Iraq
 Barzan al-Tikriti, a half-brother of Saddam Hussein, was his country’s Ambassador to the United Nations. A former head of the Irakian Secret Service, he is strongly suspected of having participated in cruel repressive measures against the Barzani tribe-resulting in thousands of deaths-in 1983.
According to the organisation Indict, he is also suspected of responsibility for the systematic use of torture-including rape- to which his service had recourse and for the repression and deportation of ethnic and religious minorities between 1979 and 1983, as well as the assassination of political opponents abroad, the destruction of villages and the deportation or murder of their inhabitants.Having family ties in Switzerland he has paid several visits here during the last few years. A legal complaint was filed against him on the 28 September 2001 by an Irakian refugee in Switzerland.
The Swiss Public Prosecutor preferred to reject this complaint by a decision dated 12 November 2002 (in French), having considered that:
- in applying the principle of universal jurisdiction, Swiss authorities could only act if the accused was present on Swiss territory, even though Barzan al-Tikriti had again visited Geneva at the very least in June 2002 and according to some sources stayed until October of the same year
- genocide could not be prosecuted in Switzerland before the entry into force of Art. 264 of the Criminal Code, because the notion of genocide under customary international law lack any concrete sanction (principale of the legality of sanctions) .
- and that Art. 264 of the Criminal Code had no retroactive effect.
According to the plaintiff's wish, the case was sent to the Military Prosecutor to examine if the military justice had jurisdiction over the facts. By a decision dated 16 April 2003 (in French), the Military Prosecutor decide to drop the case. He considered that he had jurisdiction only over war crimes, and that the alleged facts did not point to any war crimes being committed. Furthermore, the accused was not anymore in Switzerland. And it was added that, according to the informations at his disposal, Barzan al-Tikriti had been killed during a recent air raid on Baghdad.
The appeal against this decision was rejectd by the Minister of Defence by decision of 22 December 2003 (in French). Even though it was recognized that Barzan al-Tikriti was indeed alive, the decision maintained that no prosecution could go ahead since the accused was not anymore present on Swiss territory. For more on the Barzan al-Tikriti affair read the article by Thierry Meyer (Le Temps 13 December 2002) or the article by Jon Swain (Sunday Times of 15 December 2002)
*
 In the context of the Second (1990/91) and Third Gulf (2003) War, the Swiss Association called "Solidarité avec les victimes de la guerre contre l'Irak" on 21 March 2003 filed a report with the Federal Prosecutor conatining a criminal complaint against George W. Bush, Dick Cheney, Donald Rumsfeld, Colin Powell, Condoleeza Rice, Richard Meyers, Tommy Franks, William Clinton, Tony Blair and Jack Straw. These persons are denounced of having committed crimes against humanity, genocide and war crimes.
By decision of 8 May 2003 (in French), the Federal Prosecutor decided not to follow suit, considering:
- that the notion of crimes against humanity is unknown to Swiss Law, and that subsidiary crimes such as manslaughter do not Fall under the universal jurisdiction principle;
- that the sanctions enacted against Iraq do not evidence the intention to destroy a group of person, as required by the definition of genocide;
- that he is not competent to judge whether war crimes have been committed;
- that inbumbent heads of state such as G.W. Bush and other high state officials enjoy absolute immunity.
|
