Six years after opening in fanfare one of its major post-9/11 investigations on terrorism financing, the Swiss prosecution’s office decided on December 13 to drop all charges against alleged Saudi Al Qaeda financier Yassin Abdullah Al Kadi.
Having been involved in this investigation as an expert for the prosecution, I will not comment on the specific allegations and evidence gathered in the course of the investigation, and limit my comments to the context of this case.
From what I witnessed during this six-year long investigation opened on October 15, 2001, this decision mainly reflects the failure of the Swiss prosecution and judicial system, unprepared and unequipped to handle such a complex case, unable to obtain the cooperation of foreign countries, and therefore unable to avoid the many legal hurdles and challenges provided by Kadi’s lawyers during the course of the procedure.
I’ve even experienced the inability of the prosecution to defend its own experts, when Yassin Al Kadi filed a lawsuit against the Swiss prosecutor to challenge my expert mandate, or when he filed a criminal complaint against me for allegedly violating the secrecy of my expert mandate, a case finally dismissed by a special prosecutor appointed to investigate the matter.
During the investigation of the case, I’ve always been stunned by the apparent overconfidence of the prosecutors, their loud statements that the case will be “successful” given the extent of the U.S. allegations.
The decision is also a major setback for the U.S. government, who initially pressured the Swiss authorities to open an investigation, but failed to convert its allegations, mostly based on secret intelligence information, into actionable evidence for prosecution purposes. Despite the strong claim expressed in 2001 by the former U.S. Treasury Department’s general counsel that Kadi “has a long history of financing and facilitating the activities of terrorists and terrorist-related organizations, often acting through seemingly legitimate charitable enterprises and businesses”, the U.S. government has been unable or unwilling to provide enough supporting evidence to help the Swiss case or to open its own criminal case.
The weakness of the case became obvious when information recently transpired in the press that the Swiss authorities had extended their investigation to include international collateral and tangential networks, while Kadi was initially accused by the Swiss authorities of “having transferred several millions of dollars in his capacity of former president of the Muwafaq Foundation, to close associates of the Al Qaeda network, using Swiss bank accounts”.
Switzerland now offers a record of major setbacks in the prosecution of terrorism cases, including the failed prosecution of Al Taqwa Bank and Youssef Nada and the acquittal of alleged members of a support cell for the 2003 Riyadh bombings, and could well become eligible for the worst practice in handling such cases.
This new and major failure raises the question of the seriousness and efficiency of the entire war against terrorism financing, especially when the U.S. government relies on third countries to prosecute alleged terrorist financiers. In most cases, without proper coordination among the international prosecution efforts, without specific competence to prosecute complex terrorism financing cases, and without clear evidence sharing processes, these individuals will avoid legal sanctions.