القاعدة ذات الصلة
Switzerland
Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section C. Attacks against civilians
Switzerland’s Basic Military Manual (1987) considers: “The [civilian] population as well as individual civilians must not be attacked”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 25(2); see also Article 27(1).
The manual further states that “attacks against the civilian population or against individual civilians” constitute grave breaches of the Geneva Conventions and of the 1977 Additional Protocol I.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 192(1)(c) (grave breaches of the Geneva Conventions) and Article 193(1)(a) (grave breaches of the 1977 Additional Protocol I).
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I spare and protect civilians”.
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 6.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. …
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3 Protected persons are persons who are not or no longer taking part in combat or enjoy specially protected status, such as medical and religious personnel, civil protection or cultural property protection personnel, as well as wounded persons and prisoners of war.
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13.3 Behaviour with regard to civilians
197 Up to 90% of the victims of modern armed conflicts are civilians. Therefore, they are especially protected by the law of armed conflict, as long as they do not participate in combat and are not in the immediate proximity of military objectives. Attacks against the civilian population or their property are prohibited at any time and in any place. Correct behaviour towards the civilian population is important for the success of defence operations.
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15.2 Prohibited methods of warfare
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225 … [A]ttacks directed against protected persons/objects … are prohibited in any place and at any time.
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17 Sanctions for violations of the international law of armed conflict
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237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 159, 197, 225 and 237.
(emphasis in original)The Regulation also explains that, in application of the principle of distinction, a “member of the civilian police armed with a pistol” must not be shot at because “[t]he civilian police are not part of the belligerent forces, as long as they do not take part in the fighting and are not integrated into the armed forces”.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 172. The German language version notes: “… as long as they do not take part in the fighting or, respectively, are not integrated into the armed forces [“solange sie nicht am Kampf teilnimmt bzw. nicht in die Streitkräfte integriert ist”]”.
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
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Art. 112
1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:
a. the civilian population as such or civilians who do not take direct part in hostilities.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112(1)(a).
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
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Art. 264d
1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:
a. the civilian population as such or civilians who do not take direct part in hostilities.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264d (1)(a).
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated: “International humanitarian law also limits the conduct of military operations permissible under international law. Thus[,] for example, attacks against protected groups and property such as civilians and civilian property are forbidden.”
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.3.1, pp. 45–46 .
The report defined war crimes as “criminal violations of international humanitarian law such as … the killing of unarmed civilians”.
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.2.2, p. 49, footnote 112.
In 2008, in its response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
1. In its press release of 7 March 2008, the FDFA [Federal Department of Foreign Affairs] condemned in the strongest terms the terrorist attack against an institute of Talmudic studies in Jerusalem …
2. Attacks directed against civilians … are a clear violation of international humanitarian law.
Switzerland, National Council, Response by the Federal Council to Interpellation No. 08.3127, 14 May 2008, p. 1.
Switzerland’s Protection of Civilians in Armed Conflict Strategy (2009) states that “the weaker of the adversaries [in an armed conflict] frequently resorts to practices that are prohibited under international law, e.g. deliberate attacks against the civilian population”.
Switzerland, Federal Department of Foreign Affairs, Protection of Civilians in Armed Conflict Strategy, 2009, p. 3.
Switzerland’s ABC of International Humanitarian Law (2009) states:
Conduct of hostilities
Not all Means and methods of warfare are allowed in an Armed conflict. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction and Proportionality are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects, …
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Distinction
International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. …
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Terrorism
The concept of “terrorism” has not yet been defined in International law. International law, Human rights and international humanitarian law nonetheless do prohibit many terrorism related acts and activities.
In fact, according to international humanitarian law, acts generally considered as acts of terrorism, such as strikes against the civilian population or Civilian [o]bjects, … are prohibited both in international and non-international armed conflict. …
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War crimes
War crimes are grave breaches of the provisions of the Geneva Conventions of 1949 protecting persons and objects[,] as well as other serious violations of the laws and customs that apply to an international or non-international
Armed conflict. War crimes include notably: … wilful attacks against Civilians and against Civilian objectives[.]
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 13–14, 17, 39 and 40. In the 2014 revised French version of this publication, the sentence “War crimes include notably: … wilful attacks against Civilians and against Civilian objectives” reads “Parmi ces infractions, citons … l’attaque intentionnelle contre des civils ou des biens civils” (see ABC du Droit International Humanitaire, 2nd revised edition, 2014, p. 21).
