Juntos: The Lusophone Community’s Unfinished Business in International Criminal Law

[Rafael Braga da Silva is a Brazilian-Portuguese criminal and human rights lawyer with over 10 years of experience, specializing in international human rights and criminal law before tribunals including the Kosovo Specialist Prosecutor’s Office and the UN International Residual Mechanism for Criminal Tribunals]

Introduction

Twenty-five years ago, the Portuguese-speaking world was present at the founding of the modern international criminal justice system. Lusophone states were among the earliest signatories of the Rome Statute; some ratified within months of its entry into force. In 2001, Lusophone states gathered in Lisbon for the first conference on ICC ratification among Portuguese-speaking nations. Three years later, they convened again in Brasília, producing a formal declaration of commitment to the Rome Statute system. Recently, the CPLP, the Lusophone countries bloc, has engaged with international criminal law at the multilateral level — most recently calling for a convention on crimes against humanity at the UN General Assembly, a process distinct from the Rome Statute but animated by overlapping commitments to domestic prosecution capacity and international cooperation.

The momentum was real, the commitment documented. And then, quietly, it stalled. That stall has had concrete consequences:

(1) the implementation gap — six of the nine CPLP member states have either not ratified the Rome Statute or lack domestic implementing legislation entirely, and two more have only partial frameworks;

(2) the infrastructure gap — even where states have engaged multilaterally, the domestic working tools of Rome Statute implementation are missing: no authoritative translation of the Rome Statute’s operational documents, no translation of the Elements of Crimes, no shared model legislation, no common training materials. Other non-official-language communities — notably the Ibero-American world — have faced similar gaps but built institutional responses. The Lusophone world has not; and

(3) the community gap — there is no Lusophone professional network in international criminal law. A Mozambican prosecutor, a Cape Verdean judge, a Guinean civil society lawyer each work in isolation, with no peer community in their language, no shared body of work to draw on, no institutional home equivalent to what Francophone or Ibero-American practitioners have built.

Approximately 290 million people — across four continents, in one of the world’s major languages — live without a common domestic framework to prosecute international crimes. In the Amazon, in Cabo Delgado, in Guinea-Bissau, that gap has a human cost.

The case for treating these nine states as a single analytical community rests on more than a shared language. The Lusophone world has long understood itself as something deeper — nations bound by a common historical heritage, a shared idiom, and a collective vision of development and democracy. The argument for collective action in international criminal law is, in that sense, not a novelty — it is an extension of a project the Lusophone world has already chosen to build. The question is why international criminal law has largely remained outside it.

The collective voice is real. What it has never been turned toward, with any consistency, is the domestic infrastructure international criminal law requires. This piece maps that gap and asks what it would take to close it. The argument moves in two steps: first, the state of Rome Statute implementation across Lusophone countries; second, the structural features — legal, institutional, linguistic, political — that explain why the gap has persisted and what other linguistic communities have built that the Lusophone world has not.

Mapping the Gap

The picture that emerges when Lusophone states are placed side by side is striking.

Implementing legislation encompasses distinct obligations — the substantive criminalisation of Rome Statute crimes, cooperation with the Court, and jurisdictional provisions enabling domestic prosecution. Some Lusophone states have addressed one layer without the others: Brazil criminalised genocide through Law 2.889 of 1956 following its ratification of the Genocide Convention, but has never enacted the broader framework to prosecute crimes against humanity or war crimes under the Rome Statute. The absence marked in the table reflects this broader gap.

The issue is not only one of implementing crimes in domestic law. Cooperation with the Court — arrest and surrender, the transmission of evidence, the enforcement of sentences — requires its own legislative framework. A state that has ratified but not legislated cannot honour its basic commitments.

The Rome Statute’s complementarity principle makes this concrete: for victims in Lusophone states, the absence of implementing legislation means the complementarity principle offers no realistic domestic recourse — and no guarantee that the ICC’s own jurisdictional reach will fill the gap. The goal is not simply to avoid ICC intervention — it is to build the capacity to deliver justice at home through what scholars call positive complementarity: empowering local courts, prosecutors, and judges to act in their own language, within their own legal tradition. For Lusophone states, this is a sovereignty argument as much as a legal one.

The result is a community of approximately 290 million people — spanning four continents, present at the ICC’s founding, having contributed to its bench — without a common domestic legal framework to prosecute the crimes the Court was created to address.

Why Lusophone, Why Together

The shared condition mapped above did not arise by accident and it will not resolve itself. Understanding it requires distinguishing two questions. The first is why Lusophone states are well placed to respond collectively: they share a legal heritage, institutional needs, and linguistic conditions that make joint action feasible — conditions shared, to varying degrees, with other non-Anglophone communities. The second is why collective action has not happened. That answer is above all political.

