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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.”).