Czech Yearbook Vol. 4 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …

focus only on a selected narrow circle of perpetrators who appear to bear the greatest

responsibility for the most serious crimes under international law.

After the initial enthusiasm of supporters of universal jurisdiction, which

followed the global “melting” in the last decade of the previous century, accompanied

by the enhanced emphasis on the protection of human rights and the development of

international criminal law, a part of the international law doctrine adopted a rather

sceptical approach towards universal jurisdiction, and some states later revised their

national laws on universal jurisdiction and considerably limited their scope. As

a result, according to some current voices, universal jurisdiction might seem to be

“on its last legs, if not already in its death throes”,

or it has even already turned

out to be only a “self-feeding hype” and “legal lore” generated by NGOs, activist

lawyers and academia and fraught with circular arguments and flawed analogies.

The

aim of this short article is to point to some of the current contentious issues within

the debates on universal jurisdiction, compare the regime of universal jurisdiction

under general (customary) international law with

the aut dedere aut iudicare

regime

contained in international conventions, briefly describe the regime of universal

jurisdiction provided for by Czech criminal law, and try to moderately defend the

concept of universal jurisdiction as a “realistic utopia” based on a serious, yet realistic

concern for the protection of human rights, the fight against impunity and support

for the rule of law on the international plane.

See also para. 51 of the the Joint Separate Opinion of judges Higgins, Kooijmans and Buergenthal

to the judgment of the International Court of Justice of 14 February 2002 on Arrest Warrant of

11 April 2000 (Democratic Republic of the Congo v. Belgium): “ … the international consensus that

the perpetrators of international crimes should not go unpunished is being advanced by a flexible

strategy in which newly established international criminal tribunals, treaty obligations and national

courts all have their part to play. We reject the suggestion that the battle against impunity is “made over”

to international treaties and tribunals, with national courts having no competence in such matters.”.

See further Máximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the

Transnational Prosecution of International Crimes, The American Journal of International Law, Vol.

105, January 2011, No. 1, p. 4.

Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal

Jurisdiction,

Journal of International Criminal Justice

, 1 (2003), p. 589.

Luc Reydams,

The Rise and Fall of Universal Jurisdiction

, Routledge Handbook of International

Criminal Law, edited by William A. Schabas and Nadia Bernaz, London: Routledge, 2010, p. 350.

See further George P. Fletcher, Against Universal Jurisdiction,

Journal of International Criminal Justice

1 (2003), pp. 580-584. The critics of universal jurisdiction also express fears that its exercise may

lead to undesirable selectivity and to the practice when powerful states would coerce weaker states to

extradite the alleged offenders for prosecution – see, for example, separate opinion by judge (President)

Guillaume to the judgment by the International Court of Justice in the Arrest Warrant case (“To

support universal jurisdiction would be to encourage the arbitrary for the purposes of the powerful,

purportedly acting for an ill-defined ‚international community‘ ”; para. 15 of the separate opinion).

Judge Guillaume came to the conclusion that, apart from conventional law and jurisdiction in cases of

piracy, international law does not accept universal jurisdiction.