Erga Omnes

A federal criminal court in Switzerland ruled last week that a former Algerian defense minister doesn’t have immunity for war crimes allegedly committed while in office in the early 1990s.  Two Algerian refugees residing in Switzerland, along with the Swiss Association against Impunity (TRIAL), brought the complaint against Khaled Nezzar.  The ruling is being hailed as a positive step for universal jurisdiction, compared to ongoing setbacks in places like the UK and Spain.

Interestingly, the Swiss court asserted, it would be “contradictory and futile” to fight against human rights violations and accept a broad interpretation of the rules of immunity.  The trade-off between human rights and immunity may seem obvious, but the logic is well worth pointing out to hypocritical governments:  you can’t have both–either at the level of rhetoric or practice.

That formulation, powerful in its simplicity, may be the most noteworthy precedent set by the case.  A former Algerian defense minister and a Swiss federal court take us part of the way, using universal jurisdiction to challenge official immunity.  The real test is when more powerful political interests are thrown into the mix.  Then what?

The Swiss ruling provides, at the very least, a compelling argument for activists confronting state resistance.