Practice Relating to Rule 157. Jurisdiction over War Crimes
Switzerland’s Basic Military Manual (1987) provides:
1. Violations of the laws and customs of war must be punished. The guilty persons may be brought either before the courts of their own country or before the courts of the injured State, or before an international tribunal.
2. Each Contracting Party is also bound to search for and prosecute in its own courts persons who have committed grave breaches of the provisions of the law of nations in time of war.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
The Swiss judicial authorities are required to open a criminal procedure against any Swiss citizen or foreign person where the suspect is present in or has a close connection with Switzerland, regardless of whether the offence has taken place in Switzerland or abroad (for the precise rules on the prosecution of war crimes committed by foreign nationals outside Switzerland, see Art. 9 of the Military Criminal Code).
Switzerland’s Military Criminal Code (1927), as amended, gives Swiss military tribunals jurisdiction over violations of IHL, regardless of the international or non-international character of an armed conflict, whether the crime has been committed on Swiss territory or abroad, whether the perpetrator or the victim is of Swiss nationality or of a foreign nationality and whether the perpetrator had military or civil status, even if there exists no link to the Swiss legal system other than the presence of the accused on Swiss territory.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
1. If the personal conditions are fulfilled, the present code applies both to crimes committed in Switzerland and to crimes committed abroad.
1 bis. It applies to persons mentioned in Article 3, Chapter 9, who are foreign nationals and who commit a crime under the law of nations … abroad during armed conflict if they:
a. are located in Switzerland;
b. have a close bond with Switzerland;
c. can neither be extradited nor transferred to an international criminal tribunal.
The Code also states:
[The following persons] are subject to military criminal law:
9. foreign civilians or members of the armed forces who, during armed conflict, become criminally responsible for violations of the law of nations (Articles 108 to 114).
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:
1 In times of war, in addition to the persons mentioned in art. 3 and 4, the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … war crimes (Part 2, chapter 6bis and art. 139);
5. foreign military persons who make themselves culpable of … a war crime (Part 2, chapter 6bis and art. 139).
2 The provisions on the punishability of superiors (art. 114a) are applicable to the cases under paragraph 1, number 1(d) and number 5.
1 If the personal conditions are fulfilled, the present code is applicable both to offences committed in Switzerland and to those committed abroad.
1bis The present code applies to persons mentioned in art. 5 [paragraph 1], number 1, letter d and number 5, who have committed abroad one of the acts under … chapter 6bis [war crimes] of Part 2 or art. 114a [punishability of superiors] if they are present in Switzerland, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland.
1ter Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognized by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there;
c. the necessary evidence cannot be obtained.
The present code applies to persons who have committed abroad, against a Swiss military person, one of the acts under … chapter 6bis
[war crimes] of Part 2 or art. 114a
[punishability of superiors], if they are present in Switzerland or have been extradited there because of this act, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland.
[footnotes in original omitted]
Switzerland’s Penal Code (1937), as amended, is applicable also with regard to acts committed abroad which the State is obliged to prosecute by an international treaty, provided that the act is also punishable in the State where it was committed and that the author of the crime is found on the territory of Switzerland and not extradited to another State.
Switzerland’s Penal Code (1937), as amended in 2009, states:
1. The present code applies to anyone who commits a crime or delict abroad, which Switzerland is obliged to prosecute by virtue of an international treaty:
a. if the act is also punishable in the State where it was committed or if the place where it was committed is not subject to any criminal jurisdiction; and
b. if the perpetrator is in Switzerland and if he is not extradited.
1 The present code applies to anyone who commits a crime or delict abroad if the conditions stipulated in Articles 4, 5 and 6 are not fulfilled:
a. if the act is also punishable in the State where it was committed or if the place where it was committed is not subject to any criminal jurisdiction;
b. if the perpetrator is in Switzerland or if he is being extradited to Switzerland due to this act; and
c. if, according to Swiss law, the act may give rise to extradition, but the perpetrator is not being extradited.
