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

The range of damage caused by environmental crime due to armed conflicts is so wide that it cannot be compared with environmental destruction due to development and industrial approaches or green crime. The environment of Palestine and especially Gaza has not been spared from this historical event and has always faced serious challenges by the Zionist regime in the past decades. The widespread environmental damage caused by the air and ground attacks of the Zionist regime on Gaza in 2023 raises the question of whether it can be considered a war crime in the light of international law. In response, it should be stated that although until now no documentary report of environmental events and crimes has been published due to the restrictive measures of the Zionist regime in the entry of international observers to Gaza, but what can be seen in the news is that some of the behaviors of the Zionist army, such as the destruction of safe drinking water sources, starving the environment of citizens and the use of white phosphorus, can be considered examples of war crimes. Therefore, in responding to the environmental war crimes of the Zionist regime, can use tools such as the entry of the prosecutor of the International Criminal Court into the crimes committed in Palestine, which has accepted the statute of the court; Environmental activism in the International Court of Justice, which has an approach to protect the environment in armed conflicts, and the use of the capacity of the principle of universal jurisdiction by countries to punish the perpetrators and commanders of environmental war crimes.

In the wake of the Al-Aqsa attack, Israel, by adopting the policy of forced migration of Gaza residents, subjected this area to the most severe airstrikes and warned them in various ways to leave and evacuate Gaza towards the south. This Israeli policy is the basis for writing this article with the aim of examining Israel's policy of forced migration of Gaza residents From a jurisprudential point of view and international criminal law. The current article is descriptive and analytical, and it is designed to investigate the mentioned subject by using the library method. The findings indicate that forced migration policy is illegal in jurisprudence. In today's international law, based on Article 7 of the Statute of the International Criminal Court, the denial of knowledge and forced migration is an international crime and is included in the category of crimes against humanity, and special international criminal courts have named it as ethnic cleansing and its commission is one of the material elements of the crime. They know genocide. In fact, the forced migration of Palestinians and residents of Gaza if the transfer of the population is carried out by resorting to force or threatening to resort to force; involuntarily and without the consent and knowledge of the affected population; Population transfer should be done deliberately and knowingly; to be carried out during a regular program and predetermined policy; to be done in relation to specified groups and populations; If the transfer is illegal, it is an example of a war crime. All the cases mentioned regarding the policy of forced displacement of Palestinians by Israel, including the recent policy towards the residents of Gaza, are examples.

“Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud”, one of the leaders of the Ansar al-Din organization in Mali’s civil war, is now facing two charges of crimes against humanity and war crimes in the International Criminal Court.The implementation of corporal punishments is among his brutal acts. In this respect, we are facing this question that how the criminalization of corporal punishment should be analyzed from the court statute perspective? It is also necessary to unravel the mystery of how to rethink the corporal punishment system in Islamic countries in the light of the recent case. Present research concludes that the nature of corporal punishment implemented by Al-Hassan is compatible with the actus reus and mens rea of crimes against humanity and war crimes. Therefore, the implementation of corporal punishment by Islamic countries cannot be considered an international crime unless there are defined matching elements. However, in line with rethinking corporal punishments, they should come up with a message-oriented perception about the discussed case and pay attention to the expressive function of the court. With regard to various principles and jurisprudence rules such as Mulazeme rule (combination of reason and Sharia) and the Rule of Nafy Sabil (Denying the Domination of Unbelievers over Believers), there will be no doubt that this is an important issue. The importance of this issue and an urgent need for a solution increases with the international human rights organizations’ reactions and protests, considering Islamic governments in the same category as Takfiri groups in the international eyes, as well as the growth of the ohenomenon of Islamophobia.

The legitimacy of initial jihad (jahād-i ibtidā’ī) in the texts of Islamic scholars is one of the propositions that has provided the ground for “women enslavement” by Takfīrī groups. The international community has reacted against such conduct by criminalizing it. Nevertheless, the existing jurisprudential opinions regarding the legitimacy of women enslavement and initial jihad have provided the way for justifying the activities of Islamist terrorist groups. This study attempts to prove the prohibition (ḥurmat) of women enslavement with a critical view of such gender-stereotype view by benefiting from some components such as dignity, international custom, preliminary abrogation, and historicity. As a consequence of this study, considering women as booty is an obsolete opinion in the contemporary era with no status among shari’a and human wisdom; thus, by transition through historical writings in this respect, one should think of the transition through such an approach and stepping into a realm of equality between man and woman.

Intentional starvation is a violation of human rights and a crime whose perpetrators have been enjoyed the impunity. Recently, however, the international community has taken steps to prevent and combat it, including in the Rome Statute. Although, its provisions have been criticized for lack of transparency about the elements of crime, especially the spiritual element, or for limiting its commission to international armed conflict and its conceptual development is essential. In view of these considerations, the present article seeks to examine and analyze how a gradual and while violating a human right such as the right to food by governments (with political, military and economic motives) leads to commitment an international crime as starvation. And what is the capacity of international law, including in the international criminal law system and the international human rights system, to prevent the occurrence of this crime and the strategies to combat the impunity of its perpetrators. The answer to this question is very important and vital in the effective guarantee of human rights standards, and over time, it can accelerate and facilitate the international prosecution of serious and gross human rights violations.

