On 25 July 2012, the Swiss Federal Criminal Court delivered its decision in the case against the former Algerian Minister of Defence Khaled Nezzar, denying the existence of an immunity ratione materiae for war crimes allegedly committed during the Algerian Civil War that would preclude the Federal Prosecutor from proceed with his investigation against the Mr. Nezzar.
Mr. Nezzar was appointed as Minister of Defence of Algeria in 1990. A year later, he was among the generals who decided to depose then-President Chadli Bendhedid, marking the beginning of the Algerian Civil War (1992-2000). Between 1992 and 1994, Nezzar was a member of the High Council of State – a provisional governing body that exercised the powers attributed by the Constitution to the President. In 2011, when Mr. Nezzar was travelling through Switzerland, a Swiss non-governmental organisation Track Impunity Always (TRIAL) and two refugees of Algerian origin filed a criminal complaint with the Swiss authorities, accusing him of war crimes and torture committed during the Algerian Civil War.The legal counsel of Mr. Nezzar argued, among other points, that his client enjoys immunity for acts committed between 1992 and 1994 owing to his position of the Minister of Defence and a member of the Haut Comité d'État (hereinafter ‘HCE’). He equally challenged the exercise of criminal jurisdiction by Swiss authorities due to the lack of a link between the accused and Switzerland. With regard to the latter argument, the Federal Criminal Court acknowledged that the presence of the accused on Swiss territory is indeed an essential condition for conducting criminal proceedings in Switzerland for acts committed abroad. The Court however argued against an overly strict interpretation of the condition, which would ‘in practice amount to allowing the offender to decide whether or not the prosecution shall proceed.’ The Court held that the condition must be met at the time of the opening of the criminal proceedings and the fact that the accused leaves Switzerland is not enough to hinder such proceedings.
As concerns the accused's defence of immunity from jurisdiction, the Court agreed that while serving as Algeria's Defence Minister and a member of the HCE, Khaled Nezzar benefitted from immunity ratione personae covering both his official acts and acts committed in his personal capacity. This immunity is however of a temporary nature and is thus, in the Court's view, 'extinct'. With regard to the immunity ratione materiae, the Court acknowledged that residual immunity prevails even after leaving the office and protects an individual from prosecution for official acts performed whilst in the office. This immunity however does not cover acts committed by the former official before or after leaving the office, nor does it cover criminal offences committed in his/her private capacity during the period whilst in office.
The Court recognized an explicit trend at the international level to restrict the immunity of (former) Heads of State for crimes contrary to rules of jus cogens, such as genocide, crimes against humanity and torture. Considering whether immunity ratione materiae covers all acts committed by the accused during his office and supersedes the need to ascertain his possible responsibility with respect to the alleged grave violations of human rights, the Court concluded that '[i]t would be contradictory and futile to, on one hand, affirm the intention to combat against these grave violations of the most fundamental human values and, on the other, to accept a wide interpretation of the rules governing functional immunity, which would benefit former State officials with the concrete result to hinder, ab initio, any investigation. In such case, it would be difficult to admit that conduct contrary to fundamental values of the international legal order can be protected by rules of that very same order.' The Court consequently rejected the existence of immunity ratione materiae as a defence against violations of peremptory norms of international law and thus cleared the way to continue the prosecution of Khaled Nezzar for war crimes.