CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ mezinárodní smlouvě; nebo možný budoucí institucionální mechanismus, jenž by měl být takovouto smlouvou ustaven. Key words : crimes under international law, international cooperation in criminal matters, joint governmental initiative, International Law Commission, Crimes against Humanity Initiative, Rome Statute, aut dedere at iudicare , universal jurisdiction, immunities, prevention, institutional mechanism. On the author: JUDr. Pavel Caban, Ph.D. (*1976) graduated from the Faculty of Law of Charles University in Prague (1999), where he also received his Ph.D. (2006) and externally taught public international law (2006 – 2009). He is an employee of the Ministry of Foreign Affairs of the Czech Republic: from 2000 to 2009 he worked at the International Law Department of the Ministry of Foreign Affairs; from 2009 to 2013 he was posted in the Embassy of the Czech Republic in the Kingdom of the Netherlands; since then he has been working again at the International Law Department of the MFA CR. 1. Introduction The prosecution of crimes under international law (genocide, crimes against humanity, war crimes) 1 is primarily the obligation of individual states and should be dealt with at the level of national jurisdictions, 2 since the international criminal tribunals, notably the International Criminal Court (having regard to the principle of complementarity, to the limited capacity of the Court and to the fact that its jurisdiction is not universal) are and will be able to focus only on a very selected, narrow circle of perpetrators who appear to bear the greatest responsibility for the most serious crimes under international law. Tomake the prosecution on the national level effective, crimes under international law must be defined in domestic law, sufficiently wide domestic jurisdiction must be established and states must be able and obliged to give each other relevant legal assistance in criminal matters and extradite or prosecute the alleged offenders on the basis of the principle aut dedere aut iudicare, 3 since, in the case of these crimes, the victims, witnesses and evidence are often found on the territory of another 1 The crime of aggression seems to be of a somewhat special nature and subject to special jurisdictional regime. See i.a. the Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission at its forty-eighth session in 1996, according to which the crime of aggression should be subject only to the jurisdiction of (at that time only a potentially existing) international criminal court or of the national courts of the alleged perpetrator. 2 See the fourth and sixth preambular paragraph of the Rome Statute of the International Criminal Court, which provide that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” and that “effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. 3 A Legal Gap? Getting the evidence where it can be found: Investigating and prosecuting international crimes. Report – expert meeting, The Hague, 22 November 2011, p. 3 (on file with the author).

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