نشریه آموزه های حقوق کیفری
پیاپی 23 (بهار و تابستان 1401)

The astounding growth of the use of artificial intelligence in the fields of transportation, health and etc. is not hidden from anyone. Nowadays, the criminal justice system is also looking at this technological tool to solve some of its issues and problems in preventing of recidivism. Prevention of recidivism and predicting rehabilitation of the perpetrator far from personal and subjective (mental) considerations or measuring the probability of recidivism during suspension, parole or other applicable executory establishments in society has always been a fundamental issue for jurists, criminologists, judges and police. Is it possible to solve this problem by hoping for the capabilities of artificial intelligence to predict one’s future behavior based on his/her past? The findings of the research show that although this issue is technically feasible and its requirements are available, its implementation is not possible at any cost. It is explained that the observance of substantive restrictions and legal adjective (procedural) restrictions and also, code of conduct of professional ethics in order to avoid any possible encroachment on the basic principles of criminal law is mandatory. In other words, it is possible to apply measures to prevent recidivism through artificial intelligence despite these limitations.

The situation of Iran’s legal system is ambiguous and controversial about who can be prosecuted for detrimental crimes to public morality (crimes against morality) and in other words, who are considered victims in such crimes. However, a victim is a person who has suffered losses directly and conventionally (customarily), and the person who is in the opposite side of the act against public morality and chastity is the direct victim of the crime in detrimental crimes to public morality. Therefore, the complaints of other persons, except those which the legislator has added them to the complainant, are not allowed to initiate prosecutions. Furthermore, the opposite party of detrimental acts to public morality (with incompatible with chastity, crimes against morality) is not guilty in all cases, and the victim is not considered to be the one who suffers the loss, if the he/she has real consent to the commitment of a crime, but if consent is made by threats, deception and so on, and in a way that the person is conventionally considered to be the victim of loss and damage, even if the person has a criminal intent (mens rea), the plaintiff's sentences will be imposed on him/her and his/her complaint can be processed. The present article is going to answer this basic question in two general topics: Which person or persons are considered victims in detrimental crimes to public morality (crimes against morality), and as a result, their complaint can lead to the initiation and continuation of criminal proceedings.

Justice is considered as one of the most complicated issues in the field of human relations, especially when steps are to be taken by the ICC in order to compensate for “victim’s damage” and “deal with criminals and punish them”. The complexity of this issue is intensified when the Court connects the realization of justice to the issue of peace, security and prosperity. The study of the concept of justice in the supplementary jurisdiction shows that the Rome Statute, by appealing to it, is trying to partially adapt normative pluralism to the performance of international criminal justice. At the same time, the concept of justice in the Rome Statute is based on different circumstances and situations. In addition, justice in its own special sense is based on the authentication of offender’s fault as well as the rehabilitation of the offender, and in its general sense also includes the interests (profits) of the victims. That’s why the Court in order to have a lasting impact on justice and peace, has established a unit to support victims and witnesses, as well as establishing a trust fund. The Court, meanwhile, enforces the retributive justice by punishing perpetrators of atrocity crime. Accordingly, the Court’s decisions were aimed more at deterring (preventive) with the aim of achieving peace and security rather than the proportionality of offence and punishment; thus, indications of compensation for inequality have been occurred, which is not the concept of retributive justice in its rulings.

Friedrich Van Marts, the representative of the Russian government, in the first Hague Peace Conference of 1899, stated that until a regular rule of war is compiled, the Contracting States would agree that in cases not included by the ratified provisions, civilian and hostile populations will continue to be protected by the principles of the rights of nations derived from established customs among civilized nations are considered as the principles of humanity and the call of public conscience. This statement, which became famous in the literature of international law as the Martens clause, has had objective effects in international criminal law. International criminal courts have resorted to the Martens Clause on various occasions. It can be stated by analyzing the verdicts and opinions of international criminal courts that the Martens Clause, generally in international law and international criminal law in particular has different capacities and functions. It is not easy to distinguish between these roles. Whether citing the Martens Clause is in line with the role of fixing problems or interpreting an ambiguous rule, or merely strengthening the court’s legal arguments is not very convincing and without controversy; since, the type of attitude towards the Martens Clause determines the identification of its effect in international criminal law. The present article by searching in the international judicial procedure, concludes that the role of interpretation and clearing (elimination) the ambiguity and obscurity of legal have had a special effect on the citation of international criminal courts on the Martens Clause. These various capabilities and capacities of the Martens Clause cause human society to use it constantly and as needed to achieve the desired situation and transition from the existing situation. Based on this, we have observed various objective functions of the Martens clause in international criminal law, and this process will continue in the future.

