Sunday, February 19, 2006

UN Criticizes Switzerland for Amending its War Crime Law

According to SwissInfo, the United Nations is upset with Switzerland for amending its Code pénal militaire suisse to restrict the country’s ability to prosecute war crimes committed abroad. Article 2 of the Swiss Military Penal Code provides that military tribunals have jurisdiction over civilians or members of foreign forces who commit violations of international law during armed conflict. Prior to the disputed amendment, that jurisdiction was effectively universal; Article 9 expressly provided that Code applied to both violations committed in Switzerland and those that have been committed abroad:

This code applies to offences committed in Switzerland and to those which have been committed in a foreign country. Any custodial sentence served in a foreign country in respect of the offence being prosecuted in Switzerland will be deducted from the sentence given.

The recent legislation amends Article 9 to permit jurisdiction over war crimes committed in a foreign country only when the perpetrator has a “close link” to Switzerland, such as owning property or having family in the country. Holding a Swiss bank account or being present in Switzerland on vacation will no longer suffice.

Although the Swiss Foreign Ministry has insisted that the new Article 9 merely codifies existing Swiss practice, Amnesty International notes – in an unbelievably comprehensive report on universal jurisdiction, including a global survey of national legislation on the subject – that Swiss prosecutors were traditionally willing to open a criminal investigation into foreign war crimes when the suspect was believed to be in Switzerland. Presumably, suspected presence is no longer enough to trigger an investigation; present or not, the suspect must also have the “close link” required by the new Article 9.

New Article 9 also seems to contradict Switzerland’s obligations under the Geneva Conventions and Protocols I and II, all of which Switzerland has ratified. States that are party to the Conventions and Protocols are required to search for a person suspected of grave breaches of the Conventions and of Protocol 1 and either (1) prosecute him in the appropriate national court, (2) extradite him to a state party willing to do so, or (3) surrender him to an international criminal court:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.

Under the Geneva Conventions, grave breaches involve the following acts, inter alia, when committed in connection with an international armed conflict against protected persons or property: wilful killing; torture or inhuman treatment; extensive destruction and appropriation of property not justified by military necessity; compelling a POW or otherwise-protected person to serve in the forces of the hostile power; and unlawful deportation or transfer of a protected person.

Protocol I, in turn, provides that grave breaches of the Geneva Conventions are grave breaches of the Protocol if committed against other kinds of protected persons, such as refugees and medial personnel, and extends the Conventions’ list of grave breaches to include, inter alia, harming the physical or mental health of protected persons, apartheid, delayed repatriation of POWs, and attacks on cultural property.

The obligation to search for persons suspected of grave breaches is not limited to the territory of the state party. It includes territory occupied by the state party; territory where the state party has peace-keepers, and the high seas, as well.

It is also worth noting that customary international law may impose a similar obligation on states to prosecute or extradite (aut dedere aut judicare) war crimes committed during international armed conflicts that do not qualify as grave breaches. In 1973, the General Assembly declared that

war crimes… wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and if found guilty, to punishment.

Article 9 of the ILC’s 1996 Draft Code of Crimes likewise provides that “the State Party in territory of which an individual alleged to have committed a [war] crime shall extradite or prosecute that individual.”

Finally, the Preamble of the Rome Statute states that because “the most serious crimes of concern to the international community as a whole must not go unpunished and… their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,” it is “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” (Switzerland is a party to the ICC.)

International law scholars in Switzerland are optimistic that the Swiss government will heed the UN’s plea to reconsider new Article 9. If it does, it will be a major victory for international criminal law. Switzerland has long been one of the few states – along with Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, the UK, and the US willing to invoke universal jurisdiction to investigate and prosecute serious international crimes. In 1999, in fact, Switzerland became the first state to successfully prosecute a Rwandan for atrocities when a Swiss military tribunal in Lausanne convicted Fulgence Niyonteze, the former mayor of Mushubati, for various breaches of the Geneva Conventions and Protocol II. If Switzerland retreats from universal jurisdiction over war crimes now, therefore, the damage – real and symbolic – could be incalculable.

