National Prosecution of International Crimes

The comparative project focused on the questions how and by which means the criminal laws of different states provide or allow for the punishment of international crimes by their own domestic courts, which deficts exist in comparison to applicable international law (and obligations to prosecute established by it) concerning such national jurisdiction, and which reforms have been carried out or are planned in order to permit the national prosecution of international crimes.
Project category: Research project
Organisational status: Institute project
Project time frame: Beginning of project: 2001
End of project: 2006
Status of Project: completed
Project language(s): Primarily German
Legal system(s): 34 legal systems world wide; international criminal law

Head(s) of project

Contributors / Researchers

  • Researchers of the Department of Criminal Law as well as external contributors

Project Description:

Numerous issues arise / arised for states as a result of the July 1998 Rome Statute for the International Criminal Court (ICC): Foremost among them is the question of whether to ratify the treaty for the ICC and, if so to what extent ratification necessitates changes to national constitutional law. Moreover, states that ratify (member states) will need to pass national legislation to ensure cooperation with the ICC as required by the Rome Statute. Thirdly, all states are / were confronted with the question of whether they are willing and capable of prosecuting and punishing international crimes and whether their respective criminal law should (or must) be modified.

The Rome Statute per se does not stipulate a direct obligation of states to establish and exercise national jurisdiction for international crimes (except Art. 70 ICC Statute). However, behind the general concept of the Statute is the notion that the prosecution of international crimes is primarily a task of the individual states. This primary competence is given expression in the principle of complementarity: According to Art. 17 ICC Statute, the prosecution of crimes before the ICC is only admissible if and to the extent that an effective prosecution at the national level is thwarted by legal or factual obstacles. The consequence of the failure to prosecute at the national level is merely that a case becomes admissible before the ICC. It is nevertheless in the self-interest of the individual states to be in a position to prosecute international crimes to at least the same extent as the ICC. This does not only give meaning to the concept of the primary punishment of international crimes by national courts, but it also takes into account the states' interests in national sovereignty.

Apart from the lack of a direct obligation by the Rome Statute, the Statute obviously seems to assume according to no. 6 of its Preamble that states are obliged to prosecute international crimes by (customary) international law. In fact, obligations to prosecute international crimes at a national level flow from other international treaties such as the Geneva Conventions, the UN Convention on Genocide, and the UN Convention on Torture, which are binding for a great majority of states as international treaties. In addition, the perception of the existence of duties to prosecute due to international customary law is gaining ground.

It can therefore be concluded that individual states are obligated to prosecute certain international crimes at the national level. Moreover, the Rome Statute favours prosecutions at the national level (principle of complementarity), indeed, something that is in the self-interest of the individual states.

For those reasons, a discussion is / was taking place in many states if and in what respect an adjustment of domestic criminal law to the substantive criminal provisions of the Rome Statute and international customary law is necessary or at least practical. For example, in Germany a separate German Code of Crimes against International Law (CCAIL) (Völkerstrafgesetzbuch, VStGB) (see below Downloads and Links) has been enacted in June 2002. The purpose of this Code is, inter alia, to enable Germany always to be in a position to prosecute independently crimes falling under the jurisdiction of the ICC.

Focus and Objective of the Project:

Keeping the aforementioned developments in mind, this comparative project focused on the questions how and by which means the criminal laws of different states provide or allow for the punishment of international crimes by their own domestic courts, which deficits exist in comparison to applicable international law (and obligations to prosecute established by it) concerning such national jurisdiction, and which reforms have been carried out or are planned in order to permit the national prosecution of international crimes.

Above and beyond the pursuit of purely academic insights in the context of basic criminal law research, it was the objective of the project on the one hand to give an inspiration for and add an impulse to reform plans in individual states by describing and analysing different regulatory mechanisms for punishing international crimes. Moreover, it can be illustrated to what degree different states are capable on a normative level of prosecuting international crimes independently. This insight should be of eminent practical relevance in regard to the complementarity principle of the Rome Statute. Last but not least, the conclusions flowing from the legal viewpoints found in the different states, e.g., concerning the extent of international obligations to prosecute on the national level, might allow deductions to be drawn with regard to the current state of international law.

