The Use of Universal Jurisdiction in Switzerland: Progresses and Pushbacks in Judging Crimes Against Humanity

[Benoit Meystre is a Swiss lawyer and legal advisor at the International Investigations and Litigation Program of TRIAL International.]

TRIAL International filed a criminal complaint against Ousman Sonko in 2017. The organisation supported nine plaintiffs who traveled to Switzerland in January 2024 to be heard by the court. It also ensured the regular publication of summaries of the hearings throughout the trial and advocated for the proceedings to be translated and made accessible to victims and the Gambian population.

On 15 May 2024, the Swiss Federal Criminal Court delivered a historic verdict, convicting Ousman Sonko, former Gambian Minister of Interior, of crimes against humanity. This was the second proceeding for international crimes in Switzerland based on universal jurisdiction. At the time, it was also the second trial in history to address crimes committed in The Gambia under the dictatorship of Yahya Jammeh based on the same principle. In the reasoning made public on 12 June 2025, the Swiss court carried out a rigorous piece of work and set or confirmed important legal precedents in many aspects. But the judgment also carries worrying pitfalls, which cast a shadow on its strengths. This blog post aims at highlighting both these progresses and pushbacks.

Introduction: A Historic First-Instance Ruling

The first instance trial, which took place between January and March 2024, was the culmination of proceedings that had begun seven years earlier: Ousman Sonko was arrested in 2017 following a denunciation by TRIAL International. In April 2023, after having heard dozens of witnesses in Switzerland and in The Gambia, the Office of the Attorney General of Switzerland (OAG) formally indicted him for having conducted or participated – between 2000 and 2016 – in three murders, seventeen acts of torture, eleven cases of unlawful detention as well as numerous rapes and acts of sexual violence against ten complainants and other victims, as part of a systematic and widespread attack carried out by Yahya Jammeh’s regime against the Gambian population (SK.2023.23 para. 2). 

The First instance Trial Chamber of the Swiss Federal Criminal Court (FCC) – the Swiss court responsible for judging international crimes – found Ousman Sonko guilty of most of these charges. It notably sentenced him to 20 years’ imprisonment – the maximum punishment the court could impose – and ordered him to compensate the plaintiffs. This conviction confirms the criminal responsibility of one of the most senior figures in Yahya Jammeh’s regime and participates in shedding light on over two decades of repression suffered by the Gambian population. It also highlights universal jurisdiction as a legal tool for effectively combating impunity for international crimes.

The Sonko Proceedings in Context

The Sonko proceedings and the resulting conviction are of major importance for The Gambia insofar as, like the recent trials and convictions of two other Gambians abroad, they should resonate within the transitional justice process underway in the country. The two cases referred to here are those of 1. Bai Lowe, a former member of the paramilitary unit Junglers, known for having perpetrated atrocities on the orders of the former president, sentenced to life imprisonment in Germany on 30 November 2023 for crimes against humanity; a conviction confirmed in appeal by the German Federal Court of Justice on 29 November 2024 and 2. Michael Sang Correa, another former Jungler convicted on 15 April 2025 in the United States of several acts of torture committed in 2006 in The Gambia. His sentencing hearing is scheduled for 22 August 2025 in Denver, Colorado.

Since the fall of Yahya Jammeh in 2017, The Gambia has embarked on a long process of truth and reconciliation. This first materialized through the establishment of a Truth, Reconciliation and Reparations Commission (TRRC), which completed its work in 2021 by recommending the criminal prosecution of 69 individuals, including the former president; and then through the adoption of an implementation plan (2023-2027) for these recommendations. In April 2024, two major laws were passed to set up a special judicial mechanism to try the crimes of the Jammeh regime. Work is now under way to operationalize the office of the Special Prosecutor and a special division within the Gambian High Court of Justice, while the statutes of a hybrid court were adopted by ECOWAS in December 2024.

