MALOLA diary

diary > january 2024 < "this process can have a signaling effect"


"This process can have a signaling effect" Why is Switzerland currently investigating a former Gambian interior minister? What are the pitfalls of such a procedure based on the principle of universal jurisdiction? And what are the chances? A conversation with Anna Petrig, professor of international law. By Jennifer Steiner 05.01.2024 translated by Maren Sanneh _____________ Ms. Petrig, the trial against former Gambian Interior Minister Ousman Sonko will begin in Bellinzona on January 8th. It is only the second case of crimes against humanity that the Federal Criminal Court is hearing. This offense was added to the Criminal Code in 2011. Why is that? The principle of universal jurisdiction has existed since the Second World War. Since then, all states have had the opportunity to prosecute crimes under international law, regardless of where in the world they were committed. Between 2016 and 2021, the number of cases in the European Union increased by 44 percent. States are slowly realizing that it is a necessary tool against impunity. But the picture in Switzerland is mixed. The case of Ousman Sonko stands out. He is the highest-ranking state official ever to be tried in Europe on the basis of universal justice. In the past, however, numerous international law proceedings have been discontinued; other cases have not yet come to court. For example, that of Rifaat al-Assad, the uncle of the Syrian president, against whom the non-governmental organization Trial International filed a criminal complaint in 2013. Significantly more such procedures have already been carried out in other European countries. Is Switzerland lagging behind? In the past, Switzerland has actually been accused of a lack of will to investigate and prosecute international crimes: by non-governmental organizations, but also by two UN special rapporteurs. Since 2011, ninety cases have been submitted to the Federal Prosecutor's Office - so far they have only brought charges against three of them. In Switzerland, a potential perpetrator must be present in the country for the authorities to open proceedings. This makes prosecuting international crimes more difficult than in other countries. But sometimes there is also a lack of will to take advantage of such moments. Rifaat al-Assad, for example, was staying in a Geneva hotel when Trial International filed a criminal complaint. He could have been arrested there. The Nordic countries and Germany are taking a much more proactive approach. Germany, for example, conducted the world's first trial on state torture in Syria and also plays a pioneering role when it comes to holding members of the so-called Islamic State accountable for crimes under international law. But now there seems to be momentum in Switzerland too. How do you determine this? In June 2021, the Liberian commander Alieu Kosiah was the first war criminal convicted by the Federal Criminal Court. It was a double first: it was the first time that the Federal Criminal Court convicted a person based on the principle of universal justice, and it was the first guilty verdict for crimes against humanity. Now the Sonko case is pending, and former Algerian Defense Minister Khaled Nezzar would also soon have been brought to trial if he had not died at the end of December 2023. He would have been the highest-ranking military official in the world ever to stand trial for war crimes and crimes against humanity. Stefan Blättler, who succeeded Michael Lauber as federal prosecutor at the beginning of 2022, has made international criminal law a focus. Let's take a step back: What exactly is the idea behind the principle of universal jurisdiction? Normally, a state can only prosecute someone if the crime was committed within its own territory or if the perpetrator or the victim are its own citizens. The principle of universal law, some also speak of "universal jurisdiction", makes an exception here. The idea is this: certain crimes - war crimes, genocide, crimes against humanity or torture - are so serious that they constitute a violation of the rights of the entire international community. These acts can therefore also be prosecuted by third countries that have no connection to the perpetrator, the victim or the crime scene. You said it: Never before has such a high-ranking official in Europe as Ousman Sonko been put on trial under the principle of universal jurisdiction. What does this process mean for universal jurisdiction? The case is significant in several respects. As a high-ranking official, Sonko was the superior of officers who committed acts of violence. Often only the perpetrators are punished, for example in an armed conflict the soldiers who torture. But these crimes have another dimension: they are often approved by the state or even organized by the state. Sonko is said to have not only carried out crimes himself, but as Inspector General of the Gambian Police, he also tolerated crimes committed by his officers and instigated them to commit them. The case shows that the principle of universal jurisdiction is also an instrument for bringing high-ranking rulers to court, which sometimes does not happen in the countries of origin. Sonko is accused on a number of counts of condoning or failing to prevent violence. How can this be proven to him? In international criminal law there is the so-called superior responsibility. This means that as a superior you must take the necessary measures to prevent a crime. And that you must hold the perpetrators accountable if it is within your power. So you can't fundamentally accuse Sonko of not having prevented crimes. But he can be accused of not having done everything possible to prevent them or to ensure that the perpetrators are punished. How could he have prevented these crimes? It is important to understand this prevention broadly. It's not just about grabbing someone by the collar and saying, "You can't do that." Rather, it goes so far that superiors have to ensure that the soldiers know the rules of international humanitarian law. Superiors must give orders consistent with the rules of war and must obtain information as to whether their orders have been carried out in accordance with them. So it's also about preventive measures and education. And that is very important, because crimes against humanity are characterized by the fact that there are not just individual acts, but a larger context. Crimes against humanity are defined as being "committed as part of a widespread or systematic attack against the civilian population." How can the Federal Prosecutor's Office prove that this "systematic attack" took place in Gambia? She must prove that these are not isolated individual acts, but that they are embedded in a larger context: that they were part of an organized crime. It must also prove that a large number of victims or an entire area were affected. That will be a challenge in this process. But also an opportunity. A chance? Yes. If we can prove and describe this context, it will facilitate other procedures. That is why this process is also very important for Gambia. He could get a lot going in the country's investigation of the crimes committed in the