Khaled Nezzar

04.04.2016 ( Last modified: 28.05.2019 )
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Facts

Khaled Nezzar was born on 25 December 1937 in Seriana, Algeria. He deserted the French Army in 1958 to join the National Liberation Front and participated in the Algerian War of Independence.

After Algeria gained the independence in 1962, Khaled Nezzar held several positions in the Algerian army. Appointed the Chief of Land Forces in 1986, he was promoted to the Chief of Staff and then the Minister of Defence in 1990. In this capacity, he acquired all decision-making power of the government. From 1992 to 1994, he was one of the members of the High Council of State (HCS), the military junta of five members which replaced the position of a president. Nezzar was considered as one of the most powerful men of the regime in the beginning of the 1990s, whilst the “dirty war” was raging.

In January 1992, together with other members of the army, Nezzar allegedly orchestrated a coup against the then president Chadli Bendjedid. Subsequently, the army decided to cancel the second round of the parliamentary elections in order to prevent a likely victory of the Islamic Salvation Front (FIS), a Muslim fundamentalist party which had won the first round of the elections.

Between 1992 and 1994, as the Minister of Defence and the member of the HCS, Nezzar allegedly ordered, authorised and incited the army and public officials to commit a number of crimes – acts of torture, murders, extrajudicial killings, enforced disappearances and other acts constituting grave violations of international humanitarian law in the context of the “dirty war”. These crimes were mostly, but not exclusively, committed against the FIS supporters. In 1988, Nezzar among others allegedly ordered the army to shoot hundreds of protestors participating in popular riots.

Following an assassination attempt in 1994, Nezzar resigned from his official functions as the Minister of Defence and the member of the HCS. It is estimated that the “dirty war” eventually caused the death of about 200’000 persons, the disappearance of 20’000 and the forced displacement of more than 1,5 million people.

Legal Procedure

Three victims lodged a criminal complaint against Khaled Nezzar in France in 2001, however, he managed to leave the country before any legal action could have been taken.

On 20 October 2011, while in Switzerland, Nezzar was arrested and interrogated by the Swiss Attorney General following a denunciation by TRIAL International and complaints by two victims of torture. He was released on 21 October 2011 under the condition of being present during the subsequent proceedings.

On 23 November 2011, Nezzar requested the Attorney General to decide on jurisdiction. On 1 December 2011, the General Attorney decided that he had jurisdiction over the case. Subsequently, Nezzar appealed this decision on 12 December 2011, claiming that he had immunity as a former Defense Minister and former member of the HCE. Furthermore, he argued that the principle of non-retroactivity is not respected as he is prosecuted on the basis of a law which entered into force on 1 January 2011 for crimes committed between 1992 and 1999.

On 25 July 2012, the Swiss Federal Criminal Court (FCC) found that Nezzar cannot claim personal immunity as it only shields a person from prosecution abroad during his or her tenure. The material immunity, which continues to apply to the official acts of state representatives even after their tenure, was also refused by the Court because it does not cover the acts committed in personal capacity. The Court considered the criminal offences to have been committed in personal capacity. In addition, the Court acknowledged that the presence of the accused on Swiss territory is only needed at the time of the opening of the criminal proceedings. Subsequent departure of the accused from the country does not hinder the prosecution. The Court thus paved the way for a trial in Switzerland.

Between 2011 and 2016, five victims decided to join the proceedings and lodged a complaint against Khaled Nezzar.

In the beginning of January 2017, the Office of the Attorney General (OAG) dismissed the case, considering that the alleged actions of the former Minister of Defense could not be considered as war crimes on the grounds that there was no armed conflict in Algeria when the events occurred.

On 16 January 2017, the victims announced that they would appeal the decision before the Federal Criminal Court.

On 30 May 2018, the FCC admitted the appeal and acknowledged the existence of an armed conflict in Algeria in the early 1990s. The FCC also indicated that Khaled Nezzar was aware of the serious crimes which were committed on his orders and therefore decided that the investigation by the OAG must continue.

In August 2018, a letter signed by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the UN Special Rapporteur on Independence of Judges and Lawyers was issued by the United Nations. This letter strongly criticized Switzerland for its lack of independence due to the different political interferences in the cases of Khaled Nezzar and Rfiaat al-Assad.

Highlights

For Algeria, this is the first case of prosecution since its amnesty law hinders the possibility of a prosecution of the military personnel for the crimes committed during the “dirty war”.

From the point of view of Switzerland, this case is interesting because in the decision of 30 May 2018, the FCC considered that the former minister could also face charges of crimes against humanity even though the crimes were committed before the relevant provisions of the 2011 law entered into force.