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.