Jammeh era. When Chile's dictator Augusto Pinochet was arrested in London in 1998 and extradited, the principle of universal law came into play for the first time. Later people spoke of the Pinochet effect because the arrest inspired further proceedings. Who knows, maybe there will soon be a kind of Sonko effect for Gambia. I imagine collecting evidence in a country thousands of kilometers away is complicated. How did Switzerland go about this? Switzerland cannot simply go to Gambia and investigate there. It needs the consent of the state in which it collects evidence or interviews witnesses. In Gambia there seems to have been this willingness to work together. But in contexts like Syria, where the alleged perpetrators are still in power, such a thing is not possible. The importance of non-governmental organizations is particularly clear there: They do not need the permission of the state to travel to Syria, talk to people there and gather facts related to crimes. What other obstacles do investigators face in such proceedings? Often what happened happened a long time ago. This makes it difficult to collect evidence. In most civil wars there is no paper trail, contrary to such as in the Third Reich, where the Nazis meticulously documented everything. That is why the proceedings are often based primarily on witness statements. And the witnesses have to remember things that often happened ten or twenty years ago. In Sweden there were trials for the mistreatment and killing of political prisoners in Iran that went back more than thirty years. Some of the witnesses are also very directly affected, for example as victims of sexual violence. Feelings of shame come into play. There is also a risk of secondary victimization, i.e. the victim of the crime becoming a victim again because of the statement and the stigma that often follows. Another sticking point is the prohibition of retroactivity: criminal laws passed at a later date may not be applied to an offense committed earlier. This also applies to the trial against Sonko. Some of the crimes he is accused of were committed before crimes against humanity became a criminal offense in Switzerland in 2011. Could this mean that he cannot be prosecuted for these? Yes, that is possible. But there are certain exceptions in Swiss jurisprudence when it comes to international criminal law. Especially when the individual acts that were committed as part of a crime against humanity - such as murder - have not yet become statute-barred. The court ruled this way in the case of Liberian commander Alieu Kosiah. One could also argue that although crimes against humanity were only explicitly introduced as a criminal offense in Swiss law in 2011, they essentially arose from customary international law before then. This is certainly something that will be negotiated in Bellinzona. Ousman Sonko was Interior Minister from 2006 to 2016. Doesn't he enjoy immunity for this time? Not necessarily. Normally, former public officials enjoy immunity for official actions taken while in office. In the case of the former Algerian defense minister, the Federal Criminal Court made a groundbreaking decision in 2012: This states that high-ranking state officials do not enjoy immunity for their previous official actions if they involve war crimes, crimes against humanity or genocide. This ruling paved the way for proceedings in Switzerland against former high-ranking officials from other countries. But does it even make sense for such a procedure to take place in Switzerland? There is also the International Criminal Court or local courts. True. But the international criminal courts, if they have jurisdiction at all, can only take on cases very selectively; that is often just the tip of the iceberg. The local courts, in turn, are often unwilling or unable to conduct such a process. What do you mean? They are unwilling because, for example, state organs themselves are involved in the crimes, as is the case in Syria. Or they are unable to do so because a country is war-torn or does not have the necessary financial resources. In Gambia, too, there have so far only been two criminal proceedings against perpetrators who, like Sonko, were part of the regime of former President Yahya Jammeh. One idea now is to create a hybrid court together with the West African Economic Community Ecowas. Although such courts are based locally, they also have international elements, among other things to ensure their independence. Several plaintiffs tell us that they have great hope in the trial in Bellinzona. Will Switzerland be able to fulfill these hopes? The Sonko trial is very important for Gambia because it is an important piece in the mosaic of transitional justice after the Jammeh regime. But of course there are also problematic aspects. The question arises as to how people in Gambia can follow the process if it takes place so far away and in German. The authorities should consider whether they could also carry out such a procedure in English or at least make a translation publicly available. Because these trials are not just about justice for the plaintiffs, but also about making a bigger statement. This process can have a signal effect: those who are responsible for such crimes can no longer feel safe anywhere in the world. But isn't a trial in Switzerland against a former Gambian interior minister also cementing a neo-colonial power dynamic? This criticism is expressed again and again with regard to the principle of universal jurisdiction. Belgium, for example, traces many cases to its former mandate territory Rwanda. Investigating in African countries, but not questioning what one's own contribution to the crimes there is - that is definitely a double standard. An interesting counterpoint is the relatively new question of how the principle of universal law can also be applied to companies. On companies? Yes. Companies that exploit resources in conflict areas, for example, or that do business with armed groups or authoritarian regimes and thus facilitate certain crimes. Or corporations that sell surveillance material and thus make widespread repression against the civilian population possible. The question then becomes: What are the contributions of the Global North to the crimes occurring elsewhere? For example, the plundering of resources or damage to the environment comes into focus. That's what's fascinating about the principle of universal jurisdiction: every procedure opens up a new field. It is an instrument whose potential is far from exhausted. Anna Petrig is professor of international law and public law at the University of Basel. Her research interests include maritime law, international humanitarian law and the interaction of international law with national law. As a student in Freiburg and Paris, she was fascinated by international criminal law, which was still in its infancy at the time. In 2004 she co-founded the "Swiss Coalition for the International Criminal Court", in which several human rights organizations and aid organizations campaigned for strong international criminal law in Switzerland. Jennifer Steiner is a journalist at the WAV research collective. Collaboration: Lorenz Naegeli, also part of the WAV collective, and Anina Ritscher.