A Judicial Recognition of the Repression under Yahya Jammeh and of the TRRC’s Work to Uncover the Truth

Throughout the 445 pages of the judgment’s reasons (handed down in German and not translated by the court), the FCC has carried out a rigorous – and in this respect remarkable – piece of work aimed at shedding light on the repressive workings of the Jammeh presidency. But also, on the mechanisms put in place to foster the oppression of the population – in particular all those whom the former president considered a threat – from the 1994 coup d’état that brought the aforementioned to power until his dismissal in 2016 (SK.2023.23 para. 4.2). On the basis of extensive evidence (including testimonies, governments, NGO and United Nations reports, media archives, TRRC reports and Gambian judicial acts obtained through mutual legal assistance), the FCC replaced the accusations against Ousman Sonko in a broader historical, political and institutional context. In this way, it demonstrated the extent to which the legal system (numerous decrees violating the constitution having been adopted under Jammeh; SK.2023.23 para. 4.5), the judiciary (impunity for crimes committed by the government in power and judicial interference having been total under Jammeh; SK.2023.23 para. 5.1.8.1) and the security services, including the Police, the National Intelligence Agency, the Army, the State guard, the Prison authorities and the Junglers served the cause of repression and reinforced the systematic nature of the violence committed by the regime against its population.

In this context, the Sonko proceedings in Switzerland reinforce the major role played by the TRRC in its truth-finding work and – generally speaking – the relevance of such Commissions in judicial processes. A total of 393 people, including victims, former government officials and members of various security forces, testified before the Commission, over 871 days of hearings relayed publicly (SK.2023.23 para. 4.4). In fact, the TRRC’s final report, published in 2021, and several public hearings of key individuals before the TRRC were debated during the investigation and at the Ousman Sonko trial in Switzerland. While it should be remembered that the work of the TRRC is not to be considered a judicial investigation in the formal sense (because of the non-application, during this process, of cardinal rules, particularly in relation to respect for the rights of the defense in criminal proceedings) and that it cannot, therefore, be used as a first hand source of evidence – a point to which the FCC was very attentive – it is clear from the judgment that it enabled the panel of Swiss judges to gain an in-depth understanding of the Gambian contextual, social and cultural aspects.

International Law as a Compass for the Prosecution of Crimes Against Humanity in Switzerland

Among all the legal considerations of the Sonko judgment, what should be commended is the importance given to international law, including customary law, in examining Switzerland’s jurisdiction to prosecute and judge crimes against humanity. Following – and hence validating – existing Swiss case law in this regard (the Kosiah case first paved the modern Swiss case law: first instance judgment SK.2019.17 of 18 June 2021 and appeal decision CA.2022.8 of 30 May 2023; currently pending before the Swiss Federal Court), the FCC recalled that despite the absence of a written provision in Swiss law in the year 2000 (the moment of the first crimes which Ousman Sonko was accused of), crimes against humanity were already defined and punished by international customary law and that there was already a universal duty to prosecute these crimes. The Tribunal’s approach was based on customary international law as a source of criminal law and on the 1945 Statute of the International Military Tribunal and in the Statutes of the International Criminal Tribunals for the former Yugoslavia (1993) and for Rwanda (1994) and the Rome Statute (1998), which reflect the state of customary international law.

As a result, Switzerland’s jurisdiction to prosecute and judge the facts based on a retroactive application of the new art. 264m of the Swiss Criminal Code (SCC), which entered into force on 1 January 2011, was deemed possible. This welcome confirmation of case law paves the way for other trials that could concern long-standing international crimes, which is gratifying from the point of view of the fight against impunity.

To the same extent, on the merits, the substantive provision punishing crimes against humanity under Swiss law was applied retroactively to try the acts Ousman Sonko was accused of before it came into force on 1 January 2011. The FCC held that this could be the case under the following conditions:

• The crimes in question were already punishable under international law at the time they were committed (in casu from 2000);
• Their constitutive elements were sufficiently clear and accessible to the perpetrator at the time of commission;
• The acts corresponded to an offence under ordinary (Swiss) criminal law at the time;
• Said offense was not time-barred on 1 January 2011 (art. 101 par. 3 SCC).

Following this methodology, the FCC excluded a charge of rape allegedly committed in January 2000, as the statute of limitations had expired in the instance and the Swiss provision repressing crimes against humanity was applied to all other charges committed between 2000 and 2011, however, not without shortcomings (see below for an analysis of the sexual violence charges that overcame the time limitation), as well as, obviously, to events occurring after this date.

Conditions of Detention Constituting Acts of Torture

The recognition of conditions of detention reaching the threshold of suffering required for torture as a crime against humanity constitutes another precedent of historic value (SK.2023.23 para. 8.5.2.3). Indeed, the Sonko judgment enshrines the fact that poor detention conditions (victims held in cramped, unhygienic cells with no sanitary facilities, no place to sleep, insufficient food, no right to leave the cells, no access to a lawyer, no access to the care they needed and no family visits) institutionally imposed on those who were targeted by the authorities, after they had been tortured, without access to health care and while kept in fear of being tortured again (a parallel was made here with the judgment of the ICC Trial Chamber IX, Prosecutor v. Ongwen, ICC-02/04-01/15 of 4 February 2021, § 2830 and seq) had caused considerable suffering that reached the threshold required to be considered, as such, as torture.

