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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.