International criminal courts
In the wake of conflicts in the former Yugoslavia and in Rwanda, Switzerland laid down the rules of cooperation with the ad-hoc tribunals in the Hague and Arusha (Tanzania) in 1995 in the Federal Resolution on Cooperation with the International Tribunals Prosecuting Serious Violations of International Humanitarian Law (SR 351.20). In 2003, the scope of the Federal Resolution was extended to cover cooperation with the special court of justice for Sierra Leone in Freetown. It provides for the following forms of cooperation:
The Federal Office of Justice (FOJ) issues an arrest and transfer warrant and then determines whether or not the person who is being sought will be transferred to the tribunal in question. An appeal against the arrest and transfer warrant and the transfer decision may be lodged with the Swiss Federal Criminal Court. Contrary to the non-extradition of own nationals to other States, it is possible for a Swiss citizen to be handed over temporarily to the tribunals – although the tribunals must provide an assurance that the person in question will be transferred back to Switzerland to serve their sentence once the proceedings have been completed.
Applications for international legal assistance are received by the FOJ, reviewed summarily and then passed on to the competent cantonal or federal authorities for execution. The FOJ itself may decide upon the permissibility and execution of legal assistance measures if the case is complex or particularly important, or if the application requires enquiries to be made in several cantons. The final judgment can be challenged before the Swiss Federal Supreme Court.
Under the Swiss rules governing bilateral judicial cooperation, there are only very limited opportunities for the applicant authority to conduct their intended investigations (e.g. taking statements from witnesses) directly and independently on Swiss sovereign territory. The Federal Resolution of 1995 is more generous in this respect and provides for the Federal Department of Justice and Police (FDJP) to grant the corresponding authorization. To date, the FDJP has acceded to all of the applications submitted by ad-hoc tribunals. This approach offers a better guarantee that formal tribunal requirements will be met while also accommodating the interests of the witnesses.
A distinction must be made between ad-hoc tribunals, the jurisdiction of which is restricted to a particular territory or conflict, and the permanent International Criminal Court in the Hague, which came into being on 1 July 2002. The court of justice is convened where the competent national authorities are not willing or able to pursue violations of international humanitarian law thoroughly themselves. Switzerland has laid down its cooperation with the International Criminal Court in a federal law (ZISG, SR 351.6) that also came into force on 1 July 2002. A central office has been created within the FOJ to ensure that cooperation is as smooth as possible.
The FOJ issues the arrest and transfer warrant and determines whether or not the person who is being sought will be transferred to the International Criminal Court. In Switzerland, it is only possible to appeal against imprisonment during the transfer procedure – there is no right of appeal against the transfer decision itself. The person being sought can only dispute the jurisdiction of the International Criminal Court when they appear in front of it. If a Swiss citizen is handed over to the Court, the FOJ will apply to have the person in question transferred back to Switzerland to serve their sentence once the proceedings are complete.
The FOJ receives applications for other forms of cooperation (the recording of evidence, including witness statements, hearing of suspects, searches and seizures, service of documents, etc.). It will decide whether or not cooperation is permissible, instigate the necessary action and mandate a cantonal or federal authority to carry out the application. Persons who are accused in proceedings before the Court are not entitled to any legal remedy. Only other people who are affected by international legal assistance measures are entitled to lodge an appeal against the final FOJ ruling. The FOJ itself can approve investigations on Swiss sovereign territory.