2. If the perpetrator is not of Swiss nationality and the crime or delict has not been committed against a Swiss citizen, para. 1 applies only if:
a. the demand for extradition has been rejected for reasons other than the nature of the act or
b. the perpetrator has committed a particularly serious crime which is proscribed by the international community.
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states in the common provisions under the titles on genocide and crimes against humanity and on war crimes:
1 A person who carries out an act under Title 12bis and 12ter [on war crimes] or Art. 264k [on the criminal liability of superiors] while abroad is guilty of an offence if he is in Switzerland and is not extradited to another State or delivered to an international criminal court whose jurisdiction is recognised by Switzerland.
2 Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognized by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there.
3 Article 7 paragraphs 4 and 5 [on the principle of ne bis in idem
] applies unless the acquittal, or the remission or application of time limits for the execution of the sentence abroad has the aim of protecting the offender from punishment without justification.
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Art. 23 Federal jurisdiction in general
1. The following offences in the PC [Penal Code] are subject to federal jurisdiction:
g. the offences in Title … Twelve ter
[war crimes] as well as Article 264k
[on the criminal liability of superiors][.]
[footnotes in original omitted]
In the Grabež case
in 1997, a person born in the former Yugoslavia was prosecuted by Switzerland’s Military Tribunal at Lausanne for violations of the laws and customs of war under the Swiss Military Criminal Code as amended on charges of beating and injuring civilian prisoners in the camps of Omarska and Keraterm in Bosnia and Herzegovina. The Tribunal held that it had jurisdiction under Articles 108(2) and 109 of the Military Criminal Code as amended over violations of the laws and customs of war, grave breaches of the 1949 Geneva Conventions III and IV and of the 1977 Additional Protocol I and violations of the 1977 Additional Protocol II, but acquitted the accused for lack of sufficient evidence.
In the Musema case
in 1997, Switzerland agreed to surrender to the International Criminal Tribunal for Rwanda an accused of Rwandan nationality, arrested in Switzerland in 1995 for violations of the laws of war in Rwanda. The decision was taken, inter alia
, pursuant to Article 109 of the Swiss Military Criminal Code as amended providing for the punishment of war crimes.
In the Niyonteze case
in 1999, Switzerland’s Military Tribunal at Lausanne found a Rwandan citizen guilty of murder, incitement to murder and crime by omission in the context of the conflict in Rwanda in 1994. The Tribunal based its decision on Articles 2(9), 108(2) and 109 of the Swiss Military Penal Code as amended. However, the Tribunal refused to consider charges of genocide and crimes against humanity on the grounds that these crimes were not recognized as being subject to universal jurisdiction under Swiss law.
In its judgment in 2000, the Military Court of Appeals stated:
According to Article 2 § 9 of the Military Penal Code, civilians are subjected to the military criminal law if they are found guilty of violations of public international law during an armed conflict. (Articles 108 to 114 Military Penal Code)
Switzerland adopted Article 2 § 9 of the Military Penal Code in order to meet its international obligations and to allow the application of international law. In this specific context, even if Switzerland is not in a state of war or in danger of imminent war, it engaged in prosecuting individuals, regardless of their nationality, who are found [outside Switzerland] guilty of grave breaches of the  Geneva Conventions.
In its relevant parts, the Military Court of Cassation confirmed the judgment of the Military Court of Appeals.
In 2012, in the A. case, Switzerland’s Federal Criminal Court rejected an appeal against the order of the Office of the Attorney General of 1 December 2011, whereby the Office declared itself competent to investigate war crimes allegedly committed by the appellant in the context of a non-international armed conflict abroad. The Court stated:
2.1 In his first ground for appeal, the appellant claims that the conditions necessary to exercise Switzerland’s universal jurisdiction for the prosecution of offences referred to in Titles 12bis, 12ter or in Art. 264k of the PC [Penal Code], and more specifically in Art. 264m of the PC are not fulfilled. The OAG [Office of the Attorney General] and the complainants do not share this view.
