The Office of the Attorney General of Switzerland indicts former Algerian defence minister
Bern, 29.08.2023 - The Office of the Attorney General of Switzerland on 28.08.2023 filed an indictment in the Federal Criminal Court against Khaled NEZZAR, the former Algerian defence minister and member of the High Council of State (Haut Comité d’État, HCE). According to the indictment, NEZZAR is accused of violating the laws of armed conflicts in accordance with the Geneva Conventions between 1992 and 1994 in connection with the civil war in Algeria and of committing crimes against humanity. In particular, it is alleged that at the very least he knowingly and willingly condoned, coordinated and encouraged the torture and other cruel, inhumane or humiliating acts, physical and psychological assaults, arbitrary detentions and convictions and extra-judicial executions.
In the indictment submitted to the Federal Criminal Court (FCC) following complex investigations which involved questioning 24 persons, the Office of the Attorney General of Switzerland (OAG) sets out the following facts of the case:
Historical background
Following a period of social unrest, a multi-party system was introduced in Algeria in February 1989 under a new Constitution. Subsequently, the political party known as the ‘Front Islamique du Salut' (FIS) was established. In 1990, after the incumbent president stood down as defence minister - an office that had previously been tied to the presidency - the Armed Forces Chief of Staff, Khaled NEZZAR, was appointed defence minister. He thereby took charge of the security forces and, a few months later, the secret services as well. In December 1990 the People's Army, led by NEZZAR, published a memorandum setting out a plan of action for an armed campaign against the Islamist opposition. After the FIS won a majority in the first ballot of the parliamentary elections, there was further unrest, to which the Algerian government responded by stopping the elections and postponing them for an unlimited period. Subsequently, the opposition formed itself into armed groups. In response to the events and following the dissolution of the parliament and the resignation of the president, Chadli BENJEDID, the ‘Haut comité d'Etat' (HCE) was established, with NEZZAR as a member, with the aim of guaranteeing the continuity of the state, ensuring that its institutions functioned, and preserving constitutional order. On 9 February 1992 the HCE imposed a state of emergency and the policy for eliminating Islamist movements that NEZZAR had been instrumental in planning in 1990 was implemented. According to various public sources, during the civil war between 1992 and 1999, known as the ‘décennie noire' (the Black Decade), up to 200,000 people were killed and around 1.5 million people were driven from their homes. A further 20,000 persons are believed to have disappeared.
Opening the criminal investigation against NEZZAR
In 2011, following a criminal complaint from the non-governmental organisation TRIAL International, the OAG opened criminal proceedings against Khaled NEZZAR, who at the time was resident in Switzerland, on suspicion of war crimes in accordance with Articles 108 and 109 of the Military Criminal Code of 13 June 1927 (the former MCC) committed during the civil war in Algeria. In 2017, the OAG abandoned the proceedings on the grounds that the Algerian Civil War had not been an internal armed conflict as defined by law, with the result that Switzerland did not have jurisdiction to assess any alleged war crimes. On appeal, however, the Federal Criminal Court decided that the clashes were of such violent intensity that they could be considered to be an armed conflict as defined in the common Article 3 of the four Geneva Conventions and in the related international case law. Furthermore, the Appeals Chamber regarded the opposition as sufficiently organised to be recognised as an armed group in terms of the Conventions. Subsequently, the OAG resumed the criminal proceedings. After questioning a total of 24 persons, it has now filed an indictment.
The offences charged
In the indictment, the OAG alleges that Khaled NEZZAR as a person of influence in Algeria in his capacity and function as the defence minister and as an HCE member appointed trusted associates to key positions and knowingly and willingly created structures in order to eliminate the Islamist opposition according to his plan of action. This led to the commission of war crimes and widespread and systematic attacks on civilians suspected of sympathising with the opposition.
In particular the OAG has documented eleven incidents each with several allegations that took place between 1992 and 1994. The suspected victims are alleged to have been subjected to torture using water and/or electric shocks and other cruel, inhumane or degrading treatments, as well as assaults on their physical and psychological integrity. In addition, arbitrary detentions and convictions as well as extra-judicial executions took place. According to the indictment, in each of these cases, NEZZAR knowingly and willingly condoned, coordinated or ordered what was done. He is therefore accused of violating the laws of armed conflicts in accordance with common Article 3 of the Geneva Conventions of 12 August 1949 in conjunction with Articles 4 and 6 of the Second Additional Protocol of 1977 to the Geneva Conventions, which, in accordance with Article 109 paragraph 1 of the Military Criminal Code in the version that applied at the time of the offences (the former MCC) in conjunction with Article 108 paragraph 2 of the former MCC, is a criminal offence; he is further accused of committing crimes against humanity (Art. 264a Swiss Criminal Code (SCC)).
The OAG will make its final submissions at the hearing before the FCC in Bellinzona. The presumption of innocence applies to the accused until the final judgment has been pronounced. With the filing of the indictment, the FCC has sole responsibility for providing further information.
The prosecution of crimes under international criminal law in Switzerland before 2011:
Under the former MCC, a war crime has been a criminal offence in Switzerland since 1968, regardless of where it takes place and of the nationality of the offender or the victim. Article 109 of the former MCC expressly makes an offence of violating the provisions of international agreements on warfare, the protection of persons and property, and other recognised laws and customs of war. Common Article 3 of the Geneva Conventions provides that in the event of an armed conflict that is not of an international character that occurs on the territory of one of the High Contracting Parties, each party to the conflict is bound to apply certain provisions; accordingly, violence to life or person, and the cruel treatment and torture of persons who are not directly involved in the hostilities are prohibited. Switzerland ratified the Geneva Conventions on 31 March 1950, Algeria on 20 June 1960.
Original text in German
Address for enquiries
Communications Service of the Office of the Attorney General of Switzerland, info@ba.admin.ch, T +41 58 464 32 40
Publisher
Office of the Attorney General of Switzerland
http://www.ba.admin.ch/
