دکتر مجتبی جانی پور

Governments employ various tools and programs to address crime and insecurity within society. Law enforcement officers are typically responsible for implementing these programs, and are granted corresponding tools and powers. Without these powers, it would be impossible to fulfill their duties and achieve the primary goal of establishing order and security. However, a crucial concern in maintaining order and security is protecting the rights and freedoms of citizens. Law enforcement officers must not violate these rights under the pretext of preserving order. Therefore, this research aims to comparatively examine the restrictions on the use of force by law enforcement officers and outline the minimum standards that ensure both citizen safety and freedom.The most important international legal documents in this regard are the "Basic Principles of the Use of Force and Firearms by Law Enforcement Officials" adopted by the Eighth United Nations Congress on Crime Prevention in 1990 and the "Code of Conduct for Law Enforcement Officials" approved in 1979. Adherence to these documents, as well as domestic regulations of countries with strong citizen rights protections, can contribute to unifying the rules governing the use of force by law enforcement officers worldwide. In Iranian law, the most significant legislation related to this issue is the "Law on the Use of Weapons by the Law Enforcement Officers of the Armed Forces in Necessary Cases." This law has been analyzed to assess its compliance with the aforementioned international documents. It is important to note that "law enforcement officers" in this context do not refer solely to those responsible for maintaining order and security in a literal sense. This term is used in the aforementioned documents and laws of some countries, such as the United States, to include officers who are specifically tasked with law enforcement. Moreover, the use of force in this research encompasses not only physical force, weapons, and physical contact but also non-material force, such as insulting or humiliating behavior.This research, employing a descriptive-analytical methodology, seeks to answer the question of when and to what extent the use of force by law enforcement officers is permissible. In other words, what are the acceptable limits of force in various situations to ensure both order and security while safeguarding the rights and well-being of accused persons, criminals, and other citizens? To achieve this goal, the limitations faced by law enforcement officers should be categorized into relative and absolute. Relative limitations allow for the use of force under certain conditions, such as saving their own lives or the lives of citizens, provided that the force used is proportionate. In contrast, absolute restrictions prohibit the use of force in certain cases, such as torture of accused persons or crowded educational and therapeutic facilities, due to the reasons discussed in this research.The research findings indicate that Iranian regulations grant law enforcement officers broad powers to establish security, as outlined in ten clauses of the "Law on the Use of Weapons." However, a significant concern is that the law equates these broad cases with the preservation of human life. Therefore, this research suggests the need to amend existing laws, particularly the "Law on the Use of Weapons," to align them more closely with the basic principles of the United Nations regarding the use of force. The use of weapons and force should be determined on a case-by-case basis, considering the specific circumstances involved. The general rule should prioritize saving the lives of the officer and other citizens. Furthermore, the research highlights that the use of force, whether material or non-material, can cause harm to accused persons and criminals. While material force can result in physical injury or loss of life, non-material force, such as humiliation, can inflict psychological harm. Therefore, it is essential for relevant institutions, particularly prosecutors' offices, to monitor the behavior of law enforcement officers to ensure the dignity of accused persons and criminals. Any violations should be clearly addressed through legal punishment.

