The Right Of Living For All Humans

166 Pages·2016·0.82 MB·English

The Kingdom of Norway
NDLH
The Right Of
Living For All Humans
International Criminal Law and The Way TO Abolish The Death Penalty
Network Of International
Diplomacy of International
Law and Human Rights
Contents
Introduction 1
Article one : The legal regime during the Empire Era and the monotheistic religions and
theirperceptionofDeathPenalty 6
Topic1: thelegalregimeduringtheempireera . . . . . . . . . . . . . . . . . . . . . . . 7
Theme1:DeathpenaltyduringtheEraoftheMiddleEastEmpire . . . . . . . . . . . 8
Theme2:DeathpenaltyduringtheEgyptian(Pharaonic)Empire . . . . . . . . . . . 10
Theme3:DeathpenaltyintheRomanEmpireandinSharia . . . . . . . . . . . . . . 15
Topic 2: The evolution of human societies and the emergence of divine religions and its
perceptionofdeathpenalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Theme1:SanctionsregimeintheJewishlawandDeathPenalty . . . . . . . . . . . 23
Theme2:SanctionsregimeintheChristianlawandDeathPenalty . . . . . . . . . . 30
Theme3:SanctionsregimeinIslamandDeathPenalty . . . . . . . . . . . . . . . . 35
Articletwo:Historicaldevelopmentofwarcrimesininternationalcriminaljustice 53
Topic1: TrialsintheeraoftheLeagueofNations,theperiodaftertheFirstWorldWar . . 56
Theme1:TrialsofEmperorofGermany(GuillaumeII)1919 . . . . . . . . . . . . . 57
Theme2:TrialsofWarCriminalsinLeipzig1923 . . . . . . . . . . . . . . . . . . . 59
Theme3:The contribution of the Treaty of Versailles in the development of interna-
tionalcriminallaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Topic 2: Trials in the era of the United Nations Organization, the period after the Second
WorldWar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Theme1:TheNurembergInternationalMilitaryTribunalin1945 . . . . . . . . . . . 63
Theme2:InternationalMilitaryTribunalfortheFarEastinTokyoin1946 . . . . . . 65
Theme3:The contribution of the Tribunals of Nuremberg and Tokyo in the develop-
mentofinternationalcriminalLaw . . . . . . . . . . . . . . . . . . . . . . . . . 68
Topic3: TrialsintheeraoftheUNSecurityCouncil,theperiodofthepostcoldwar . . . 70
Theme1:TheInternationalCriminalTribunaloftheformerYugoslaviain1993. . . . 72
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Theme2:TheInternationalCriminalTribunalofRwanda1994 . . . . . . . . . . . . 74
Theme3:The contribution of the Tribunals of the Former Yugoslavia and Rwanda in
thedevelopmentofinternationalcriminallaw . . . . . . . . . . . . . . . . . . . 78
Articlethree: InternationalCriminalLawandIslamicShariaandtheiroutlook/percep-
tionofdeathpenalty 80
Topic1: EvolutionofwarcrimesandtheconceptofanInternationalcrime . . . . . . . . 81
Theme1:DefinitionofanInternationalcrime . . . . . . . . . . . . . . . . . . . . . 81
Theme2:Natureofinternationalcrime . . . . . . . . . . . . . . . . . . . . . . . . . 83
Theme2:Internationalcrimebasis . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Theme4:Distinctionbetweeninternationalcrimeandothercrimes . . . . . . . . . . 99
Topic2: InternationalCriminalCourt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Theme1:Thecourt’sjurisdictionrationemateriae . . . . . . . . . . . . . . . . . . . 102
Theme2:PersonaljurisdictionoftheCourt . . . . . . . . . . . . . . . . . . . . . . 104
Theme3: ThelawappliedbytheCourt . . . . . . . . . . . . . . . . . . . . . . . . 108
Theme4: Assigningthejurisdictioncourt . . . . . . . . . . . . . . . . . . . . . . . 112
Topic 3: Death penalty and its means of implementation in the Islamic Sharia and Interna-
tionalCriminalLaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Theme1: The scope of the work of death penalty in the Islamic Shariah and their
meansofimplementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Theme2:Thescopeoftheworkofdeathpenaltyininternationalcriminallawandthe
methodsofitsimplementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Theme3:Legislationwhichtakedeathpenalty . . . . . . . . . . . . . . . . . . . . . 124
