جستجوی مقالات مرتبط با کلیدواژه « genocide » در نشریات گروه « فقه و حقوق »

The Rohingya people are a Muslim minority who comprise less than 5 percent of the 55 million inhabitants of the Union of Myanmar. They have been subjected to organized crimes by the country's army and government, which amount to systematic human rights violations and the crime of genocide, according to international law and criminal standards and their application to the situation of the Rohingya Muslim minority. Genocide is a crime against human rights because it violates the most basic and obvious human right-the right to live. The violence perpetrated by Myanmar's military forces at different stages against the Rohingya ethnic and religious minority clearly shows the mens rea and actus reus of genocide in Myanmar. Despite the fact that genocide infringes on the most important human right, the right to live, international law has not been very successful in protecting this ethnic minority. One of the main barriers to the protection of the Rohingya ethnic minority is that international law does not have a clear definition of their status and especially the nature of their relationship to their homeland; it only refers to them as a minority that suffers from torture, harassment, and discrimination. The fundamental problem, however, is that the Myanmar government denies the identity and historical links of these people as an ethnic minority to the land of Myanmar. Therefore, the authors' hypothesis is that despite all the efforts of international law, the Rohingya ethnic minority has not derive a benefit. The aim of this article is to examine, using a descriptive-analytical method, the crime of genocide as a breach of minority human rights, with a focus on the Myanmar genocide.

Genocide is one the most important International Crimes that has been adopted by the Rome 1998 Statute of the International Criminal Court and set out punishment for it in this international instrument. The crime of genocide has been conceived as mother of crimes in the doctrine. Taking place this crime in China against Uyghur Muslims has been under debate in these years. Recent report of Newlines Institute for Strategy and Policy about the Uyghur genocide allege signifies important of the issue and has attracted attention of the media and global society.This article attempts to investigate the issue through scrutinize the questions bellow: has the Actus Reus of the crime of genocide in events sequence concerned with Uyghurs proven? Does it verifyrequisite jurisdictional threshold for initiate investigations by the Prosecutor of ICC? What is the responsibility of Chinese authorities for the crimes mentioned above?In this article, intellectual effort was exerted in order to reach valid answers for the questions about the Uyghurgenocide in Xinjiang region. Based on the documents and reports of different International authorities and organizations, it was revealed the the Actus Reus of the genocide was committed.Although normative and legal possibilities in Rome Statue provides proper conditions for investigating the issue, a bulk of practical obstacles and serious impediments cause the ICC prosecutor refrain from carrying it out. This study also confirms Chinese officials’ international criminal responsibility- at the national and local level- and their mercenaries’ for the Uyghur genocide.The method used in this study is analytic-descriptive one specially analysis related international documents and reports in order to evaluate elements of the crime of genocide.

Following the genocide in Rwanda that killed one million people, the Rwandan government turned to Gacaca courts, which are rooted in the culture of all the people of Rwanda, in order to expedite the prosecution of those involved in this humanitarian catastrophe and reduce the prison population. In order to adapt these courts to the conditions of the crimes committed, the Rwandan government made several changes in these courts, which according to many, changed its traditional and informal nature and brought it closer to the criminal courts. This intermediate mechanism, in addition to having gains and advantages as an alternative judicial response, has also caused concern and criticism from a human rights perspective. The present article examines this intermediate mechanism and its positive and negative aspects from a human rights perspective.