Concept, Questions, and Methodology:

The analysis was conducted by country reports covering individual states which have been composed according to an uniform and mandatory outline to assure the comparability at a later point. In essence, the following questions were answered by the country reports:

  • Does conduct penalised by the Rome Statute and by current international customary law as international crimes (genocide, crimes against humanity, war crimes) lead to criminal liability according to the criminal law of the examined state? Is also the crime of aggression punishable?
  • Are these crimes covered by either special provisions of the national criminal law, merely by "ordinary" criminal law, or by reference to international law (international customary law, or international treaty law such as the Rome Statute)?
  • Which crimes penalised by international law are not punishable under the national criminal law?
  • Which principles of jurisdiction such as the territoriality principle, the personality principle, or universality principle, serve as a basis for the geographic and personal scope of jurisdiction over international crimes?
  • Which rules apply for international crimes in respect to general principles of criminal liability, e.g. concerning the defences of self-defence or acting in accordance with orders of superiors, of mistake of law or command responsibility?
  • Are there special provisions on the admissibility of prosecution, e.g. concerning immunities under international and constitutional law, or statutory limitation?
  • Do certain particularities apply with regard to the proceedings or the competent courts when prosecuting international crimes?
  • Are international crimes actually prosecuted in the examined country?
  • Are there plans for reforms of the criminal law in order to deal with international crimes (in a better fashion)?

Countries and Authors:

Europe
Austria: Dr. Ingeborg ZerbesItaly: Dr. Konstanze Jarvers / Dr. Christoph Grammer
Croatia: Prof. Dr. Petar NovoselecPoland: Dr. Ewa Weigend
England/Wales: Christiane RabensteinRussia/Belarus: Dr. Siegfried Lammich
Estonia: Andres Parmas /
Tristan Ploom
Serbia and Montenegro (Former Yugoslavia):
Dr. Milan Skulic
Finland: Prof. Dr. Dr. Dan FrändeSlovenia: Dr. Damjan Korošec
France: Dr. Juliette Lelieur-FischerSpain: Prof. Dr. Alicia Gil Gil (country report in Spanish)
Germany: Dr. Helmut Kreicker /
Dr. Helmut Gropengießer
Sweden: Dr. Dr. h.c. mult. Karin Cornils
Greece: Michalis Retalis (country report in English)

North America
Canada: Till Gut / Max Wolpert (country report in English)USA: Emily Silverman (country report in English)

Central and South America
Argentina: Ezequiel MalarinoEl Salvador: Jaime Martínez
Bolivia: Elisabeth Santalla VargasMexico: Patricia Neri
Brazil: Maria Thereza R. Assis MouraPeru: Prof. Dr. Carlos Caro
Chile: Prof. Dr. José Luis GuzmánUruguay: Prof. Jose Luis Gonzalez
Colombia: Prof. Dr. Alejandro AponteVenezuela: Prof. Dr. Juan Luis Modollel
Costa Rica: Paul Hernández Salmaceda

Asia
China: Dr. Thomas RichterTurkey: Dr. Silvia Tellenbach
Israel: Prof. Dr. M. Kremnitzer /
M. Cohen (country report in English)

Africa
Ivory Coast:
Dr. Adome Blaise Kouassi / Simon Paulenz

Oceania
Australia: Anke Biehler

Status Report 2001/2002:

During the fall of 2001, Judge at the ICTY Prof. Dr. Dr. h.c. mult. Albin Eser, M.C.J., the director emeritus of the Department of Criminal Law within the Max Planck Institute, advanced the idea to take the draft for a German Code of Crimes against International Law (CCAIL) as well as the debate on the adjustment of the national law to the substantive law of the Rome Statute being led in other countries as an opportunity for a large-scale project on international criminal law. This proposal was well received within the Institute, and eventually led to the decision made in December 2001 to use the expertise in comparative law present at the Max Planck Institute as well as the structures of the country sections for a "classic comparative project". A small task force (Prof. Dr. Kai Ambos, Anke Biehler, Dr. Jörg Meissner, Dr. Jan Christoph Nemitz, Steffen Wirth, Jan-Michael Simon) was thus established, which developed, under the charge of Dr. Helmut Kreicker and in close cooperation with Prof. Dr. Albin Eser, the concept for a such project, refined the relevant questions, and drafted a project outline.

It was eventually decided to conduct the project in two steps. The drafting of country reports on the selected states was  preceded by a project phase during which the heads of the Country Sections of the Max Planck Institute gained an overview concerning the current law and reform plans in the states under their scrutiny with the help of a special project outline. The findings of these preliminary reports were summarised in a rough sketch for each country and were presented at the end of February 2002. Some external researchers contributed brief reports on countries not examined within the Institute.

After the conclusion of this first project phase, the general attention focused on the question which states should be subject to more detailed country reports during the second project phase. The results of the preliminary reports furthermore helped to develop a final and feasible project outline which has to be followed by the country reports as far as the structure and questions are concerned. After it had been determined which country reports could be written by staff of the Institute and to what degree it would seem practical or necessary to retain external authors to examine other important states, the work on the actual country reports commenced in April 2002 as far as they could be dealt with by researchers of the Max Planck Institute. In the course of summer and fall of 2002 attempts to retain numerous external authors were successful. This means that also countries were included in the project in regard to which the reseachers of the Department of Criminal Law of the Institute could not have been able to contribute reports.