In 2009, in its Report on Foreign Policy, Switzerland’s Federal Council stated: “Conflicts … have themselves become more complex. … The recourse to acts contrary to international law, such as deliberate attacks against the civilian population … , [is] among the strategies used by the Parties in conflict.”
Switzerland, Federal Council, Report on Foreign Policy 2009, 2 September 2009, Section 3.3.7.2, p. 5807.
(emphasis in original)In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated that civilians “notably benefit from protection against direct attacks, provided that and as long as they do not take a direct part in hostilitiesˮ.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.1, p. 7.
(footnote in original omitted)The Federal Council also stated:
3.2 Increasing technification of war
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… The weapon technologies used do not call into question the applicable principles of international humanitarian law. In fact, the use of weapons by parties to a conflict must respect the principle of distinction between combatants and civilians; the latter must be protected and in no case made the object of attacks. … These fundamental principles are always applicable to all types and systems of weapons. …
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3.3 Increasing use of guerrilla tactics…
The appearance of non-State actors technically inferior to their government adversaries has favoured the growth of guerrilla tactics. … With this in mind, the civilian population is of a twofold interest in the eyes [of the weaker of the adversaries], on one hand as a place of retreat and combat base, on the other hand as a target of attacks.
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Even if the civilian population provides important support to the insurgents, it is nevertheless made the object of terrorist acts (direct attacks, …) under the guise of punitive actions, intimidation, propaganda or to incite ethnic or religious tensions. …
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International humanitarian law in force treats these cases in a relatively complete manner, binding non-State and State actors alike. …
International humanitarian law also clearly prohibits attacks against the civilian population. …
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3.4 … and of anti-guerrilla tactics
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Military responses to guerrilla tactics must be in conformity with the requirements of international humanitarian law. There is a consensus today that the majority of the provisions of [the 1977] Additional Protocol I apply equally to non-international armed conflicts, through customary law. There too, it is prohibited to attack the civilian population.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Sections 3.2, 3.3 and 3.4, pp. 9, 11–12 and 13.
[footnotes in original omitted]In 2010, in its Report on Foreign Policy, Switzerland’s Federal Council stated: “The recourse to acts contrary to international law, such as deliberate attacks against the civilian population … , [is] among the strategies used by the parties to a conflict.”
Switzerland, Federal Council, Report on Foreign Policy 2010, 10 December 2010, Section 4.2.1, p. 1083.
In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict made on behalf of the Group of Friends of Children and Armed Conflict, including Switzerland, the deputy permanent representative of Canada stated:
Members of the Friends Group have reliably called on the [UN] Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].
For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel.
Canada, Statement by the deputy permanent representative of Canada during a UN Security Council open debate in connection with the agenda item “Children and Armed Conflict”, made on behalf of the Group of Friends of Children and Armed Conflict, 12 July 2011.
In 2012, in a statement at the 19th Special Session of the UN Human Rights Council, the representative of Switzerland stated:
Switzerland condemned in the strongest terms the heinous massacre of more than a hundred civilians, including dozens of children, in El-Houleh in the night from 25th to 26th May. The facts and the responsibility for what could constitute a war crime, or perhaps a crime against humanity, have to be more accurately established.
Switzerland, Statement by the representative of Switzerland at the 19th Special Session of the UN Human Rights Council during the debate on the deteriorating human rights situation in the Syrian Arab Republic and the recent killings in El-Houleh, 1 June 2012.
In 2012, in a speech on the occasion of Public International Law Day, the head of Switzerland’s Federal Department of Foreign Affairs stated:
International humanitarian law seeks to limit the effects of armed conflicts. It restrains the means and methods of warfare and grants protection to those who do not participate in hostilities. For example, international humanitarian law prohibits deliberate attacks against the civilian population.
Switzerland, Speech by the head of the Federal Department of Foreign Affairs on the occasion of Public International Law Day, 19 October 2012.
In 2013, in answer to an interpellation in Parliament regarding the use of drones, Switzerland’s Federal Council stated:
In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected.
Switzerland, Answer by the Federal Council to interpellation 13.3245 in Parliament regarding the use of drones, 29 May 2013.
In 2013, in a statement during an interactive dialogue with the UN Special Rapporteur on the human rights of internally displaced persons at the 68th Session of the UN General Assembly, the representative of Switzerland stated: “Switzerland condemns in the strongest terms deliberate attacks against the civilian population … Such attacks constitute serious violations of international humanitarian law.”
Switzerland, Statement by the representative of Switzerland during an interactive dialogue with the UN Special Rapporteur on the human rights of internally displaced persons at the 68th Session of the UN General Assembly, 24 October 2013.