The Al-Aqsa Storm operation on October 7, 2023, carried out by the military branch of Hamas, namely Al-Qassam, represents an unprecedented military action in the longstanding Israeli-Palestinian conflict. While Hamas's actions may be justified based on the occupation and the right to self-determination, Israel's response to this operation has been extensive, devastating, and unprecedented, to a degree that cannot be considered legitimate defense. The killing of thousands of innocent civilians, the use of prohibited weapons, the destruction of medical centers and hospitals, the collapse of the health system, the all-encompassing siege of Gaza, and the lack of access to vital goods such as food, water, and medicine have led to widespread famine. The destruction of homes and the forced displacement of the people of northern Gaza to other areas are among the blatant atrocities committed by Israel, which could be assessed as the actus reus element of the crime of genocide.
This article seeks to address whether the actus reus and mens rea elements of genocide (specific intent) have been met in light of recent Israeli military operations against the Palestinians (the people of Gaza). Through a descriptive and analytical examination of official reports, doctrine, and international jurisprudence, it concludes that, based on Israel's actions, especially the killing of members of the group, both the actus reus and mens rea elements of the crime of genocide in the Al-Aqsa Storm operation on October 7, 2023, have been fulfilled in a manner that establishes grounds for the jurisdiction of the International Criminal Court. Consequently, the International Criminal Court could exercise its jurisdiction in this case.
The people of Gaza are an integral part of the Palestinian nation and government, united by a common and historic goal and struggle for liberation from occupation and colonization. Their shared nationality, ethnicity, and religion, as well as their continuity of goals, align them as a group protected under the Genocide Convention of 1948 and the Statute of the Court (6).
In addition to the deaths of Palestinians resulting from Israel's military actions, they face immediate risks of starvation, lack of water, and disease due to Israel's enduring blockade, inadequate aid distribution, and extensive restrictions on essential resources caused by the destruction of Gaza's infrastructure due to Israeli attacks. The coordinated and consistent statements of Israeli authorities, operationalized through military orders, serve as compelling evidence of intent.
The pattern of Israeli attacks and actions against the Palestinian population in Gaza since October 7, 2023, including collective punishment, forced disappearances, and the use of famine, water, electricity, and fuel cuts as tools of war, along with public statements by high-ranking Israeli government and military officials, collectively indicate Israel's genocidal intent. The behaviors, circumstances, and presumptions used by ad hoc international criminal tribunals to establish the specific intent of genocide align with the actions of Israeli authorities and can serve as a legal basis for potential proceedings against them.
Currently, the court's prosecutor, Karim Khan, has emphasized the importance of investigating the situation in Gaza, ensuring justice for the victims, and upholding the rule of law. While the prosecutor's actions have been articulated in a series of speeches and not as official actions, no preventive statement regarding Gaza has been issued by the court prosecutor. Member states of the Court, such as South Africa, Bangladesh, Djibouti, Bolivia, and the Comoros Islands, have recently referred the situation in Gaza to the Court, citing genocide as one of the concerns. However, due to the cautious approach of the prosecutor, an official decision regarding genocide does not appear imminent. Nonetheless, a provisional order issued by the International Court of Justice in the case of South Africa against Israel concerning the genocide of the people of Gaza, based on the Convention on the Prohibition and Punishment of Genocide, could potentially alter the court prosecutor's cautious stance.

The growth of international crimes is an important factor against international security. However, consensus on the seriousness and danger of these crimes has always become an important challenge among governments, and this has made dealing with these crimes difficult. In this regard, various international organizations such as the International Criminal Court and Interpol have been established by governments to deal with international crimes, and their relationships and limits of cooperation are the challenge of this research.

This article is written in a descriptive-analytical way.

Although there are many international crimes in the international arena and governments face challenges in facing them, not necessarily all of them were considered by the founders in the process of establishing the International Criminal Court. In addition, what challenges the investigation and prosecution of the crimes committed by the International Criminal Court are the jurisdictional limitations of this court, which include subject, time, place, supplementary and personal jurisdiction. Meanwhile, the role of Interpol in dealing with international crimes is expanding. Although the governments have not reached a consensus regarding international crimes, Interpol does not face the limitations of the International Criminal Court in prosecuting many crimes and has the possibility of prosecuting many crimes contrary to the International Criminal Court. Although the scope of activities of Interpol and the International Criminal Court are not the same, they can take important measures in order to deal with international crimes in the same common scope.

Is it possible for genocide to be committed only by states with totalitarian and authoritarian political regimes? Events and studies in Canada over the past few decades prove the opposite. A wealth of Canadian state documents, witnesses, officials’ confessions, and surveys show that the genocide of Indigenous peoples as the main owners of the land was carried out in a very slow, lethal, and mostly non-lethal manner against this population. The article, while reviewing the facts of the case in the light of case law and related international documents, considers the option of bringing an action against the state of Canada in the International Court of Justice to reiterate to the members of the international community the need for appropriate action. Reconsider their approach to the people under their jurisdiction so that they do not commit genocide as the most heinous international crime, and thus we witness a day without repeating the unbelievable stories of a generation of people trying to destroy other generations.

