Switzerland: Two decades of terrorism trials.

by Ahmed Ajil, University of Lausanne (Switzerland) – Researcher, Criminologist

An overview of the cases tried by the Swiss Federal Criminal Court since 9/11

Although Switzerland has not experienced a large-scale attack of the kind experienced in other European countries in the last decade, the phenomenon of politico-ideological violence in the jihadist spectrum is nevertheless present. In December 2021, the Federal Intelligence Service counted 41 so-called “persons at risk” considered to be posing “a priority threat to Switzerland’s internal and external security”. In the context of its “jihad monitoring”, it also identified 714 people who were active online (since 2012), showing sympathy for jihadist terrorist organisations by disseminating propaganda or by talking to people who defend the ideology of these groups. Since 9/11, 91 individuals have left Switzerland to join a terrorist organisation in Afghanistan, Pakistan, Yemen, Somalia, Syria or Iraq. Some people have returned, while others, now held by Kurdish forces in Syria, are seeking to be actively repatriated, something the Federal Council refuses to do.

While there are different ways to confront the terrorist phenomenon, the use of criminal law constitutes the most obvious one. In its 2020 annual report, the Federal Prosecutor’s Office (FPO) reported 35 pending criminal investigations for terrorism in 2016, 34 in 2017, 30 in 2018, 31 in 2019 and 26 in 2020. In this short contribution, I would like to present a few findings from a research project on the repression of terrorism by the Federal Criminal Court (FCC), conducted together with my colleague Kastriot Lubishtani, of which some results have recently been published in Jusletter (31 May 2021).

The FCC, operative since 2004, is the judicial authority that is charged with the sentencing of terrorism-related offences. The few criminal proceedings opened by the cantonal prosecution authorities are taken over by the FPO and then judged by the TPF, except for those relating to minors. Analysing the sentencing pattern of the FCC in this domain enables us to gain quite a comprehensive view of the most severe cases which “make” it through all stages of the so-called “crime funnel” (entonnoir pénal). At this point, it is important to note that the Federal Prosecutor’s Office (FPO) can also single-handedly sentence individuals as long as the punishment does not exceed six months of liberty-deprivation. The FPO frequently resorts to this option, but given that these verdicts are, in principle, not accessible to the public, they are not accounted for here.

From a legal perspective, there are mainly two provisions that are applied to terrorism-related offences. One of them is article 260^ter of the Swiss Criminal Code which criminalises the support of and participation in criminal organisations (a term that includes terrorist groups). The other one is the Federal Law prohibiting the organisations Islamic State and Al-Qaida and related groups (in short: IS/AQ-Law), which entered into force on 1 January 2015.

We collected all sentences related to these two provisions and then selected only those related to terrorism. The only form of terrorism handled by the FCC since its inception in 2004 is jihadism-inspired terrorism. Since the publication of our article in May 2021, two hearings took place and led to convicting three (3) individuals in total, which I am including in this contribution.

The numbers

Since 2004 and until November 2021, the TPF has tried a total of 17 criminal proceedings related to jihadist terrorism cases. Most of these proceedings took place after the outbreak of the Syrian civil war and the subsequent territorial expansion of the group IS in June 2014. In fact, three (3) proceedings were conducted between 2004 and 2014 with eleven (11) persons formally indicted during this period, while there were fourteen (14) proceedings and twenty-one (21) persons tried by the TPF between 2014 and 2020. The language of proceedings was German in twelve (12) of the proceedings conducted in Bellinzona, while French was used three (3) times and Italian twice (2).

These proceedings are relatively complex, which is reflected in the length of the pre-trial proceedings, as well as in their costs. On average, 882 days, or almost 2.5 years, elapsed between the initiation of criminal proceedings against an accused person and his or her indictment. The direct costs related to the investigation, the defence and the court hearing reached up to 800’000 Swiss Francs for a single case.

Across the 17 procedures, a total of 32 individuals appeared before the Federal Criminal Court. This means that in several proceedings – more precisely, seven (7) – several persons were tried. Specifically, four (4) proceedings involved two (2) persons, while the remaining three (3) proceedings involved three (3) persons, four (4) persons and the last one involved seven (7) persons. In each of the remaining ten (10) proceedings, only one (1) person was indicted.