Theme4:Abolishingcapitalpunishmentinsomelegislations . . . . . . . . . . . . . 138
Conclusionandrecommendations 154
References 158
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Introduction
Since the most important ancient civilization, human societies are established on the shores of the
Mediterranean in Eastside and Westside. The first civilizations in the Middle East were (Babylonian
and Egyptian (Pharaonic). However, they were the Roman, Anglo-Saxon and Greek civilizations, in
the West. The Babylonian civilization has established an integrated judicial system to regulate life
andthenecessarylawstopunishpersonswhocommitanykindofcrimesandaccordingtothenature
ofthecrime. Inthisperiod,penalsystemwascruelandsevere,thecriminalpurposewasentered,and
alsodeathpenaltyissetaccordingtothecrimesinwhichthereweredistinctionbetweenthehomicide
(willful murders) and manslaughter (involuntary manslaughter), in addition to economic and social
crimessuchas;adultery,bandits,etc.
In the Era of Egyptian Empire and exclusively in the era of the kings of 25th family, death sanction
wasreplacedbycuttingnosesandexilingtoEasterndeserts.
The Era of Roman Empire went through three phases: royal era, republican era and empirical era.
In fact, the roman governor is the judge, military commander and high priest, in other words he has
an ultimate power. Criminals were sentenced to death in case they carried out crimes affecting the
security of the State from the outside and inside, as well as crimes of aggression against Gods, and
offenses against persons. Death penalty varies according to the crime committed and the victim does
nothavetherightofmakinggrievance,tilltheageoftherepublicinfrontofPeople’sAssembly.
Still, in the age of the Anglo-Saxon empire, the Old English law was known by its cruelty, frivolity
and foolhardiness and indifference in the application of the death penalty as it did not distinguish
between children or adults, crimes of stealing for the sake of living, even marrying gypsies are sen-
tenced to death and this shows that there is no proportionality between crime and severe punishment
ofdeath.
After the development of human societies and the emergence of three monotheistic religions in dif-
ferent time stages, as the Jewish religion is the first it referred to Babylonian Talmud and magic.
Yet, the Jews adopt the Babylonian Talmud till today. Accordingly, criminals are sentenced to death
for crimes of murders, adultery, disbelief in God (Atheism), murders attempt treacherously, hitting
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parents and beaten to death crimes. There were four methods of death: stoning, burning, beheading/
guillotine or hanging. Hence, the offender must confess his guilt publically before the execution of
thedeathsentence,andhewouldnotbeburiedinthegraveofhisfathers.
However,theChristianreligionwhichbringsthebibletoestablishtheLawofGodintheearthaswell
as social justice, compassion, tolerance, freedom and equality. This religion actually built the idea of
spiritimmortalityandemphasizingthedignityofeachindividualandhowimportantheis. Besides,it
interests in the liberalization of the individual more than the liberation of people or nations. And the
transfigurationofJesusChrist(PeaceBeuponHim)onthemountain: Thedeprivedinthegroundwill
find shelter from God the Creator of all human beings biblical text. Whereas, what concerns women
therehavebeenmanytextswhichgaveherrightsanddefendedhereventhatonewhohadbeencom-
mitting adultery. This is clarified in Jesus’ statement "If any one of you is without sin, let him be the
first to throw a stone at her" John8. This statement shows that the Christian religion prohibits murder
aspunishmentagainstthehumans. And,thatifanyhascommittedacrimeit’sonlybecauseofanger.
Furthermore, even the penalty for adultery is stoning. In conclusion, original Christian is lacking a
clearsystemforcriminalizationandpunishment.
