Implementation of the Rome Statute in Switzerland: TRIAL takes a stand

TRIAL had actively engaged in the consultation procedure for the implementation of the Rome Statute of the International Criminal Court into Swiss law from its very early stages: it provided a detailed expert analysis of the initial draft of amendments to the Swiss Criminal Code, as well as relevant statements concerning some important aspects of the project.

TRIAL has now been invited to a hearing of the Legal Affairs Committee of the Council of States (the Swiss “Senate”) regarding the draft Law implementing the Rome Statute into the Swiss Criminal Code, to take place on August 17, 2009. The first chamber, the National Council, had passed the governmental proposal with a large majority in spring 2009.

Thanks to TRIAL’s intensive campaign, which was supported by about 60 Law Professors, the Federal Council has revised its initial draft and dropped the requirement of a “close link” (see Federal Council Report 23.04.08 -BBl 2008 3863, S. 3899), that a suspected war criminal is supposed to have with Switzerland in order for prosecution to be started in Switzerland, hence limiting the principle of universal jurisdiction. The National Council has already accepted that such a requirement be struck out.

Even if TRIAL is largely satisfied with the draft Law, in particular the elimination of the “close link” element, some concerns do remain. For instance the strict prohibition of retroactivity in art. 2 of the Criminal Code should not apply to international crimes. TRIAL argues, in line with art. 7 of the European Convention of Human Rights andart. 15 of the International Covenant on Civil and Political Rights, that international crimes subjected to universal jurisdiction should be exempted from the principle of non-retroactivity. Switzerland would risk becoming a safe haven for people who committed international crimes before 2009 if the project is not altered, even though the crimes in question have long been criminalized by international law.

Furthermore, TRIAL considers that the draft Law should be amended in regard to the responsibility of superiors, which is too strictly considered and thus does not fully meet the requirements of the Rome Statute. According to the project, a superior could only be held responsible if he had knowledge and did not prevent that a subordinate was committing or planning to commit an international crime, whereas art. 28 of the Rome Statute also provides sufficient ground for prosecution if, in light of the given circumstances at the time, the superior “should have known” about those intentions or acts.

Other smaller changes will be suggested to the Legal Affairs Committee.