The role of the International Court of Justice in the development of the obligation to prosecute or extradite
Akademische Arbeit 2018 13 Seiten
The role of the International Court of Justice in the development of the obligation to prosecute or extradite
Aydin Pakdaman Rezaei
MA in International Law, Islamic Azad University, Urmia Branch, Urmia, Iran
The determination of the international community to combat non-criminality and the fight against international crime has prompted the international community to find ways to address the legal vacuum existing in international criminal law. Due to the temporary nature of the courts established since World War II, as well as the absence of major crimes such as terrorism and human trafficking in the Statute of the International Criminal Court, the international community is inclined towards domestic courts and plans for actions such as global jurisdiction and commitment to extradition or trial. Due to differences arising from the obligation to perform an extradition or trial, it is necessary to examine the principles governing this obligation.
Meanwhile, the judiciary and international bodies' opinions on these actions are of great importance. The International Court of Justice is one of the most prominent legal entities in the international community in terms of its distinctive and important role in the development of international law. In the present article, the Tribunal's judgments on the obligation to extradite or trial and the effect of the Court on the development of this commitment have been examined.
Extradition, trial, International Court of Justice, International Criminal Law, Universal jurisdiction
With the advancement of human societies, along with these crimes, the crimes have also widened and the international community has become a victim of new problems. On the other hand, the progressive growth of human rights and the transformation of the international law approach to the core human rights of the international legal system has posed a major challenge and required fundamental changes. International criminal law has not been affected by these changes. The human rights-based approach of the international legal system has also revolutionized international criminal law, focusing it on the impunity of senior officials and senior judicial officials towards the victim. In this regard, the classical concept of the state is also due to fundamental changes. Because, on the basis of changing the focus of international law from the state to humanity, the state has become a responsible entity for ensuring security as well as upholding the rights of all human society.
To combat international crime and to combat non-criminality, as well as to fulfill the obligations of governments towards all humanity, the concept of a modern state required more extensive jurisdiction (Mansouri, 2016: 83). In this regard, the issue of limiting the immunity of the heads of state and extending the competence of governments to the limits of the territory of the state was raised. Together with this situation, theories were raised to apply global jurisdiction from governments, as well as a commitment to escort or trial.
Due to the emergence of these new concepts and the entry of these powers and obligations into international treaties and the expansion of discussions about the secrecy of these issues as well as the emergence of differences among the international law, it is felt that there is a need to formulate new principles and rules on the regulation of the said concepts and Development of international law in this field. Although the regulations governing this achievement of international law, and in particular the obligation to extradite or trial, require a consensus among international law enforcement, but the current judicial opinions are at least a solution to the resolution of disputes, as well as grounds for the establishment of rules And the provisions of international law.
Meanwhile, due to the fact that governments are the main actors of international law, and because the jurisdiction of the peaceful settlement of disputes between States under the UN Charter with the International Court of Justice is the importance of the International Court of Justice The consolidation and development of international law in relation to the concept of a commitment to extradition or trial is doubled. In addition to this, the role of the International Court of Justice in the development and development of international law is also recognized. For this reason, the present paper seeks to examine the role of the Court in the development of the concept of commitment on extradition or trial.
This commitment has been presented to the International Court of Justice in two cases. First, in the 1992 Lockerbie case, which, as a result of the arrival of the Security Council at the same time in the proceedings, gives a shocking result, and then the Belgian case against Senegal is about the extradition or trial of Hassan Habra, the former dictator of Chad. Posted in 2012. Belgium and Senegal, which ultimately resulted in the issuance of a vote in 2012, constitute one of the most important sources of international law in respect of the obligation to extradite or prosecute. This introduction first explains the concepts contained in the subject and then we will study the judgments of the International Court of Justice in this regard.
1- Combating Non-Penalties in New International Law
After the end of the Second World War, the international community, with the orientation of international law towards humanity and the separation from the pure immunity of the state and the rulers, as well as the full development of human rights, has led the international community to try to punish war criminals (RACSMANY, 2006: 42). The first international community attempts to combat non-punishment in the formation of temporary tribunals in Nuremberg and Tokyo (Aydın, 2002: 133). Although these courts failed to achieve full implementation of the criminal justice and trial of all the criminals of World War II because of the victorious warship of the war, they form the basis of the international law's focus on combating criminality. Because of these trials, the international community has sought to identify the state's criminal responsibility in the 2001 International Commission on International Law and the responsibility of international organizations within the framework of the 2011 Plan. The constitution and judicial procedure of these courts constitute one of the most important sources of the Statute of the International Criminal Court. Nevertheless, despite all the merits of the case courts, many of the cases of international crimes were the basis of the non-punishment of these trials and activities in the land and in particular cases.
In the meantime, the international community has sought to create alternative alternatives to international crimes in order to cope with the current situation and fight against non-criminality. The most important of these options is to empower domestic courts. With this introduction, we will examine the jurisdiction of the domestic courts, and then the principle of commitment to extradition or trial. Finally, the role of the International Court of Justice in developing international law will be examined to clarify the issue.