For the Islamic religion retaliation is the punishment and it does not mean the death penalty in par-
ticular. Penalties in Islamic Sharia in border crimes and retribution has proved its root, and has
been shown properly in the Holy Quran and Sunnahs of Prophet Muhammad. There were distinction
between the so-called border crimes (Hudud) and retaliation (Qisas) in the sense of "equality". Ac-
cordingly,withinthejusticesystem,thebordercrimepenaltiessubmittoAlmightyAllah-madelaws,
and the lawof retaliation (Qisas) isman-made laws but that refersto the religious legislations. There
isathirdtypeofpunishmentwhichiscalleddiscretionarypunishment(Ta’zir)appliedtooffensesfor
whichnopunishmentisspecifiedintheQuranortheHadith.
If the crime is covered under the laws of Qisas, the victim’s guardians has the option to avenge their
son if willing, if not they might ask for a ’fair’ (Diyat) blood money or forgive in the name of Allah
(forgivingdiyataswell).
AsmentionedintheHolyQuran:
O you who believe! Al-Qisas (the Law of Equality in punishment) is prescribed for you in case of
murder: the free for the free, the slave for the slave, and the female for the female. But if the killer
is forgiven by the brother (or the relatives, etc.) of the killed against blood money, then adhering to
it with fairness and payment of the blood money, to the heir should be made in fairness. This is an
alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the
killeraftertakingthebloodmoney),heshallhaveapainfultorment. . MushinKhan
Al−Baqarah2:178
Also,assaidthemessengerofAllah(SAW):"Ifaperson’srelativeiskilled,hehasthechoiceoftwo
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things: Hemayeitherhavethekillerkilled,orhemaydemandthebloodmoney."
On the other hand, if the crime is covered under the laws of Hudud set by Allah in this case its im-
plementation could not be stopped, or replaced by another, or lightened, or even pardoned. There are
plenty evidences according to the Prophet Muhammad, peace be upon him: "It prevented his inter-
cessionwithoutthelimitsofGod,heisanti-Godinhiscommand,"
The divine laws; prescribed punishment (Hadd) and retaliation (Qisas) both aim at establishing and
protecting the public interest where the welfare of the society is considered. Furthermore, the pre-
scribed punishment (hadd) protects the general nature so the following crime falls under the jurisdic-
tion of the fixed punishment i.e. it cannot be waived or counteracted in any way. While the essence
of the principle of (Qisas) is blood matter that allows the victim’s guardians to avenge his killing.
Eventually,thelegalityofthedeathpenaltyisderivedfromthesourcesofIslamiclaw(Sharia).
ThehistoricaldevelopmentofthewarcrimesintheInternationalCriminalCourt,afterwhichemerged
the trials of the era (League of Nations) in the period after the First World War, left behind huge hu-
manandmateriallossesastherewasauseofnewlyweaponsthattheworlddidnotknowatthattime.
Thus,thevictoriousPowersinthewarhadonlythedesiretotakerevengeonthepretextofachieving
theconceptofinternationaljusticeagainsttheperpetratorsofwarcrimes.
After the First World War, in 1919, the allies were calling to convene peace conference in Paris. It
resulted in articulating the compromise reached at the conference by signing an agreement with Ger-
many which is the treaty of Versailles, as well as prosecuting the German Emperor Wilhelm II and
the German major war criminals. Hence, it was the first attempt to apply the international criminal
justice.
By1923,theLeipzigcourtwasestablishedtotrytheGermanwarcriminalsaspartofthepenaltiesfor
theircrimes. AlthoughthecriticismshadbeenmadetothetreatyofVersaillesandLeipzigcourtwith
the legal flaws, foibles and taints, there were many positive aspects on both of them that contributed
intheestablishmentofnewrulesininternationalcriminallaw.