The overwhelming majority of the terrorism cases brought before the FCC led to convictions. In total, 30 individuals were convicted by the FCC and two (2) persons were acquitted of all charges. As of 20 November 2021, there are twenty-one (21) final and enforceable convictions. Of these, six (6) persons were eventually not convicted in relation to terrorism-related offences. Hence, to date, there have been 24 convictions for terrorism-related offences, of which fifteen (15) are final and nine (9) are pending.

Who are the Swiss terrorists?

Thirty (30) accused were men, while one (1) woman was charged as a co-defendant and one (1) as main defendant. Twelve (12) of the accused were Swiss nationals, seven (7) of whom had dual citizenship. Of these, one (1) Turkish-Swiss dual national was subjected to a citizenship stripping, confirmed by the Federal Administrative Court in 2021. Nine (9) defendants had a residence permit. Ten (10) defendants were asylum seekers. Seven (7) of them had their asylum applications pending and three (3) had been provisionally admitted. One (1) defendant had never resided in Switzerland but was staying there at the time of her arrest.

The overwhelming majority, i.e., twenty-six (26) persons had no previous criminal record. This fact raises doubts regarding the pertinence of the crime-terror nexus hypothesis for the Swiss context. The other six (6) persons had been convicted of various offences under the Road Traffic Act in the case of three (3) of them, under the Weapons Act in the case of one (1) defendant, and for breach of a maintenance obligation in the case of another (1) defendant. Finally, one (1) of the defendants had been convicted on several occasions for illegal entry, threats, and coercion.

Nineteen (19) of the defendants were unemployed and dependent on social assistance at the time of the judgment. Five (5) defendants had no taxable income and were in debt. In addition, three (3) defendants were employed and had a regular monthly income at the time of the sentence. Finally, the economic situation of the remaining five (5) defendants is unknown. These observations provide some evidence for the pertinence of the biographical availability hypothesis, which suggests that a lack of structure and occupation may facilitate engagement for high-risk activism or illegal causes.

Of the thirty (30) convicted persons (twenty-one (21) final convictions and nine (9) pending convictions), custodial sentences were handed down in twenty-five (25) cases, with an additional financial penalty in four (4) of these cases. Nine (9) of the custodial sentences were conditional and six (6) were partially conditional, which means that ten (10) entirely unconditional custodial sentences were pronounced. In five (5) cases, the FCC imposed only pecuniary sentences, of which two (2) were conditional.

The most lenient punishment was a conditional 25-day fine at CHF 100 per day. The most severe punishment was a custodial sentence of 70 months, coupled with a 15-year ban on entering the country.

What are “terrorist activities” in the Swiss context?

In terms of the nature of the criminal acts committed, one notes that since 2001, no acts of terrorist violence have been committed on Swiss soil and brought before the Federal Criminal Court (the attacks of Morges and Lugano in 2020 still being under investigation).

When focusing on the 24 convictions for terrorism-related offences (6 convictions did not end up concerning terrorism-related offences), one notices that the acts that were prosecuted in relation to jihadist terrorism were mainly related to activities on Internet platforms. Two (2) proceedings involving a total of four (4) persons concerned the operation of Internet sites containing propaganda material, such as photos and videos, as well as comments glorifying the leaders of major jihadist terrorist organisations such as Osama Bin Laden. Three (3) people were recently convicted in connection with the production of a filmed interview with a jihadist rebel in the Syrian conflict, Abdullah Al-Muhaysini. For seven (7) of the convicted persons, the charges were limited exclusively to activities on social media platforms such as Facebook, YouTube and messaging applications such as WhatsApp and Telegram, consisting of sending and/or sharing videos, images and comments, and in one case translating media communications of jihadist groups.

In some cases, the activity was mainly taking place in the digital realm, but individuals were convicted of being part of a network. In one conviction of (3) men, the case was opened on suspicion of a potential attack, but in the end, they were only convicted for their activities on social networks.  In one (1) case, the single defendant was convicted of maintaining contacts with persons abroad affiliated with terrorist organisations, but also of encouraging a person in Lebanon to carry out an attack against Hezbollah or the US military.

