Trying Foreign Crimes in Domestic Courts

This is when national courts prosecute grave crimes, even in cases where the victims and the suspected perpetrators are foreign citizens and the crimes took place in a different country. Offenses such as war crimes, genocide and crimes against humanity fall into this category.

Human Rights Watch's recent report, "Universal Jurisdiction in Europe: The State of the Art," finds that law-enforcement agencies in many European countries are increasingly willing to investigate and prosecute people suspected of grave international crimes.

The report cites the examples of Belgium's national court, which in 2001 and again in 2005 convicted several Rwandan citizens for crimes against humanity committed during Rwanda's 1994 civil war.

International Criminal Court prompted the trend

Jürgen Schurr, one of the report's authors, said the founding of the International Criminal Court (ICC) in The Hague in 2002 kick-started the trend to recognize universal jurisdiction.

Schurr said these changes came about because European countries were legally bound to include in their national criminal code the offenses recognised by the ICC.

Previously in Germany, the maximum charge for people suspected of genocide was murder, which severely underestimated the gravity of many crimes, Schurr said. That situation changed with the introduction of Germany's Code of Crimes Against International Law in 2002.

The HRW report takes a close took at eight countries – Belgium, Denmark, Germany, France, Great Britain, the Netherlands, Norway and Spain.

Netherlands comes up trumps in HRW report

Netherlands and Great Britain receive the most glowing reports. The Dutch law enforcement agency has some 30 employees who work exclusively on international crimes cases.

"There is a real political will to dedicate resources to allow for the prosecution of these crimes," Schurr said.

Although Great Britain employs only two people to investigate international crimes, they are both placed in the Anti-Terror Department of London's Metropolitan Police. The investigators have access to the department's extensive resources and 300 staff members.

Germany, France lagging behind

Germany and France receive bad marks in the HRW report. In France, it still is not possible to prosecute war crimes suspects because the offense is not recognized under French national law.

Both countries also dedicate few resources to investigating crimes of this severity.

Schurr found this surprising in Germany's case. From 1993 to 2003, the center for combating war crimes, based in the Federal Criminal Police Office, was actively investigating war crimes from the former Yugoslavia. Now there's only one person responsible for grave crimes, he says.

Inquiries fail on political grounds

The German legal code provides an excellent basis for the prosecution of grave crimes, according to Schurr. But, he says, there is a lack of political will.

"The Federal Prosecutor has been allowed a bigger latitude of judgement," he said. In other words, the court "can be, but doesn't have to be, active."

Schurr pointed to the situation in 2005 when Germany's Constitutional Court dismissed allegations that US Defense Secretary Donald Rumsfeld was responsible for the Abu Ghraib prison abuse scandal. Federal prosecutor Kay Nehm said German authorities could only pursue the case if US authorities refused to do so.

New imperialism?

Not everyone believes that the principle of universal jurisdiction is progressive.

Christian Tomuschat, Emeritus Professor for Human Rights at Berlin's Humboldt University, agreed that some countries have made "in-roads" and have even tried and sentenced war crime perpetrators. But in reality, the concept is controversial, he said.

Tomuschat used the example of Belgium, which he said seems to have laid claimed to the right to try international crimes at a national level.

"That is presumptuous, and could be viewed by other countries as a new type of imperialism," he said.

Tomuschat said the national prosecution of crimes against humanity or genocide should only be used as "a last resort."