To reach this conclusion, the FCC carefully examined not only international criminal case law (which included a wide-ranging examination of the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR)), but also looked at the question from a human rights perspective with regard to the decisions handed down by the Human Rights Committee (responsible for the application of the UN Covenant on Civil and Political Rights of 1966) as well as from the point of view of the provisions relating to international humanitarian law, in particular the Geneva Conventions of 1949.

Such a ruling is in line with the Committee against Torture’s case law, and in particular with the recent decision CAT/C/82/D/967/2019 (para. 7.1 ff) which must be commended.

Ousman Sonko was found guilty of having committed this offense in dolus eventualis as he was Minister of the Interior in supervision of the prison services, at the time of the events. Such reasoning represents a crucially important precedent from the point of view of the individual criminal liability of those who occupy a higher hierarchical position as it sends a clear and welcomed signal to senior government officials that would allow poor detention conditions taking place: these may be constitutive of torture for which they may have to answer to before a court of law.

Victims of Sexual Violence not Recognized in the Verdict

As we have seen, the Sonko ruling sets several welcome precedents. But it also contains some worrying pitfalls, that unfortunately detract from its strength. This is particularly true of the way in which sexual violence was examined by the FCC, an aspect that has already been discussed publicly and criticized, but which deserves to be highlighted again.

With regard to the accusations of rapes perpetrated on one (same) victim between 2000 and 2002 and again in 2005, the court found that she – although her husband was murdered as an alleged coup plotter in 2000 – did not fall within the category of persons who were actually persecuted by the regime (alleged participants in a coup, journalists, politicians, activists or critics) and that it did not emerge from the case file – not, in particular from the TRRC report or other NGO and government reports – that sexual violence had been used by the Jammeh regime as a weapon of repression. 

The FCC merely noted that “[t]he fact that women were socially oppressed in the Gambia under Jammeh’s reign and that he showed indifference to women’s rights and equality […] does not yet constitute an attack against the civilian population within the meaning of international case law” (SK.2023.23 para. 5.4.2.3).

As a result, according to the court, these acts of rape could only be considered as isolated assaults and so called privately motivated crimes outside the scope of crimes against humanity, which do not fall under its jurisdiction. As a reminder, in Switzerland, rape and other forms of sexual violence can only be prosecuted on the basis of universal jurisdiction if they are considered part of the contextual elements of the crimes against humanity. Without such link, the court lacks jurisdiction to prosecute a rape committed abroad, by a non-Swiss national on a non-Swiss victim.

Following the same line of argument, the court was of the opinion that, in the absence of evidence to show that rape or sexual violence were used as a method of torture under Jammeh at the time of the events, it was held that a rape committed by some Junglers during a torture session on another victim in 2006 should also be considered as an isolated act, which the court could not judge for lack of jurisdiction.

Another shortcoming related to this same issue concerns the way in which the FCC judged the electric shocks imposed on the genitals of another victim: in a insufficiently motivated reasoning, it was held that such acts constituted torture but that they did not, simultaneously, constitute attacks on sexual self-determination, insofar as, according to the FCC, the Junglers who had perpetrated these acts were not motivated by sexual considerations in acting (SK.2023.23 para. 8.3.4.1).

With such reasonings, the FCC unfortunately missed the opportunity to recognize and sanction the use of sexual violence as a weapon of repression and terror. Unlike on other aspects of the judgment, it highlights a misunderstanding of the Gambian context by the court, where sexual violence was in fact deeply rooted in the structure of the State and its institutions, right up to the highest-ranked individuals of the regime. With this unsatisfactory ruling at hand, the plaintiffs who survived such violence were denied recognition of their suffering. This is to be strongly regretted, just like it is that the court did not undertake a thorough examination of the systemic nature of sexual violence under Jammeh’s regime, in which Ousman Sonko occupied a key position.

