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 materiae for 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 the Arrest 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.