With Switzerland’s first international war crimes trial in a non-military court expected to take place in coming months, Swiss NGO TRIAL International says such “universal jurisdiction” cases are on the rise around the world. Switzerland has several other cases under investigation but still needs to step up the pace, it says.This content was published on March 30, 2020 - 11:00
- Deutsch NGOs hoffen auf mehr Kriegsverbrecher-Prozesse
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The long-awaited trial of former Liberian rebel leader Alieu Kosiah, originally scheduled to take place before Switzerland’s Federal Criminal Court in April, has been postponed because of the coronavirus crisis, but is nevertheless expected to take place later in the year. Valérie Paulet, editor of TRIAL’s Universal Jurisdiction Annual ReviewExternal link published on Monday, hopes the trial will inject new life into Switzerland’s international crimes unit at the Office of the Attorney GeneralExternal link (OAG).
“I hope it will be public and there will be important media coverage on the subject. I hope it will motivate the unit to investigate and to send indictments,” she told swissinfo.ch. “We need to recognise it's amazing news that he's going to be tried, but it's been six years that he's been waiting for his trial, so it was high time.”
Kosiah, a former commander of the United Liberation Movement of Liberia for Democracy (ULIMO), is charged with war crimes committed during the first Liberian civil war (1989-1996), including acts of sexual violence, murders, cannibalism, recruitment of child soldiers and forcing civilians to work in cruel conditions. He was arrested in Switzerland in November 2014 and has been in pre-trial detention ever since, as Swiss authorities conducted investigations.
The case was brought by another Swiss NGO, Civitas MaximaExternal link, on behalf of Liberian victims, under a principle known as universal jurisdiction. Countries like Switzerland that have adopted this principle in national law can use it to try non-nationals for serious international crimes (genocide, war crimes and crimes against humanity) committed anywhere in the world.
Former Gambian interior minister Ousman Sonko has also been in pre-trial detention in Switzerland since January 2017, while the OAG investigates him for alleged crimes against humanity and torture.
Universal jurisdiction on the rise
Human right lawyers and NGOs like TRIAL have been in the forefront of pushing universal jurisdiction cases to get accountability for serious crimes, especially where there is none in the country where the crimes were committed. Liberia, for example, has not so far held anyone to account for serious international crimes committed during its civil wars, although there are some cases also in other European countriesExternal link under the principle of universal jurisdiction.
The use of universal jurisdiction in countries around the world has grown “exponentially”, with an unprecedented number of cases, according to the TRIAL report. Based on 2019, 16 countries have ongoing prosecution, 11 accused persons are currently on trial and “over 200 suspects could soon be, too”, it says. The number of named suspects in universal jurisdiction cases around the world (207) was 40% up on 2018.
Paulet says the trend started in 2015 with the influx of refugees to Europe which “brought many witnesses, many victims and also many alleged perpetrators”. Now European countries are gaining expertise and even, like France and Germany, setting up joint units that work together on cases.
“Switzerland has some cases, quite a lot from TRIAL International,” says Paulet. “We do have six big cases ongoing, but I'm afraid they are not investigating that much. So Switzerland is not an example, clearly.”
Resources and political will
NGOs and others have long accused the Office of the Attorney General of dragging its feet on international crimes cases. It is said to be under-resourced and there has also been concern about alleged political interference. In April 2018, the UN Special Rapporteurs on Torture and on the Independence of Judges and Lawyers wrote to the Swiss government expressing concern about allegations that the Office of the Attorney General had submitted to political pressure, notably in cases against former Algerian defence minister Khaled Nezzar and Rifaat Al-Assad, uncle of the current Syrian president.
In a written replyExternal link, Foreign Minister Ignazio Cassis refuted the allegations and asserted that “Switzerland attaches great importance to the fight against impunity, especially for crimes falling under international law”. But two years on, there has still been almost no progress on these cases, with only one witness heard in the Nezzar case, according to Paulet. In the Sonko case, which was also brought by TRIAL, she says they have “no idea” when it might come to trial.
The OAG declined to be interviewed by swissinfo.ch for this story but said in a written response that these investigations were “ongoing”. With regard to Sonko, it said that “the suspect is still in detention and the Swiss criminal proceedings are continuing. The OAG is closely following what is happening in situ and in other related jurisdictions”. A Truth, Reconciliation and Reparations CommissionExternal link is currently holding hearings in The Gambia and Sonko’s name has been mentioned frequently by victims, according to TRIAL, which says it has transmitted “materials, including testimonies before the TRRC, to the Swiss Prosecutor”.
The OAG declined to give details of its resources allocated to international crimes and whether they are adequate.
International crimes and terrorism
The TRIAL report also expresses concern about what it says is a growing trend for prosecutors around the world to charge suspects with terrorism, which is easier to prove, rather than international crimes. This is worrying, it says, because there is no international definition of terrorism, and victims are sidelined, since terrorism is a crime against the State rather than individuals. This is “a hard truth to accept for many survivors, for whom access to justice is a step towards closure,” says TRIAL.
The report cites the case of French Jihadists Mounir Diawara and Rodrigue Quenum, who were sentenced by a French court in December 2019 to 10 years in jail for terrorism. The accused had appeared in photos in combat fatigues in Syria, Kalashnikovs in hand. One of them was brandishing a severed head. TRIAL says the suspects “could have also been charged, in addition to the terrorism related charges, with outrages upon personal dignity, a war crime clearly defined by the Geneva Conventions”.
Paulet says that in Switzerland this is not so much the problem as the fact that the understaffed international crimes unit has merged with the terrorism unit. This is not a problem in itself, and has also happened in France. “It could be good to think that you have the unit on terrorism that works also on war crimes cases, because sometimes they are linked,” she told swissinfo.ch. “But the problem is when you don't have the human resources, you don't have the money and when you have a state that is putting political pressure. States want to prosecute terrorism cases because of public opinion. Then it becomes problematic to have this union between terrorism and war crimes, because the terrorism crimes are going to take over.”
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