الاساس الفقهي والتطبيقي لمفهوم التجريم في القانون الدولي العام

Abstract

Abstract THE ruRISTICAL AND APPLICATIORY SUBSTRATUM OF THE CONCEPT OF THE CRIMINALIZING IN THE GENERAL INTERNATIONAL LA W. This research is about international criminalization or what is known in International Low as "The International Criminal Law". This sub-field of international law is. a newly established branch of law that stemmed out of the Second World War trials including Norman berg International trials of the European continent, and Tokyo International Criminal trials of the Far East during 1945&1946. The presence of criminal rules in any legal system remains highly essential within each state since such rules protect and maintain the life and the presence of humanity. Accordingly the international community, which is governed by international relations based on the General International Law, needs to protected and maintain such relations through the application and consideration of the international criminalization rules, whose violation may threaten and influence the international security and peace ,as well as endangering the essence and the fabric of the international community itself. The problem of the research considers the complications and the rejection that encounter international criminalization by the international community .Although all world countries have a well established believe of the importance of criminal law in organizing and ruling any legal sQ..ciety.ie that is evident in al the world countries recognition to their national criminal law and placing such laws at the top of the state legal organization; still such countries have negative trends towards applying criminal law at the international level, although they know how essential and important the international criminalization law is The international community have definitely no intension to return back to world conflicts and comprehensive disorder. This problem is embodied in certain international principals establish since the beginning of the application of the international law itself; such as the principle of sovereignty of states, the independence of countries and equality among the states. The international criminal law is highly considered as the absolute type of effective law in regard to its interference in human basic freedoms. Hence countries consider this law as being on element of interference with the sovereignty. Consequently the international criminal law remains an area of suspicion and complete rejection by many countries. It is evident that some influential Countries are using the international criminal law as a mean of suppressing other weak countries, although the former countries reject application of international criminal law on their people. The research objective deal with studying the particulars of the complications of the said area, in depth; to enlighten the related parties with the need for consolidating and straightens human right for all humanity. Here positive attitudes weigh the negative attitudes appreciated by state towards international criminal law. But since the international criminal law helps keeping and maintaining international security and peace, it becomes necessary to surrender some international principles. And rights occasionally, specially the question of sovereignty which does not have its absolute classical meaning and application on current 'international life. Hence it becomes necessary. also to convince uninterested countries to accept adopting the endorsement of agreements that originate from international criminalization. The hypothesis of this research considers that: The acceptance, endorsement, and application of this international criminal law by the international community and the related countries, facilitate a better opportunity for establishing international security and peace. Also the over estimation and unjustified consideration and realization of national independence and national sovereignty, beyond all needs of international security and peace, leads naturally to high risks and threats to the international community, like what happened in the last two world wars during the 20th century, as well as Yugoslavia and Rwanda .Our world is full of terrorists and adventurers who may use the right of independence and sovereignty for threaten international peace and security. The methodology of this research uses the descriptive analytical method that suits legal studies which depend generally on legal juristically approach that takes into consideration a philosophical, historical and instrumental background. Here the juristically efforts instruments, and the history of official sustainable application of international criminal law are analysis to facilitate the objectives of this study and the related hypothesis, results and recommendation. The research is divided into four chapters: and an introduc~ion which explains the problem objectives, purposes, Question, hypothesis and the methodology of the research. It also gives an over all explanation to the four chapters of the research and their content, with some emphasis on the general features of the research, its findings and the related recommendations. The first chapter is an introductory chapter which explains; haw the laws generally treat with criminalization and specially the municipal laws of the countries from its historical perspective. Chapter two deals with the theoretical framework of the research. It deals with the basis of the international criminalization, its historical origin under both the juristic and the official international efforts. It also covers the extent of the influence of the origin and the development of the international criminal law, internationalcriminalization and the basics of law on which criminal international rules were established, Here the legal basic and rules of international criminalization are associated with similar legal subjects. The chapter also demonstrates the location engaged by international criminalization in the world map. Chapter three is designed to review the literature of the research concerning the general and special criminal rules of the international criminal law; those general rules include both the basic principles of the criminal law and criminalization in the general international law, beside the liability of the states in committing international crimes and the related natural persons. Chapter four considers the most important part of the research related to international criminalization, Le. the internationally agreed international crimes and the attributed acts. Here the study is restricted to the area of international offenses discussed in the Diplomatic Conference of Rome which established the international criminal Court and its basic principles on 15June to 17 July 1998. The Conference concluded into four groups of international criminal court, such as Genocide offences, offenses against humanity, war crimes, aggression offences which remain unidentified by the basic principle of the court, and covenants crimes which were not finally discussed and hence delayed and to be supplemented later according to 5 Article (123) ofthe Basic principles. The chapter deals with the major three crimes mentioned above, in addition to aggression crime and covenants crimes to be considered as being assumed in the conference identification of such crime, and according to article 5 the previous experiences of cmsidering such laws. This chapter includes also the final results of the research on criminalization in international law, it is clear that the international criminal law applications do not reach the phases of applications achieved by the National criminal law of countries, which mostly covered all criminal gaps. It is noticed that international criminalization only trics to deal with criminal accidents and events that violate the international law within the limits of acts that may lead to the violation of international peace and security .Such acts which are deemed as international offenses ,do not essentially represent all the insecurities encountered by some states, such as terrorism. On the other hand such acts can not be neglected in favour of the states that may attend the international criminal court due to their internal and international polices. It is quite evident and clear that rules of international criminal law meet the minimum requirements for combating international criminal violations which may lead to international stability.