فصلنامه مطالعات حقوقی
سال دوم شماره 2 (پاییز و زمستان 1389)

The purpose of this paper is explanation of position of Security Council in referred situations of non-party states of Rome Statute. It is done with documentary method throughout reading Security Council’s cases, negotiations, meetings and resolutions. Afterwards, potential difficulties and advantages of referral has been described. Finally, we will state appropriate current cooperation regime because acceptance of this referral seems an unavoidable issue in framework of United Nation Charter. Although ICC Prosecution necessarily does not obliged to referred situations to this Court. It indicates to independence of ICC, but International Criminal Court must do necessary measures to make the referral of Security Council standard for preventing taint to aims and humanity ideas.

International Criminal Law is combined of the domestic criminal law and foreign associated factor. This factor can be related to the territory, nationality, national or international interests and thus create various jurisdiction to the states. In this situation definition of the competent court (legal jurisdiction) for any state and recognition of the accused rights like legality of competent tribunal, determination of act and so are important. Different methods of criminal act done by criminals are perpetration and accomplicement. Legislation method is based on the perpetration. So that this manner is creating doubt in the international criminal law, may be legal effects reliable to the accomplisbment in the international criminal law? In this article we ef fort to meanwhile redoubt from regulation in the international criminal law, try to recognize the competent tribunal in order to try the person who is an accessory in committing a crime.

A well known rule in criminal law is ‘ignorance of law is not a defence’. It means that the ignorance of law has no effect, on criminality and responsibility, although the ignorance of fact removes criminal responsibility. The rule ‘ignorance of law is not a defence’ has been doubted in some criminal systems, among them is Islamic criminal system. In this regard, different ideas have been expressed in Imamieh jurisprudence. Some of the ideas consider the rule as to prevent criminality and responsibility, some other consider it as to be uninfluenced and the others consider it as to remove criminal responsibility in limited conditions. Although, it should be stated that none of these ideas has been specified limitation of such an effect. Nowadays ignorance of law is one of the critical issues in individual, social, national and international relationships. The rule seems to be an uncertain and undetermined presumption. Although, this matter is encountered with more doubt in Imamieh jurisprudence, since there is no special principle to restrict its realm. In this essay, at first the rule and its grounds are to be reviewed. Then with regard to religious and rational principles the realm of rule in different crimes is to be defined and non-admissibility of the ignorance of law is to be balanced by valid religious and rational grounds.

Making decision as a judge needs knowledge to both point of law and point of facts. Point of facts is some real matters out of judge’s mind acquired by juries in answer to the question of establishment of Actus reus and Mens rea. In the case of accordance of the judge and the jury opinion recognizing both of these elements, i.e. commission of a crime, the in charge person to sentence the accused is the judge and any shadow of doubt must cause to acquittal of the defendant. Making decision on criminality or non-criminality of the defendant's act as well as on determining the type and rate of punishment by jury are in contrary to the Islamic Shari,a and judicial bases, whilst the jury's opinion on mitigation of punishment in Tazirat and Bazdarandeh punishments and convincement of judge to such a decision is not in opposition to the judge independency.

During the past century, millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. Such grave crimes threaten the peace, security and well being of the world, and concern to the international community as a whole. The most serious crimes that must not go unpunished but their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, to end impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. In order to achieve these targets, in addition to establish a permanent international criminal court and sometimes special and ad hoc international criminal courts, it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes. Specially this important duty of national courts, has been established by “universal criminal jurisdiction”. Although the prosecution and punishment of the criminals of such crimes is gradually developing by the national courts on the base of this jurisdiction, but if this jurisdiction is not undertaken or its exercise is failed by some practical and theoretical obstacles and problems which are not identified and are not thought to remove or modify, the idea of pursuit and punishment of the international criminals, would never be administrated. Practical, political and legal restrictions and obstacles and other following challenges of this competency and finding strategic and common approaches in this field are the aims of current paper.

The text of the Rome statute is the first International text that has predicted the possibility of relying on a quitting defences. One of the quitting deffences in the international law is the legitimate self deffence which is determined in the Art. 31-1-© of the I.C.C. statute. Regarding the conditions of this defence in this article such as the possibility of an actual attack, being illegal and need of proportion reaction against the attack, it is deduced the defence in the above mentioned Article is determined as a justification. Now the question is whether it is possible to rely on the a quitting defence against the aggressors in the crime of aggression. the answer to the question is negative because studying the conditions of the criminal aggressor implies that the one who has committed this crime is from top politicians or martial officers of a government who initially and without any need to attack has aggressed the political independency and territorial integrity of the other country. therefore the conditions of legitimate self defence does not adabt the crime of aggression, because the legitimate self defence is a reaction to an illegitimate attack on bodies, properties, freedom etc.It is whilst the crime of aggression is the illegitimate attack to political independency or territorial intergrity of the other country.