International Criminal
Negin Pourmohammadi; Mahin Sobhani; Mojtaba Janipour
Abstract
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 ...
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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.
Criminal law and criminology
Fereydoun Hosseini Nejad Braguri; Mohammad Reza Nazarinejad; Mojtaba Janipour
Abstract
The daily fine is one of the new alternatives to imprisonment stipulated in the Islamic Penal Code 92, the amount of which is determined by the court according to the severity and importance of the crime on the one hand and the amount of daily income of the offender on the other. Anticipating daily fines ...
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The daily fine is one of the new alternatives to imprisonment stipulated in the Islamic Penal Code 92, the amount of which is determined by the court according to the severity and importance of the crime on the one hand and the amount of daily income of the offender on the other. Anticipating daily fines and considering the convicted person's financial situation is a new step towards individualizing punishments. Although this system has been criticized, it is one of the positive aspects of today's criminal policy. However, the more effective and practical implementation of this system depends to a large extent on the actual income of the convicts. For this alternative to work well, the courts must have the right way to measure the income of convicts. On the other hand, due to the increase in the workload of the courts due to the review of the financial situation of the convicts, along with the consideration of the criminal case and the delay of the trial, most judges are not interested in it. Therefore, in order to properly use the capacity of this alternative and make it more efficient, it is necessary for the legislator to provide the judge with a specific mechanism for identifying the income of convicts and to determine the duties of executive bodies that have any knowledge of income and rights of convicts. The need to be obliged to cooperate. However, the research findings indicate that this alternative is applicable first to people who have the minimum income and financial ability to pay a fine. Therefore, for the disabled and without a specific income, another suitable alternative must be determined. Second, if the amount of the fine is determined in proportion to the income of individuals, due to the unfavorable economic situation, most of the convicts can be successful.
nadia bagheri; mojtaba janipour; mahin sobhani
Abstract
Abstract
The aim of this paper is to consider the Tu quoque defence in the context of international criminal law by the analytical-descriptive approach. Simply put, Tu quoque is the Latin term (equal to: You too) and often is stated in this context: (You should not punish me because you did it too). ...
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Abstract
The aim of this paper is to consider the Tu quoque defence in the context of international criminal law by the analytical-descriptive approach. Simply put, Tu quoque is the Latin term (equal to: You too) and often is stated in this context: (You should not punish me because you did it too). This defence, for the first time was implicitly accepted during the Nuremberg tribunal (following World War II) in the Admiral Karl Doenitz case. The original base of this argument is the clean hands doctrine: (if one of the parties of armed conflict has committed certain crimes, his hands to prosecute or punish other parties of conflict for the same crimes are not clean). Recently, criminal tribunals such as International Criminal Tribunal for Yugoslavia have been faced with Tu quoque as a defence. Despite the existence of an ambiguous history for this defence, jurists have not paid enough attention to this defence. This paper, by examining the jurisprudence of IMT and other international criminal courts, concludes that Tu quoque defence in Genocide and Crimes against humanity cannot be accepted, but in some War Crimes and the Crime of Aggression, this defence is acceptable under certain circumstances.
