Public Law

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Browsing Public Law by Author "Asmaa Majed Ibrahem Dwikat"

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    The justifications in the statute of the International Criminal Court
    (2013) Asmaa Majed Ibrahem Dwikat; Dr. Nael Taha
    The importance of this study stems from its being a research attempt to uncover and detect the causes for “permissibility & justification” in the Statute of the International Criminal Court and to find out the legal requirements and conditions necessary for its legal application and then comparing them with those in the National Criminal Law. Initially the formation and establishment of an International Criminal Court constituted an important event in the history of mankind. The International Community has made a concerted effort for the sake of finding a mechanism through which it can pursue individuals responsible for committing gross violation of human rights and international law. UN’s efforts have borne out fruitful results culminated in the signing of the Statute of the International Criminal Court in 1998 and has become effective in 2002. Ever since that date individuals committed crimes of genocide and against humanity and war crimes are not any more immune from criminal accountability and punishment without invoking any kind of immunity and protection. The International Criminal Court has presided over the International Criminal Justice System and established its principles and features within the framework of an integrated system with the National Criminal Justice as a way to stimulate the latter to carry out its responsibility by penalizing individuals accused of tampering with peace and security of mankind ; and in the event that it can’t carry out its will the role of the International Criminal Court becomes mandatory in terms of extending its jurisdiction and punishment of perpetrators. After this prelude in the first chapter the researcher discusses the causes for permissibility & justification agreed upon in the International Criminal Law and by virtue of that the researcher has dealt with the question of ‘legitimate defense’, ( or self defense) on account of its possessing the most causes for permissibility & justification due its being mentioned in the text of the statute of the International Criminal Court and the UN charter and on account of comparing it with the legitimate defense in the National Criminal Law. The researcher concludes that the legitimate defense is considered a real cause for permissibility & justification when it meets all legal conditions and it can be used at the International Criminal Court to remove the criminal character of the act and respond to a range of legality and deny criminal responsibility and punishment for the perpetrators; and its confluence/correspondence with the legitimate defense in the National Criminal Law in many points notably the merits which the defender can draw from the causes of permissibility & justification which the legitimate defense secures whether in the case of defending the same defender or the other; however, there remains a distinction between them concerning the possibility of the legitimate defense for money. The researcher addressed the issue of International Humanitarian Intervention on account that it constitutes one of the causes for permissibility and justification which can be used at the International Criminal Court provided that such thing would occur under the auspices of the UN and the authorization of the Security Council in the case of International Humanitarian Intervention. This chapter has also dealt with the rights of warriors as a cause for permissibility & justification that can be made before the International Criminal Court. But the distinction between the fighter and others based on the enjoyment of non-combatants are protected under International Humanitarian Law and at the same time it is the basis of the benefits of fighters from the causes of permissibility & justification which affords warriors to invoke their rights as a justification before the International Criminal Court to remove the criminal status of illegal acts which are necessitated by the nature of armed conflict as long as those acts do not go beyond the limits of the laws and customs of war. In chapter Two the researcher addressed the causes of permissibility & justification which are not agreed upon or accepted in International Criminal Law. While some International Jurisprudence has gone to believe that these causes can potentially be considered as real causes of permissibility & justification, others ( referred to the opinions of some International Jurisprudence) considered such causes as grounds for excluding criminal responsibility, so the work of the researcher has dealt with the study in this chapter and has talked about the case of necessity and concluded that it could not be or constitute a cause of permissibility & justification but it can be considered as an obstacle to contraindication of criminal responsibility and as one of coercion pictures stipulated in the statute of the International Criminal Court. The researcher talked about obeying the top president’s ( with highest ranking) order even though the opinion of the International Jurisprudence declined to consider such a thing as a cause for permissibility & justifications but it is considered in some cases as a mitigating excuse for punishment or an impediment for the International Criminal Responsibility. Such an approach has been adopted and followed through by Temporary International Criminal Tribunals, “ Nuremberg and Tokyo, Yugoslavia and Rwanda”, but it is also worth pointing out that the Statute of the International Criminal Court explicitly considered obeying the top president’s order a cause of grounds for excluding criminal responsibility in cases and crimes as stipulated in the Statute. The researcher then talked about the last reason/cause for permissibility in the International Criminal Law upon the consent of the victim even though it is not considered a cause for permissibility & justification in the opinion of the International Jurisprudence but it could be an effective factor for some international crimes which can’t occur or happen without the absence of the victim’s consent. So the existence of such consent leads to the failure of having a crime and in this case the perpetrator (or the doer of the action) will not be punished not because of benefitting from the cause of permissibility & justification but due to the absence of having a crime in the first place.