The Trial that Made Swiss Judges Go Down in History
On June 18, the Federal Criminal Court issued a judgment convicting Alieu Kosiah, Liberian national arrested in Lausanne, for war crimes committed during the First Civil War in Liberia.
How and why were Swiss judges able to pass judgment on a foreign national who has not committed any of the crimes he is accused of in Switzerland, who is not Swiss, and whose victims are not Swiss? The answer to this question can be summed up in two words: universal jurisdiction. This concept of international criminal law, integrated in the Swiss national law, gives the jurisdiction to a state to judge certain crimes, including war crimes, as soon as the perpetrator is on its territory.
This competence generates a lot of hope for international justice everywhere in the world. When impunity is the rule in a country, notably for political reasons, victims of war crimes can hope to obtain justice elsewhere if the culprit resides in a foreign country – a country in which the laws of this universal jurisdiction have been integrated.
It was the worldwide thunderclap of Augusto Pinochet’s arrest in London on October 16, 1998 on a Spanish arrest warrant and the judicial battle that followed for 16 months that made victims from all around the world, and their lawyers, realize that universal jurisdiction could be a remarkable weapon against impunity.
Since 2012, the organization I lead, Civitas Maxima, has been a part of this rich legal legacy and represented dozens of Liberian international war crime victims by using universal jurisdiction to accompany them in their quest for justice all around the world, sometimes very far from home.
For the first time in its history, the Federal Crime Court had to deal with a war crimes case, for which the only precedents in Switzerland are two judgments of military justice rendered more than 20 years ago.
In 2021, in the middle of winter, six Liberian victims arrived in Switzerland, 7000 kilometers away from home. They were led by an intense thirst for justice, as impunity for war crimes still reigns in their home country, despite the fact that approximately 300 000 people were killed during the 2 civil wars. The seventh victim, who gave birth to a little girl the morning of her flight to Switzerland, was able to testify via video link from the United States’ embassy in Monrovia.
The history of this trial goes back to the first legal complaints that I and other lawyers filed against Alieu Kosiah in the name of these Liberian victims during the summer of 2014 in Bern. During the 7 years which separate the filing of the complaints and the final judgement, the difficulties we faced sometimes made me dizzy.
In Liberia there is a small town which is still named “Smell No Taste”, because during the Second World War the US American soldiers stationed there would cook food which smelled very good but was not shared with the surrounding, starving local population; they could therefore only smell the food. The name stuck.
How would the federal judges try to understand events which occurred in a country so different to ours, in a reality so unlike ours, and construct a mental representation of the situation?
How would the Liberian victims, who arrived in Switzerland after having for the first time in their lives been on a plane, in an elevator or on an escalator, react to the legal formalism in Switzerland, which is so alien to them?
How would the Swiss justice interact with the plaintiffs who, after having arrived at the Bern train station, were asking me why people spent money to get flowers in Switzerland, or how come people leave their cars in the road without any permanent security watching over them?
And how would we even understand the Liberian victims who only spoke “Liberian English”, a form of English with such a peculiar accent that it is sometimes very difficult to understand?
To further complicate the equation, the Liberian authorities never authorized the Swiss judicial authorities to come and investigate in Liberia, which complicated the task considerably for the federal prosecutors. They were therefore never able to go to where the crimes were committed to get a better idea of the situation. It is all the more laudable that they were able to successfully lead this case until trial.
In addition to these “classic” difficulties (once we consider that we are trying to apprehend events which occurred so far away from the place where they are being judged) were added more, extraordinary, difficulties.
As a matter of fact, this procedure started at the same time as the 2014-2015 Ebola epidemic in Liberia which stunned the world, and it ended with the Covid-19 pandemic in 2020-2021, two events which put in place major restrictions to the movement of the victims, the witnesses, and even the trial itself.
The combination of all these events made this trial a cocktail of adverse factors quite unbeatable in its kind, and its outcome all the more welcome.
It took a lot of audacity, perseverance and confidence from the federal Prosecutor at the time to bring the first three plaintiff parties to Bern in 2015 from Liberia where Ebola raged on. Their arrival in Switzerland was only possible due to a strict month-long confinement system set up and run by our teams in Monrovia.
It then took the tenacity of the federal judges and their remarkable clerk in 2020 and 2021, to get most of the parties to come to Bellinzona in the midst of the pandemic, despite four successive postponements. All the other Swiss authorities who worked to make this possible must also be commended.
These extraordinary circumstances alone do not explain why the accused, Alieu Kosiah, had to spend 6 years and a half in preventive detention before being tried.
In the end, however, the trial was held in Switzerland, and it answered at least several questions that such a case posed.
The three federal judges and the clerk seemed to accept as a prerequisite the cultural gap which separated them from the Liberian reality, all whilst taking genuine note of the unspeakable horrors suffered by the victims during the Liberian civil war.
They then provided themselves with the means to do their job, including first-class interpretation at the hearings, which was crucial to understanding the case. They were then able to deepen their understanding by asking pertinent and pragmatic questions in order to establish the facts of the case whilst taking into account the Liberian reality. Due to this, they often strayed from the questions scripted in advance to strengthen their perception of the case and understand whether what was being claimed made sense or not.
In the end, Alieu Kosiah was acquitted of 4 charges and condemned of 22 others, of which 19 murders, resulting in 20 years in prison. Alieu Kosiah has appealed the judgement.
Beyond Alieu Kosiah’s condemnation, this trial was a historic event which set precedent on two counts, as it is also the first ever trial against a Liberian for war crimes.
At the same time, the Special Tribunal for Lebanon – which was judging the assassination of Rafic Hariri in 2005 – has had its funding terminated. It cost more than $1,000,000,000 and had yet to get a single defendant on the bench in over 10 years of activity.
Universal jurisdiction exercised by national courts can have a very bright future ahead. Even in Switzerland.
The article is a translation of “Le procès qui a fait entrer des juges suisses dans l’histoire” 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: JP Kalonji for Le Temps