Swiss Court Finds No
Immunity for the Former Algerian Minister of Defence Accused of War Crimes:
Another Brick in the Wall of the Fight Against Impunity
Aug 15,2012 Gabriella Citroni
Gabriella Citroni is
Senior Researcher in International Law and Lecturer in International Human
Rights Law at the University of Milano-Bicocca. Although she is Senior Legal
Adviser for TRIAL, a Switzerland based NGO that filed the criminal complaint in
the case discussed below, she has not been involved in this case.
On 25 July 2012 the
Swiss Federal Criminal Court issued a decision (which is available, in French, here) whereby it denied the existence of immunity ratione
materiae for a former Algerian Minister of Defence accused of war
crimes. This decision revives the ongoing debate on the sensitive issue of
immunity of State officials from foreign criminal jurisdiction and opens up for
new perspectives for the application of the principle of universal
jurisdiction. It also deals with other relevant matters related to the struggle
against impunity.
On 19 October 2011, TRIAL,
a non-governmental organization active in the field of human rights
headquartered in Switzerland filed a criminal complaint against Mr. Khaled Nezzar,
accusing him of war crimes committed during the Algerian civil war (1992-2000).
On 19 and 20 October 2011, two individuals of Algerian origin enjoying the
status of refugees in Switzerland (one of whom acquired Swiss nationality),
also filed criminal complaints against Mr. Nezzar, alleging that they were
subjected to torture in 1993.
Mr. Khaled Nezzar, a
former general, was Chief of the Algerian Army in 1988, later promoted to Chief
of Staff and subsequently appointed as Minister of Defence. During the same
period he also was a member of the “High Council of State” (Haut Comité d’Etat,
hereinafter “HCE”), which was a collegial body established on 14 January 1992
to replace the President. The HCE functioned until January 1994 and during this
period it was entrusted with “all the powers attributed by the Constitution to
the President of the Republic”.
When the criminal
complaints were filed, Mr. Nezzar was staying in a hotel in Switzland while in
transit through that country. After his arrest, he appeared before the
prosecutor (Ministère public de la Confédération, hereinafter “MPC”) in
proceedings lasting for two days. As a result of a promise to participate in
subsequent proceedings, the prosecutor withdrew the measures restricting Mr
Nezzar’s liberty and he returned to Algeria, where he is currently residing.
In December 2011 the lawyers
representing Mr. Nezzar filed an appeal challenging the proceedings. The
criminal investigation was accordingly suspended and the Federal Criminal Court
in Bellinzona was seized of the matter. Mr. Nezzar’s counsel argued, among
other things, that there was a violation of the principle of non-retroactivity
of criminal law; that the exercise of criminal jurisdiction by Swiss
authorities would require the existence of a strict link between the accused
and Switzerland which, in the specific case, did not exist; that the exercise
of criminal jurisdiction by Swiss authorities would be conditional on a refusal
of an extradition request by the State concerned; and that Mr. Nezzar would
enjoy immunity ratione personae and ratione materiaefor
the period between 14 January 1992 and 30 January 1994, as Minister of Defence
and member of the HCE.
Some Challenging
Precedents concerning Immunity of State Officials from Foreign Criminal
Jurisdiction
When dealing with
cases as the one at stake, the much debated obiter dictum in
para. 61 of the International Court of Justice’s Judgment in the Arrest
Warrant case (Democratic Republic of the Congo v. Belgium) (2002) can
be seen as a stumbling block. In that paragraph, the Court stated that:
“[…] provided that it
has jurisdiction under international law, a court of one State may try a former
Minister for Foreign Affairs of another State in respect of acts committed
prior or subsequent to his or her period of office, as well as in respect of
acts committed during that period of office in a private capacity […]”
(para. 61, emphasis is added).
Furthermore, in the 2011
Report of the International Law Commission on immunity of State
officials from foreign criminal jurisdiction, the Special Rapporteur (M. Roman
A. Kolodkin) “while acknowledging the ongoing debate and the diverse opinions
that exist in relation to the topic, emphasized the importance of looking at
the actual state of affairs as the starting point for the Commission’s
consideration of the topic and explained that it was from the perspective of
the lex lata, that he had proceeded to prepare his report”.
According to the Special Rapporteur, “immunity of a State official from foreign
criminal jurisdiction was the norm and any exceptions thereto would need to be
proven” (UN Doc. A/66/10, para. 108). The Special Rapporteur
observed that State officials enjoy immunity ratione materiae in
respect of acts performed in an official capacity since these acts are
considered acts of the State and this includes unlawful acts and acts ultra
vires.