Qisas (Arabic: قصاص, lit. 'retaliation, accountability, following up after, pursuing or prosecuting') has been legislated in order to protect the public interest, but the important question arises whether the avengers of blood can retaliate (qisas) the murderer regardless of the victim (slain)’s debts in the assumption that the victim owes money; but, lacks patrimony (inheritance) to pay his/her debts by the heirs? Famous scholars of jurisprudence have not considered the right of qisas (retaliation) permissible based on Abū Baṣīr (Arabic: ابو بصیر)’s narration for the avengers of blood without paying or accommodation endorsement of the victim's debt, while Ṣāḥib al-Jawāhir (Arabic: صاحب الجواهر, the author of al-Jawahir) and some contemporary jurists has been considered it permissible by citing the Qur'anic and narrative generalities, considered the principle of non-acquisition of property and the principle of non-paying (Arabic: اصل عدم الاداء) and accommodation endorsement. The Islamic Penal Code of 2013 has also held the case silent in this regard and criminal law doctrine has entered less of it, and on the other hand, there is no specific judicial procedure (precedent) in this case. The present article by using descriptive-analytical method and analyzing the evidences of these two mentioned views has considered the dominant (popular, famous) opinion stronger, which has a major role in providing the economic interests and general order of the society.

The prosecution of war crimes in the ICC relies on the criteria provided in its statute. This situation is a manifestation of the fulfillment of the criminal sanctions in violation of the breach of the Four Geneva Conventions, which did not exist before. The situation in Afghanistan before the ICC is eligible due to the crimes committed by U.S. military forces and CIA personnel. However, the U.S. government is trying to obstruct and sabotage in various ways; so, that the ICC does not exercise its jurisdiction. it is important in this regard to examine the dimensions of the ICC’s jurisdiction in the situation of Afghanistan, including the nature of war crimes within the framework of the Rome Statute and the grounds of its preparation to the lack of legal barriers to the exercise of supplementary jurisdiction and the ineffectiveness of U.S. government sabotage. The research method in this article is descriptive-analytical to answer a question. What is the impact of the U.S. government’s actions and sabotages on the ICC’s jurisdiction in the situation of Afghanistan? The findings of the research show that the confirmation (approval) of some criminal behavior in the form of the government’s executive policy, the prosecution of some soldiers for some of the war crimes in domestic courts, or the sanctions of the prosecutor and judges of the International Criminal Court do not prevent the application of the jurisdiction of the International Criminal Court.

Traditionally, defamation against individuals has been criminalized in order to protect the value of reputation and dignity. Although criminal protection shows the great importance of the values, sometimes they conflict with the right to freedom of expression and information; The protection of both mentioned rights requires that a legal balancing between them so that the protection of one right does not impose illegitimate legal restrictions on the other right. For this reason, some countries have adopted the decriminalization approach and have replaced punishment with civil responsibility. It seems that the middle approach is more desirable, based on which, without removing criminal protection and intervention in general, the minimum legal restrictions are imposed on the right to freedom of expression, which carries many and more public interests; So that especially the newspapers and media, for fulfilling their professional mission and duties, do not feel the pressure of criminal prosecution and conviction. The civil approach reduces this concern to a great extent.

Capital punishment is considered as the most important and serious criminal reaction, which has undergone many changes in Afghanistan since 1747 AD (1160 AH). These changes have been aimed at reducing the quantity and mitigating quality of the capital punishment (execution). It has been used by analytical-descriptive research method in this research to examine the issue of what factors have been effective in the evolution of the capital punishment (execution) in Afghanistan and how this influence is explained from the criminal sociology (the sociology of crime) point of study. The results indicate that two have a prominent role in these developments: First, the transformation of the power structure from traditional and violent to institutional power based on the bureaucratic system; second, the evolution of the social structure from a single structure based on tribal values to a culture and multi-structured structure based on civil and multiple values. The effects of power developments and social cohesion on the developments of the death penalty in Afghanistan have been investigated in this study with the approach of criminal sociology studies within the framework of the theory of Michel Foucault’s technology of power and Emile Durkheim’s social cohesion theory.

