1 Niyonteze v. Public Prosecutor (Trib. militaire de cassation Apr. 27, 2001), at <http://www.vbs.admin.ch/internet/OA/d/urteile.htm> [hereinafter Cassationjudgment], see infrano\.es 25–28 and accompanying text. The trial .court—the Tribunal militaire, Division 2, in Lausanne, Switzerland—rendered its decision on April 30,1999 (Trial judgment), see infra notes 12–20 and accompanying text. That decision was reviewed by the appeals court—the Tribunal militaire d’appel 1 A, in Geneva—on May 26, 2000 (Appeals judgment), see infra notes 21–22 and accompanying text. All decisions are in French. The Trial judgment and Appeals judgment are on file with author. Translations throughout the case report are by the author unless otherwise indicated.

2 As such, it undoubtedly strengthens the process of international criminalization of internal atrocities. See Theodor Meron’s seminal article, The International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).

3 In 1994, Switzerland had expelled an alleged Rwandan genocidaire. See Andreas Ziegler, Domestic Prosecution and International Cooperation with Regard to Violations of International Humanitarian Law: The Case of Switzerland, 1997 Revue Suisse de Droit Internationale et de Droit Europeen 561. In 1995, Switzerland had to defer to the International Criminal Tribunal for Rwanda with respect to criminal proceedings against another Rwandan refugee. Prosecutor v. Musema, Application by the Prosecutor for a Formal Request for Deferral by Switzerland, No. ICTR-96–5-D (Mar. 4, 1996). The conviction in the instant case was preceded by an acquittal in 1997 by a Swiss court of a citizen from the former Yugoslavia accused of violations of the laws and customs of war during the Balkan war, In re G[abrez] (Trib. militaire, Div. 1,1997), see Ziegler, Andreas R., Case Report: In re G.!, 92 AJIL 78 (1998)CrossRefGoogle Scholar.

4 The UN Security Council, SC Res. 978 (Feb. 27, 1995), had urged states to take legal action against persons found within their territory against whom there was sufficient evidence that they were involved as perpetrators of the 1994 events in Rwanda. Switzerland is regarded as the cradle of international humanitarian law, and the Swiss Federal Council is the depository of the 1949 Geneva Conventions and Additional Protocols.

5 Rwanda and Switzerland have an extradition agreement, but Swiss federal law on international assistance in criminal matters bars extradition if the requesting state cannot guarantee that the extradited person will not be executed or submitted to any treatment affecting his or her physical integrity. The Rwandan special genocide law, Loi organique No. 8196 du 30/8/96 sur l’organisation des poursuites des infractions constitutives du crime de genocide ou de crimes contre l’humanite, commises a partir du ler Octobre 1990, at<http://www.asf.be/AssisesRwanda2/fr/fr_JUSTICE_loiorganique.htm>, however, provides the death penalty for certain categories of genocidaires.

6 The defendant was in France from mid-March to mid-May, 1994.

7 This summary of the factual allegations is adapted from the Cassation judgment, supra note 1, at 2.

8 Id. at 3.

9 Swiss military penal law (Code Penal Militaire, or CPM), both substantive and procedural, is applicable to violations of international humanitarian law. The Swiss military judiciary, apart from its head, comprises civilian lawyers who are performing their annual mandatory military service. CPM Articles 9(1) and 108 endow the Swiss military courts with universal jurisdiction. Schouwey, SecDominique, Crimes de guerre: Un etat des lieux du droit Suisse, Revue Internationale de Criminologie et de Police Technique 46 (1994)Google Scholar. The CPM is available online at <http://www.admin.ch/ch/f/rs/32.html>.

10 Convention [No. I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12,1949, Art. 3, 6 UST 3114, 75 UNTS 31; Convention [No. II] for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12,1949, Art. 3,6 UST 3217, 75 UNTS 85; Convention [No. Ill] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 3, 6 UST 3316, 75 UNTS 135; Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949, Art. 3, 6 UST 3516, 75 UNTS 287.

11 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signatureDec. 12, 1977, 1125 UNTS 609.

