First Attempt to Apply Universal Jurisdiction to Algeria’s Dirty War: The Khaled Nezzar case in Switzerland by Benoit Meystre

This is the third blog in a series featuring legal representatives and experts in the field of strategic litigation against torture discussing the strategic impact of cases catalogued in our Casebook I.

In this blog piece, Benoit Meystre, Legal advisor for TRIAL International, examines its most strategic features.

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A v. Office of the Attorney General of Switzerland (Swiss Federal Criminal Court, 2012)

Benoit Meystre

In January 2011, Swiss criminal law underwent major changes following the incorporation of the Rome Statute into domestic law. The reform provided Switzerland with jurisdiction to prosecute war crimes, crimes against humanity and genocide, including when these crimes were committed abroad, by foreigners and when none of the victims were Swiss nationals.

The Nezzar case is one of the first cases based on universal jurisdiction in Switzerland since the new law came into force. This legal principle was used as an avenue for victims to seek justice for the crimes committed by the former defense minister Khaled Nezzar, while total impunity was – and still is – the rule in the context of Algeria’s ‘black decade’ (1992-2002).

Paving the way for the prosecution of international crimes in Switzerland?

At the time of filing, TRIAL International also intended to test the new Swiss legal system and the ability of Switzerland to prosecute perpetrators of international crimes, regardless of their status or rank, including when they were only passing through the country. But many legal questions were to be solved at the time and it was difficult to foresee where the case was going to go. In this respect, the opening of the investigation by the Office of the Attorney General (OAG) in October 2011 was a first victory.

In July 2012, the Federal Criminal Court (FCC) handed down a historical ruling that echoed beyond the country’s borders. It confirmed Switzerland’s jurisdiction, under the new law, to prosecute acts committed before its entry into force and – above all – judged that Khaled Nezzar could not enjoy immunity for acts committed during his term of office (FCC decision BB.2011.140 of 25 July 2012).

In its reasoning, the FCC first recalled the principles applicable to personal and functional immunities, stressing that immunity after the departure of a Head of State is no longer unanimously accepted, both at the international and domestic levels, when jus cogens
violations are at stake.

Secondly, the FCC held that Khaled Nezzar, who was a member of a collegial government and Minister of Defense, enjoyed immunity ratione personae during his term of office – this immunity extending not only to the members of the triad (composed of the Head of State and Government and the Minister of Foreign Affairs) but also to the Minister of Defense – but that it ended when he ceased to hold office. With regard to immunity ratione materiae, the FCC recalled that the Swiss legislator considered the principle of jus cogens to be imperative and that States had a duty to prosecute crimes committed in violation of this principle. The FCC therefore held that Khaled Nezzar could not benefit from functional immunity, as it would have been both contradictory and futile to claim to fight violations of jus cogens, while at the same time, admitting a broad interpretation of the rules of functional immunity to prevent any investigation.

The case therefore proceeded.

The investigation takes a rocky path

In a surprising move on 4 January 2017, the Swiss prosecuting authorities decided to close the matter on the grounds that there was no armed conflict in Algeria in the early 1990s – a precondition to classify the crimes in question as war crimes. However, following an appeal of this decision by the plaintiffs, on 30 May 2018, the FCC ruled that all the legal conditions to determine the existence of an armed conflict had in fact been met during the ‘black decade’ (FCC decision BB.2017.9 of 30 May 2018).

The investigation was hence reopened and eventually concluded on 28 August 2023 – twelve years after its opening – with the indictment of Khaled Nezzar for war crimes and crimes against humanity. In the indictment, the prosecutor pointed out that the accused had
orchestrated repressive operations and encouraged the use of violence knowing that the forces in charge of the armed struggle were suspected of committing massive and systematic abuses against the civilian population and that, despite his rank, he had not taken any measures to put an end to them.

Where do we go from here?

The case would have been an opportunity for a national court to rule on the criminal liability of the highest-ranking individuals who, if they did not commit the worst crimes themselves, were the ones who ordered them and/or did nothing to prevent them.

But Khaled Nezzar died in December 2023, six months before his trial was due to open, and the matter was dropped.

In the absence of a trial, the legal strategy had to be adapted. Today, the case remains of significant importance as the plaintiffs are now fighting to have the failure of the Swiss authorities to investigate the facts quickly and thoroughly recognised and remedied. TRIAL
International is closely following the legal developments of the case and stands by the plaintiffs involved.

Casebook Series

Read a blog piece by Lutz Oette, one of the interveners in the Gäfgen in the Gäfgen v. Germany case and Professor of International Human Rights Law at SOAS University of London, examining its most strategic features.