2.2 On 1 January 2011, a legislative amendment incorporated war crimes in the PC (Title 12ter) and set out common provisions for that title as well as for the one on genocide and crimes against humanity (Title 12quater and Title 12bis of the PC; RO 2010 4963; Message on the amendment of federal legislation in implementation of the Rome Statute of the International Criminal Court of 23 April 2008 [hereinafter: Message on the implementation of the Rome Statute]; FF 2008 3461). On that occasion, notably Art. 264m of the PC entitled “Acts carried out abroad” came into force. Art. 264m states:
“A person who carries out an act under Title 12bis and 12ter or Art. 264k while abroad is guilty of an offence if he is in Switzerland and is not extradited to another State or delivered to an international criminal court whose jurisdiction is recognised by Switzerland (para. 1).
Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognised by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there (para. 2).
Article 7 paragraphs 4 and 5 applies unless the acquittal, or the remission or application of time limits for the execution of the sentence abroad has the aim of protecting the offender from punishment without justification (para. 3).”
2.3 Article 264m is a special provision in relation to Article 7 of the CP. Indeed, the latter also allows Switzerland, in application of the principle of subsidiary universal jurisdiction, to prosecute genocide, war crimes and crimes against humanity. However, Article 7 of the CP stipulates that the act has also to be punishable according to the law of the State where it was committed (…); the principle of the most favourable law (Article 7(3) of the PC) and the principle ne bis in idem (Article 7(4) of the PC) are equally applicable. Yet, submitting the very serious crimes with which we are dealing here to these general rules without restriction would not have been appropriate, for which reason a special rule for crimes against humanity was justified …
3. In his appeal and, in greater detail, in his response … the appellant challenges the conditions of applicability of the above-mentioned norm. In particular, he denies having any close connection with Switzerland, apart from the fact that he was in that country on 20 October 2011, the day of his interrogation. Furthermore, according to him, the impossibility of his extradition is not fulfilled in the case at hand.
3.1 With regard to the close connection with Switzerland, the legislator has effectively made the presence of the presumed perpetrator in our country an essential condition for conducting legal proceedings in Switzerland for an act committed abroad (Art. 264m (1) of the PC …). This condition must be met at the time of the opening of the proceedings. As to whether this presence is required throughout the proceedings, jurisprudence related to Art. 5 and 6 of the PC excluded a judgment in absentia if the perpetrator left Switzerland prior to his trial … As pointed out by legal doctrine, however, this jurisprudence deserves to be put in question in the sense that if the prosecution is initiated while the perpetrator is in Switzerland, his later departure should not automatically exclude the jurisdiction of this country… With regard to the present case, this interpretation appears, for that matter, also to be the one of the letter of Art. 264m of the PC. Indeed, Art. 264m (2b) does not prescribe the immediate abandonment of legal action, but, if neither the offender nor the victim is of Swiss nationality, it gives the prosecuting authority the possibility to decide whether it wants to abandon or dispense with the proceedings if the perpetrator is no longer present in Switzerland and is unlikely to return. What is concerned here is the effectiveness of the prosecution of particularly serious offences, which, by their nature, are committed abroad by foreigners who come to Switzerland only occasionally or only transit through Switzerland. From this perspective, an overly strict interpretation of the condition of presence on Swiss territory would amount to allowing the perpetrator of the offence to decide on its prosecution. This is not what the legislator intended in adapting its national law to allow Switzerland to participate effectively in the international effort to punish human rights violations.
Consequently, the appellant’s presence in Switzerland at the time of his interrogation by the prosecutor is sufficient. The mere fact that he is currently no longer in our country is not sufficient to inhibit the proceedings opened by the OAG.