The United Nations courts in the period after the Second World War, and especially after the surren-
der of Germany on March 8, 1945, the allies (France, Britain, USA and the Soviet Union) who took
overthecontroland"TheGovernmentsoftheUnitedStatesofAmerica,theUnionofSovietSocialist
Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby
assume supreme authority with respect to Germany, including all the powers possessed by the Ger-
manGovernment,theHighCommandandanystate,municipal,orlocalgovernmentorauthority. The
assumption, for the purposes stated above, of the said authority and powers does not affect the an-
nexationofGermany."asmentionedinthedeclarationheldon5June,1945. Accordingly,thisperiod
had witnessed the establishment of international criminal courts such as; the International Military
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Tribunal at Nuremberg in 1945 to try war criminals especially the Nazi leaders, and the International
MilitaryTribunalfortheFarEastatTokyo,in1946,totrytheJapanesecriminalsfortheirwarcrimes.
Eventually,thecourtsplayanimportantroleinthedevelopmentofinternationalcriminaljustice.
Following the first attempts of the prosecutions and the war trials, the International Security Coun-
cil formed temporary international tribunals - in the period of the cold war between socialists and
capitalists- the first was held in Yugoslavia, in 1993, over the outbreak of the war between their terri-
tories for Bosnia and Herzegovina, on the one hand and the Serbs on the other, in order to prosecute
and try the Serbs perpetrators of brutal crimes committed against the Muslims of Bosnia and Herze-
govina of unarmed innocent citizens. Then, the second in Ruanda over the conflict between the Hutu
and Tutsi tribes to war of genocide and massacres that frightened humanity over time.Consequently,
thesetwotribunalshadcontributedtodeterpoliticalleadersanddeveloptheindividualresponsibility
i.e. each perpetrator should assume his own responsibility of war crimes, as well as developing the
concept of the confinement of international crime by the codification of the rules of international hu-
manitarianlaw,andinternationalcriminallaw. Ithadnoticeableeffectonthecreationofinternational
communitytopromotethegeneralgoodtoestablishpermanentinternationalcriminaljurisdiction.
Actually, the role of international criminal law and Islamic Sharia their standpoint culminated in the
death penalty, it was different. As for the framework of international criminal law was the evolution
of; war crimes, the concept of international crime and the legal responsibility to protect international
community. Inadditiontothenatureandelementsoftheinternationalcrimeswhichdistinguishthem
fromthenationalcrimesandaccordingtothepersistenteffortsmadebytheinternationalcommunity
and the United Nations, permanent international jurisdiction has been established with the adoption
of the Rome Statute of the International Criminal Court, on 17 July 1998, which sets its substantive
competenceanditspersonalandtemporalvalidityandassestheresponsibilityonlytonaturalpersons
-asdefinedinarticle25oftheRomeStatute-andmorallyexcludespersonsundertheageofeighteen
-asdefinedinarticle26-oftheRomeStatute-andpersonsfrominternationalcountriesandorganiza-
tions (governmental and non-governmental). In a matter of fact, the law applied by the Court (ICC)
is the Rome statute, in addition to the Elements of Crimes and the Rules of Procedure and Evidence
of the applicable treaties, the principles and rules of international law, and the general principles of
law derived by the Court of the national laws of States, all with the previous decisions of the Court.
Yet, the assignment of jurisdiction to the Court displays that the Court would exercise its jurisdiction
according to the conditions for the referral to crime and mandate for consideration and the admissi-
bilityofthecase. ThereferencepointsoftheCourtweredefinedasfollows:
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1. AreferralbyaStatepartytotheStatute.
2. Assignment of the International Security Council on the basis of Chapter VII of the Charter of
theUnitedNations.
3. ’The Prosecutor may initiate investigations on the basis of information on crimes within the
jurisdictionoftheCourt’(article15oftheRomeStatute).
Tosumup,intheIslamicShariadeathpenaltyisprescribedaccordingtothethreetypesrecognizedby
Islamic law; border crimes (Hudud), retaliation (Qisas) and discretionary punishment (ta’zir). These
punishmentswerederivedfromtheholyQuranandthenoblepropheticSunnah. Accordingly,theof-
fenses that are punished with Hadd and Qisas penalties are mainly; apostasy (ridda), adultery (zina),
banditry (highway robbery) and homicide, further, insurrection (baghy) is considered to be punished
under ta’zir standards which do not reach the extent of death as it is considered a political crime in
modernpenaltystandards.
