Khaled Nezzar was the Minister of Defense in Algeria and a member of the High Council of State. In addition, he was considered the most influential person within the junta between 1990 and 1994. In that period, he is suspected of having authorized and incited the army and public officials to commit countless crimes within the context of the “dirty war”, which left a grim toll of 200,000 dead and 20,000 disappeared persons in Algeria.
This case is a first for Algeria, whose law prevents the prosecution of state agents involved in the fight against terrorism. It is also the first arrest and indictment of an African former Chief of Staff based on universal jurisdiction. In 2011, new complainants have joined the proceedings, which are ongoing.
PROCEDURE IN SWITZERLAND
In 2011, during a visit to Switzerland, Khaled Nezzar was arrested in Geneva as a result of a report filed by TRIAL International and complaints by two victims of torture. After being interviewed by the Swiss Federal Prosecutor, he was released on the condition that he would attend the subsequent proceedings.
In the early months of 2012, Khaled Nezzar filed an appeal against the prosecution of his case, arguing that his position as Minister of Defense at the time of the events protected him from criminal prosecution in Switzerland. The Swiss Federal Criminal Court rejected Khaled Nezzar’s claim, on the grounds of the exceptional severity of the crimes.
In January 2017, the Office of the Attorney General (OAG) of Switzerland dismissed the case against Khaled Nezzar, arguing that the intensity of the clashes within the context of the “dirty war” was not sufficient to call it a civil war. The civil parties appealed before the Federal Criminal Court (FCC) against this decision. More than a year later, in June 2018, the FCC ruled that an armed conflict did indeed exist in Algeria between 1992 and 1994, and that General Nezzar was aware of the countless crimes committed under his command. Consequently, the case was referred back to the OAG, who resumed the investigation.
On 30 May 2018, the Federal Criminal Court overturned the decision of the OAG. The Court recognized the existence of a non-international armed conflict in Algeria in the early 1990s and found that there was no doubt that Nezzar was aware of the acts committed under his order. Therefore, the court concluded that the OAG should complete its investigation on war crimes, and determine whether Nezzar could also be charged with crimes against humanity, torture and murder.
In August 2018, a letter to Switzerland by the United Nations Special Rapporteurs on torture and on the independence of judges and lawyers was made public. It heavily criticized Switzerland for an alleged lack of independence and political interference, mentioning explicitly the case against Nezzar.
In 2020, the investigation was still ongoing and several procedural acts were undertaken throughout the year.
PROCEDURE IN ALGERIA
In August 2019, while he was in Spain, the Algerian military justice issued an international arrest warrant against Khaled Nezzar. His name, as well as his son’s, reportedly appeared during the investigation against Said Bouteflika, the brother of deposed President Abdelaziz Bouteflika. They are accused of “conspiracy against the State and breach of public order”. If tried and found guilty, Khaled Nezzar could face the death penalty, under Article 77 of the Penal Code in Algeria. The Article states that the perpetrator of an “attack, the purpose of which is to destroy or change the regime, or to encourage citizens or inhabitants to arm themselves against the authority of the State or arm themselves against one another, shall be punishable by the death penalty.”
On 25 September 2019, the verdict was delivered after a three day trial: Said Bouteflika was sentenced to 15 years in prison, while Khaled Nezzar and the other defendants who were not present in court were sentenced to 20 years.