3.3 The appellant further challenges Switzerland’s jurisdiction by invoking the fact that he has no close link with our country. …
3.3.1 The requirement of a close link between the perpetrator and Switzerland had been introduced in Art. 9 of the MPC [Military Penal Code] on 1 June 2004 … This article remained in force until 31 December 2010. In 2008, during the legislative work concerning the introduction in the PC of the penal provision that allows to base Switzerland’s jurisdiction to prosecute the crimes of genocide, war crimes and [crimes] against humanity on the principle of universal jurisdiction by substitution (limited universal jurisdiction), the legislator gave up that requirement. HENZELIN moreover notes that the criterion of a close link is stipulated neither in the 1948 Genocide Convention … nor in the four  Geneva Conventions and therefore created, while it was applicable, a contradiction between Swiss law and these instruments of international law, for which reason it was not kept in the provisions of the PC in force since 1 January 2011 … This requirement, which is thus not included in Art. 264m of the PC, was abrogated notably for three reasons: legal inaccuracy, excessive limitation of national criminal jurisdiction in the prosecution of crimes of extreme gravity, and too restrictive contours in comparison to the solutions in other countries of Western Europe … In light of the intention clearly expressed by the legislator, the absence of a close link between the appellant and Switzerland must thus not prevent the continuation of the proceedings.
3.3.2 In his reply, the appellant further invokes the fact that if the notion of a close link was not stipulated in the legal texts at the time of the commission of the act he is being accused of, it nonetheless existed in customary law, …
The notion of a close link which was included in Art. 9 of the MPC had been introduced by the Federal Parliament in 2003 … It is clear from the parliamentary debates at the time that the reason for the modification was the situation in Belgium at the time, whose law on war criminals from the years 1993 and 1999 established the principle of universal jurisdiction without subordinating its application to the condition that the suspect was arrested in that country. The consequence of this was that the Belgian justice system was confronted with complaints submitted against foreign leaders, politicians and generals, raising very sensitive questions of jurisdictions and provoking conflicts with other States … It was precisely to avoid a similar situation that the members of the Federal Parliament chose to include the condition of a close link in the law … If there was a need to stipulate this requirement in law, it is because there was no such obligation, under customary law, to take it into consideration to prosecute a foreigner suspected of having committed a war crime … Moreover, KOLB underlines in this regard that the “condition of a close link does not codify long-term practice as it has been suggested; it introduces a new requirement” … Furthermore, the close link criterion is functionally unfamiliar in the area of international crimes. Indeed, in this area stemming from international law the idea is to exercise the criminal jurisdiction in the interest of the international community – in order to ensure a minimum of punishment and to eliminate safe havens … In addition, the requirement of a close link is in contradiction with the 1949 Geneva Conventions, of which Switzerland is the depositary. This requirement could in fact lead to a violation of the treaty obligation to criminally prosecute grave breaches [of the Geneva Conventions] if their perpetrator is present on the territory of a High Contracting Party. …
Finally, as rightly pointed out by the petitioners, … jurisprudence does not appear to have taken into consideration the close link requirement before its inclusion in the MPC in 2004. The judgment of 5 September 1997 of the Military Court of Cassation shows that the Military Court, division 1, never questioned its jurisdiction, although the suspected offender was only passing through Switzerland and had no other link with our country … Similarly, in a decision of 2004, when tasked to assess whether a criminal proceeding for the crime of genocide could be opened against an offender not of Swiss nationality, the Federal Department of Defence did not examine this question apart from considering the requirement of the perpetrator’s presence in Switzerland. It made no reference to another requirement, such as the existence of a close link…
Consequently, the appellant’s argument that there is the need to take into account the existence of a close link under customary law is misguided.
3.4 The appellant subsequently claims that the condition laid down in Art. 264m of the PC concerning the impossibility of the extradition of the offender is not met in the present case.
