Universal jurisdiction gains ground in Switzerland

In Liberia, the population demanded that international justice be undertaken for the victims of the civil war. Keystone / Ahmed Jallanzo

Switzerland faces regular criticism for being slow to prosecute crimes committed abroad by Swiss nationals, residents or companies. The recent conviction of a former Liberian military commander for crimes against humanity paves the way for more trials of this kind.

It was a historic decision. On June 1, the Liberian citizen Alieu Kosiah was sentenced by the Court of Appeal of the Swiss Federal Criminal Court to 20 years in prison for crimes against humanity. The former commander of the United Liberation Movement of Liberia for Democracy, a militia, was found guilty of killing and executing civilians during the 1993-1995 conflict in Liberia.

“This case lays the legal foundations for perpetrators of the worst atrocities to be prosecuted in Switzerland, regardless of where they were committed,” said Benoit Meystre, legal adviser to TRIAL International, an NGO involved in similar investigations currently underway in Switzerland. “Courts called upon to rule on similar cases in the future will be able to rely on this decision.”

The ruling marks the first time that a person has been convicted of crimes against humanity in Switzerland. The judgment opens the way for further such trials. But it also raises the question of why this trial took so long to reach a conclusion. Switzerland has been able to try major crimes committed outside its borders since the Rome Statute came into force in 2011. The latter paves the way for prosecution on the grounds of genocide, crimes against humanity and war crimes.

The statute addresses the possibility of prosecuting a company, a Swiss citizen or a person in Switzerland for major crimes committed in a third country. It has led, among other cases, to the opening of a war crimes investigation against Rifaat al-Assad, the uncle of the current Syrian president Bashar al-Assad, during one of his trips to Switzerland. 

It’s worth noting that before Kosiah’s arrest in 2014 for war crimes, he lived in Lausanne, Switzerland, with complete impunity.

Historic decision

The sentence for crimes against humanity was certainly not a foregone conclusion. At his trial in 2021, Kosiah was found guilty “only” of war crimes. In the view of the Swiss Federal Prosecutor’s Office, the charge of crimes against humanity could not be applied to crimes committed before 2011. 

Changing the charge would require a court decisionExternal link, as requested by the civil parties. In support of their arguments, they stressed that the crimes committed by the Liberian citizen were part of a systematic attack on the civilian population and could not be considered “mere” war crimes.

The prosecutor finally changed the charge on appeal, following another ruling by the Federal Criminal Court in connection with the assassination in Switzerland of an Iranian opposition figure in 1990.

The appeal court’s decision is a landmark in Swiss case law. “In practical terms, it paves the way for criminal prosecutions in Switzerland for crimes against humanity committed before 2011,” said Alain Werner, director of the Geneva-based NGO Civitas Maxima and a specialist in international criminal law.

“For the victims, whom we represent, this sentence means a lot,” he said. “The fact that the judges believed them and considered the charge of crimes against humanity demonstrates the systematic nature of the atrocities committed against the population.”

Role of NGOs 

It was Civitas Maxima, among others, that made the trial possible. NGOs carried out field investigations, collected testimonies, contacted the victims and filed a criminal complaint. They are in a position to conduct field investigations and reach sources that are difficult for prosecutors to access.

The recent decision was also welcomed by the prosecutor, whose spokesperson said it was an “important decision for the victims, who have gone to considerable lengths to come and testify and to confirm that Switzerland is capable of prosecuting and pursuing cases under international criminal law”. The Federal Prosecutor’s Office also welcomed the fact that the controversial issue of crimes against humanity was decided on merit. “This is important for future cases conducted by the Federal Prosecutor’s Office, which can use this decision as a basis in future,” it said.

And there is no shortage of cases. Since 2011, cases have accumulated in Swiss courts as diplomatically sensitive investigations have opened, such as that against the former head of the Algerian armed forces, Khaled Nezzar.

The investigation concerning gold mined in the Democratic Republic of Congo, which affected the Ticino-based refinery Argor Heraeus in 2013, is even more sensitive. This case involves one of the world’s largest companies in the sector and implicated Adolf Ogi, a former member of the government. Ogi was on the Swiss refinery’s board of directors at the time. Following searches and the opening of criminal proceedings for complicity in war crimes, the investigation was closed in March 2015. Two days later, Ogi left the company.

