The Fight Against Impunity at the Heart of Swiss Foreign Policy

Compared to the rather meager efforts of the Federal Prosecutor’s Office in the field of universal jurisdiction, Switzerland has a good foreign policy track record in the area of international criminal law. In light of its longstanding humanitarian tradition, Switzerland has long been committed to upholding human rights and international humanitarian law. And even though Switzerland’s commitment to human rights may at times be overshadowed by other political interests, it is remarkably consistent in the area of international criminal law.

At the heart of foreign policy efforts to fight impunity for the most serious crimes is the support of an effective International Criminal Court (ICC). This is stated in the Federal Council’s 2020-2023 foreign policy strategy. Switzerland supports the ICC both generally, in financial terms, and selectively by providing specific expertise. Since 2018, it has been funding a position in the Office of the Prosecutor. In addition, this summer, an investigator funded by the Federal Department of Foreign Affairs (FDFA) travels to The Hague to assist the Court in its financial investigations.

Switzerland provides mutual legal assistance to the ICC if the necessary legal requirements are met. In 2020, it responded to seven requests for mutual assistance. According to the Federal Office of Justice, one of these cases concerned a senior football official who allegedly supported an armed group in the commission of crimes against humanity, both financially and through the purchase of gasoline, ammunition, and foodstuffs.

The FDFA is also committed to the development of the ICC’s legal framework: in December 2019, on Switzerland’s initiative, the Assembly of State Parties to the ICC adopted a new provision according to which starving the civilian population in non-international conflicts constitutes a war crime. Until now, the ICC could only prosecute this extremely reprehensible method of warfare if it was used in an international armed conflict, i.e. in a war between states. With the Swiss amendment, this is now also possible in ongoing civil wars such as Syria or Yemen, where humanitarian aid deliveries are frequently blocked.

Even in the face of political headwinds, Switzerland’s commitment does not waver. In June 2020, for example, the FDFA reacted well prepared and with lightning speed to the sanctions imposed by the Trump administration against several ICC representatives. Within very short time, 67 states, led by Switzerland and Costa Rica, formed a united front to call on the United States to lift the sanctions against the ICC. This immediate support for the Court in the face of aggressive U.S. rhetoric was extremely important in countering an emerging negative international momentum.

Whenever the ICC cannot investigate because it lacks legal jurisdiction, other avenues for documenting and investigating potential grave crimes for future criminal proceedings are encouraged. In light of these efforts, Switzerland adopted recently a new regulation which allows legal assistance to other international criminal institutions, as such also the investigation mechanisms for Syria and Myanmar set up by the UN Human Rights Council in Geneva.

Hence, Switzerland’s political support for the fight against impunity of the gravest crimes is strong and broad. However, it lacks the ultimate consistency: prosecution is costly. This is true for both Switzerland and the international community. The Office of the Prosecutor of the ICC has a smaller budget than the public prosecutor’s office of the canton of Zurich. If the ICC should really be enabled to fulfil its ambitious mandate and if the Office of the Prosecutor is not to become powerless in the face of the growing number of cases and its limited resources, the ICC’s overall budget must be increased. In its role as a driving force in international criminal law, Switzerland must commit to this.

The article is a translation of “La lutte contre l’impunité au cœur de la politique étrangère de la Suisse” 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: AP Photo/Mike Corder

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