In this sense, the Sonko judgment unfortunately fails to align with international case law that recognizes rapes and sexual gender-based violence as instruments of persecution to commit war crimes and/or crimes against humanity and/or torture (for example: ICC, Appeal Chamber, Prosecutor V. Dominic Ongwen of 15 December 2022, ICC-02/04-01/15 A, ICTY, First instance Chamber, Prosecutor V. Anto Furundzija, Judgment of 10 December 1998, IT-95-17/1-T; ICTY, First instance Chamber, Prosecutor V. Zejnil Delalic at al., Judgment of 16 November 1998, IT-96-21-T.

The Nature of the Attacks on the Gambian Civilian Population

The offence of crimes against humanity may be considered where there is, alternatively, a systematic or widespread attack against the civilian population. In the Sonko case, the FCC was of the opinion that only the systematic nature of the attack was supported by sufficient evidence material to be considered as proven, whereas it judged that its widespread nature was not, contrarily to what the TRRC had previously reported. The FCC based its decision on the fact that:

• The number of victims recorded during the Jammeh regime was not of sufficient magnitude in the light of international jurisprudence;
• The total duration of the repression – 22 years in this case – did not play a role in the assessment of the notion; and
• The argument according to which, in The Gambia, an “extended family system” implied that a crime indirectly affects a greater number of people than in Western Europe had to be rejected (SK.2023.23 para. 5.4.1.5).

While this question does not dramatically affect the outcome of the case, as Ousman Sonko was convicted of having participated in a systematic attack on the Gambian population and hence, of crimes against humanity, it certainly carries weight for the many victims of the regime, and once again stems from a regrettable, contextual misunderstanding by the FCC.

An Example of “Aggravated” Crimes Against Humanity?

In Swiss criminal law, article 264a par. 2 SCC contains an aggravating factor enabling the court to impose a life sentence on the perpetrator if the act is deemed “particularly serious”, which would be the case, according to the legal wording, notably if it affects a large number of people or if the perpetrator has acted with cruelty.

For the first time in Swiss judicial history, the FCC was asked to examine the application of this provision. After recalling that crimes against humanity are, by nature, serious offences and examining the question of aggravating circumstances under the Rome Statute (whose definition differs from that of Swiss criminal law), the court ruled that none of the legal criteria listed in the Swiss provision were met. It also ruled that the criteria deriving from international case law – such as the hierarchical level of the perpetrator or the psychological impact of the crime on the victims as being influential in the examination of the aggravated offense – were not considered sufficient to allocate the aggravating circumstance of article 264a par. 2 SCC to Ousman Sonko (SK.2023.23 para. 8.6).

Having in mind the fact that Ousman Sonko was a key actor of the repression during many years, a close ally of the President-Dictator and recalling the broader Gambian context under Jammeh – considered by the court itself as a veritable “reign of terror” (SK.2023.23 para. 5.3.1) – it seems that the FCC took a too cautious move here, in simply refusing to set a threshold for the aggravated crimes against humanity in Swiss case law, which, again, is regrettable.

The Issues of Accessibility of Universal Jurisdiction Trials

In a general consideration regarding the conduct of the trial of Ousman Sonko, and in particular the superficial interpretation offered, it will be recalled how important universal jurisdiction trials are, first and foremost, for the affected communities, far away from foreign domestic courts. In this case, the trial was a key momentum for Gambians who have been affected by more than 20 years of violence and who are currently in the process of rebuilding their own lives and nation. The Sonko trial was held in German and the FCC only offered a partial interpretation of the proceedings in a strict application of the provisions of the Swiss Code of Criminal Procedure (SK.2023.23 para. 1.6.5), which clearly – and unfortunately – undermines the significance of the case for affected communities in The Gambia.

Conclusion: Proceedings that Support the Transitional Justice Path… and More

Ultimately, despite the criticisms that may be raised, the trial of Ousman Sonko in Switzerland represents a major step forward in several respects. First of all – and most importantly – it is destined to support future trials concerning the crimes of the Jammeh regime, whether on the basis of universal jurisdiction or before the judicial bodies about to be functional in The Gambia, or under the aegis of the ECOWAS (hybrid court) as part of the transitional justice process. Secondly, Ousman Sonko’s conviction demonstrates that there are concrete ways against impunity, even years after the crimes took place. Finally, it shows that universal jurisdiction is far from being an abstract concept, but that on the contrary, it serves as a realistic means for victims, whose courage and persistence deserve our respect and support, to access justice.

Photo attribution: “Federal Criminal Court of Switzerland in Bellinzona” by NAC is licensed under CC BY-SA 4.0.