CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES to crimes against humanity”; cca only 50 per cent of Rome Statute parties have “ per se legislation on crimes against humanity” (the estimate of states worldwide with per se crimes against humanity legislation is cca 40 per cent); in addition, it seems that only about 12 per cent of states covered by the study (including Rome Statute parties as well as non-parties) and cca 30 per cent of states with per se legislation adopted, in their national law, the exact definition of the crimes against humanity contained in Article 7 of the Rome Statute. 9 Furthermore, only a certain number of States ( cca 60 per cent) with per se legislation on crimes against humanity provide for the exercise of universal jurisdiction for crimes against humanity ( i.e. the exercise of jurisdiction over non-national offenders who commit the crime abroad against non-nationals). 10 Such a diversity of national laws in this area constitutes a considerable impediment to interstate cooperation. 11 In the Czech Republic a new Criminal Code (Act. No. 40/2009 of the Collection of Laws) entered into force six year ago. Crimes against humanity are defined in section 401 of the Criminal Code under the heading “attack against humanity”; 12 the definition might be regarded as per se legislation on crimes against humanity, 13 which, nevertheless, differs in some aspects from the definition of the crimes against humanity under the Rome Statute. (The definition in the Criminal Code contains criterium of a “widespread or systematic attack directed against civilian population”, but does not require that the “attack” consists of the “multiple commission of acts … pursuant to or in the furtherance of a State or organizational policy to commit such attack”, which is part of the definition under Article 7 of the Rome Statute; 14 however, Czech commentaries to the Criminal Code interpret the words “attack 9 See the First report on crimes against humanity, by Sean D. Murphy, Special Rapporteur, doc. A/ CN.4/680, 17 February 2015, p. 31-3. 10 Arturro J. Carillo, Annalise K. Nelson, Comparative Law Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction, The George Washington International Law Review, vol. 46 (2014), pp. 482-483 and 516-517. 11 First report, op. cit. sub 9, p. 33. 12 “(1) Whoever commits, within a widespread or systematic attack directed against civilian population: a) extermination of people, b) enslavement, c) deportation or forced transfer of a group of civilians, d) rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation or other forms of sexual violence, e) persecution of a group of civilians on political, racial, national, ethnic, cultural, religious, gender or another similar grounds, f) apartheid or another similar segregation or discrimination, g) deprivation of liberty, abduction to an unknown location or any other restriction of personal liberty with following involuntary disappearance of persons, h) torture, i) murder, or j) another inhumane act of similar nature, shall be sentenced to imprisonment for twelve to twenty years or to an exceptional sentence of imprisonment. (2) Preparation is criminal.” (An exceptional sentence of imprisonment is a sentence of imprisonment beyond twenty years up to thirty years and a sentence of imprisonment for life.) The crime of genocide and war crimes are defined in separate provisions. 13 See Arturro J. Carillo, Annalise K. Nelson, op. cit. sub 10, p. 528. 14 See Arturro J. Carillo, Annalise K. Nelson, op. cit. sub 10, pp. 529-530. In addition, the list of “acts” and their definitions which form part of an “attack against humanity” under the Czech Criminal Code slightly differ from the list in Article 7 of the Rome Statute.

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