Generally speaking, the Federal Prosecutor’s Office has been reluctant to prosecute crimes that create diplomatic problems. The office’s financial and human resources did not keep pace with its ambitions, and cases often went unprosecuted. The prosecutor in charge of international criminal law at the time of the gold-mining case, Laurence Boillat, was sidelined. Her mandate was not renewed in 2015.

NGOs have also been fiercely critical of the slow pace and manner in which Switzerland conducts investigations. Two UN Human Rights Council special commissioners questioned the government about “Switzerland’s apparent lack of political will to investigate international crimes” and denouncedExternal link “political interference”, particularly by the foreign ministry, which they said had succumbed to diplomatic pressure.

“In ten years, we have only convicted one person, Alieu Kosiah. That doesn’t sound like much,” said Raphaël Jakob, who is representing a Liberian victim in the Kosiah trial and is involved in other proceedings for crimes against humanity and war crimes in Switzerland. “There have been organisational problems and the resources devoted to these types of crime have been scarce. In addition, the Federal Prosecutor’s Office often refused to open investigations or decided to close them prematurely, taking a restrictive approach to all the legal questions.”

The criticism is all the fiercer in view of Switzerland’s poor record in comparison with other European nations such as Sweden and Germany, which have already issued verdicts in several trials of this kind.

At the end of 2021, a court in the German city of Hamburg convicted a German-Tunisian member of ISIS of belonging to a terrorist organisation and treating two women of the Yazidi minority in Syria as sex slaves.

In July 2022, Sweden found former Iranian prosecutor Hamid Nouri guilty of “serious crimes against international law” and “murder” after the deaths of thousands of political prisoners. This was the first trial of an Iranian official implicated in the 1988 executions of Iranian political prisoners.

“If you look at the efforts made by certain neighbouring countries in the fight against impunity and the concrete results achieved, you realise that Switzerland can and must do better,” said Meystre.

“It is imperative that Switzerland regains ground in the fight against impunity for international crimes, and in particular that more resources are allocated to prosecution units.”

A new beginning?

For lawyers and NGOs, the decision handed down in June is nevertheless a good starting point for the future. 

“The conviction of the Liberian commander shows that the judicial authorities are capable of judging crimes committed 7,000 kilometres away in the brutal context of a civil war,” said Nina Burri, an experienced lawyer at the International Criminal Court who represents several victims in international criminal law cases pending in Switzerland.

NGOs such as Civitas Maxima and Trial International also welcomed the January 2022 arrival of a new federal prosecutor who has put the subject of international crimes at the top of the agenda and has decided to allocate more resources to handling cases. They already see a change in attitude, particularly in a greater willingness to examine the role of Swiss nationals in the plundering of raw materials in countries in conflict. The investigations opened by the Attorney General’s Office include “criminal proceedings against unknown persons on suspicion of committing war crimes by pillaging” in Libya and another concerning a Swiss businessman active in the mining sector in the Congo.

“He (the new prosecutor) has put the subject on his agenda and encouraged dialogue with civil society players, which I think is very positive compared with what happened in the past,” Jakob said.

There are currently around 30 preliminary enquiries and criminal investigations underway in Switzerland, according to the Office of the Attorney General’s 2022 annual reportExternal link. These involve accusations of genocide, crimes against humanity and war crimes committed between 1982 and 2022 in 14 countries. Well-known cases include those of Rifaat al-Assad, Khaled Nezzar and the investigation into the assassination in Switzerland in 1990 of the Iranian opposition figure Kazem Rajavi. An investigation was recently opened into the attack on the Swiss journalist Guillaume Briquet in Ukraine. 

The next person to stand before a Swiss court will be Ousmane Sonko, a former interior minister of the Gambia. After a criminal investigation lasting more than six years, the prosecutor recently filed an indictment for crimes against humanity for supporting and participating in the repressive policies implemented by former president Yahya Jammeh. He is the first minister of a government to be tried in a court in Europe in the framework of so-called “universal justice”.

Edited by Virginie Mangin