Genocide, considered as the gravest international crime and a manifestation of corruption on earth from a jurisprudential perspective, stands as a stark example of criminality. Jurists have positioned it as the most severe crime among both international and domestic offenses. The intention behind genocide is the total or partial destruction of vulnerable ethnic, religious, racial, or national groups, drawing significant attention in criminal jurisprudence, as evidenced by the Convention on the Prohibition and Punishment of Genocide and the Statute of the International Criminal Court. This research employs an analytical and descriptive approach to scrutinize the ongoing genocide against Shiites in Afghanistan. It delves into the general and specific elements of this crime, providing examples based on Islamic jurisprudence and international documents. The article, supported by conclusive evidence, asserts that Afghan Shiites have endured the most severe, heinous, and unprecedented genocide worldwide on at least three occasions. The research findings emphasize that the right to survival for these groups is absolute, and no expediency can curtail this fundamental right. The perpetrators, by manipulating takfir tactics and disseminating religious animosity, succeeded in depriving Shiites of their right to survive, committing an unparalleled and sustained crime against them, leading to significant harm to nation-building and national unity in the country.

In the following three speeches, the present article has discussed the foreign policy of the United States in the 20th and 21st centuries, and in the course of multipolar, bipolar and unipolar international systems, and the place of legal principles in In general, and human rights in particular have been examined in these policies.
Based on what will come in the upcoming speeches, during the years between the first and second world wars, America paid special attention to the legal principles governing international relations, and political values such as democracy and freedom in relations between but during the Second World War and after that until today, political ideals and values such as international law, human rights, democracy, and freedom, as instrumental matters, were under Al-Sha'a has placed national power and national interests.
Human rights have not only been exploited as a tool of foreign policy against the powerful rival of the 20th century, namely the Soviet Union and the Eastern Bloc, but also in the third world and the Islamic world. However, this approach A tool for Israel-Arab or Israel-Palestine relations has been specifically and unprecedentedly ruled. In the Israeli-Palestinian confrontation, especially in the Israeli war against Gaza, maximum disregard for legal standards and human rights has happened. So that America has taken Israel's life in the face of the "war crime" and "genocide" going on in Palestine, and Israel has received the full support of America.

The legal analysis of the current situation in Gaza reveals a complex interplay between a genocidal war and a prolonged disastrous occupation, giving rise to what can be termed as “Gazocide”. This innovative conceptualization encapsulates the systematic and sustained destruction of a protected group at least as defined by the UN Genocide Convention. However, and at the same time it algorithmically explores a new threshold in destruction levels against humanity. The genocidal war in Gaza is characterized by actions demonstrating intent to destroy specific ethnic, religious and national groups. Current paper which has been conducted by legally socio-historical approach finds that the criminal attacks on civilians, intentional destruction of infrastructure and conditions leading to physical destruction, not only align with the legal definition of genocide, but more importantly goes further to shape a new threshold of severity in galaxy of international criminal law.

So far, more than 26,000 civilians have been killed in the Gaza Strip, and more than half of them are children. More than 1,900,000 people out of the two million people of Gaza have become homeless during the recent armed conflict. The population of the north of Gaza has been moved to an uninhabitable area in the south, and more than 500,000 people have been seriously injured. All these cases together with people's lack of access to food, medicine, water, etc. indicate the occurrence of genocide according to the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), on 9 December 1948. In this article, we examine the dimensions and evidence and how to deal with this open and reckless genocide based on the analytical-descriptive method. Grave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making.

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 principle of the Responsibility to Protect (R2P), adopted by states at the 2005 World Summit, asserts that governments are responsible for protecting their citizens. If a government fails to fulfill this responsibility, the international community assumes the responsibility. In Myanmar, the Rohingya crisis and the 2021 military coup have highlighted widespread and systematic human rights violations in the country. Despite the accepted principles of R2P, the international community has ignored its responsibility to stop the widespread atrocities in Myanmar. The demand for R2P in Myanmar is increasing. The objective of examining the situation in Myanmar, through the lens of a sociological approach to global governance, is to evaluate the perspectives of the international scientific community regarding the potential of the Responsibility to Protect theory concerning Myanmar. This study outlines the justifications, implementation challenges, and provides recommendations for future political action. The Security Council veto, the principle of non-intervention, and confusion regarding the implications of R2P have disrupted an effective and collective international response. Although military intervention may not be feasible, a range of non-coercive actions under the R2P framework, along with continued support for its fundamental principles, is recommended.