The events of September 11, 2001 in Washington, DC, paved the way for the US presence in Afghanistan under the pretext of prosecuting the perpetrators of the crimes of the Twin Towers of the World Trade Organization and the fight against terrorism. According to the International Criminal Court, more than 26,500 people died in Afghanistan between 2009 and 2017. The death toll, and the submission of more than a million reports and complaints about crimes committed in Afghanistan, has prompted the prosecutor to pursue the matter. Subsequently, on April 12, 2019, the pre-trial branch of the Court rejected the prosecutor's request due to lack of justice. However, on March 5, 2020, the International Criminal Court (ICC) appealed the pre-trial ruling and issued an authorization to investigate Afghanistan. An action that provoked a strong reaction from the US government. This article briefly examines the situation of Afghanistan in the International Criminal Court from 2003 to 2020, the jurisdiction of the court and the consequences of conducting investigations in this country.

Terrorism as an international crime does not have been defined yet and states supported perspective dominated on it in the past. But with expansion of terrorism, getting transnational aspect and more independence from states, international community seeks to fight against this phenomenon in the context of international criminal law. Some writers believe international community is somewhat unable to fight against it because of the lack of terrorism definition. Even though, there is this idea that international criminal law largely has fought against terror in the context of sixteen conventions against terrorism and statute of international criminal court. But, actually, these criminalization are limited and there is no comprehensive solution for solving terrorism problem basically. This article pursues to consider this reality.

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.

War crime, as an international criminal act, has many forms which has been criminalized by the international criminal court statute. Some instances of war crime that have been internationally criminalized concern to the use of some kind of weapons in an international conflict. This category is often called unusual weapons, in contrast to Conventional Weapons, which contains several different types of chemical weapons, biological weapons, nuclear weapons and instances of firing explosive shells, which inflict unnecessary pain and suffering. The use of any types of unconventional weapons by perpetrator, considered as intentional crimes in some international documents, including the statute of the International Criminal Court. In these intentional crimes, in addition to the will to commit the crimes, the perpetrator need to be aware of circumstances. Islamic jurisprudence has imposed some restrictions and bans on the use of warfare instruments. Illegitimacy of using some military equipment as a general rule applicable to several instances, is an elementary principle. Hence, Islamic teachings and religious orders can be resorted to ban the use of these types of weapons as may be cited in various international documents, which contain the rules and norms of humanitarian law. This descriptive–analytic study shows that the theoretical foundations of the Prevention and Punishment of the use of unconventional weapons, are supported by similar rules in both Islamic law and international criminal system. These rules are based on the logic of rational religious law and the interests of human society.

These days we hear many news about using poor people as Human Shield, while Humanitarian regulations have prohibited this action absolutely, even Statute of International Criminal Court (ICC) has considered it as a War Crime. This article surveys the violation of the prohibition on using of Human Shield as a War Crime and its necessary elements and conditions too. On the other hand, whereas Statute of ICC enumerates it as a War Crime in International Armed Conflicts expressly, possibility or not being a War Crime in Non-International Armed Conflicts will be surveyed as well.

Despite the history of criminalization of forced pregnancy as sexual violence، certainly the implicit knowledge of forced pregnancy in public sphere and apart from other acts of sexual violence was first created after atrocities took place in Bosnia between 1992 and 1995 and in Rwanda in 1994. However، explicit criminalization of forced pregnancy as crime against humanity and war crime has been the first attempt of international criminal law that with the recognition of broad range of gender-based violations brought justice for victims of sexual violence in international and non-international armed conflicts. However، it seems that in comparison with Yugoslavia and Rwanda’s tribunal and their effects on United Nations Declarations، the style of expression and prevailing discourse on criminalization of forced pregnancy in Rome Statute is such that this hypothesis can be designed: ‘what is crucial in realization the elements of crime is not gender، but is support of other values of international laws، including national، racial and religious values. ’ Accordingly، this paper uses descriptive- analytical method to study criminalization of forced pregnancy in international criminal law، particularly in the Statute.

Following occupation of Iraq by foreign forces in 2003, Abu Ghuraib prison near the Baghdad, became a local for keeping the opponents and protestors of occupation. During keeping prisoners in this jail, many mistreatments were against them by the American military that was charge of the Bureau of Prison. Some of these measures were Torture and war crime. To prosecute and punish defendants of these crimes in criminal justice, there are several judicial mechanisms in national and international levels that of which it can be noted the role of the International Criminal Court. In this paper, studying competency we stressed obstacles and limitations confronted each of these bodies, that national courts in raising the flag of combat with impunity has noble and considerable status. Finally, we reached this conclusion that Iraqi court as a competent court of occurrence the crime and the courts of third countries from the perspective of has suitable situation for prosecute and punishment defendants these wretched incidents.

The term “war crimes” was first entered in to the legal language and literature by Larnaude and La Pradelle after the World War I. Opposite of the “crimes against humanity” and “genocide”, war crime is related to “Humanitarian Law”. As you can see from the title, war crimes are related to a state of war or conflict and war or conflicts, typically happens between governments.On the other hand, non-international wars exist too which are the internal armed conflicts. Before the establishment of the International Criminal Court (ICC), the crimes of internal wars or conflicts were not recognized by the international treaties or conventions.Even though some examples of the war crimes were known in the common international law; but for the first time and in details, the war crimes were studied at the ICC’s statute as an international documentation fact. In addition to the common international law, the statute of the ICC, different regulations of The Hague conventions, the four treaties of the Geneva conventions and some other international documents including statutes and sentences issued by the international courts are all inspiring the section (8) as well.To sum up we can say that war crime is a violation of the humanitarian law and it is violating the rights of the war. The current research specifies the basis of the war crimes and it studies the ambiguities about the documentations on crimes. It has included the study of war crimes from international documentations, especially from the statute of the ICC and the crime specific elemental document.