Federal Supreme Court, 09.28.2026,6B_254/2024
Facts
Between 1993 and 1995, during the First Liberian Civil War, A., a member and commander of the ULIMO armed faction, participated in numerous atrocities against civilians: murders, rape, cruel treatment, looting, forced transport, and the use of a child soldier. Prosecuted in Switzerland starting in 2014, he was sentenced in the first instance to twenty years of imprisonment for violations of the laws of war. On appeal, this conviction was upheld and supplemented by a guilty verdict for crimes against humanity underArt. 264a SCC. Both A. and the Office of the Attorney General of Switzerland (OAG) appealed to the Federal Supreme Court (considerations 5.2.2 and 5.3.3).
Law
The principle of legality (Art. 1 SCC) requires that a criminal conviction be based on a sufficiently precise legal foundation. The principle of non-retroactivity (Art. 2 para. 1 SCC) prohibits the application of a criminal provision to acts committed before it entered into force, except where provided by law, particularly when the new law is more favorable. Customary international law cannot, by itself, serve as the basis for a criminal conviction under Swiss law (considerations 5.1.1, 5.1.2, and 5.3.3).
Art. 264a SCC, which criminalizes crimes against humanity, entered into force on January 1, 2011.Art. 101 para. 3 SCC provides for a limited temporal application of the imprescriptibility of these crimes, but does not allow for the retroactive application of the criminal provision itself. The retroactivity of statutes of limitation must therefore be distinguished from that of substantive criminal law (considerations 5.1.3.4 and 5.3.4.3).
Application to the specific case
The acts attributed to A. occurred prior to 2011. Although crimes against humanity were recognized under international law, no Swiss provision at the time specifically criminalized them. Common law offenses and war crimes did not share the same legal identity as Art. 264a SCC. Furthermore, no transitional provision authorized its retroactive application. The conviction for crimes against humanity therefore violated Arts. 1 and 2 SCC (considerations 5.3.3 and 5.3.4).
Conversely, the claims regarding ineffective defense, modification of the indictment, and arbitrary assessment of evidence were rejected. The defense was effectively provided, the indictment contained the essential elements, and the assessment of evidence was not manifestly unsustainable (considerations 3, 4, and 6).
The duration of the proceedings, while considerable, was justified by their exceptional complexity, the difficulties of mutual legal assistance, and the pandemic. No violation of the principle of speed was found (consideration 7).
Outcome
The Federal Supreme Court rejected the OAG's appeal and partially upheld A.'s appeal, acquitting him of crimes against humanity. The convictions for war crimes remain intact, as do the twenty-year sentence, the ten-year expulsion, and the civil claims. The case is remanded to the Court of Appeal solely for the purpose of re-examining procedural costs and compensation (considerations 5.4 and 8).