نشریه پژوهش های حقوق جزا و جرم شناسی
پیاپی 4 (پاییز و زمستان 1393)

Established mechanisms of International Criminal Court may put the non-member states in unwanted position of applying court’s jurisdiction on crimes committed by the nationals of that state or crimes committed in the territory of that state. These crimes include various forms of sexual violence which are enumerated in articles 7 and 8 of Statute under the heading of crimes against humanity and war crimes. The sole solution would be using potentials of national law to prosecute and punish perpetrators of international crimes including sexual violence against women as a substitute for proceedings of International Criminal Court. This means the necessity of criminalizing sexual violence in national legal systems, addressing current challenges and going beyond them. This issue is addressed in this paper in a descriptive-analytical method.

The analytic assessment of the statutes and jurisprudence of the international criminal courts points out that the principle of legality of crime, about crime against humanity, has passed through three stages; denial, relative progress, and the necessity of predominance. The courts of first generation denied the ruling of this principle in scope of international criminal law, but the courts of the second and the third generation, with relative progress, helped the ruling of this principle. Finally, the International Criminal Court (ICC) felt the need to consider the ruling of the principle of legality of crime, about crime against humanity, as one of the general principles of the criminal law. This article tries to answer the question that what changes the principle of legality of crime, on crime against humanity, in the process of evolution of international criminal courts, has gone through, and to what extent the current situation is considered to be desirable and useful; with this hypothesis that the developments concerning the ruling of the principle of legality in this respect have been in an increasing procedure, yet it is far from the desirable status. In conclusion, although the doctrine of legality has replaced the doctrine of justice, resorting to analogy is a harm which still threatens the principle of legality of international crimes. The solution is that the criminal rule, when representing criminalization, should express the definition of crime with offering a comprehensive definition rather than offering a vague concept for numbering the instances (examples). More than, it had better leave the recognition of the examples to the judge himself.

Following the usual dichotomy in law, criminal law can be categorized under the title of public law. This classification must reasonably be followed by some particular subsequences and advantages as well as being rooted in a reasonable basis – including the repercussion of publicness in criminal law. There are two particular characteristics governing on public law: first the principle of incompetence of public authorities and the necessity of the competence being nominated case by case; and the second, the requirement of precise clarification of mechanisms and procedures of applying public authority. The criminal law being a sub-section of public law must reduplicate both characteristics in compliance with which its rules and regulations should be interpreted. The present article is an attempt to represent and explain these qualifications.

Children are recruited by various forms in armed conflicts. UN-based International community has criminalized it as one of the examples of war crimes and predicted for its perpetrators penal sanctions. This article seeks to study and answer to this question: how is evaluated the effectiveness of international community’s legislative criminal policy vis-á- vis this phenomenon. This paper examines and analyses the effectiveness of criminal policy by descriptive-analytical method with regard to and emphasis on the jurisprudence of international criminal tribunals.

Determining of waivable or non-waivable of crimes has theoretical and practical benefits. These benefits effects about the crime of infringement of trademark rights. The importance of this subject is because of the scarcity of Iranian legal literature related to the mentioned subject, silence of the Trademark Act of Iran-as special Act- and ambiguity of Islamic punishment new Act-as general act. The above reasons have caused divergence of judgments in Iranian Law. The main question of this article is that: is the infringement of trademark rights considered as a waivable crime or not? The hypothesis of this paper is that the mentioned crime should be considered as a waivable crime. The research method of this article is based on the library study, interview and comparative view in Brazilian, Indian and French Laws and their accessible judgments. This paper constitutes two chapters: the first chapter criticizes the Iranian Acts and jurisprudence and the second chapter considers theoretical foundations of the subject. Finally, it suggests clear and practical solutions to Iranian Legislator and judges.

International criminal law is one of the new branches of international law that the main purpose of it, is to prosecute, trial and punishment of the perpetrators of the most serious and gross international crimes. Prohibition of committing them has been recognized as jus cogens and all members of the international community have the duty to prevent it. The nature of this duty is known as erga omnes. In fact, international crimes violate the fundamental and human values which constitute the basis of the international community, so the international criminal law protects the community against the international crimes and mass violations of human rights. For this goal, by realizing the criminal responsibility for individuals, it prima facie regulates some obligations for persons not to commit those crimes and then addresses the states to cooperate to combat against the impunity of international crimes and to attempt to prosecute criminals by application of universal jurisdiction. Nowadays, humanization the concepts of the international crimes and relating them to the international conscience collective, changes the nature of some obligations of states as the non-reciprocal ones toward the international community, therefore non-reciprocity is realized in some field of international criminal law. In this article, non-reciprocal considerations in modern international criminal law will be discussed.