International Justice: the Slowness of Switzerland

Despite the recent conviction of a Liberian warlord, Switzerland is still struggling to become a leading player in the fight against impunity for the most serious crimes. It is, however, well equipped to follow the lead of many European countries in prosecuting perpetrators of the worst atrocities. The analysis of Philip Grant, Executive Director of the Geneva-based NGO TRIAL International, which fights against impunity for international crimes and supports victims in their quest for justice.

On June 18 of this year, Alieu Kosiah, a Liberian warlord, was sentenced to 20 years in prison by the Federal Criminal Court in Bellinzona. This was a historic trial, the first for war crimes to take place before a Swiss civil court.

It was certainly not the first time that Switzerland had tried a perpetrator of international crimes. Former Rwandan mayor Fulgence Niyonteze was convicted for his participation in the Tutsi genocide in Rwanda, but by a military court.

That was over 20 years ago, in the year 2000.

How can lack of momentum in Switzerland be explained, when neighboring countries are active on many fronts to prosecute, judge and condemn the perpetrators of atrocities committed in Syria, Rwanda, El Salvador, Iraq and elsewhere?

This is certainly not for lack of political will. At the international level, Switzerland has long played a very active role, strongly supporting international courts in the fight against impunity. In particular, our country has led diplomatic efforts to bring the appalling crimes committed in Syria before the International Criminal Court (ICC). Unfortunately, this attempt was blocked by Russian and Chinese vetoes in the UN Security Council. Nor can this stalling be explained by a lack of appropriate legislation. Ten years ago, the Swiss Federal Council called for – and Parliament adopted –  a modern legal framework that would allow Switzerland to prosecute genocidaires, war criminals or perpetrators of crimes against humanity found on its territory. For a long time, Bern even boasted that it had set up a specialized unit within the Office of the Attorney General of Switzerland (OAG) to investigate these complex crimes. But since 2011, the OAG has only referred one case to the Federal Criminal Court, that against Alieu Kosiah.

A reality far from intentions

Twenty years ago, the question of whether it was legitimate for a state to judge the perpetrators of genocide, crimes against humanity or war crimes, when the crimes were committed abroad, was still being debated. But since the creation of the ICC in 1998, and the emergence of international justice as we know it today, this question has been settled. Only concerted action by the community of nations, using the possibilities offered by both international courts and national tribunals, can help to reduce these crimes.

However, problems start to arise during implementation. Some states, such as France, the Netherlands, Germany and Sweden, have allocated substantial human and material resources to create competent and effective specialized units. Hundreds of proceedings have been opened against torturers, members of death squads, and civilian or military authorities suspected of gassing their population, pillaging natural resources or resorting to mass rape.

For example, many officials of the Syrian regime or armed groups are now under investigation in several countries. Trials have taken place and convictions have been handed down. Europe has legitimately given refuge to many victims of the war in Syria – but also in Rwanda, Sri Lanka, Bosnia-Herzegovina and elsewhere… but perpetrators of atrocities have probably followed the same path, probably by the hundreds. In the vast majority of cases, victims have no other option but to turn to the judicial authorities of our states to try to obtain justice, truth and reparation, which is impossible in countries where impunity is endemic.

A lack of strategic vision

What about Switzerland? Neither time, nor resources, nor personnel dedicated to these cases are anywhere near the level of what is done elsewhere. In order to carry out such cases effectively, the head of the OAG should have a personality with a real strategic vision. There is indeed an exceptional dimension to these cases, which our prosecuting authorities must understand at all costs. Taking up these cases, judging perpetrators of atrocities, means restoring the full meaning of the most elementary notion of justice. Depending on how you look at it, it can either be a burden – long and complex affairs –, or on the contrary, an incredible opportunity to participate in one of the most important human endeavors there is: to roll back barbarism. For a sense of history to prevail over bureaucratic vision, a major change must occur in the leadership of the OAG to mobilize the energies, skills and resources needed for these cases.

Such a vision can ­– and must – percolate through the various levels of the federal prosecution authorities. For it is men and women who are convinced that such cases – even if they are complicated, can succeed–, who can tip the balance. In Switzerland, investigators and prosecutors are unfortunately confronted with numerous obstacles: clearly insufficient resources, frequent turnover of personnel, lack of expertise, low motivation, inability or unwillingness to investigate in the field, obstacles from the hierarchy, political interference denounced by the UN… All these elements reduce the number of investigations and cause them to drag on.

In practice, such delays are common in Switzerland: Alieu Kosiah had to wait nearly seven years in prison before knowing his fate; the former Gambian Minister of the Interior Ousman Sonko, prosecuted for crimes against humanity, has been in pre-trial detention since January 2017; the war crimes investigations opened in 2011, and respectively in 2013, against the former strongman of the Algerian regime Khaled Nezzar, and against Rifaat al-Assad, the uncle of the current Syrian president, are still waiting in the OAG’s drawers, as are so many others. How many more times will we have to hear “But you know, it’s complicated with a case like this”, after having located an alleged culprit on Swiss soil, rather than “Your case looks solid, we’ll deal with it as soon as possible”? One almost comes to believe that the aim is to wait for the suspects to die, so that the case can simply be closed.

New blood for a new start?

The Kosiah trial demonstrated that it was possible to investigate such crimes and reach a verdict that legitimized the work of the OAG – while respecting the rights of the defense. This was certainly an exemplary result, but it was achieved with great difficulty. Legal time is of course slow, but this is not enough to justify the inertia of the system. Numerous cases abroad show that a proactive approach can pay off.

The Federal Parliament  will soon appoint the future head of the OAG. This is an opportunity to appoint a person who will be able to give a historic momentum to the prosecution of these crimes. The time has come for Switzerland to place itself on the map, not as a haven for criminals of all kinds, but as a state that is actively committed to reducing the impunity enjoyed by torturers, genocidaires and war criminals. It is high time we put our money where our mouth is and help build a world where such crimes have no place.

The article is a translation of “Justice internationale: une lenteur tout helvétique” originally posted on Le Temps on July 14, 2021.

This article was part of the special Op Ed section on Le Temps dedicated to international justice, with Alain Werner, director of Civitas Maxima, serving as guest editor.

Image credit: © KEYSTONE/Anthony Anex

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