فصلنامه پژوهش حقوق کیفری
پیاپی 15 (تابستان 1395)

Traditional justice mechanisms, mechanisms that are used recently along with other criminal and non-criminal mechanisms for doing justice in transitional societies. Transitional societies such as Mozambique, Rwanda, Uganda and Sierra Leone, used these mechanism for doing justice to violations that committed during the past regimes or civil wars. However, there is disagreement on the method of the use of these traditional justice mechanisms to achieve justice: Some believe that doing justice to international crimes imply criminal justice. In this regard, it is necessary to change these mechanisms to adapt with the principles of criminal justice. In this context, the traditional justice mechanism in Rwanda faced with fundamental changes and like a criminal court, prosecute and punish perpetrators of international crimes. In contrast, other transitional societies such as Mozambique and Uganda, without such fundamental changes use them. This paper, with examining competing theories, argues that traditional justice mechanisms, without fundamental changes in transitional societies have been successful.

For decades from now, the Rohingya ethnic minority has endured grave human rights violations in North Arakan State’s of Myanmar. Hundreds of thousands have fled across the border to Bangladesh towards harsh conditions of life.This paper indicates that it can be said with any degree of certainty that the intent behind such actions is to ethnically cleanse North Arakan State.Ethnic-cleansing means “rendering an area ethnically homogenous by using force or intimidation to remove persons of given groups from the area”. According to international criminal law, the concept of ethnic cleansing on the one hand with crimes against humanity (deportation and forcible transfer) and on the other hand is associated with genocide. However, the growing body of evidence on killing and violence against RohingyaMuslims in Rakhine State demonstrates that this ethnic-cleansing is more than simply the removal of the Rohingya from the land, but is part of a deliberate process of destruction of the Rohingya people and commissionof genocide against them.

The omission of the crime has always been one of the issues disputed in legal literature. Legislator in Article 295 of the Penal Code in 1392 allows crime by omission accepted and the conditions for the realization of this type of criminal behavior considered; But what has been said in this article about the omission is subject to leave and not absolute act of omission; In no event will the liability would leave it to the apex of the result will not be because the omission of occurrence of loss, only the 'condition' and the behavior of the results will not be about citation. In addition, it seems that the provisions of Article 295 are incompatible with the law and logical in some ways.

Committing physical behavior is a prerequisite in realization of criminal liability in criminal law. So that nowadays the criminal thought is not a punishable crime in any legal systems of world. Therefore, the criminal responsibility will be created when a man passing by his criminal thought actually do a behavior that the legislator has prohibited it. Nevertheless, it can not be inferred from this rule that committing a physical behavior is a sufficient condition for the realization of criminal liability. Although the former is essential for the later, but it is not enough and it is necessary that this behavior is done with a free will. Accordingly, when offender has no will in doing that behavior, no criminal liability will be fulfilled. This sentence will include simultaneously the strict liability crimes and the crimes needing a mental element. But the important point here should be regarded is detecting that whether the accused had committed the act voluntarily or not. In this article, we have tried ,with a philosophical analysis, to determine the necessary components of voluntary behavior in order to be recognized the involuntary one. It is important to distinguish involuntary behaviors just because it will make the offfender unpunished.

Obtaining of causation between act and result, in particular in case of a multiplicity of causes especially in the premise of multiplicity of factors and instruments is one of the most difficult issues in the criminal law and civil responsibility. When multiple people at different times (longitudinal) are involved in the felony and a relatively long period of time is created between the intervener's behavior and the result of it (such as murder), this subject appears as a serious problem and sometimes as an unsolvable dilemma. Penal code act of 1392 has also mostly attempted to provide solutions under certain conditions instead of offering a clear criterion. Accordingly, in the case of intervention of direct multiple individuals in the same time, the result is put into account all factors and otherwise, may be responsible for recent perpetrator or first or both. Also, in case of more than indirectly involved multiple factors simultaneously all equally are responsible and otherwise, Otherwise, on the condition that felony is unintentional, the person who is responsible to intervene earlier. In addition, the direct and indirect involvement in the community, without being presented certain criteria, factors that damage or crime attributed to him, is responsible.