The most physical acts were attempts to travel to combat zones or activities related to foreign fighting: Four (4) people were charged for attempting to travel to the Syrian-Iraqi territory to join IS, one (1) for joining an armed group in Syria and recruiting others, and another one (1) for practicing proselytism in Switzerland and providing logistic support for foreign fighters in Turkey.

In conclusion, it appears that out of the 24 individuals who were convicted by the FCC for terrorism-related offences, 18 convicted individuals were engaged in exclusively or predominantly digital activities, while six (6) mobilised physically to support terrorist groups. It important to note that although they were more physically involved than others, their activities on social media and via messaging platforms, that were occurring alongside, were aspects of essential relevance for their conviction.

Gradual widening of the net

Legally speaking, individuals were primarily convicted for supporting criminal organisations or AQ/IS-affiliated groups. Only three individuals were convicted for participating in a terror group. This can be explained by two things. On the one hand, it is difficult to prove membership and participation in the loosely organised networks and groups that characterise the jihadist phenomenon after 9/11. On the other hand, the analysis of the cases in question makes it clear that, compared with the quite restrictive definition of participation, the notion of support is a very large one and has come to mean basically any activity that can be considered as putting a terrorist organisation in a favourable light. By way of example, one individual was partly convicted for posting an image on Facebook of a functioning hospital in a zone controlled by the group IS to show that infrastructures are not all damaged under the terror group’s reign. In another case, an individual was convicted for sending three propaganda images via Whatsapp to another person. It is therefore barely surprising that most of the cases lead to convictions for the rather loosely treated notion of support.

The Swiss anti-terror dispositif’s evolution is also part of a larger trend, bolstered by the attacks of 9/11, to expand the applicability of criminal legal frameworks into the pre-criminal sphere, thereby widening the penal net in relation to acts that are considered to fall under the umbrella of terrorism-related activities. This is understandable from a political perspective but poses a number of challenges from a legal and ethical perspective. In fact, the preventive turn of Swiss anti-terror laws and the way they are applied leads authorities to investigate and sentence acts that are increasingly detached from the actual act of violence that is sought to be prevented. In an increasingly pre-criminal sphere, it is impossible to cover the entirety of punishable acts and therefore differential and unequal treatment becomes more likely. These aspects need to be considered when thinking about future ways to strengthen and expand anti-terror efforts in the Swiss context.

The new horizons of radicalisation

by Chiara Sulmoni

The pandemic of extremism

   On a global scale, terrorism has (long) tended to make fewer victims, despite a wider geographical spread and the fact that, particularly in Syria and sub-Saharan Africa, the threat has grown. This is the picture drawn by the Global Peace Index (GPI) 2021, which measures the impact of a series of indicators on the peacefulness of nations. The same document depicts an international context where, on the one hand, “the conflicts and crises that emerged in the past decade have begun to abate”; on the other, COVID19 brought about new tensions. Between January 2020 and April 2021, there were more than 5’000 pandemic-related violent events. The economic, social and even psychological impact of the different measures put in place to contain the spread of the virus helped create the conditions for a rise in extremism and in the number of militants and supporters of various causes, including conspiracy theories – be it of a political, identity, anti-technological, no-vax nature – which found their echo in anti-government protests and demonstrative actions, such as dozens of attacks against 5G masts suspected of spreading COVID19; disruptions at vaccination centers; and threats directed at scientists, politicians and even, as occasionally reported in Italy, shopkeepers and restaurateurs requesting their clients to exhibit Green Passes. On the Internet and in the streets, different orientations more frequently happen to coexist and overlap, converging temporarily on common causes and battles and/or driven by the aim of increasing their own visibility and support base.