Legal Heritage

With the exception of Timor-Leste — whose legal system reflects a complex layering of Portuguese colonial law, Indonesian occupation, and post-independence reconstruction — all Lusophone states share a civil law tradition rooted in the Portuguese legal order. This shared heritage is not an obstacle to Rome Statute implementation — Rather that Lusophone states share a common doctrinal vocabulary, similar procedural architectures, and overlapping legal concepts that would make collective legislative drafting and cooperation unusually productive. A model law drafted for one Lusophone jurisdiction would require far less adaptation across the others than any English-language template could offer. This already works for other types of criminalities, such as international cooperation between CPLP law enforcement and criminal justice actors for transnational organized crime and drug trafficking. Therefore, the tools for this exist: shared penal code structures, comparable procedural frameworks, a common legal language. What has never existed is the coordinated effort to use them aimed at international crimes and for Rome Statute implementation.

Institutional Capacity

The states in this group — with the partial exception of Brazil and Portugal — share significant limitations in the institutions international criminal law requires: prosecutors and judges trained in ICL, functioning cooperation mechanisms, legislative drafting capacity. Capacity built in one country is not shared with another: a Mozambican prosecutor has no obvious Lusophone professional home; a Cape Verdean judge facing a Rome Statute question has no peer community in their language. Civil society organisations — the human rights groups, legal aid practices, and documentation projects that have driven accountability efforts in the absence of domestic frameworks — face the same isolation.

The Language Barrier

The working toolkit of ICC implementation — scholarship, jurisprudence, model legislation, and training materials — is overwhelmingly in English and French. Although Spanish is an official ICC language, it is not a working language. Ibero-American practitioners and institutions have produced extensive unofficial translations and adapted materials for their own use, including the ICC to some extent (see e.g. the Spanish version of the Elements of Crimes or the equivalent of the Rules of Procedure of Evidence), with some institutional support to broaden the coverage of its documents and counsel lists.

The Lusophone world has not been contemplated by either official or unofficial translations of ICC core documents or even institutional attention. No authoritative Portuguese version of the Rome Statute exists internationally — only the domestic decrees through which Brazil and Portugal incorporated it into their own legal orders, carrying no authoritative international standing. The question is less about a unique linguistic barrier than about why the institutional will to translate and adapt has not materialised.

Even more significant is the status of the ICC Elements of Crimes — a document that sits outside the treaty framework and has therefore never been officially translated into Portuguese. The practical consequence is real: without an authoritative text in their working language, prosecutors and judges lack a shared reference for determining whether a course of conduct meets the threshold of a specific crime; legislators must interpret English or French originals with no guarantee of consistency across Lusophone jurisdictions. Unofficial translations exist, produced by NGOs — as they do in the Spanish-speaking world — but the difference is that Ibero-American networks have built an institutional ecosystem around those translations. The Lusophone world has not.

The Political Context

If the legal and linguistic factors described above are shared — to varying degrees — with other non-Anglophone, non-Francophone communities, the political dimension is where the Lusophone condition becomes genuinely distinctive. Six of the nine CPLP member states are in Africa, where the African Union’s sustained contestation with the ICC has shaped the environment in which ratification decisions are made. Non-ratification by Angola, Moçambique, and Guinea-Bissau reflects a political landscape in which engagement with the ICC carries real costs, and where regional solidarity with the AU’s position exerts gravitational pull.

For a microstate like São Tomé & Príncipe, limited institutional capacity is likely as significant a factor as political calculation — but the effect is the same. Brazil, for its part, carries a distinct legacy: the 1979 Amnesty Law, which shielded actors from the military dictatorship from prosecution, has created a domestic political culture in which criminal accountability for human rights violations remains contested terrain. Brazil ratified the Rome Statute but has never enacted implementing legislation — and while no direct causal line has been drawn between the Amnesty Law and that absence, the broader political relationship provides some context. Portugal presents the inverse case: it ratified, implemented, and actively participates in the ICC, demonstrating that shared civil law heritage is no obstacle. Yet Portugal’s own reckoning with colonial-era violence has been limited — a reminder that even within the community’s most engaged member, the politics of historical accountability remain complex.

Moreover, Angola’s ratification of the Malabo Protocol in 2024, becoming the first AU member state to do so, is a reminder that international criminal accountability can be pursued along more than one axis. But the Malabo Protocol carries its own unresolved problems: its immunity provision for sitting heads of state has drawn sustained criticism, the African Court it would empower does not yet have criminal jurisdiction in practice, and ratification by a single state does not a functioning system make. The structural problems — capacity, cooperation, shared legal infrastructure — persist regardless of which instrument a state nominally engages with. The question is whether the Lusophone world will build the infrastructure those instruments require.

