نوع مقاله : مقاله پژوهشی
نویسنده
دکتری حقوق خصوصی دانشگاه تهران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The transformation in the nature of modern warfare and the expansion of the battlespace into civilian domains have generated fundamental challenges concerning the responsible entity and the mechanisms for compensating loss of life. In traditional jurisprudence, the realization of the rights of the deceased has predominantly been articulated within the framework of "criminal liability" and the institution of prescribed blood money (Diyah). However, extending this institution to war victims encounters severe challenges. Adopting an analytical approach within the realms of civil liability and private jurisprudence, this study investigates the binding foundations of the state in providing comprehensive compensation for damages. The findings demonstrate that by substantively differentiating between "wasted life" (Itlaf al-Nafs) and "sacrificed blood" (Khun-e Mabdhul), and by invoking the principle of "personal responsibility of punishment" along with the presumption of "historical silence," establishing the prescribed religious Diyah upon the public treasury (Bayt al-Mal) lacks jurisprudential validity. Conversely, the Islamic sovereignty—grounded in legislative authority within the "discretionary sphere" (Mintaqat al-Faragh), the "No Harm" (La Darar) rule, and the theory of "social solidarity" (Takaful al-Ijtima'i)—bears a definitive civil liability toward the survivors. This liability encompasses not only the compensation of material losses but also the reparation of the most profound psychological traumas and moral damages. Within this novel paradigm, the Islamic state, by establishing a National War Damages Fund, fulfills its domestic civil obligations while simultaneously transferring the ultimate burden of compensation to the aggressor state in international judicial forums through the legal institution of "Subrogation." This approach safeguards the financial discipline of the public treasury while actualizing distributive and restorative justice.
کلیدواژهها [English]