Considering the collective nature of international crimes, incitement to commit crimes plays an important role in encouraging people to align and accompany committing international crimes. For this reason, in international criminal law, incitement to commit an international crime has been specified under different titles, without providing a definition in the statutes of international criminal courts. In the statutes of international criminal courts, in addition to instigation to commit a crime, public and direct incitement to commit genocide in Article (p)(3) 4 of the Statute of the ICTY and Article (p)(3) 2 of the statute of the ICTR, Article 25(3) of the Statute of the ICC is specified in the same way as paragraph 3 of Article 3 of the Convention on the Prohibition and Punishment of Genocide in 1948. While in the incitement to genocide, it is mentioned that it must be public and direct, but in the instigation to commit the crime, there is no further description. Therefore, the distinction that can be seen in the statutes of international criminal courts is the distinction between instigation to commit an international crime and public and direct incitement to genocide. The question is, why have the statutes of international criminal courts criminalized direct and public incitement to genocide separately from instigation to commit international crimes? What is the difference between the elements of instigation to commit an international crime and incitement to genocide?MethodologyIn order to answer the above questions, this article with a descriptive analytical method and by examining international documents and international judicial procedure, firstly, scrutinizes the nature of public and direct incitement to genocide and its relationship with incitement to commit a crime, and then examines the necessary elements to prove the responsibility of public and direct incitement to genocide.Results and DiscussionAccording to Article 6 of the Charter of the Nuremberg International Military Court, which Article 5 of the Tokyo Court Charter is exactly similar to it: “…The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) ' Crimes against peace: … (b) ' War crimes: … (c) ' Crimes against humanity… Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”. Instigation to an international crime entered the international procedure as an international crime for the first time when the Nuremberg Court sentenced Julius Streicher in 1946. Although the term "incitement to genocide" was not yet recognized as such, and the defendant was charged with crimes against humanity, the charge was based on actions that would today be defined as incitement to genocide. In general, instigation is defined as one of the behaviors that lead to individual criminal responsibility in the Charter of the Nuremberg Military Court. This charter does not distinguish between different forms of incitement in different clauses, but in general, it states that the instigators in the formulation or implementation of a joint plan or conspiracy to commit any of the mentioned crimes for all acts committed by persons in the implementation of such a plan will be held responsible.According to ICTY Statute, Article 7(1): “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” However, public and direct incitement to genocide is criminalized in Article (p)(3) 4 of the Statute of the ICTY and Article (p)(3) 2 of the Statute of the ICTR.Article (1) 6 of the Statute of the Special Court of Sierra Leone, which is similar to Articles 7 and 6 of the Statute of the ICTY and ICTR, prompted SCSL to declare in the case of Brima, Kamara and Kanu that the relationship between instigation and the crime committed must be proven, but it is not necessary to prove that the crime would not have occurred without the involvement of the accused to instigation. From the interpretation of the sentence "the relationship between instigation and the crime committed must be proved" it can be concluded that instigation is considered as one of the forms of secondary responsibility in the SCSL, which considers the occurrence of the result as one of the basic elements of the realization of the crime of instigation.On the other hand, referring to Article 3 of the Convention on the Prohibition and Punishment of Genocide and Paragraph 3 of Article 4 of the Statute of the ICTY and Paragraph 3 of Article 2 of the Statute of the ICTR, in international criminal law, incitement to commit genocide regardless of whether it leads to a criminal outcome as an independent crime must be considered. There is also a difference between clauses B and E of Article 25(3) of the Statute of the ICC regarding inducement to commit an international crime and direct and public incitement to genocide.​ConclusionInstigation to commit international crimes and public and direct incitement to genocide have many similarities and are often disputed. However, they have distinct characteristics and should be distinguished accordingly. Instigation to commit international crimes is a form of participation in the crime of another person. Instigation to commit international crimes is not a crime in itself. While incitement to genocide is punishable even if genocide did not take place, direct and public incitement to genocide is addressed to the general society, which can ultimately cause an atmosphere of hatred and bipolarity in the society, and it is possible that anyone commits a crime following these public incitements. On the other hand, instigation to commit international crimes is an incitement addressed to a specific person. In order to prove the responsibility of the accused for this international crime of hate crimes (Public and Direct Incitement to Genocide), it is necessary that in addition to being public and direct, and the specific seriousness and specific mens rea required for genocide, the words of the speaker have the potential to lead to a genocide in the society. A capability that can be proven according to the time and place of the speech and the characteristics of the speaker and the audience.

The daily fine is one of the new alternatives to imprisonment stipulated in the Islamic Penal Code 92, the amount of which is determined by the court according to the severity and importance of the crime on the one hand and the amount of daily income of the offender on the other. Anticipating daily fines and considering the convicted person's financial situation is a new step towards individualizing punishments. Although this system has been criticized, it is one of the positive aspects of today's criminal policy. However, the more effective and practical implementation of this system depends to a large extent on the actual income of the convicts. For this alternative to work well, the courts must have the right way to measure the income of convicts. On the other hand, due to the increase in the workload of the courts due to the review of the financial situation of the convicts, along with the consideration of the criminal case and the delay of the trial, most judges are not interested in it. Therefore, in order to properly use the capacity of this alternative and make it more efficient, it is necessary for the legislator to provide the judge with a specific mechanism for identifying the income of convicts and to determine the duties of executive bodies that have any knowledge of income and rights of convicts. The need to be obliged to cooperate. However, the research findings indicate that this alternative is applicable first to people who have the minimum income and financial ability to pay a fine. Therefore, for the disabled and without a specific income, another suitable alternative must be determined. Second, if the amount of the fine is determined in proportion to the income of individuals, due to the unfavorable economic situation, most of the convicts can be successful.

