جستجوی مقالات مرتبط با کلیدواژه « chemical weapon » در نشریات گروه « علوم انسانی »

One of the main examples of the use of chemical weapons during modern armed conflicts is the widespread use of these weapons against Iranian soldiers and civilians and even Iraqi citizens, by the Iraqi army in the imposed war resulting in thousands being martyred or injured. Meanwhile, due to the need to protect its citizens, the Islamic Republic of Iran, given the severity of the harm done to the Iranian victims of chemical attacks and their families, has the task of facilitating the litigation of these individuals from the perpetrators of the attacks. In this regard, the judiciary is also of a pivotal task for facilitating the domestic litigation of Iranian victims of chemical attacks through internal judicial mechanisms. In this framework, although the domestic courts have competence to proceed in this case, but with regard to the non-criminalization of international crimes in Iran's domestic laws, the criminal or civil litigation of Iranian chemical victims and their families from Iraqi authorities and also, the people who helped the Iraqi Ba'ath army to achieve chemical weapons are subjected to the exact criminalization of international crimes, including the use of chemical weapons as an example of war crimes. On the other hand, according to the principle of judicial immunity of states, only the international responsibility of the United States for helping the Iraqi army to be armed with chemical weapons is litigious before the domestic courts of Iran, within the framework of the principle of countermeasure.

Today, the rule of law is one of the most significant subjects in international law. The rule of law for the organizations such as international criminal court both possesses internal dimension, namely they must be under an obligation to respect their constitutive statute and other rules of international law and external dimension, namely their impact on the other institutions such as states, international organizations and human beings to respect international law. Based on the internal dimension of the rule of law this essay considers ICC’s jurisdiction on employing chemical weapons in international and non-international conflicts, due regard to Iraq war against Iran.Although, ICC has the jurisdiction to prosecute employment of poisoned weapons and asphyxiating gases, there are some opinions on the non-criminalizing to employ chemical weapons in the statute in which it makes haste analogy in the criminal law. Additionally, there is an opinion that ICC can exercise its jurisdiction on some conducts which were crimes before the entry into force of the Statute and now those crimes have also been criminalized in the Statute. Nonetheless, it can be said for realization of this issue, ICC faces with some obstacles such as Jurisdiction Ratione Temporis, non-membership of Iran and Iraq in the Statute, obligation to observe Statute’s regulations, for example article 10 and the rule of non-retroactivity Ratione Personae and these are principles in which ICC is obliged to apply in direction of the rule of law.

(Received: 2014/1/22 - Accepted: 2015/1/5) Using the chemical weapon has been recognized as an atrocious crime by customary international law for a long time. Regardless of diplomatic and military responses to the international crimes, nowadays, criminals can be prosecuted by the international criminal court. However, because there is no explicit statement in the statute of this court (Art.8) in relation to the criminalization of the chemical weapon usage, there is some vagueness in the jurisdiction of the court in this respect. Some international scholars believe that based on (I) strict interpretation, and (II) deletion of this weapon from the draft of the ICC statute, the court has no jurisdiction over chemical weapon. However, scrutinizing the problem, this paper combines special forms of interpretations in criminal law such as strict interference and, some kinds of interpretations in international law which mentioned in the Vienna convention on law of treaties 1969. Finally, it concludes that by recourse to teleological and literal interpretations, the court has the jurisdiction to prosecute this crime.