CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ directed against civilian population” in line with the above conditions included in Article 7 of the Rome Statute.) 15 It can be added that, according to section 7, para. 1, of the Criminal Code, the Czech law shall apply when determining the liability to punishment for the “attack against humanity” (and other listed crimes) “even if such crime has been committed abroad by a foreign national or a stateless person who has not been granted permanent residence in the territory of the Czech Republic”, which means that it can be prosecuted on the basis of universal jurisdiction. Further, section 35 of the Criminal Code provides that the attack against humanity is not subject to the statute of limitation. 3. Joint governmental initiative for a multilateral treaty on interstate cooperation in prosecution of the most serious international crimes On the level of governments, the most significant initiative in this area seems to be the joint initiative of Argentina, Belgium, the Netherlands, Slovenia and Senegal to elaborate a convention on mutual legal assistance in domestic prosecutions of serious crimes under international law, namely the crime of genocide, crimes against humanity and war crimes. The authors of this initiative suggest that the future convention should be modelled primarily on the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the United Nations Convention against Transnational Organized Crime (2000), the United Nations Convention against Corruption (2003) and the International Convention for the Protection of all Persons from Enforced Disappearance (2006). The Torture Convention and Enforced Disappearance Convention were chosen as a model, since they also aim at prosecuting serious crimes committed in (connection with) the performance of official (public or State) functions; in addition, the crime of torture or enforced disappearance, when committed on a certain larger scale or in a certain context, are part of the definition of crimes under international law (crimes against humanity). 16 These conventions, together with the Convention against Corruption and the Convention against Transnational Organized Crime, may serve as the source of the most widespread and the most modern provisions on the establishment of jurisdiction (including extraterritorial or “contractual” universal jurisdiction and ne bis in idem principle), as well as on extradition (including the obligation to extradite or prosecute) and mutual legal assistance. The envisaged treaty is meant to be a practical tool to enhance the capacity of states to investigate and prosecute, at the domestic level, the relevant crimes under 15 Šámal, P. et al. , Trestní zákoník (in Czech), 2nd edition, Prague, C.H. Beck, 2012, p. 3491. 16 See the definition of crimes against humanity, in particular Article 7(1)(f) and (i) of the Rome Statute. See further Article 5 of the Convention for the Protection of All Persons from Enforced Disappearance (“The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”).

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