Status Report 2003-2006:

Volume 5 of the series

Volume 5 of the series "National Prosecution of International Crimes", ed. by Eser/Sieber/Kreicker. Berlin 2005.

Reports from Europe, North America, Asia, Africa, and Australia
The reports from Europe, North America, Asia, Africa, and Australia were managed by the project coordinator, Dr. Helmut Kreicker, and project member Johanna Rinceanu. The country reports on Germany, Finland, Poland and Sweden were published in 2003, the reports on Austria, Croatia, Serbia and Montenegro and Slovenia in 2004 (see below "Publications (Selection)" > "Project Related Publications"). In February 2005, an English-speaking volume with the country reports on Canada, Estonia, Greece, Israel and the USA was published. In spring and summer 2005 two more volumes with country reports have been published, presenting the country reports on Australia, China, England and Wales, Russia and Belarus as well as Turkey. With these publications the project stage of publishing country reports has been concluded. In 2005, the project coordinator Dr. Helmut Kreicker worked on a comparative analysis of the different country reports. This final contribution to the project was concluded in December 2005 and was published in a seventh volume of the series "National Prosecution of International Crimes" in December 2006.

The reports were published in several volumes by the Institute's publishing section, edition iuscrim, and in cooperation with the publisher Duncker & Humblot, Berlin. They were were published in the language of writing, i.e. mostly in German, others in English or Spanish.

Reports from Central and South America
The reports on the Central and South American countries within the project were managed on their own as a project subdivision "Latin America" under the charge of Prof. Dr. Kai Ambos. Those reports were published in cooperation with the Konrad Adenauer Foundation in Latin America in a separate volume mostly in Spanish language (see above). Furthermore, it is thanks to the Konrad Adenauer Fondation and its generous financial support that the project subdivision "Latin America" could have been realized at all.
The authors of those country reports met for a colloquium in Montevideo in February 2003 (conference report in Portuguese and Spanish see below Downloads and Links).

Comparative analysis
The project has been concluded by a comparative analysis and an assessment of the individual country reports, that was written bei the project coordinator Dr. Helmut Kreicker in 2005 and completed in December 2005. This final analysis was published in December 2006. Some of the conclusions that could have been drawn from the country reports were already presented on international conferences in Istanbul and Nottingham (presentations see below Downloads and Links).

Publications (selection)

  • Project Related Publications:

  • Eser, Albin / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen - National Prosecution of International Crimes.
    Volume 1: Deutschland (Helmut Gropengießer, Helmut Kreicker). Freiburg i.Br. 2003, 552 p.
  • Eser, Albin / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen - National Prosecution of International Crimes.
    Volume 2: Finnland (Dan Frände), Polen (Ewa Weigend), Schweden (Karin Cornils). Freiburg i.Br., 304 p., 2003.
  • Eser, Albin / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen. National Prosecution of International Crimes.
    Volume 3: Kroatien (Novoselec), Österreich (Zerbes), Serbien und Montenegro (Škulić), Slowenien (Korošec). Berlin, 437 p., 2004.
  • Eser, Albin / Sieber, Ulrich / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen - National Prosecution of International Crimes.
    Volume 4: Côte d’Ivoire (Kouassi/Paulenz), España (Gil Gil), Frankreich (Lelieur-Fischer), Italien (Jarvers/Grammer), Lateinamerika (Ambos/Malarino). Berlin, 510 p., 2005.
  • Eser, Albin / Sieber, Ulrich / Kreicker, Helmut (ed(s).): National Prosecution of International Crimes - Nationale Strafverfolgung völkerrechtlicher Verbrechen.
    Volume 5: Canada (Gut/Wolpert), Estonia (Parmas/Ploom), Greece (Retalis), Israel (Kremnitzer/Cohen), USA (Silverman). Berlin, 541 p., 2005.
  • Eser, Albin / Sieber, Ulrich / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen - National Prosecution of International Crimes.
    Volume 6: Australien (Biehler/Kerll), China (Richter), England/Wales (Rabenstein/Bahrenberg), Russland/Weißrussland (Lammich), Türkei (Tellenbach). Berlin, 501 p., 2005.
  • Eser, Albin / Sieber, Ulrich / Kreicker, Helmut (ed(s).): Nationale Strafverfolgung völkerrechtlicher Verbrechen - National Prosecution of International Crimes.
    Volume 7: Völkerstrafrecht im Ländervergleich (Kreicker). Berlin, 424 p., 2006.
  • Published Reports on Latin American Countries:
  • Ambos, Kai / Malarino, Ezequiel (eds.): Persecución penal de crímenes internacionales en América Latina y España. Montevideo, 2003.
  • Ambos, Kai / Malarino, Ezequiel (eds.): Persecução Penal International na América Latina e Espanha. São Paulo, 2003.
  • Last update: 14 December 2017
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