جستجوی مقالات مرتبط با کلیدواژه "reasonable basis" در نشریات گروه "فقه و حقوق"

The prosecutor has applied a request for ruling on jurisdiction in the Palestine situation under Article 19(3) of the Statute. It seems that the Prosecutor has not yet identified the Palestine state under the ICC jurisdiction with a declaration accepting the jurisdiction of it under Article 12(3) of the Statute. This subject is to examine the dimensions of that theory and the prosecutor’s approach, which has been considered by descriptive-analytical and critical method. The research question is, what the reasons are for the prosecutor’s approach in requesting for ruling on jurisdiction in the Palestine situation. The findings show that the prosecuter’ s political determination will prevail over his legal will. But the prosecutor is not a political official to overshadow international political considerations over performance in the Palestine situation. Therefore, regardless of the Zionist regime’s position, the prosecutor should conduct criminal investigations into the Palestine situation by Article 53(1) of the statute.

Prosecution of the accused is one of the main steps of the criminal prosecution process, which has been included among the powers and duties of the competent authority in the matter of prosecution in order to preserve individual and social interests.The decision to prosecute, in accordance with the rules of Iranian national proceedings, and in the field of international criminal law in accordance with the Statute of the International Criminal Court, is borne by the prosecutor.The study of the provisions of Iranian criminal law, along with an examination of the provisions of the Statute of the International Criminal Court as a valid and standard document on how to organize criminal proceedings through the confrontation of the two systems of mandatory or appropriate prosecution, help to better delineate the powers and duties of prosecutors.In the structure of Iranian regulations on criminal procedure, institutions such as discontinuance of prosecution, archiving of cases, mediation and suspension of prosecution are deemed as necessary institutions for recognition of the appropriateness of the prosecut1ion system that, with the approval of the Code of Criminal Procedure adopted in 2014, have emerged out of scattered and special laws and have assumed the comprehensive aspect.Moreover, in the light of Article 53 of the Statute of the International Criminal Court and the procedure governing the proceedings of this Court, it can be said that the International Criminal Court, despite the fact that it has adopted the model of compulsory prosecution as its principle or basis, has also paid attention to the principle of appropriateness of prosecution and the interests of justice and reasonable basis. Therefore, in some cases the Statute has left non-prosecution of the accused to the discretion of the prosecutor.In addition, anticipation of institutions such as deferral of investigation or prosecution, complementary jurisdiction in the provisions of the Statute and the precedent of the International Criminal Court are also considered as indicators that suggest recognition and application of a system based on appropriateness of prosecution in the rules and precedent of this Court.

The Marmara ship situation, the subject of an attack by the Israel military on the ICC, referred to by the flag state has been rejected and archived by the ICC Prosecutor. This action of the prosecutor is in the light of the requirements set forth in Article 53 of the Statute, which must identify the rationale for the situation referred. If the prosecutor finds a reasonable basis, he/she will start an investigation, otherwise will file it. From this point of view, it is important to study the dimensions of the prosecutor’s approach in the judicial procedure regarding the condition of the Marmara ship. The research method in this paper is descriptive-analytical and critical. The main question of the research is what is the achievement of the judicial procedure based on the legal mechanism in forcing the prosecutor to reconsider the status of the Marmara ship referred by the flag state against the Israel regime? The findings show that the prosecutor's response to the situation referred by the flag state believes that there is no criterion for the severity of the crime, while the Comoros state believes that the Israeli military's attacks on the flag ship and its crew are enough severity that to be prosecuted in the ICC. Accordingly, the ICC’s judges found that the prosecutor's assessment of the lack of a reasonable basis was inconsistent with the circumstances of the situation. The prosecutor was asked to reconsider his previous decision. However, the judicial procedure has shown that the prosecutor obligation lacks a guarantee of performance and achievement and does not mean that a preliminary investigation into the criminal situation has been started. This implies the ineffectiveness of Article 53(3)(a) of the Statute and the referring State right to object for the prosecution of international crimes in the ICC.

Initiating an investigation at the prosecutor discretion into the Afghanistan situation is one of the mechanisms for exercising the ICC jurisdiction. This is the Prosecutor’s approach to counteracting the inaction of the Security Council and the Afghanistan state which do not seek to prosecute war crimes on its territory. The Prosecutor’s consideration in this way relies on establishing a reasonable basis in article 15(3) of the Statute which must also be approved by the Pre-Trial Chamber. But the Pre-Trial Chamber’s assessment of the Afghanistan situation is in line with the interests of justice in article 53(1)(c) of the Statute and has prevented to initiate an investigation the Afghanistan situation. Therefore, the analysis of the ICC jurisprudence of the Pre-Trial Chamber and the Appeal Chamber in this regard is of importance, originality and research innovation. The method of study in this article is descriptive-analytical and critical in order to answer a question: what is the function of the interests of justice in the ICC jurisprudence to initiate the Prosecutor investigation in the Afghanistan situation? Research findings show that the factor of interests of justice in article 53(1)(c) of the Statute is not related to the request of the prosecutor under article 15(3) of the Statute. Accordingly, the Pre-Trial Chamber’s approach to the argument that there is no interest in justice in refusing to issue a permit to investigate in the Afghanistan situation is inconsistent with the components of article 15(4) of the Statute.

The main purpose of the establishment of the International Criminal Court is to investigate and prosecute international perpetrators of crimes, so that these individuals are not left without bureaucracy. To accomplish this, the Prosecutor of the Court has a tremendous duty. Selection of the situation and initiation of its research and its initial review is done according to reports, documents, evidence and evidence. At this stage, the prosecutor must establish a reasonable basis, in which case the primary branch will decide by conducting its own judicial oversight of conducting comprehensive investigations and prosecuting perpetrators.
The study seeks to analyze the initiation of international prosecutor investigations. To this end, some research-related issues will be evaluated in the light of the provisions of the Statute of the Court and its practical procedures.