With the advent of international criminal court and tribunals, there are ne bis in idem provisions that restrict both the international and national courts in conducting subsequent prosecutions. Ne bis in idem rule can apply both horizontally and vertically. However, the function of latter is adjusting the relationship between international courts and national courts. The vertical ne bis in idem effect includes both "downward" and "upward" levels. The content and scope of the rule are not uniformly defined. In particular, ways to interpret the two decisive factors ‘Idem’ and ‘Bis’ vary considerably. In the interpretation of the term “Idem”, there is the ambiguity as to what stage former prosecution should be taken place in order to prevent a new prosecution. Another ambiguity relates to the term “Bis”; In fact, what is the Bis and in which circumstances second prosecution is double prosecution. Response to that depends on the test that is used by the court: the same conduct test or the same offence test. This paper by examining statutes and case law of international criminal court and tribunals concludes that former prosecution had to give rise to conviction or acquittal to prevent new trial. Depending on the upward or downward vertical Ne Bis in Idem rule, application of both tests is possible.

The aim of this paper is to consider the Tu quoque defence in the context of international criminal law by the analytical-descriptive approach. Simply put, Tu quoque is the Latin term (equal to: You too) and often is stated in this context:(You should not punish me because you did it too). This defence, for the first time was implicitly accepted during the Nuremberg tribunal (following World War II) in the Admiral Karl Doenitz case. The original base of this argument is the clean hands doctrine: (if one of the parties of armed conflict has committed certain crimes, his hands to prosecute or punish other parties of conflict for the same crimes are not clean). Recently, criminal tribunals such as International Criminal Tribunal for Yugoslavia have been faced with Tu quoque as a defence. Despite the existence of an ambiguous history for this defence, jurists have not paid enough attention to this defence. This paper, by examining the jurisprudence of IMT and other international criminal courts, concludes that Tu quoque defence in Genocide and Crimes against humanity cannot be accepted, but in some War Crimes and the Crime of Aggression, this defence is acceptable under certain circumstances.

The importance of maintaining the fairness of proceedings and protecting the rights of the accused have led various criminal justice systems to provide for special rules to the effect of ensuring fair trial . The exclusionary rule of evidence is one of the most important safeguards-provisions of these regulations, which makes it impossible to cite evidence obtained in an unauthorized manner in the court. Despite the fact that the International Criminal Tribunal for Yugoslavia and Rwanda, bear the task of prosecution of the perpetrators of the most serious international crimes, they have not overlooked the rights of the accused. According to Art 95 of rules of procedure and evidence of ICTR and ICTY, the exclusion of evidence obtained through unauthorized methods does not necessarily lead to exclusion of evidence, except when the methods used to obtain evidence cast substantial doubt on reliability of evidence or damage the integrity of the proceedings. The conditions set forth in this article, which their authenication have been granted to the discretion of judges, gives the rule an optional nature and restricts its scope to some extent. This solution is the result of international criminal tribunals' efforts in striking a balance between the rights of the accused and victim which with all its ambiguity in drawing the scope of the rule has been adopted by the ICC.

State-sovereignty-oriented approach has been gradually supplanted by human-being oriented approach in international criminal law. Double criminality rule is a philanthropy rule. The rule is one that is more or less uniformly applied in principle in extradition law and process on a worldwide basis. However, the particular construction differs from jurisdiction to jurisdiction, often quite considerably. The rule in some jurisdiction principles could fix some defects and criticisms. However, this rule is a serious obstacle in extradition between states. For this reason extradition replaced by some tools such as European Arrest Warrant in some countries. But improvement of process is not proven in any way. The rule on the transfer of sentenced of persons is also considered. conduct underlying the offence for which assistance is sought must a criminal offence under the laws of both States Parties regardless of whether the laws of the requested State in the same category of crime is a crime or an offense with the same word to call the requesting State.