These political realities matter because they distinguish the Lusophone case from what might otherwise look like simple institutional neglect. Other linguistic communities have faced political headwinds — the Francophone world includes states that have openly contested the ICC, and Ibero-American cooperation on criminal law was built across countries with radically different relationships to transitional justice. But in the Lusophone world, the obstacles are concentrated in a particular way: a majority of the community’s members sit within the African political context most resistant to ICC engagement, while Brazil — the state with the greatest institutional capacity to lead — has its own unresolved relationship international accountability. Portugal has demonstrated what implementation looks like, but it cannot substitute for the political choices that Angola, Moçambique, or Brazil must make domestically. No single member has been positioned to drive the project forward alone. That is not a permanent condition — but it explains why twenty-five years of documented commitment have produced so little domestic infrastructure.

What Other Communities Have Built

Other linguistic communities have built concrete infrastructure on this logic. The Réseau Francophone de Droit International connects Francophone international law practitioners across borders; the Organisation Internationale de la Francophonie has made international criminal justice an explicit part of its mandate. The Ibero-American Association of Public Prosecutors (AIAMP), representing 22 public ministries, has built specialised cooperation networks across criminal law and established IberRed for judicial cooperation across 22 countries. Portugal and Brazil are both AIAMP members — Lusophone prosecutors already participate in Ibero-American mechanisms while no equivalent Lusophone-specific ICL infrastructure exists.

The Lusophone world has chosen to cooperate on other legal matters — the First Meeting of Prosecutors General of Portuguese-Speaking Countries took place in Lisbon in 1989, and continues happening yearly. A network of the CPLP Judiciaries (‘Rede de Cooperação Jurídica e Judiciária Internacional dos Países de Língua Portuguesa’) has also been launched in 2003, following the experience of its European counterparts, to enhance international cooperation between States.

The infrastructure of cooperation is not new. What is missing is its extension to international criminal law, with the urgency and comprehensiveness the moment requires.

The CPLP has already demonstrated that collective Lusophone voice on international criminal law is possible. In 2024 and 2025, Cabo Verde and Guinea-Bissau respectively delivered a joint statement on behalf of all nine CPLP member states to the Sixth Committee on the ILC’s draft articles on crimes against humanity, calling for a plenipotentiary conference to conclude a convention. Angola, Guinea-Bissau, and Moçambique were among the signatories — three states without Rome Statute ratification or domestic ICL frameworks, jointly calling at the UN for stronger domestic prosecution capacity and international cooperation on those same crimes.

The distance between that multilateral commitment and the domestic legal reality of Angola, Guinea-Bissau, and Moçambique is not incidental. It is the gap this piece describes. Closing it requires more than joint statements at the UN: it requires the translations, the shared professional community, and the common capacity that Lusophone states have not yet chosen to build together.

Conclusion

If the barriers are primarily political, technical solutions alone will not overcome them. But technical infrastructure can shift the political calculus. Translated materials make implementation legible to national parliaments; a professional network creates domestic constituencies — trained judges, experienced prosecutors, engaged civil society — who can advocate for legislation and its implementation from within; shared model laws lower the political cost of action by making the legislative lift smaller.

The nine CPLP states are not identical — Brazil’s institutional landscape differs profoundly from Guinea-Bissau’s. But the tools of collective action do not require uniformity; they require a common starting point, and the shared legal and linguistic heritage provides one. What is needed is neither a new institution nor a new treaty. It is a decision to act on what already exists.

An authoritative Portuguese translation of the Rome Statute’s working documents — including the Elements of Crimes — is achievable and overdue. A Lusophone network of ICL practitioners, modelled on perhaps already existing ones, would give prosecutors, judges, and civil society lawyers a professional home in their own language. A coordinated legislative effort, drawing on the existing CPLP cooperation frameworks and adapted to each state’s domestic context, would begin to close the implementation gap.

That effort cannot be state-led alone. Civil society organisations across the Lusophone world — the human rights groups documenting violations in Cabo Delgado, the Brazilian legal clinics working on transitional justice, the Cape Verdean lawyers building accountability practice from limited resources — have been doing this work in isolation for years. They are the natural constituency for a Lusophone ICL community, and any serious initiative must be built with them, not merely for them. The same is true of academia: Lusophone law faculties produce graduates who will staff the courts, prosecution offices, and ministries where implementation must eventually happen. Integrating them into a shared professional community early is not an afterthought — it is the mechanism. The question this piece began with has no predetermined answer. But the conditions for a positive one exist — the institutional heritage, the multilateral voice, the infrastructure of cooperation already built. What remains is the choice to extend them to international criminal law, and to build a community out of it.