   According to terrorism expert Ali Soufan, in the future law enforcement, analysts and researchers might look to 2020 as a watershed moment in terms of recruitment by non-state actors. It should be emphasized, however, that the significant and progressive increase in protests, civil unrest and political instability has been captured by the GPI since 2011; this is a particularly pronounced trend in the United States, where the scale of the problem clearly came to light on 6^th January, 2021 when a diverse crowd of supporters of outgoing President Donald Trump, convinced that they could overturn the outcome of the vote, felt legitimized by the narrative of the “stolen elections” – which was pushed forth by some in the political spectrum and the media – to storm the Capitol. The insurrection against the transfer of power between the two American administrations, which caused five victims and left a hundred others wounded, generated a greater, albeit belated, awareness of the risks associated with an internal extremist drift which has now become a priority issue for national security. The 700 plus individuals who were arrested and prosecuted – including a 12% with a military background, according to data gathered by the Program on Extremism at George Washington University – are a jumble of exponents, supporters and sympathizers of various ideologies and acronyms linked to the worlds of white supremacism, neo-Nazism, armed militias and the conspiracy universe (QAnon above all), who were identified and incriminated also thanks to their activities and interactions, fully visible on social platforms.  A substantial part of these citizens did not appear to be officially affiliated to any organization; in this context, some experts today speak of mass radicalization.

The new normal of radicalization, shifting profiles and risks

   Twenty years since the attacks of 11th September, which opened a long chapter in the fight against terrorism at the national and international levels that took various shapes – from military interventions to the strengthening of police and intelligence measures, from legislative changes to more interdisciplinary study of the subject, to prevention and de-radicalization initiatives – not only has the threat not vanished; today, it is more widespread, fragmented and complex to deal with. The ecosystem of violent extremism is characterized by strong competition, but also by a growing exposure to the strategies, tactics and “perceived victories” of ideologically distant groups – analysts have not failed to point out, for example, the attention paid by far-right circles to the “success” of the Taliban, whose return to power after a long insurgency doesn’t merely motivate al-Qaeda and / or fighters within the jihadist galaxy, but also other (armed) groups who make “traditional society” their bulwark, oppose liberal values in the West and/or aspire to civil conflict. The proximity and sometimes the cohabitation of themes – e.g. jihadist vis-à-vis Accelerationst – narratives and symbolism does not entail a watering down of ideological principles or beliefs but rather, as one can read in a research on the subject (ICSR, January 2022), “an enhanced focus on results over practice”. With reference to the Salafi-jihadist sphere, in ReaCT2022 Michael Krona also explains that “supporter groups online are expanding the terrorism universe by forming new entities that are less inclined to attach themselves to a single organisation and instead promote wider ideological interpretations (…)“. Today, the production of propaganda and extremist narrative – but also calls for action – are no longer a prerogative of terrorist movements’ media, but an operation which sees the significant contribution of a large base of followers and militants acting on their own, both with regard to the creation of new content – where topics might differ from those addressed by the group’s official channels – and to its dissemination; a large number of indictments and convictions for crimes related to terrorism (not only of a jihadist nature) actually concern activities such as collection, assembly and dissemination of material which might also be useful for planning attacks. Because of this fragmentation, the tech giants’ battle to “clean up the Internet” is far from easy, due to the skills of those “instigators” in disguising the content of posts and accounts; in deceiving algorithms; in migrating from platform to platform (including those popular with youngsters, like TikTok) and in moving along grey areas and through encrypted Apps.

