جستجوی مقالات مرتبط با کلیدواژه « German Criminal Law » در نشریات گروه « فقه و حقوق »

There is no doubt that the use of chemical weapons by the Iraqi Baath regime in the imposed war against Iran and its massive human casualties, as well as the pain and suffering caused by these attacks for the victims, have been the darkest and most painful consequences of this country's imposed war against Iran. The description of chemical attacks as a war crime has been established and recognized in international law. Without the complicity of foreign companies, the Baath regime in Iraq was not able to produce and use chemical weapons during its imposed war against Iran. Therefore, intending to protect the rights of the victims of chemical attacks, this article deals with the feasibility study of prosecuting the managers of corporations involved in equipping Iraq with chemical weapons from the perspective of international criminal law and German criminal law. The findings of this article show that the liability model of "aiding and abetting" concerning foreign corporations is evident, and also, by paying attention to the history of prosecution of managers of corporations involved in committing international crimes in the years after World War II and the judicial procedure resulting from it, the criminal responsibility of managers of corporations is established and recognized from the perspective of international criminal law. In addition, according to the legal bases in German criminal law, that is, paragraph 9 of section 6 of the German Criminal Code (Strafgesetzbuch – StGB) on the one hand, as well as the history of the trial of former Yugoslavian nationals in German courts in the 90s and the judicial procedure resulting from it, on the other hand, the prosecution of managers of corporations has the necessary legal bases.

The Iranian laws are silent on the ruling of consent of the victim on bodily harms and it has often been claimed that it has no effect. However, in Germany Article 228 of StGB bars punishment of the actor in cases of consent of the victim, provided that it would not be against common decency. From legislative foundations perspective, the approach towards consent might be based on one of the harm, paternalism or legal moralism principles, the ineffectiveness of it being based upon the harm principle and the German Approach being based upon paternalism. In Germany, plus full consent, hypothetical and presumed consent are treated as full consent, while in the Iranian law these instances are justified via the rules of necessity. Some examples of consent of the victim on bodily harm from non-physicians include medical and semi-medical operations such as circumcision and tattooing, illegal sports and sexual masochistic acts. According to the German law, if all conditions being present, consent dissolves the second element of crime (Rechtswridigkeit) and the actor will have no civil responsibility. In Iran, there is no specific ruling, however considering the general rules consent of the victim will have no influence on Ta’zir. Speaking of Qisas and Diya, it has been claimed that most Islamic jurists believe that it will dissolve both of them. It is recommendable that the Iranian Law adopts an explicit point of view on consent on bodily harm. In some dimensions like tattooing, regulating and in some other dimensions like mutilation, explicit criminalization would be a proper criminal policy.