One of the basic components of the contemporary world with a significant impact on human life, such as role-playing in inciting citizens to commit a crime, is the media. Therefore; the present study explains the role of Facebook in committing the crime of inciting genocide in the Myanmar civil war. Findings show that in Myanmar's civil war, pro-government militias used Facebook to directly perpetrate genocidal Buddhism by committing genocide against Muslims, using Facebook to directly influence public opinion and to alienate the taste of a violent society (an interaction between the media and citizens). They provoked the Rohingya. Therefore, the role of Facebook in inciting genocide in Myanmar is obvious; however, it is not possible for Facebook to be tried as an independent entity in international criminal courts. Just as the charges against legal entities such as the Millennium Free Radio and Television Station were not heard in the Court of Appeals, despite their direct influence in inciting genocide in the Rwandan Civil War; Because the purpose of the authorities dealing with international criminal law is to try natural persons. However, the impossibility of punishing legal persons in these authorities does not negate the possibility of domestic courts prosecuting the crimes of the persons in question.

Since 2017, the Republic of the Union of Myanmar has carried out severe repressions against the Rohingya people. These atrocities resulted in numerous international reactions from the States, international organizations, NGOs as well media. This article evaluates the proceedings of the International Court of Justice (ICJ) in the Gambia v. Myanmar case and the Bangladesh/Myanmar situation in the International Criminal Court. The International Criminal Court (ICC), with its extensive interpretation of the 1998 Rome Statute, found the cross-border element necessary for the perpetration of certain crimes, and despite Myanmar's non-membership in the Statute, the ICC found its jurisdiction over the crimes committed during the deportation of the Rohingya from Myanmar to Bangladesh. Meanwhile, the ICJ for the first time is facing a Case which is brought before it by an indirect victim State i.e. Gambia who has based all its allegations on the mysterious concept of violation of obligations erga omnes partes. This paper first provides summarized information on both pending proceedings and then will examine the challenges that international law has to find a proper solution for the Rohingya crisis through these judicial and criminal adjudication processes.

The Martens Clause is undoubtedly one of the fundamental provisions of contemporary legal order of the international community. In addition to other areas of international law, international criminal law has been an arena for the presence and objective impact of the Martens Clause and its constituent elements.The formulation of the Martens Clause of the principle of humanity and the requirements of public conscience as a determining point for entry into the international law documents, has formed part of the idea of international crimes, because these two related elements that are threatened by the commission of crimes, are an important part of the protected areas which justifies the existence of a crime under international criminal law. this article shows how the principle of humanity and public conscience resulting from the Martens Clause have played a role in the codification and formation of international crimes, especially crimes against humanity and genocide. Following the legal doctrine, international documents and jurisprudence, we conclude that by legal acceptance and an extensive and protective judicial interpretation of criminal court, the Clause has played a key role in criminalizing international crimes and attacks on human values. In fact, the culmination of the Clause in international criminal law has been manifested in filling legal gaps,combating impunity,immunity of perpetrators in international arena, and prosecuting those who violate human values

Restorative justice is a form of criminal justice based on "compensation." Compensation means trying to repair the deplorable effects of crime and losses, whether in full or symbolic. Today, the issue of repairing and compensation of victims of international crimes is important. Due to the silence of the statutes and legal texts of the Special International Criminal Court on the rights of the victims and the repair of their damages, it is now time to organize a special legal and criminal regime to "repair" the damages inflicted on the victims of international crimes. In addition to resorting to restorative processes in the prosecution of international crimes, especially with regard to the Truth and Reconciliation Commissions which lead to the granting of amnesty to criminals, other restorative methods such as training victims and their participation in cases are also indicated. However, restorative justice in crimes against humanity and genocide is still a new thing, but a comprehensive plan must be developed and implemented internationally to compensate victims.

The International Court of Justice (ICJ), the institution for resolving disputes between states, issues an interim injunction in accordance with its mandate in specific circumstances at the request of each party. It owes its mandate, in accordance with the Charter of the United Nations, to the application of international law and the attainment of the purposes of the Charter, where necessary. The issuance of orders and the determination of interim measures are based on the criteria of urgency, necessity, irreparable damage and insane competence. The main question of the present case is how the Court of Justice issued its interim injunction in the case of the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar) on 23 January 2020 and what changes in the type of obligations arising from the interim injunctions Created on human rights? By expanding its jurisdiction, the Court has paid more attention to human rights issues and has contributed to the human-centered development of international law. Examining the interim order of the Court in this case, it can be seen that the approach of the Court in issuing an interim order in the field of human rights has changed from a precautionary aspect to a protective aspect.