When it comes to
former State officials, the Special Rapporteur stated that they “continue to
enjoy immunity ratione materiae with respect to acts
undertaken by them in an official capacity during their term in office” but
such immunity “did not extend to acts which were performed by an official prior
to his taking up office and after leaving it” (para.
109). The Special Rapporteur further observed that arguments had been advanced
regarding exceptions to immunity ratione materiae where State
officials are accused of crimes under international law. Nevertheless,
referring to various rationales put forward in the doctrine and in certain
judicial decisions justifying such exceptions, the Special Rapporteur “remained
unconvinced as to their legal soundness. He further expressed doubt that any
justification for exceptions could be considered having emerged as a norm under
international law. Upon careful scrutiny, none of the cases referred to by
various advocates for exceptions to immunity gave evidence against immunity”
(para. 113).
The rigid approach
undertaken by the Special Rapporteur was subjected to criticism within the
Commission. Some members stated that the “principle of non-impunity for grave
crimes under international law constituted a core value of the international
community which needed to be considered while examining the question of
immunity. The topic would thus be more appropriately addressed from the
perspective of hierarchy of norms; or norms between which there existed some
tension” (A/66/10, para. 124). Hopefully international law will progressively
develop in this direction in the near future.
The Decision of the
Federal Criminal Court – Jurisdiction
On 1 January 2011 the
Swiss Criminal Code was amended and sections 12bis, 12ter and
12quarter were introduced, respectively codifying crimes against
humanity, war crimes and genocide (the latter already existed in the Swiss
criminal legislation, although in more restrictive terms, while war crimes were
codified in the Military Criminal Code in slightly different terms as well). On
this occasion, Art. 264m of the Criminal Code entered into force, establishing
that “whoever commits abroad one of the crimes codified in sections 12bis
and 12ter or in Art. 264k can be judged and sanctioned if he or she is in
Switzerland and is not extradited or surrendered to an international criminal
tribunal whose competence is recognized by Switzerland. […]”. In the
opinion of Mr. Nezzar’s counsel these provisions would not be applicable to
him, as they entered into force in 2011, while the crimes for which he was
accused took place in 1992 and 1993. In their view, application of Art. 264m to
Mr. Nezzar would violate the principle of non-retroactivity of criminal law.
The Federal Criminal
Court rejected this argument, holding that non-retroactivity is not applicable
to procedural rules and in particular to provisions regulating the competence
of domestic authorities. Thus, Art. 264m of the Criminal Code is applicable to
Mr. Nezzar’s case and the Swiss prosecutor is competent to conduct a criminal
investigation (para. 2.3 of the decision).
With regard to the
requirement of the presence of the accused on the Swiss soil for the exercise
of criminal jurisdiction by Swiss authorities, the Federal Criminal Court
recalled that the “presence on the territory of the accused” when a criminal
investigation is opened is indeed required. However, the fact that the accused,
as in the specific case, subsequently leaves the country, does not
automatically extinguish the competence of Swiss authorities to judge and
sanction the person concerned. The prosecutor is left with the options to
suspend, close or continue the investigation. According to the Federal Criminal
Court:
“the effectiveness of
criminal investigation of particularly serious crimes that, for their own
nature, are committed abroad by foreigners who occasionally visit, or transit
through, Switzerland would be hindered. In this light, a too narrow
interpretation of the requirement that the accused is present on the Swiss
territory would basically leave it to the perpetrator of the crime to decide
about the potential investigation. […] Consequently, the presence of the
accused in Switzerland at the moment of the convocation and interrogation by
the prosecutor is enough. The mere fact that at present he is no longer in the
country, is not enough to hinder the proceedings opened by the MPC” (para. 3.1
of the decision, unofficial translation by the author).
The counsel of Mr.
Nezzar argued that customary international law required a “strict link” between
the accused and the country concerned. This argument was firmly rejected by the
Federal Criminal Court (para. 3.3.2 of the decision).
In the appeal filed by
Mr. Nezzar’s counsel it was further alleged that Swiss authorities could
exercise their jurisdiction only if extradition of the accused to Algeria was
impossible. The Federal Criminal Court also rejected this argument. According
to the tribunal, it is true that prosecution in the country where the crime has
been committed or in the country of origin of the accused is to be preferred in
principle. If extradition can be realistically envisaged, then Swiss
authorities are competent only if the other State expressly or implicitly
renounces criminal investigation. In previous decisions, the Federal Criminal
Court had already held that “the phrase ‘if he or she is not extradited’ must
be interpreted as the simple fact that the accused is not transferred,
notwithstanding the reasons for this” (para. 3.4 of the decision, unofficial
translation by the author).
In the case of Mr.