The present study aims to investigate the relationship of social factors and knowledge of laws (legal literacy) with knowledge of citizenship rights. The research method is survey and the sampling method is the stratified random sampling. The population of the study consisted of citizens of Rasht City among whom 328 participants were selected using Cochrane’s formula as the sample size. Findings of the research indicate that, there is a direct and significant correlation between socioeconomic status, media consumption, education, citizenship commitments, and knowledge laws with knowledge of citizenship rights. It means that with the increase in the degree of suing mass media, the level of education and knowledge of laws the level of the knowledge of citizenship rights increases. In addition with enhancing individuals’ socioeconomic statuses, the level of their knowledge of citizenship rights increases. But no significant correlation was found between gender and knowledge of citizenship rights. Also, the five variables, i.e. education, socioeconomic status, media consumption, citizenship commitments, and knowledge of laws which entered into the regression model of the research, explained 30% of the variations related to citizenship rights.

In criminal offenses, to impose punishment on criminals, simultaneous existence of both Actus reus and Mens rea is essential. But there are exceptions in law and the parliament regarding the prevention of committing some dangerous behavior and protecting the public interest. The regulations forbid such acts due to the fact that they are difficult to prove, and they are not economical. This process is referred to as "strict liability or criminal liability without fault" and the offender will be punished, although a mental element may be necessary, i.e, whether or not she/he might have broken the law. Principle of the criminal law is to punish when 'No fault' is imposed on the person. This article explains the strict and absolute liability in criminal law and Islamic law and its relationship with the physician's responsibility. The present research concludes that compurgation does not eliminate the physician's responsibility but she/he can be excused from the punishment Diyeh. Thus in certain conditions, the criminal law and jurisprudence accept strict criminal liability.

The aim of this paper is to consider the existent challenges in order to achieve justice in international community. This study is done with documentary method and analysis of some international documents such as, Rome Statute, UN Charter and some Security Council’s resolutions. This Article, at first, states the place of international peace and security concepts and tries to determine their sources in international level. Then, it introduces some of the most important of their representatives - Security Council and International Criminal Court – in international community, by explaining the relationship between international politics and law and describing their priority or recency in international issues. In this context, their relation, particularly the effect of Security Council’s measures in the framework of resolutions based upon chapter VII of UN Charter, is considered. Finally, criticizing to some of the SC’s decisions by resolution, it explains how permanently peace is accomplished with establishing justice

Not all crimes are committed intentionally. Sometimes the agent carries out an act which he had not intended, but due to some other factors, his act is reprehensible. Carelessness is one of the most prominent factors which can bring about criminal responsibility. Now the question is from which perspective should carelessness, negligence, etc. be viewed? Should we consider whether the agent was subjectively careless (Subjective Test)? Or whether the subjective test should not be relied upon and the agent’s act should be compared with those of a reasonable person (Objective Test)? In this paper, we are going to prove that due to multiple reasons, the mere reliance on either subjective or objective test is not an acceptable approach since each of these approaches comprises advantages and disadvantages and the sole use of any one of them will bring about the incompetence of the criminal justice system. What will result from the reasonable co-existence of these two viewpoints is a moderate approach which is free from subjective and objective extremism and we shall name it “The Mixed Test”.

At the present time, according to facilities available for travelers to visit every country in the world, once a resident of Dar-al-Islam (whether a Muslim or non-Muslim) has been tried, acquitted or convicted of an offence in Dar-al-kufr, is the judgment valid under Islamic jurisprudence after returning to Dar-al-Islam or not? It seems possible by considering the interests of the Islamic system and assessment of policy experts. Whilst foreign criminal sentences accepted, particularly in the context of bilateral or multilateral treaty, it helps to establish judicial cooperation between states in a methodical manner and prepare the grounds to expand relationship and mutual trust between Iran and other countries in one hand, and contribute to decrease material and spiritual expenses, benefit the domestic criminal justice and facilitate the prisoner's contacts with their families, relatives and other close person on the other hand