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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).