Switzerland’s Universal Jurisdiction Constitutes Legal Overreach

On July 25, The Jerusalem Post reported that former Prime Minister Ehud Olmert suddenly decided to cancel a scheduled visit to Switzerland. The reason for this decision was not a scheduling conflict, or a health emergency, or any of the many other reasons that routinely compel people to change travel plans. Instead, the “Foreign Ministry had received a statement from the Swiss authorities saying he will be taken in for questioning on suspicion of war crimes during IDF operations in Gaza while he was prime minister.”

The Swiss government’s notice to Israel is essentially an assertion that during the 2008 Operation Cast Lead, the IDF under Olmert’s command as prime minister not only committed serious war crimes, but they did so with a level of impunity necessitating Swiss action. It also suggests the Swiss government might believe such crimes are attributable to Olmert. Such assumptions are dubious at best, if not outright invalid.

Switzerland enacted legislation since 2011 allowing its courts to exercise what is known as “universal jurisdiction” over war crimes, crimes against humanity and genocide, regardless where they were committed or who was involved. Any questioning would likely be related to consideration of invoking this law to prosecute Olmert or other Israeli military or civilian officials. And while there is no way to know the end results of such questioning, Olmert’s decision to cancel his trip suggests that both he and the Israeli government perceived the Swiss action as representing a genuine risk that Swiss prosecutors will in fact pursue such cases.

It may seem surprising that a state like Switzerland would have either an interest or a right to prosecute officials – civilian or military – for alleged violations of international law committed in the midst of a war in which it was no way involved. But the animating idea behind universal jurisdiction is that some violations of international law are so egregious they offend all members of the international community equally, thereby allowing any state to bring alleged wrongdoers to justice.

This concept of universal jurisdiction is not new. For centuries, individuals who violated universally recognized norms of the “law of nations,” or international law, were considered “enemies of the human race” (hostes humani generis), thus subject to prosecution by any state into whose jurisdiction they ventured. Piracy, which prompted the concept, is probably the best example of this jurisdictional concept. Today, however, it has expanded to include a number of other international law violations, including serious war crimes. As a result, there is nothing inherently invalid about a state enacting laws that allow for the prosecution of alleged war crimes and other serious crimes such as genocide, even if that state has no connection to the conflict or nationality link to the defendant or the alleged victims. Indeed, Israel itself provided an iconic example of the use of this universal jurisdiction concept when it successfully prosecuted the infamous Nazi war criminal Adolf Eichmann.

Olmert’s situation raises a difficult and important question: What evidentiary threshold, if any, should a state be expected to satisfy before it invokes or threatens to invoke universal jurisdiction? And when the target of investigation is a current or formal official from another state, should the investigating state be expected to share the basis for its suspicion with officials of that state?

We struggle with the premise that IDF actions during Operation Cast Lead satisfy even a minimal evidentiary threshold that would justify Switzerland asserting criminal jurisdiction over Israeli officials. While we have not studied that conflict specifically, we share extensive knowledge on IDF military operational practices and its deep commitment to compliance with international law. We have repeatedly seen evidence of the IDF’s abiding adherence to the law of armed conflict, even when fighting non-state armed groups which show virtually no interest in reciprocal compliance. This includes our involvement (along with a number of other retired senior US flag officers and military legal advisers) in an extensive review of operational and tactical aspects of the 2014 Gaza campaign (Operation Protective Shield), as well as IDF practices related to investigating and prosecuting their own personnel for violations of both Israeli and international law.

That review led to a consensus conclusion among the all US military officers who joined us in that process: The IDF demonstrated a consistent good-faith commitment to the law of armed conflict and often exceeded its requirements through the imposition of far more restrictive rules of engagement during that entire campaign. This commitment began at the highest levels of strategic command and permeated every level of operational and tactical decision-making. Furthermore, when there were credible indications that IDF personnel violated law or policy, the independent military advocate general (the IDF’s top lawyer, who is independent from the chain of command) ensured prompt and comprehensive review and, where appropriate, disciplinary action.

Of course, we also know from our own experiences that no military organization is perfect, and that both mistakes and, to a lesser extent, misconduct occur in war. But the IDF’s overall commitment to legal compliance and accountability for members of its forces who deviate from this commitment is beyond question. This commitment to the law stood in stark contrast to the enemies the IDF confronted in Gaza. Indeed, in our estimation, Hamas and other organized armed groups engaged in this conflict against Israel not only routinely ignored the most basic principles of the law of armed conflict, they sought to exploit what they knew would be the IDF commitment to the law.

There is, of course, no disputing the fact that the combat operations in Gaza during Operation Cast Lead resulted in substantial destruction of property and the death or injury of a large number of civilians. But if this becomes the touchstone for alleging war crimes and invoking universal jurisdiction, US commanders have much to be concerned about. Why? Because these unfortunate effects of combat operations are often unavoidable – particularly when fighting groups that exploit civilians and civilian property. However, compliance with the law cannot be judged based on the effects of combat. While they are not irrelevant, effects simply cannot be considered legally determinative.

Compliance instead must be judged by considering the complexity of the battle-space from the perspective of the commander at the time each attack decision was made. This judgment, importantly, includes consideration of the measures the commander took to mitigate risk to civilians and civilian property. When viewed through that appropriate lens, the ledger sheet for the IDF in no way supports a credible allegation of widespread and serious war crimes that would justify a threat of invoking this type of jurisdiction.

Ultimately, it is unfortunate that a state like Switzerland would seem to fall into the all too common trap of engaging in “effects-based” conclusions about compliance with the law of armed conflict. This move will not strengthen the notion of accountability inherent in the concept of universal jurisdiction; it will undermine it. This is because other states, including the United States, will be increasingly skeptical about this notion of jurisdiction. Indeed, this incident reveals why the US has been so opposed to such jurisdiction – opposition that influenced the US decision to walk away from the International Criminal Court and Congress’s decision to reject universal jurisdiction in its domestic legislation, the US War Crimes Act, even though the 1949 Geneva Conventions calls on all treaty states to adopt such law.

Of course, serious war crimes should be carefully investigated and those responsible for such crimes should be held accountable for their offenses. Universal jurisdiction, when credibly invoked, positively contributes to that accountability. But if every unfortunate outcome of military operations conducted by the armed forces of a state committed to good-faith compliance with this law becomes the trigger for invoking such jurisdiction, the principle will become self-defeating, as it will lead states to oppose the assertion of such jurisdiction.

So before Switzerland threatens to interview someone like Olmert about what it believes were serious war crimes committed under his watch, its officials should explain the basis for this suspicion and for the conclusion that the assertion of universal jurisdiction is necessary to prevent serious war criminals from escaping responsibility. We doubt such a case can be made.

Lt.-Gen. Eric E. Fiel, USAF (ret.) is former commander, Air Force Special Operations Command, Hurlburt Field, FL, and a member of the Jewish Institute for National Security of America’s Hybrid Warfare Policy Project. Geoffrey S. Corn is a retired army lieutenant-colonel, a former military attorney and intelligence officer, the Vinson & Elkins Professor of Law at South Texas College of Law Houston, and a distinguished Fellow for JINSA’s Gemunder Center for Defense and Strategy.

Originally appeared in The Jerusalem Post on August 8, 2019.