CYIL 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. 1 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”, 2 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. 3 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. 4 1 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. 2 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. 3 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. 4 See also Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice , Oxford University Press, 2009, pp. 555-556.