Britain is among the European countries most affected by terrorism and radicalization and for this reason, it anticipates and provides very important data and food for thought. Recently Dean Haydon, Senior National Coordinator for Counterterrorism Policing outlined the new profiles that are changing the equation in the country: in short, according to the latest trend, it’s more common today to come across individuals of British origins or nationality, increasingly young and attracted to the ideologies of the extreme right, who self-radicalize online and act on their own initiative. But 2020/21 data on referrals for suspected radicalisation to the Prevent programme -which steps in when people are thought to manifest early signs of extremism – reveal that 51% of the cases concern “mixed, unstable or unclear ideologies” (MUU).  Considering that there’s also a very high percentage, a preponderance even of situations where mental health problems, addiction and/or other difficulties might play a role – making youth particularly vulnerable to online propaganda – violence prevails over ideology as a motivating factor, as a channel for venting personal discomfort and – according to experts – as a means to “acquire significance”.  As a remarkable number of people suffering from autism spectrum disorder have entered the Prevent circuit, the Independent Reviewer of Terrorism Legislation Jonathan Hall stated that “it is as if a social problem has been unearthed and fallen into lap of counter-terrorism professionals.” Within this context, radicalization takes on the connotations of a public health problem that must be studied and addressed from a broader perspective than the one adopted till now, which placed a strong emphasis on the role of ideology and consequently, with a view to countering the phenomenon, on counter-narrative. An attack which took place in August 2021 in Plymouth, where a 22-year-old who was familiar with the incel environment shot 7 people before taking his own life, is emblematic of the various nuances that make the task of identifying what new forms of violence represent a terrorist threat particularly difficult. Well-known in the United States and relatively new to Europe, incels are “involuntary celibates”, individuals who fail to establish a relationship with the opposite sex; scholars explain that within this “bubble” – which is also dubbed incel “culture” and is endowed with its own specific jargon – one can come across resentment and hate speech spurring violence against women. More generally, it harbors a mix of misogynist, racist, anti-Semitic and conspiracy beliefs. From March to November 2021, there was a six-fold increase in visits by British users – which include children aged 13 and over – to the three main online forums linked to incel ideology (data collected by The Times with the Centre for Countering Digital Hate). Official statistics say that 2021 set a record in the number of children arrested for terrorist offences.

The new horizons of radicalization are not to be observed solely in the Anglo-Saxon world; with reference to jihadism, the Swiss Federal Intelligence Service in their 2020 Report had already drawn attention to individuals “whose radicalisation and violent tendencies are rooted more in personal crises or psychological problems than in ideological conviction. The frequency of such acts of violence, which have only a marginal link to jihadist ideology or groups, will in general remain the same or possibly even increase.”  Within the same year, the first two such attacks in Switzerland took place in Morges and Lugano with the perpetrators – a man and a woman – fitting this description.

Rethinking radicalisation with a view to prevention

Over the past 15 years, security policies and counterterrorism initiatives focused mainly on propaganda and recruitment by al-Qaeda, the Islamic State and related groups. Jihadism does remain the form of terrorism causing more victims; Europol itself reports that in 2020 – possibly also due to the pressure of the pandemic on security forces? – the number of attacks which were carried out exceeded that of foiled/failed ones and more than doubled, compared to the previous year. However, as previously highlighted, there’s today a new risk emanating from a post-organized reality, where militants and (potential) terrorists are only vaguely inspired by the Islamic State; they act independently and alone, yet “exalt” and encourage one another in group, within communities and ecosystems. Outside of the academic environment, this aspect of (re)socialization – the search for a sense of sharing and acceptance, be it in a real or virtual community – is not always sufficiently grasped; yet, it is paramount in order to fully understand the process of radicalization, which lists social exclusion among its most significant triggers. Today, society at large is characterized by similar dynamics of belonging and identification with a movement or cause, in opposition to others; concurrently with strong polarization and growing “social encapsulation”, these are all elements favoring the incubation of extremism. From this perspective, the battle against conspiracy theories and fake news, which are embedded in the narratives of many, more or less violent acronyms – especially those linked to the far-right – acquires strategic significance and calls for more awareness on the part of politics and the media. Due to the many facets of social problems which might lead to violence at this historical moment, it is the time to “rethink radicalization” by paying more attention to the sociological and psychological aspects, with a view to enhancing prevention – which does not consist in repression by means of security / Police interventions in the pre-criminal phase, but rather in being engaged on the ground and in planning activities aimed at strengthening support networks where social and personal hardships may manifest at the local level. As highlighted in ReaCT2021, this approach implies long-term collaboration among different actors (NGOs, public and private institutions, civil society, families) and constant dialogue among researchers, field operators, law enforcement agencies and legislators. Faced with terrorism’s creativity and adaptability, as well as with the new normal of radicalisation which defines the current era, updating approaches and tools at our disposal to counter this threat is of the utmost importance.