International Law
Mahshid Ajeli lahiji; S. Ali Hosseiniazad; Majid Zahmatkesh
Abstract
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a ...
Read More
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a case. Especially, in the cases concerning the Arrest Warrant (Congo v. Belgium 2002) and the Jurisdictional Immunities (Germany v. Italy 2012), ICJ tried to separate procedural and substantive norms and declared that the norms of immunity and jus cogens are different in nature, thus they couldn’t oppose each other but immunity as a procedural norm could prevent deciding about merits. In this article, by using descriptive – analytic method, the rationale behind the decision of ICJ is analyzed in order to know that if immunity is considered procedural and jus cogens is recognized as substantive norm in international law and how these norms interact. Evaluation of doctrine shows that there is no certainty about the quality of the separation of procedural and substantive norms and their proof in international law. Therefore, the court’s decision in choosing the approach could cause an insecurity in the peremptory place of jus cogens.
Amir Hossein Ranjbarian; Hoda Shakib Manesh
Volume 15, Issue 40 , September 2013, , Pages 167-198
Abstract
On numerous occasions over the past decades, the United Nationspeacekeepers have been charged with various offences against thecivilian populations they are commissioned to serve. To render criminaljustice, exercising jurisdiction over the accused is a requirement.Agreements between States and the UN ...
Read More
On numerous occasions over the past decades, the United Nationspeacekeepers have been charged with various offences against thecivilian populations they are commissioned to serve. To render criminaljustice, exercising jurisdiction over the accused is a requirement.Agreements between States and the UN prescribe that the peacekeepingpersonnel shall exclusively be subject to jurisdiction of the home States.further , the contributing States shall retain exclusive jurisdiction overviolation of International Humanitarian Law by peacekeeping forces. Thepresent article examines the criminal jurisdiction of national courts andthe obligation of home States to prosecute such offences, and it furtherattempts to discuss, inter alia, ICC role in this issue
