Bern — After nearly five years of criminal investigation, the Office of the Attorney General of Switzerland (OAG) is presenting for the first time an international criminal law related indictment to the Federal Criminal Court (FCC). The suspect is being accused of violations of the laws of war as a member of a military faction in the context of the internal armed conflict that took place in Liberia between 1989 and 1996.
At the end of 1989, the first Liberian civil war burst out against the regime of President Samuel Doe. The conflict deteriorated in the early 1990s on the basis of ethnic and economic related issues and ended only in 1996/1997 with the election of Charles Taylor as President. It is in this context that the accused joined the United Liberation Movement of Liberia for Democracy (ULIMO) which since the end of the 1990s gathered supporters of Samuel Doe’s former regime (mainly of the Krahn ethnic group) as well as Mandingo refugees. Starting from Sierra Leone the ULIMO carried out attacks against the opponent and future President Charles Taylor’s National Patriotic Front of Liberia (NPLF). From the beginning, ULIMO was afflicted by internal divisions and split into two militias in 1994: ULIMO-J, from the Krahn ethnic group, and ULIMO-K, a Mandingo-majority faction.
As of July and August 2014, several Liberian nationals filed criminal complaints with the OAG against a former ULIMO respectively ULIMO-K commander. Their testimonies report that he himself or the troops under his command committed, among others crimes, assassinations, a rape and acts aimed at enslaving and terrorizing the population in the Lofa County between 1993 and 1995.
Once the presence of the Liberian citizen on the Swiss territory was established – he had already lived several years in the French-speaking part of Switzerland – the OAG opened a criminal proceeding in August 2014 for war crimes (art. 108 and 109 of the former Swiss Military Criminal Law Code in connection with common art. 3 of the four Geneva Conventions of 1949 as well art. 4 of the Additional Protocol II to the Geneva Conventions), based on its federal jurisdiction and the lack of a statute of limitations for war crimes. The suspect was soon after arrested and put into pre-trial detention.
After nearly five years of investigation, particularly complex due to the lack of cooperation by Liberia and despite the facts of the case being distant in time, the OAG could however carry out the hearing of more than twenty five witnesses and benefit from international legal assistance from seven States or international organizations. Now, the OAG is able to submit the indictment to the FCC. The defendant is accused of having ordered the murder respectively murdering or participating in the murder of civilians and soldiers hors de combat, desecrated a corpse of a civilian, raped a civilian, ordered the cruel treatment of civilians, recruited and employed a child soldier, ordered several pillages and ordered and/or participated in forced transports of goods and ammunition by civilians. The defendant has allegedly committed these crimes between March 1993 and the end of 1995 as a member of a military faction.
This indictment which was filed before the FCC on 22 March 2019 must be placed in the context of the fight against impunity for the most serious crimes. The issues and challenges in the field of international criminal law make criminal prosecutions in this domain particularly complex. Since 2011 more than sixty cases were submitted to the OAG. Most of them failed to meet the legal requirements (e.g. the existence of an armed conflict or the presence of the alleged perpetrator on Swiss territory) and resulted in no-proceedings orders or ruling abandoning proceedings. A dozen of criminal investigations are presently ongoing concerning war crimes, genocide and/or crimes against humanity for facts having taken place before and after 2011.
The OAG will share its conclusions at the hearing before the FCC. The presumption of innocence of the accused is guaranteed until the final judgment has been pronounced. A soon as the indictment is filed, the FCC alone will be competent to provide any further information.
The prosecution of war crimes in Switzerland before 2011:
The international criminal law related rules (war crimes, genocide, crimes against humanity) introduced in the Swiss Criminal Code in 2011 have no retroactive effect. Hence, it is necessary to recall the rules applicable to war crimes before January 1st 2011, as in the present case:
War crimes are punishable in Switzerland under the former Swiss Military Criminal Code (aMStG) since 1968, regardless of where they were committed and of the perpetrator’s or the victim’s nationality. Art. 109 aMStG refers to the “requirements of international conventions on the conduct of warfare and for the protection of persons and property” as well as to “other recognized laws and customs of war”.