211 / 350
UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
less strict statutory limitations (giving some leeway to the states to make some
initial procedural steps in enforcing customary universal jurisdiction even in the
absence of the alleged perpetrator on the territory of such a state).
87
In addition, the
principle of subsidiarity should be applied together with the principle of informing
and communicating with the states with “primary” or “more natural” jurisdiction
over the relevant crime. Such a system could create a kind of network of rights and
obligations with the aim of supporting cooperation and exchange of information
between states concerning prosecution of crimes under international law.
VI. Universal jurisdiction in the criminal law of the Czech Republic
In Czech criminal law the principle of universal jurisdiction is contained in
sections 7 and 8 of Act No. 40/2009 Coll., the Criminal Code. According to section 7,
para. 1, “the Czech law shall apply when determining the liability to punishment
of torture and other inhuman and cruel treatment (section 149), forgery and
alteration of money (s. 233), disposing of counterfeited and altered money (s. 235),
manufacturing and possession of forgery tools (s. 236), unauthorised production of
money (s. 237), subversion against the republic (s. 310), terrorist attack (s. 311),
terror (s. 312), sabotage (s. 314), espionage (s. 316), violence against an public organ
(s. 323), violence against a public officer (s. 325), forgery and fraudulent alteration of
an official document (s. 348), criminal conspiracy (s. 361 paras. 2 and 3), genocide
(s. 400), attack against humanity (s. 401), apartheid and discrimination against
a group of people (s. 402), preparation of aggressive war (s. 406), using prohibited
means of combat and unlawful warfare (s. 411), war cruelty (s. 412), persecution of
a population (s. 413), plundering in the war area (s. 414), misuse of internationally
acknowledged symbols and signs and state coat of arms (s. 415), misuse of a flag
and cease-fire (s. 416), assaulting a parliamentarian (s. 417)
even if such crime has
been committed abroad by a foreign national or a stateless person with no permanent
residence permit in the Czech Republic
.” Apparently, this provision is mostly a mixture
of crimes prosecuted on the basis of the principle of protection of vital interests of
the Czech Republic (e.g. crimes of subversion against the republic, forgery of money)
and “contractual universal jurisdiction”, i.e. “treaty crimes” prosecuted on the basis of
relevant international conventions (e.g. terrorist attack). However, in principle, this
provision could also serve as a basis for prosecution of crimes under international law
on the basis of “customary” universal jurisdiction described in previous sections.
88
87
In the words of C. Kreß (
op. cit
. sub 10, p. 578), “[A] level of political control over the decision to
prosecute (not on the conduct of the investigation or trial, in full respect of the doctrine of separation
of powers) might probably safeguard the universal jurisdiction from decline and outright rejection.”
88
See section 400 of the Criminal Code, which defines genocide as follows:
“(1) Whoever with the intention to completely or partially eradicate a racial, ethnic, national or
religious class, or other similar group of people: a) brings members of such a group to such living
conditions that are to cause their complete or partial physical annihilation, b) takes measures to prevent
birth of children within such a group, c) forcibly transfers children from one such group to another
group, or (d) causes death or grievous bodily harm to a member of such group, shall be sentenced to