جستجوی مقالات مرتبط با کلیدواژه "hybrid courts" در نشریات گروه "فقه و حقوق"

According to reports from international institutions and organizations, including Human Rights Watch, High Commissioner for Human Rights and Amnesty International, Myanmar Muslims, and in particular the ethnic and religious minority of Rohingya Muslims, have been pursuing discriminatory policies and the criminal acts of the Myanmar government and its Buddhist residents since decades. Meanwhile, the recent human tragedy and the terrible crimes committed against the Rohingya Muslims, which have been accompanied by the government of Myanmar and the military regime of the country, have more and more been faced with the response of the international community. Given the correspondence of these crimes with actus reus and mens rea of the crime of genocide and crimes against humanity, prosecution of those perpetrators at both national and international levels is debatable. At the national level, the Myanmar Courts, based on two principles of territorial jurisdiction and nationality jurisdiction and third countries courts based on the universality principle (Subject to the identification of such a principle in their internal laws) may interfere. More importantly, the mechanisms available at the international level include the referral of the status to the International Criminal Court or the formation of the Particular International Criminal Court by the United Nations Security Council. In addition, there is also an intermediary mechanism, which is a hybrid or internationalized court that can be formed on the basis of an agreement between the Government of Myanmar and the Security Council. In this paper, the pros and cons of each of these courts is reviewed in order to handling of recent crimes committed in Myanmar.

The key issues surrounding hybrid courts are the reasons and the legal bases of their establishment. The reasons for the establishment of hybrid courts are debatable on both national and international levels.From the national perspective,it can be due to reasons such as the inability or unwillingness of the local legal system to deal effectively and fairly with international crimes,the immunity of the heads of state in national courts,the increase of differences and political tensions in the event of the intervention of the local judicial system and existence of legal barriers for international crimes have been addressed by national courts.From an international perspective, constraints on the jurisdiction of the ICC and the unwillingness of the SC to establish a dedicated international criminal tribunal are among the most important reasons for the establishment of hybrid courts.In terms of legal bases, these courts are divided into several categories.Some of them are established on the basis of a treaty between the relevant state and the UN or other international and regional institutions.Some others are freely formed by the UN and without a treaty.In some cases,the establishment of these types of courts is based on the national law of the State where crime is committed.

one of the most important issues surrounding courts, which are established as a result of the international community's participation with the legal and judicial system of country where the international crimes are committed and in order to be more effective against impunity of international offenders, is their relationship and co-existence with the International Criminal Court, on the one hand, and the national courts of the countries where crimes are committed. Undoubtedly, the systematic co-existence of these institutions and their mutual influence on each other leads to the development of the local and international judicial system. In this co-existence, the hybrid mechanism of criminal procedure can be achieved by removing the gaps in international and domestic criminal justice, not as an alternative, but as an appropriate complement to the International Criminal Court and national courts to countering impunity for international crimes and serious human rights violations. uch a mechanism moves towards balancing the two fundamental principles of international law: the international commitment to ending the impunity of international crime and the need to respect the sovereignty of states.

Based on the report of the international authentic institutes, Daesh group (ISIS) has committed anti-human and grave behaviors that for their systematizing and spreading over that some of them can be instances of three important international crimes meaning genocide, war crimes and crimes against human. Yet it has not been formed any serious action to prosecute and punish the members of ISIS by national and international courts. Iraq government with adducing to territorial principle is the most prior country to prosecute and sentence these members and also countries which ISIS members are their citizens or countries have accepted the principle of universal jurisdiction related to the international crimes and with relying on personality principle and the principle of universal jurisdiction it can be prosecuted and punished ISIS members specially their leaders in an international criminal court. The universal society expects that United Nations Security Council exercises the prosecution and punishment of ISIS members in an international criminal court. This is possible through two the establishment of an international criminal court like the international criminal tribunals for the Former Yugoslavia and Rwanda or referring to International Criminal Court. This paper has legally studied and evaluated the possibility of sentencing ISIS members in any of the mentioned courts. The outcome shows that every of theses courts has its advantages to prosecute and punish ISIS members and Iraq government and international community must use these capacity in a proper manner.