Practice Relating to Rule 158. Prosecution of War Crimes
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
In the Sarić case
in 1994, a Danish court found a Bosnian Croat guilty on numerous charges of war crimes.
In 2008, in a statement before the Sixth Committee of the UN General Assembly on the status of the 1977 Additional Protocols, made on behalf of Denmark, Finland, Iceland, Norway and Sweden, the representative of Sweden stated: “Perpetrators must be held accountable under national legislation and procedures. Investigation of suspected abuses of humanitarian law is a necessity and a duty.”
In 2010, in its written response to the UN Secretary-General concerning the status of the 1977 Additional Protocols, the Permanent Mission of Denmark to the United Nations in New York stated:
In addition to Military Prosecution Service there is the Special International Crimes Office (SICO). SICO was established in 2002 and is part of the Danish Prosecution Service. This specific office is responsible for investigating and – if possible – prosecuting serious crimes committed abroad by persons residing in Denmark. Serious crimes include war crimes, genocide, crimes against humanity, terrorism and torture. In this connection, the Danish Penal Code has also been amended to provide Danish courts with jurisdiction over conventional crimes committed abroad.
States have the primary responsibility to investigate and prosecute ICC [International Criminal Court] crimes. ICC is a court of last resort. Ideally, it should have no cases. We must, however, acknowledge that for many States there is a lack of resources and capacity to exercise criminal law proceedings for such complex and large-scale crimes as genocide, crimes against humanity and war crimes. …
… Victims of war crimes, crimes against humanity and genocides, wherever they are found, deserve justice. While we must do our best to encourage all States to live up to their obligations to investigate and prosecute, the International Criminal Court was created to take up the cases when States were not able or willing to do so.
We must continue to work against impunity for serious violations of international humanitarian law and human rights; persons suspected of war crimes, genocide and crimes against humanity must be held accountable. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found. The International Criminal Court is a court of last resort and is of great importance to uphold international humanitarian law and human rights law and to end impunity for mass atrocity crimes.
Women and especially girls are particularly exposed to violence in conflict. Violence against women affects a third of all women globally. The violence is often amplified in areas affected by conflict. …
The fight against impunity for sexual and gender-based violence is … crucial. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found.