Prosecution of Crimes Under International Criminal Law: a Clarification!

By amending the Criminal Code in 2011, in particular from article 264 onwards, following the ratification of the Rome Statute 10 years earlier, the Swiss legislator opened up a new legal field. It entrusted the civil justice system, i.e. the Office of the Attorney General of Switzerland (OAG) , with the possibility of prosecuting the most serious crimes – i.e. war crimes in peacetime, previously prosecuted by military courts, genocide and/or crimes against humanity.

Contemporary history has shown that crimes under international criminal law (ICL) are generally committed beyond the borders of national territory. Nevertheless, the preamble of the Rome Statute determines that “it is the duty of every State to exercise its criminal jurisdiction over those responsible” for the most serious crimes – which “threaten the peace, security and well-being of the world” – in order to put an end to impunity for the perpetrators of these crimes. In other words, Switzerland should not be a safe haven for criminals who have committed the most serious crimes.

It is essential to specify that the Swiss legislator has attached several cumulative conditions to the initiation of criminal proceedings when the act was committed abroad, when it was committed by a perpetrator who is not a Swiss national and when the act was not directed against a Swiss national: presence of the perpetrator on Swiss soil as well as the absence of extradition (if this is not possible under Swiss law) or surrender to an international criminal court whose jurisdiction is recognized by Switzerland (“limited” conception of universal jurisdiction).

Since 2011, Switzerland has had a legal basis in international criminal law in the Criminal Code, with crimes committed before 2011 having to be prosecuted using the legal tools available before the reform. It was then a question of structuring everything, of setting the guidelines for criminal prosecution in international criminal law in the light of what is done in particular abroad, as the Swiss civil justice system did not have any case law in this area. The prosecutor does not apply pre-established schemes but must be creative in the implementation of the investigation strategy in each new case, which is unique by definition. Yes, the prosecutor experiments by putting the new criminal norms to the test.

Much has been said about the administrative attachment of the ICL crime prosecution teams to the OAG. It seems obvious that talk of a “war crimes unit” is a sell-out. In reality, this is of little importance as long as there are sufficient resources and the network for a major investigation (including analysts, specialized investigators and prosecutors, and the registry) is functioning. This raises the question of whether the OAG has sufficient resources to fight impunity. This is a legitimate question that has been widely discussed and taken up at the political level. It is naturally linked to the number of investigations underway and, ultimately, to the institutional criminal strategy. We have often been reproached for being, in international comparison, somewhat numb. Beyond the adage that comparison is not reason, no one can deny that the prosecution of ICL crimes has always been and continues to be one of the strategic priorities of the OAG. However, there is nothing obvious about the path to the initiation of criminal proceedings.

Information is crucial and, as such, the MPC can hardly act without the support of its partners. While the work of the NGOs is useful, we cannot forget the contribution and the equally essential information of fedpol, which has specialists of this field, essential both upstream of the investigation in the context of monitoring, but also in support of the proceedings for specific analyses and the investigation itself, the State Secretariat for Migration, the Federal Department of Foreign Affairs, the Federal Intelligence Service, the Genocide Network, Eurojust – the coordinating group of prosecuting authorities specializing in the prosecution of ICL crimes, the ICC, and direct contacts with our counterparts around the world.

This is a long list in order to re-establish some facts, whereas according to some NGOs nothing could be done without their work. We recognize the importance of their work, particularly upstream of the investigation phase, but let us clarify from the outset what we thought was a truism: we do not do the same work! The work of the NGOs is what the jargon calls “facts finding”, i.e. the search for facts in a given context, whereas the task of the criminal prosecution is to collect, in particular in these facts, evidence that can be legally qualified, i.e. “evidence gathering”. NGOs cannot therefore substitute themselves to the work of the prosecutor. This confusion is regrettable, whereas the complementary role of NGOs and the prosecution, within the framework provided by the law, is the only way to avoid unnecessary tensions.

Yet, who could seriously imagine that criminal proceedings evoking the most serious crimes, a strange understatement to evoke all the abomination of which man is sometimes capable, could take place serenely? We are in this field far from the cold calculation of the author of money laundering or corruption. The victims have been touched in their existence and their flesh to the point of denial of their identity and when they survive, the investigation can lead to a relapse into this trauma which often prevents life from resuming its course. This can generate excessive expectations and emotional outbursts that are sometimes difficult to reconcile with the rather rigid framework of a criminal proceedings.

There are also other pitfalls that are specific to the field of ICL. Temporal remoteness (the facts often took place many years or even decades ago), geographical remoteness or the need for legal assistance from the State concerned – although this is never given – and from third States insofar as the evidence is almost exclusively found abroad. Moreover, testimony often proves to be the main evidence, and the difficulties for the prosecutor are numerous because of the above-mentioned pitfalls.

Yet, the criticisms seem to be repeated regardless of the results of the OAG and there remains a certain discrepancy between internal and external perception. Beyond what could be perceived as bad faith on the part of certain editorialists or fans of easy tweeting, it must be admitted that it is difficult to determine the success factors of a criminal proceeding from the outside, since even in the context of a dismissal or an order of non-admission, the public prosecutor can be satisfied, having brought his case to a conclusion on the basis of the information and evidence that he managed to collect. So, what is the real interest in continuing, as has been the case in these columns or elsewhere, to brandish the ghosts of politicization or inaction?

The OAG is independent, and its management considers this independence to be a prerequisite for any criminal prosecution; moreover, our legal mandate obliges us to initiate criminal proceedings when the evidence proves sufficient – we have always done so and will continue to do so! Yes, the OAG has experimented, but it was necessary to build the architecture of the field, to generate the jurisprudence that is now growing. Beyond the two cases systematically mentioned, the OAG is currently conducting nearly fifteen equally important criminal proceedings, not to mention the preliminary examinations. The current resources make it possible to deal with the management of these cases, in complete independence and within the time frame of a complex criminal procedure that does not depend solely on the public prosecutor’s office, which works with the tools given to it by the legislator.

The article is a translation of “Poursuite des crimes de droit pénal international: une mise au point!” 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

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