Nezzar, Algeria did not request his extradition. After having been heard by the
MPC, Mr. Nezzar spontaneously returned to Algeria, where he is currently
living. No criminal investigation has ever been launched against Mr. Nezzar in
Algeria, nor could it. In fact, the Federal Criminal Court recalled the
existence of an amnesty law in Algeria (order No. 06-01 of 27 February 2006 to
implement the Charte pour la paix et la reconciliation nationale “Charter
for Peace and National Reconciliation”), according to which “no proceedings may
be instituted individually or collectively against any of the components of the
defence and security forces of the Republic for actions taken to protect
persons and property, safeguard the nation and preserve the institutions of the
Republic of Algeria” (Art. 45). No exception for international crimes is
envisaged. Furthermore, Art. 46 of the same law prescribes a penalty of
imprisonment from 3 to 5 years and a fine for anyone who “attacks the
institutions of the State party, impugns the honour of its officials or tarnishes
the image of the State abroad”.
In the opinion of the
Federal Criminal Court, the mere existence of these provisions makes the
prosecution of Mr. Nezzar in Algeria impossible and therefore, when the MPC
decided to launch the criminal investigation in Switzerland he had enough
concrete elements to consider that Algeria would not submit any request to
extradite the accused. It follows, applying the principle aut dedere
aut judicare, that Swiss authorities are competent. Further, surrender to
the International Criminal Court would not have been an option either, as
Algeria has not ratified the Rome Statute.
The Decision of the
Federal Criminal Court – Immunity and International Crimes
Turning to the core
argument of Nezzar’s counsel, that is the alleged immunity of Mr. Nezzar in
view of his position at the time of the events (Minister of Defence and member
of the HCE exercising presidential functions), it is interesting to recall that
on 21 November 2011, the Directorate of Public International Law within the
Federal Department of Foreign Affairs (Direction du droit international
public du Département federal des affairs étrangères), upon the request of
the MPC, expressed the opinion that the accused “in his capacity as former
Minister of Defence of the Algerian Republic, continues to enjoy immunity from
the jurisdiction of Swiss authorities for all the acts committed in the
exercise of his official functions, but not for those committed in a private
capacity during his term of office or for the acts committed prior or after
such period” (para. E of the decision of the Federal Criminal Court, unofficial
translation by the author).
This, coupled with the obiter
dictum of the International Court of Justice in theArrest Warrant case
and the rigid and narrow approach to the issue of exceptions to the immunity ratione
materiae of former State officials expressed by the Special Rapporteur
within the International Law Commission, cast serious shadows on the chances of
success of criminal prosecution of Mr. Nezzar by Swiss authorities.
Nevertheless, the
Federal Criminal Court undertook a different approach, following the path set
forth by the House of Lords in the Pinochet case and by
the Gerechtshof of Amsterdam in the Bouterse case
and thus adding another brick in the wall of the fight against impunity. In
this regard, the Federal Criminal Court held that it is “undeniable that there
is an explicit trend at the international level to restrict the immunity of
(former) Heads of State vis-à-vis crimes contrary to rules of jus
cogens” (para. 5.3.5 of the decision, unofficial
translation by the author).
With regard to the
alleged immunity ratione personae of Mr. Nezzar, the Federal
Criminal Court held that the fact that when the events took place he was the
Minister of Defence – besides being a member of the HCE – was per se enough
to guarantee him immunity ratione personae during his official
term. Nevertheless, such immunity did not exist anymore.
With regard to
immunity ratione materiae the Federal Criminal Court stated
that:
“[…] it would be
contradictory and futile to, on the one hand, affirm the intention to combat
against these grave violations of the most fundamental human values and, on the
other, to accept a wide interpretation of the rules governing functional or
organic immunity (ratione materiae), which would benefit former State
officials with the concrete result to hinder, ab initio, any
investigation. In such case, it would be difficult to admit that conduct
contrary to fundamental values of the international legal order can be
protected by rules of that very same legal order. Such situation would be
paradoxical and the criminal policy adopted by the legislator would be
condemned to remain a dead letter in almost all cases. This is not what the
legislator wanted. It follows that, in the present case, the accused cannot
claim any immunity ratione materiae” (para. 5.4.3 of the decision,
unofficial translation by the author).
Mr. Nezzar can
therefore be tried in Switzerland for war crimes. The rather simple, but very
neat and logical reasoning of the Swiss Federal Criminal Court is fully
convincing where international crimes and gross violations of human rights are
at stake. Core human values leave no room for hypocrisy or subtle but
potentially misleading considerations concerning impacts on international
relations and political ramifications. The fight against impunity for serious
crimes under international law imposes on all States the obligation to place
justice above other considerations, especially immunity of State officials.