The Message relating to the implementation of the Rome Statute states in this regard that there cannot be a possibility of extradition of the alleged offender, even though he had committed an extraditable offence. In setting out this condition on persons not having the Swiss nationality, the legislator expresses the preference for criminal proceedings held in the State on whose territory the offence was committed (territoriality principle) or in the State of origin of the perpetrator (personality principle). In cases where extradition may be considered, and subject to other obstacles, the Swiss justice system is thus competent only if the other State explicitly or implicitly renounces opening of criminal proceedings. However, the Message also points out that a request for extradition will also be rejected where there is concrete evidence suggesting that the requesting State is unwilling or unable to genuinely prosecute the perpetrator, or that in case of extradition, the offender will not receive a fair punishment. In such cases, if the State on whose territory the crime was committed does not require extradition, the Swiss authorities may exceptionally waive the obligation to submit an explicit request … These developments reflect and confirm what the Swiss Federal Court had already specified … namely that if there is concrete evidence suggesting that the State where the crime was committed is not willing to seriously prosecute the offender or to impose a fair sentence, if the interests of Swiss victims would thus be left unprotected and if extradition is not requested, the Swiss authorities may exceptionally waive the obligation to submit an express request … As per the jurisprudence relevant for Art. 19 Chapter 4 of the Federal Act on Drugs – to which we may refer … as the article equally refers to the notion of “not being extradited” – the Swiss Federal Court specified that Swiss authorities have jurisdiction when extradition is not possible even if no request has been made by the foreign State. Furthermore, the Swiss Federal Court clarified that the rejection of any extradition request is sufficient to confer on Switzerland the obligation to prosecute and adjudicate the offence as per aut dedere aut judicare … Moreover the Swiss Federal Court noted that, in this context, the expression “not being extradited” shall simply mean that the offender is not transferred, regardless of the reasons behind it … A Swiss judge shall certainly ensure that, where extradition is not excluded, it will not be required … However, in an earlier case, the High Court had also stated that in exceptional circumstances, a judge may waive this obligation if it is not possible to obtain the views of the State concerned within a reasonable time period of time. This principle is therefore not intangible.
Furthermore, applicable treaties determine which is the prevailing principle, prosecution or extradition … The four Geneva Conventions of 1949, to which both Switzerland and Algeria are party, give priority to the prosecution over the transfer or extradition of the offender (Art. 49 GC I, Art. 50 GC II, Art. 129 GC III, Art. 146 GC IV). States Parties to these Conventions therefore verify whether potential war criminals find themselves within their sphere of influence and initiate proceedings against them … It also follows that if a State suspects that a war criminal could be arriving soon on its territory, it must conduct an investigation, even before any request for extradition could be made. It cannot rely on the supposed absence of the person from its territory to a priori deny its jurisdiction …
In this case, Algeria, informed about the interrogation of the appellant on 20 October 2011, approached the [Federal Department of Foreign Affairs] on the same day both in Algiers and in Bern to “express its serious concern” … Since then, as far as this Court is aware, Algeria has not approached the Swiss authorities again. Moreover, the appellant is no longer in Switzerland. In fact, after having been interrogated by the OAG, he left the country to return to Algeria where, as it seems, no legal procedure has been initiated against him. Such a prospect also appears unlikely in the future. Indeed, no action has ever been taken against those who held power during that critical period. Moreover, as per Art. 44 of the Order No. 06-01 dated 27 February 2006 concerning the implementation of the Algerian Charter for Peace and National Reconciliation, Algerian law states that citizens who, through their commitment and determination, helped to save Algeria and preserve the achievements of the country, have acted as patriots. Art. 45 specifies that: “No action may be taken, individually or collectively, against members of the defence and security forces of the Republic, in all components, for actions carried out for the protection of persons and property, the preservation of the country and of the institutions of the People’s Democratic Republic of Algeria. Any accusation or complaint shall be declared inadmissible by the competent judicial authority”. … In light of these provisions, it appears that no action can be currently taken in Algeria against senior officials who held power during the events that form the basis of the present legal procedure: it would be illegal. A request for extradition by Algeria concerning the appellant is thus impossible. It follows that the OAG had sufficient grounds to believe that no request for the extradition of the appellant would be made to Switzerland.
The condition laid down in Art. 264m of the PC according to which the perpetrator is not extradited, is therefore satisfied.
3.6 Finally, for Art. 264m of the PC to be applicable, the suspected offender must not be handed over to any international criminal tribunal whose jurisdiction is recognized by Switzerland.
