of criminal law, the order of proceedings, the trial, the selection of judges, etc., which have been approved as a result of intensive discussions by representatives of the signatory states. In this article, I have tried to explain the jurisdiction of the International Criminal Court and embark upon the concept of the ability to accept a lawsuit and determine the pillars and elements of its actions. Efforts have also been made to distinguish between the two concepts in the Rome Statute and when each of the above concepts is applied in the process of dealing with criminal matters within the jurisdiction of the Court.