7 Comments:

Blogger Signal-box Willie said...

Since I am not a law professional, could you please explain to me, why any country should provide regulations to prosecute crimes committed outside its own territory, by persons without having a relation to this country, now that an international court (the ICC) has been established explicitly to deal with such crimes?

4/10/2006 5:07 PM  
Blogger J&D said...

視訊|影音視訊聊天室|視訊聊天室|視訊交友|視訊聊天|視訊美女|視訊辣妹|免費視訊聊天室

色情遊戲|寄情築園小遊戲|情色文學|一葉情貼圖片區|情人視訊網|辣妹視訊|情色交友|成人論壇|情色論壇|愛情公寓|情色|舊情人|情色貼圖|色情聊天室|色情小說|做愛|做愛影片|性愛|

免費視訊聊天室|aio交友愛情館|愛情公寓|一葉情貼圖片區|情色貼圖|情色文學|色情聊天室|情色小說|情色電影|情色論壇|成人論壇|辣妹視訊|視訊聊天室|情色視訊|免費視訊|免費視訊聊天|視訊交友網|視訊聊天室|視訊美女|視訊交友|視訊交友90739|UT聊天室|聊天室|豆豆聊天室|尋夢園聊天室|聊天室尋夢園|080聊天室|080苗栗人聊天室|女同志聊天室|上班族聊天室|小高聊天室|

AV|AV女優|自慰器|自慰器

視訊|影音視訊聊天室|視訊交友|

網頁設計|網頁設計公司|最新消息|訪客留言|網站導覽

 

7/03/2009 10:30 AM  
Blogger Adi said...

Oes Tsetnoc one of the ways in which we can learn seo besides Mengembalikan Jati Diri Bangsa. By participating in the Oes Tsetnoc or Mengembalikan Jati Diri Bangsa we can improve our seo skills. To find more information about Oest Tsetnoc please visit my Oes Tsetnoc pages. And to find more information about Mengembalikan Jati Diri Bangsa please visit my Mengembalikan Jati Diri Bangsa pages. Thank you So much.
Oes Tsetnoc | Semangat Mengembalikan Jati Diri Bangsa

11/27/2009 5:39 AM  
Blogger Wonderful Jewelry said...

fashion jewelry wholesale
wholesale fashion jewelry
china jewelry wholesale
china fashion jewelry
jewelry wholesale china
fashion jewelry china
wholesale jewelry
jewelry wholesale



Buy fashion jewelry wholesale from China? We strongly recommend you to check fashion jewelry wholesale online shop, where you can buy crystal jewelry wholesale, cubic zirconia jewelry wholesale, cz jewelry wholesale, pearl jewelry wholesale, All of this jewelry are in top quality.
As well as they supply stainless steel jewelry wholesale, fashion jewelry wholesale, silver jewelry wholesale, costume jewelry wholesale, jewelry wholesale from china. Welcome to inquiry. fashion jewelry

10/31/2011 9:49 AM  
Blogger beautifuls said...

your likelihood of successful a lot of Cheap Hermes Cambridge SatchelsNevertheless, it just helps you pick wiser numbers as well as improve your likelihood of successful a lot of money. This was the machine Larry utilized when he received Fluro Cambridge Satchel the actual lottery for Fluro Cambridge Satchels. Their clients Hermes Lindy Handbag are also stating Hermes Constance Bag same thing once they attempted Hermes Kelly Handbag Price technique out Birkin Hermes Bag Price.

2/22/2012 12:06 AM  
Blogger GuildWars2Items said...

Life is not measured by the number of breaths we take Runescape Gold, but by the moments that take our breath away rs gold. I have a simple philosophy: Fill what's empty Runescape Gold.

3/27/2013 3:58 AM  
Blogger GuildWars2Items said...

And if you find such a friend, you feel happy and complete, because you need not worry Cheap Diablo iii Gold, Diablo iii Gold Sale your forever friend holds your hand and tells you that everything is going to be okay Diablo 3 Gold.

3/27/2013 4:03 AM  

Post a Comment

<< Home