by Alexandra Ilic; translated into English by Claudia Bragman
(Conference-debate on Thursday 15 November 2012)
This debate was organised by the International Committee of the Red Cross (ICRC) together with the Academy of Humanitarian Law. Participants included Dr. Sévane Garibian, doctor of law, Professor Marco Sassoli, also a former delegate of the ICRC, Maître Philip Grant, lawyer and TRIAL director, and Maitre Philippe Currat, lawyer and doctor of law.
As Maitre Philip Grant underlined, such an event could never have taken place or, at least, never have brought together so many people 20 years ago. Therefore, the very existence of this conference does indeed prove that a new culture, fighting against impunity, is emerging.
Sévane Garibian: the difference between the wording of crimes in the Swiss penal code and the Statute of the International Criminal Court (ICC)
Dr Garibian insisted that harmonising does not always mean standardising; that is to say, making clauses completely identical. There is a difference between the nuances of art. 8 of the ICC Statute and art. 264b of the Swiss Penal Code (CPS) regarding international and non-international armed conflicts. Indeed, the Statute of the Court leaves it up to the international legislator to dissociate from the regime that is applicable to both armed conflicts. However, Swiss law (art. 264b ss CPS) breaks away from this distinction by only using the expression “armed conflict”, apart from in art. 264c CPS. This, therefore, includes both international and non-international conflicts. According to the criminal lawyer, this choices makes the text more simple and, thus, easier to apply. It also offers a better legal guarantee. Furthermore, abandoning this distinction is in accordance with the evolution of international penal law regarding this topic.
Besides, political constraints explain why standardisation in the strictest sense is difficult to impose upon States. Indeed, this may lead to the loss of ratifications by States who want implement the prosecution of international crimes.
Harmonisation, rather than standardisation, guarantees a variety of solutions whilst enriching a constantly evolving legislation.
Marco Sassoli: abandoning the distinction between international and non-international armed conflicts and the outcome of the Tadic case
According to the Professor, the Swiss are obsessed with wanting to outdo other people and, as it happens, this includes the International Criminal Court. The exemplary law of 2011 was the first step. However, efforts must now turn towards this law’s implementation.
Over the last twenty years, international criminal law has developed more than was ever thought to be possible. Until 1994, the distinction between international and non-international armed conflicts was more or less clear. However in 1994, the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) made the decision to abandon this distinction, based on the States’ practices. The Appeals Chamber then added that the current common law criminalised some human rights’ violations in non-international armed conflicts, but not all of them. Obsessed by their sovereignty, States accepted this development. According to a study led by the ICRC on common humanitarian law, 136 out of the 161 rules are the same for international and non-international conflicts.
Going by the Tadic case, it is not certain that all crimes are criminalised in non-international armed conflicts. Yet, going by the ICRC’s interpretation that any serious violation of humanitarian law constitutes a war crime, there is no application issue according to Swiss legislation.
Philip Grant: can universal competence work? What are its practical and theoretical obstacles in Switzerland?
According to Amnesty International, Switzerland is part of the 147 States that implemented universal competency. 136 States integrated this principle for war crimes.
In actual fact, 15 States (including Belgium, Switzerland, Germany and Canada) began and completed proceedings. Therefore, universal competence does indeed work.
What are the obstacles to the implementation of universal competence?
Firstly, the suspect must be in Switzerland (art. 264m I CPS), as stipulated by the Federal Court in the Nezzar case. However, if the suspect leaves Switzerland, universal competence does not disappear, at least not immediately. Maître Grant added that a former member of Saddam Hussein’s secret services and the Rwandan genocide’s main financier were currently in Switzerland.
Secondly, Maître Grant reminded that there could be no jurisdiction if the defendants had immunity.
Thirdly, backdating standards can be problematic for acts committed before the new law of 1 January 2011 came into effect. Indeed, certain areas that are covered by new criminal law provisions were not covered by the military penal code. Consequently, certain offences are not criminalised and, therefore, cannot be dealt with.
Finally, according to Maître Philip Grant, gathering all the relevant documents when building a case for crimes committed abroad is still the greatest obstacle.
Philippe Currat: what are the challenges of defence and charge concerning the implementation of CPS on international crimes?
Defence is not a “sexy” job, according to Maître Currat. Indeed, defending a perpetrator of genocide is never pleasant. The general population will quickly liken us to the individual. Yet this person must be defended. Everyone has the right to be defended and the greater the offence, the more this right is fundamental.
Regarding the principle of legality, the criminal lawyer stated that the Swiss penal code covers a vast ground. Yet, individuals must be able to decide how they behave and know the consequences of a prohibited act. Enforcing the law in such vague conditions is no easy task.