In order to hand a suspect over to an international tribunal, it is sufficient that Switzerland recognizes the jurisdiction of the said court and that a request is made … In this case, as pointed out by the OAG, there is no special international tribunal for Algeria. Furthermore, according to Art. 12(2) of the  Rome Statute, the International Criminal Court (hereinafter: ICC) may exercise its jurisdiction only where the State on whose territory the crime of genocide, crime against humanity or war crime was committed, or the country of which the perpetrator is a national, is a party to the Rome Statute. In other words, the ICC has in principle no jurisdiction when a crime has been committed on the territory of a State and by a national of a State that is not party to the Statute … Algeria is not a party to the Rome Statute. Therefore, as the ICC does not have jurisdiction over the present case the last condition for the application of the abovementioned Article is therefore also fulfilled.
3.7 In light of the foregoing considerations, contrary to what the appellant argues, nothing prevents the application of Art. 264m
of the PC to the present case.
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
The  Geneva Conventions and the  UN Convention on Torture oblige the States Parties to prosecute serious infringements against both conventions. This obligation is based on the principle of universal jurisdiction and thus applies if the crime takes place in another country and is not against or by a national of that state.
Accordingly, under certain conditions, Swiss legislation considers cases of grave violations against the Geneva Conventions, genocide, other war crimes and torture as falling under Swiss criminal jurisdiction on the basis of the principle of universal jurisdiction.
[footnotes in original omitted; emphasis in original]
In 2008, in its sixth periodic report to the Committee against Torture, Switzerland stated:
E. Universal jurisdiction
The military justice system has had occasion, on the basis of article 3 (1), sect. 9, and articles 108 to 114 of the Military Criminal Code, to prosecute and try alleged war criminals (violation of the Geneva Conventions of 12 August 1949). During the reporting period, the military courts handled 25 such cases. Of the 14 cases concerning the former Yugoslavia, 11 were filed, one was dropped for lack of evidence, one went to trial and resulted in an acquittal in 1997 and one is still pending. Of the six cases concerning Rwanda, three were filed, two were transferred to the International Criminal Tribunal for Rwanda and one ended in a conviction. Of the two cases concerning Sierra Leone, one was filed and the other was the subject of reciprocal judicial assistance. Three other cases concern two more countries (Congo and Côte d’Ivoire).
In 2012, in its Report on Foreign Policy 2011, Switzerland’s Federal Council stated:
To increase its ability to prosecute perpetrators of the most serious crimes, [Switzerland] has proceeded to modifications of its penal code, which entered into force on 1 January 2011. The main modifications are … a more precise definition of war crimes … and the suppression of the condition of a “close link” concerning the exercise of universal jurisdiction for war crimes.
[footnote in original omitted]
In 2012, in its combined second, third and fourth periodic reports to the Committee on the Rights of the Child, Switzerland stated:
536. … As there were many objections to the criterion of a “close link”, the Federal Council decided to remove it when the laws on the implementation of the  Rome Statute of the International Criminal Court were revised. A limited principle of universality has been established for prosecutions of war crimes, under which the suspected perpetrator must be present in Switzerland and there must be no prospect of extraditing him or her. Subsidiary procedural law measures must guarantee that Switzerland can suspend or terminate proceedings by default where there is no link with our country and no chance of success. There must, however, be a possibility of taking steps to preserve evidence so as to ensure that Switzerland does not give war criminals safe haven. The revision of article 10, paragraph 1bis
, of the Military Criminal Code was approved by the National Council with minor modifications in spring 2009 and entered into force on 1 January 2011.
[footnote in original omitted]
In 2012, in a statement during the opening session of the International Conference on the Protection of Cultural Property, the ambassador of Switzerland stated:
[O]ne of the main challenges – in all likelihood the
main challenge – of international humanitarian law is lack of respect. As seen on many occasions, in times of armed conflicts, respect for the law is often weak. We firmly believe that in order to prevent future violations, there must be accountability for violations. Perpetrators of serious crimes must not go unpunished. Therefore, it was a primary objective of the Swiss delegation to include the principle of universal jurisdiction for grave breaches of provisions protecting cultural property in the draft of the Second Protocol.