12 Trial judgment, supra note 1.

13 Switzerland has since ratified and implemented the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,1948, 78 UNTS 277. A new Article 264 in the Swiss criminal code—which entered into force on December 15, 2000—makes genocide a crime under domestic law and grants universaljurisdiction to the Swiss civilian courts if the suspect is in Switzerland and cannot be extradited (“s ‘il se trouve en Suisse et qu ‘il nepeut etre extrade”).

14 The maximum sentence for murder and incitement to murder is life imprisonment (CPM Article 116(1)), whereas war crimes are punishable by a maximum of twenty years’ imprisonment (CPM Articles 28 and 109(1)).

15 CPM Article 109, the core provision regarding war crimes, provides:

Violations of the Laws of War:

• (1)

  (1) Whoever acts contrary to the provisions of any international agreement governing the laws of war or the protection of persons and property, or whoever acts in violation of any other recognized law or custom of war shall be punished with imprisonment except in cases where other provisions involving more severe sanctions are applicable. For offences of high gravity the penalty is penal servitude.

• (2)

  (2) For offences of little gravity, the punishment can consist of a disciplinary sanction.

1 International Yearbook of International Humanitarian Law 512 n. 190 (1998) (emphasis added).

16 The trbunal adopted measures to guarantee the confidentiality of the testimony of defense eyewitnesses.

17 The exceptions were the killing of a particular individual under the second set of allegations and the distribution of weapons to facilitate the massacres under the third set of allegations.

18 A Canadian case against a Rwandan refugee also dealt with the interpretation of a public speech and the cryptic meaning of certain terms. See Schabas, William A., Case Report: Mugesera v. Minister of Citizenship and Immigration!, 93 AJIL 529 (1999)CrossRefGoogle Scholar.

19 CPM Article 108 provides:

• (1)

  (1) The provisions of this chapter are applicable to declared wars and other armed conflicts between two or more states . . . ;

• (2)

  (2) The violation of international conventions is also punishable if they have a wider field of application.

20 Trial judgment, supra note 1, at 134.

21 Appeals judgment, supra note 1.

22 The appeals tribunal explained, id. at 33, that Article 109(1) is not intended to subject a civilian to the general application of military penal law. In fact, the provision addresses itself to persons ordinarily subject to the military penal law and aims to prevent such a person from claiming that he can be punished only under the Geneva Conventions and thereby get around the possible application of the more severe military penal law.

23 See supra note 14.

24 See Appeals judgment, supra note 1, at 44:

25 Cassation judgment, supra note 1.

26 Id. at 43.

27 Id. at 42.

28 It found, however, that in the initial trial, the tribunal had erred in ordering the defendant’s expulsion after the execution of the prison sentence without having considered a suspension (sursis) of the measure. This partial cassation of the judgment does not affect the guilty verdict or the sentence of imprisonment.

29 Prosecutor v. Akayesu, No. ICTR-96–4-T, Judgment (Sept. 2, 1998); see Marie Amann, Diane, Case Report: Prosecutor v. Akayesu!, 93 AJIL 195 (1999)CrossRefGoogle Scholar.

30 Prosecutor v. Akayesu, paras. 258, 267.

31 It is noteworthy that the allegation that the prosecution witnesses belonged to a “syndicate of informers” was brought forward by the same witness in both cases.

32 For the context of the 1994 events, the tribunal also tookjudicial notice of the works of Gerard Prunier, Alain Ribaux, and Allison Des Forges (in particular, “Leave None to Tell the Story “: Genocide in Rwanda (1999)).

33 Prosecutor v. Akayesu, paras. 642–44. Trial chamber II later followed the narrow definition of war crimes. See Prosecutor v. Kayishema, No. ICTR-95-l-T Judgment, paras. 173–75, 185–89, 604–24 (May 21,1999). In AAoyesu, the appeals chamber rejected the trial chamber’s definition of war crimes as too narrow. Prosecutor v. Akayesu, No. ICTR-96–4-A, Judgment, paras. 444–45 (June 1, 2001).

34 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprintedin 33 ILM 1602 (1994).

35 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993).

36 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3.

37 In re Gfabrez] (Trib. militaire, Div. 1, 1997) (Switz.). See supra note 3.