This project has not yet been submitted to the parliament. Already in July 1998, it had signed the Treaty of Rome. After some legislative modifications that were immediately necessary, the ratification became effective in October 2001. These new measures constitute a second step of integration of the provisions of the Statute. While wanting "to exclude any risk to yield jurisdiction to the ICC", Switzerland wants to "accurately reflect international law currently in effect", according to Swiss official statement.
The Confederation explains that it wants to eliminate "the risk to be used as a refuge for this kind of criminals".
The new bill aims at integrating crimes against humanity into Swiss law, to give a more precise definition to war crimes, which until now were only sanctioned by a "general reference to the international humanitarian law and at reorganizing the powers of the jurisdictions. "
Trial Watch, a Swiss NGO headquartered in Lausanne, was consulted in the development phase of the project, its critics were sometimes taken into account. Thus, Trial Watch was firmly against maintaining the condition known as the "strong link", introduced in 2003 into the article governing the prosecution of war crimes committed abroad.
A particularly strong link was required between the defendant and Switzerland, making prosecution almost impossible. It was characterized, inter alia, by residency or the defendant's life being concentrated in Switzerland or the maintenance of regular contacts with its family living in Switzerland. The Confederation wanted to protect itself against an influx of proceeding, as was the case in Belgium. According to Trial Watch, it acted as a "drastic" limitation to universal jurisdiction.
Henceforth, rather than a "strong link", it will be enough that the alleged author be in Switzerland and cannot be extradited nor transferred to an international criminal tribunal. It gives itself a "limited universal jurisdiction" and aligns itself with other countries of the European continent.
Trial Watch also underlined "forgotten" infractions, such as: collective sentences, the fact of spreading terror among the population or the practice of apartheid. The latter was added in the category of crimes against humanity.
The responsibility of senior officials, envisaged in the new law, is less broad than in the ICC Statute. A superior will only be responsible if he was informed of the commission of these acts by the subordinates, while the Statute also aims the cases where he "should have known".
One of the last principal points raised by Trial Watch relates to the prosecution of public provocation to commit genocide which was only possible in the case when the entire or part of the genocide was committed in Switzerland. Not only did the genocide have to actually take place, which international law does not require, and is even contrary to the jurisprudence of the two international criminal tribunals, but, also, this provision did not cover incitement to commit genocide abroad.
The Federal Council seems to have taken sides again on the question since it affirms in its official statement that "the provision does not exclude the instigation committed abroad referring itself to a genocide committed abroad". A transfer clause to conventional and customary international law was inserted to mitigate certain gaps to offer every guarantee of compliance in the event of later developments in international law.
The principle of non-retroactivity, however, will constitute a major obstacle to prosecution. Whereas Switzerland has already brought several proceedings against criminals originating from the former Yugoslavia and Rwanda, it, henceforth, excludes this possibility with this criterion.
France is also working on a bill adapting French criminal law to the Statute of the ICC. But according to the French coalition for the ICC (CFCPI), two points are still delicate: it does not envisage the imprescriptibility of the sanctioned crimes and does not have any provisions relating to territorial jurisdiction of French judges.
AV/PB/MM/SC
© Hirondelle News Agency