Bythetime,executionswereimplementeddifferently;however,deathpenaltyaccordingtothecrimi-
nallawadoptsthecomingaftermethods: hanging,guillotineexecution,electricchair(ELECTROCU-
TION),firingsquad,gaschamberandlethalinjection. ManyArabandWesterncountriesre-examine
the law that legislate death penalty, some canceled the sentence and the revocation was either in part
orinwhole,whileotherstookthetextbutnoactionisbeentakenpursuanttothedecisionsthatintend
to abolish the death penalty in order to take into account of the humanity which is been grabbed by
thispenaltyandtoproviderespecttothehumanbeingwhichhashonoredbyGodAlmighty.
Inthisresearchwilldealwiththreemainarticles:
Article one: the legal regime during the Empire Era and the monotheistic religions and their percep-
tionofDeathPenalty
Articletwo: Historicaldevelopmentofwarcrimesininternationalcriminaljustice
Articlethree: InternationalCriminalLawandIslamicShariaandtheirperceptionofdeathpenalty
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Article one :
The legal regime during the Empire Era and
the monotheistic religions and their
perception of Death Penalty
In this chapter we will deal and study the legal regulations, namely, the systems of sanctions which
include death penalty, in the most important ancient civilizations which has been established near or
on the shores of the Mediterranean among which some belongs to the East - which includes the first
civilizations;Babylonian,ancientMesopotamiaandPharaoniccivilizations-,whiletheotherstothe
West - which includes; Roman, Anglo-Saxon and the Athenian Greek civilizations. Then, we will
deal with the divine laws (Jewish, Christian and Islamic) whereby we recognize the law inspired by
GodAlmightyandthathumanbeingscouldnothingbutformulateandprescribeGod?srevelation. In
otherwords,wewillacquaintourselveswiththeviewpointofthereligiouslawsandprovisionsabout
deathpenaltyaswellasthedevastationonhumanlives.
Inthisarticlewewilldealwithtwoissues:
Topic1: thelegalregimeduringtheempireera
Topic2: Theevolutionofhumansocietiesandtheemergenceofdivinereligionsanditsperceptionof
DeathPenalty
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Topic 1: the legal regime during the empire era
The study of ancient legal and social systems as well as its philosophy helps researchers and le-
gal experts to possess legal information that help reaching development and progress, through their
knowledge of and familiarity with the past history. Thus, what was related to links and relations
between people, rights and duties, which have the effect of the Authority which is organized and im-
plemented according to the realities of the past history and singled out by History of Law1 gradually
untiltheprevailinglawsanditsfuture,whichisnowcalledScienceofLegislation2.
Therefore, the research in the history and the philosophy of law, or in the history of the legal and
social systems do not stop on monitoring and proving the developments and changes in this or that
society, or even the conditions experienced by peoples in different stages, but it (this matter) goes
beyondthat,thematterisaffectedbytheneedtoknowthedepthanditsdatadimensionswhichledto
it, based on the rule of law which is the reflective mirror of the overall social conditions existing still
theharmonywithitifnotwasnot,thereisnoneedforit3.
Asamatteroffact,thesystemofjusticeisanessentialpartofthelegalsystemsofsocietiesasitplays
akeyroleinmaintainingthecommunityanddeterscriminalsandsomakingsocietiesenjoysecurity,
stability andtranquility, equality and socialjustice. At the sametime, it reflects theState sovereignty
andhegemony.
Inthisissue,wewilldealwiththreethemes,asfollows:
Theme1:DeathpenaltyduringtheEraoftheEasternEmpire
Theme2:DeathpenaltyduringtheEgyptian(Pharaonic)Empire
Theme3:DeathpenaltyintheRomanEmpireandinAnglo-Saxonera
1Dr. WalidEl-Nunu,Socialandlegalsystems,Sana’a,2010,2nd edition,legalcenteroflawyers,p7.
2OmarMamduh,TheOriginofLawHistory,Alexandria,1963,p7.
3Dr. SufiAbuTaleb,HistoryofLegalProceduresandSocialSystems,Cairo,1972,p8.
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