Paying attention to friendly relations and the necessity of resolving disputes in a way that prohibits governments from interfering in the affairs of other countries is an inevitable issue. Peace and cyber security with the development of cyber activity is an essential principle that is violated by resorting to cyber force. The principle of prohibiting the use of force is used to determine the breach or non-breach of Article (4)2 of the United Nations Charter and its prohibition in customary international law. Legal intervention by the Security Council of the International Community in contrast to the use of force by a hostile side in order to establish international peace and security can be done by referring the matter to the International Criminal Court. Breach of international peace and cyber security by committing cybercrimes can be recognized as a “crime of invasion” in the form of a “moral perpetration” (agent) if they reach the appropriate action. In accordance with the rule 13 of Tallinn 1’s Manual in 2013, as well as paragraph 6 of Article 69 of in the Manual of Tallinn 2 in 2017, the beginning for the crime of invasion should be considered as an “armed conflict” based on the effect, domain and severity of cybercrime, which has the nature of a breach of international lawand prohibition of use of force, and criminal liability will be extended to informed non-governmental activists in addition to the hostile person.

The use of cognitive and behavioral science considerations is an undeniable necessity for more accurate analysis of criminal behaviors and improving the deterrent function of punishments. The knowledge of behavioral economics, relying on cognitive and behavioral sciences considerations, shows that the capacity of human cognitive powers is limited and this limited capacity is also involved with a wide range of cognitive biases and errors. These variables cause criminals (potential delinquent) to perceive the reality of punishment in a distorted form in many cases, and distance themselves from the classical logic of rational choice theory in their decisions to commit a particular crime (or engage in criminal activity). The recognition of the effectiveness of these cognitive variables on the relative disturbance on free will and calculator will can help to determine preventive (deterrent) practical strategies and can help to measure the risk of recidivism more accurately. This article, by relying on descriptive-analytical method, is going to investigate the capacities and possible challenges of the practical use of these insights in the field of criminal policy as the perception of punishment. Behavioral economics based on psychological insights suggests the idea of “choice architecture” and “nudge theory”. This research shows that distortion of the reality of punishment can be prevented in the minds of criminals in some cases by relying on new insights of behavioral economics in the field of deterrence. In this regard, supporters (favoritism) of the idea of choice architecture claim that they can lead people to make a better choice in a “free-spirited” way. However, this idea is faced with important critiques and it has a reductionism error in many ways. It can be said, at least, that uncritical exposure to it can face policies and ideological plans of crime control.

Illegitimate sexual intercourse between a man and a woman is one of the crimes punishable by ḥadd [fixed punishment] in the Islamic legal system, and the Qur'an has determined a certain number of lashes for the perpetrator. Jurisprudents, based on traditions and after that consensus, have described the types of adultery, the perpetrators of some of them, including adultery with incest, have been deemed deserving of death, and the same opinion has been reflected in the penal code. Jurisprudents sentenced the perpetrator of some types of adultery including incest by dividing some types for zināʾ (or zinā زنی or زنا, an Islamic legal term referring to unlawful sexual intercourse) to death (Arabic: قتل, qatl) based on aḥādīth (Arabic: احادیث, singular: ḥadīth, narrations or traditions) and after that consensus, and the same verdict has been reflected in the penal code. Documentary and evidentiary problems of some traditions cited by jurisprudents put the authenticity of this fatwā (Arabic: فتوی, a legal ruling) in doubt. This article, with the aim of evaluating this fatwā in a descriptive-analytical way, has reread and analyzed the evidence referred by the murderers for this verdict, and as it is shown, the limited number of narrations in this regard, in addition to the evidence problems is in strong conflict with the narrations involving punishment(s) for this crime, and the narrations that involving qatl (death penalty), lacks acceptable preponderant point and thus, this fatwā is distorted. In contrast, the aḥādīth (Arabic: احادیث, singular: ḥadīth, narrations or traditions) indicating the general punishment of adultery (flogging) on an adulterer who committed adultery with maḥram (incest), in addition to the validity of the document, are in line with the Qur'an and therefore, they are qualified to be preferred in the position of conflict.