Univerzální jurisdikce a postih závažných porušení Ženevských úmluv z r. 1949

Violations of the International Humanitarian Law (IHL) are characterized by two sets of legal consequences. Some of them are considered to be so serious that entail not only international responsibility of States for wrongful acts but also criminal responsibility of individua! perpetrators. The criminal repression of grave breaches of IHL, called also war crimes, is not just a matter of domestic law, but it results from international law. Four Geneva Conventions of 1949 have not only defined grave breaches (Articles 50/1, 51/11, 130/111, 147/IV) and provided for their investigation and prosecution, but set up also the obligatory universal jurisdiction of States Parties with respect to the grave breaches (Articles 49/I, 50/11, 129/III, 146/IV). It is a kind of paradox that in 2009, after 60 years from the adoption of the Geneva Conventions, the universal jurisdiction is perceived, by a number of States, mostly developing States, as being problematic. As evidence, there is a recent proposal of the African Union leading to the adoption the UN General Assembly resolution on “The scope of application of the principle of universal jurisdiction”. The universal jurisdiction has been established in customary international law in relation to the crime of piracy since the 17th century. In the second half of the 20th century, this principle has been embodied into treaty law, such as the Geneva Conventions or the 1984 Convention against Torture. The universal jurisdiction has its place in international law. In practice, however, it appears mainly in a narrow, subsidiary form, where a perpetrator is found in the territory of the State and cannot be extradited to another State. Lt is linked to the treaty obligation aut dedere aut judicare. On the contrary, the absolute universal jurisdiction is rather exceptional and has permissive rather than obligatory nature. The obligatory universal jurisdiction, as set up in the Geneva Conventions, is rare and in practice hardly enforced. The primary jurisdiction rests with the States applying territorial or persona! jurisdiction. The principle of universality is a kind of safeguard against impunity of certain crimes based on a horizontal complementarity. Its impact has to be assessed in the light of the current development of international law, including the ad hoc tribunals and the International Criminal Court. The binary obligation aut dedere aut judicare has been completed with a surrender as the third possibility.