1-1. Competence of domestic courts in the investigation of international crimes
Considering that international law, and in particular international criminal law, were at a crucial pivotal stage in the transition to a pivotal and vicious humanitarian base, with the persistence and stubborn confrontation of some governments, and by providing international solutions, including the inclusion of the jurisdiction of the International Criminal Court Failure to deal with major crimes such as terrorism, piracy and smuggling has inevitably come under the jurisdiction of the national courts to overcome this vacuum. Because the concept of the modern state is responsible for the provision of all human rights, this also requires a thriving role for domestic courts (Moazami, 2013: 18). According to the fact that the Statute of the International Criminal Court also raises the issue of supplementary jurisdiction of the Court and the jurisdiction of the State to investigate international crimes and its perpetrators is recognized as the principle.
The jurisdiction of domestic courts is possible in two situations. The first is based on international conventions and international conventions, and the second is based on the international jurisdiction of the application of the principle of jurisdiction by the domestic courts, which we will examine below.
a. Qualification on the basis of international treaties and conventions
Sometimes, governments may have jurisdiction and jurisdiction over a number of offenses such as smuggling, based on a treaty. For example, Article 108 of the 1982 Convention on the Law of the Sea (1982) states that the flag State has jurisdiction over the crime of smuggling drugs on the basis of territorial jurisdiction and competent person. In such treaties, member states commit to criminalizing certain behaviors and on the basis of which they are prosecuted or extradited (Shearer, 1971: 73). Of course, it should also be noted that these treaties merely establish criminal behavior and lay down rules on criminalization and proceedings by Contracting Governments in accordance with the legal system of the state. The criminal jurisdiction of domestic courts in appeals to international crimes appears in two forms. First, the jurisdiction of the land is that, on the basis of this principle, governments can exercise jurisdiction over all the crimes committed in their territory. In fact, the government can exercise jurisdiction over crimes that are initiated or completed outside its territory merely because it is one of the elements of a crime in its territory. The second is personal jurisdiction or nationality, which allows governments to legislate in accordance with international law with regard to the conduct of their nationals abroad. Personal qualifications include the characteristics of the plaintiff or the harassing person, and at the top of these characteristics is the individual's nationality. National qualifications are formed as a result of the relationship of the citizen with his or her country. In most cases, the recognition of the relation of citizenship is determined in accordance with the laws of the country granting citizenship. It is necessary to apply national jurisdiction to the person who exercises jurisdiction at the time of committing the crime of the citizen. Most countries have jurisdiction over crimes committed by their own nationals outside the territory of the state, which is also internationally accepted (Ansardost, 2013: 115).
In some cases, the international custom also creates the right to enforce claims for international crimes for domestic courts, exemplified by the diplomatic immunity of ambassadors and diplomatic and consular staff. Under this customary rule, it is the jurisdiction of these tribunals to prosecute the courts of their respective state.
Thus, it can be admitted that one of the means of establishing the jurisdiction of domestic courts is the international conventions and conventions. Of course, the jurisdiction of domestic tribunals recognized in international treaties is not limited to two examples of criminal jurisdiction, as mentioned above, and global jurisdiction may also be accepted in some cases, which will be discussed further.
b. Universal jurisdiction
The principle of universal jurisdiction in international law has a very wide scope, so that this principle allows governments to exercise their criminal jurisdiction against those who commit crimes against international law, and thus the other principles of customary jurisdiction It cannot be applied to offenders, in fact, it can be said that this principle is created to compensate for the lack of ability to apply other principles and allows countries to pursue offenders who are not in their territory They have committed crimes, not their nationals, nor have they jeopardized their fundamental interests and resources, Hereditary more precisely the most important criteria for the exercise of universal jurisdiction to arrest the offenders. In the case of global jurisdiction, the two fundamental sources of international law, namely international treaties and conventions, are both derived from the sovereignty of the state, but the principle of universal jurisdiction is also one of the fruits of the international community's efforts to limit Build governments. This has begun to restrict the sovereignty and immunity of the state since the end of the World War and is ongoing at the present time. As a result of this limiting government, the concept of international jurisdiction for trials has been created for governments. As a result of this trend, the modern state in the 21st century, in addition to its citizens, has become a responsible institution for all humanity.
The principle of universal jurisdiction is one of the new and controversial issues of international criminal law. Henry Kissinger, a former US national security adviser, cites global jurisdiction as a "notion" concept and states that the concept is not even included in the Black Law Dictionary, printed in the 1990s. The principle of universal jurisdiction in many modern legal systems of the world has also been implemented since the twentieth century (Kocaoğlu, 2005: 189).
According to the definition in the Princeton Declaration, global jurisdiction is the criminal jurisdiction of the nature of the crime, regardless of the nationality of the offender, the nationality of the offender, or any other connection with the authority exercising the authority and where the offense was committed. It turns out that as a result of the interconnections between the country and the international community's efforts to strengthen international cooperation, we will see the other aspects of the universal jurisdiction clarified, as today's custom and international treaties on universal jurisdiction for crimes An important element of such as war crimes, rape, crimes against humanity, genocide, torture, slavery, racism, piracy, anti-aircraft security measures, hostage-taking and trafficking in narcotics are well-documented, and even this global alliance It has been argued that in some cases, such as money laundering and international terrorism, The international community has accepted the plurality of treaties and the international and regional conventions, but this principle, as well as other principles in international law, has always been fully implemented by some countries. Countries like Belgium, Italy, Australia, and Canada are acting in the application of the principle of global jurisdiction, and some countries need to be treated with caution.