القاعدة ذات الصلة
Switzerland
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Switzerland’s military manuals provide that enemy civilians shall have their human dignity and honour respected and not be tortured or subjected to inhuman treatment or mental and physical cruelty.
Switzerland, Lois et coutumes de la guerre, Manuel 51.7/III dfi, Armée suisse, 1984, p. 34; Droit des gens en temps de guerre, Programme d’instruction fondé sur le Manuel 51.7/III “Lois et coutumes de la guerre”, Cours de base pour recrues de toutes les armes 97.2f, Armée suisse, 1986, p. 43; Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
The Basic Military Manual provides that “torture or inhuman treatment … wilfully causing great suffering or serious injury to body or health” is a grave breach of the 1949 Geneva Conventions. It also provides for the punishment of the ill-treatment of enemy combatants who surrender.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 192(a) and 194.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
5 Restriction of fundamental freedoms
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32 Due to the so-called guarantee of the intangible core, the following freedoms are inalienable and can never be restricted:
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2 the prohibition of torture, inhuman or degrading treatment and punishment;
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36 Due to the mission of the army, fundamental rights and freedoms may be restricted during military service. The inviolable core of fundamental freedoms can never be affected by these restrictions; it must be protected and respected at all times.
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13.2 Behaviour with regard to combatants and prisoners
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187 Prisoners must be humanely treated at any time and in any place. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited. The State is responsible for the treatment of prisoners; each individual may be held liable for violations.
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13.3 Behaviour with regard to civilians
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198 Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited. …
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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: … torture[.]
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, §§ 32, 36, 187, 198 and 237. The German language version notes in heading 13.2: “Behaviour with regard to surrendering [“sich ergebenden”] combatants and prisoners”.
[emphasis in original]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.
Art. 111
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
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c. causing great suffering or serious injury to body or physical or mental health, in particular by torture, [or] inhuman treatment …
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2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law.
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Art. 112a
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:
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c. commits severe outrage upon the dignity of a person protected by international humanitarian law by treating him in a humiliating or degrading manner.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110, 111(1)(c) and (2) and 112a (1)(c).
[footnote in original omitted]The Code also states:
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 [Personal conditions] and 4 [Extension in case of active service], the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
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d. … crime against humanity [Art. 109] (Part 2, chapter 6) …;
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5. foreign military persons who make themselves culpable of … a crime against humanity [Art. 109] (Part 2, chapter 6)[.]
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Chapter 6 – Genocide and crimes against humanity
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Art. 109
1 The penalty shall be a custodial sentence of not less than five years for any person who, as part of a widespread or systematic attack directed against the civilian population:
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f. inflicts severe suffering or a serious injury to body or physical or mental health on a person in his custody or under his control;
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j. commits any other act of a comparable gravity to the crimes addressed in this paragraph and thereby inflicts on a person severe suffering or a serious injury to body or to physical or mental health.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5) and 109(1)(f) and (j).
[footnotes in original omitted]Switzerland’s Penal Code (1937), as amended in 2009, states:
Any person who, with the intent to destroy, in whole or in part, a national, racial, religious or ethnic group, [commits any of the following acts,] is to be punished with life imprisonment, 10 years’ imprisonment or less:
a. … causing serious bodily or mental harm [to members of the group].
Switzerland, Penal Code, 1937, as amended in 2009, Article 264(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.
Art. 264c
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
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c. causing great suffering or serious injury to body or physical or mental health, in particular by torture, [or] inhuman treatment …
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2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law.
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Art. 264e
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:
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c. commits severe outrage upon the dignity of a person protected by international humanitarian law by treating him in a humiliating or degrading manner.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b, 264c (1)(c) and (2), and 264e (1)(c).
[footnote in original omitted]Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Article 3
1. The criminal justice authorities shall respect the dignity of the persons affected by the proceedings at all stages of the proceedings.
2. They shall in particular comply with:
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d. the prohibition, when taking evidence, of using methods that violate human dignity.
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 3(1) and (2)(d).
The Code further states:
Article 140
1. The use of coercion, violence, threats, promises, deception and methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence.
2. Such methods remain unlawful even if the person concerned consents to their use.
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 140(1) and (2).
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
5.3.1 What does international humanitarian law provide in substance?
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International humanitarian law contains, first, specific rules to be respected with regard to persons in custody or under the power of a party to a conflict, such as prisoners and civilians in occupied territories. Such rules include the ban on torture, the ban on inhuman treatment, …
5.3.2 Applicability of international humanitarian law to private security companies
International humanitarian law is aimed not only at states. It also contains numerous provisions for individuals and even civilians to observe. Perhaps the most well known example is Article 3 common to all four Geneva Conventions, according to which persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated human[e]ly, without violence to life and person, in particular mutilation, torture and cruel treatment.
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5.5.2.2 Acts constituting an offence
Acts which constitute an offence that are of potential relevance for private security companies operating in conflict situations include war crimes and crimes against humanity as well as individual acts such as torture and the forced disappearance of individuals.
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Sections 5.3.1, 5.3.2, 5.5.2.2, pp. 45, 46 and 49.
[footnote in original omitted; emphasis in original]The report further defined war crimes as “criminal violations of international humanitarian law such as the torture of prisoners in relation to an armed conflict”.
Switzerland, Report by the Swiss Federal Council on Private Military and Security Companies, 2 December 2005, Section 5.5.2.2, p. 49, footnote 112.
Switzerland’s ABC of International Humanitarian Law (2009) states:
Ban on torture
Torture and other cruel, inhuman or degrading treatment or punishment are at all times and in all circumstances prohibited by Customary international law as well as by various international treaties such as the Convention against Torture. The Additional Protocol to the Convention against Torture of 2002 strengthens efforts to prevent torture through visits and controls by international and national bodies of prisons and other detention facilities. Torture and cruel treatment are also expressly prohibited by the Geneva Conventions and their Additional Protocols. Torture carried out in the course of armed conflicts is treated as a War crime …
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Fundamental guarantees
International humanitarian law provides fundamental guarantees to persons who do not benefit from more favourable treatment on the basis of the Geneva Conventions of 1949. This minimal protection includes for example the Ban on torture and other cruel, inhuman or degrading treatment, certain minimum standards with regard to the conditions of detention and a number of judicial guarantees.
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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: … Torture, … ill treatment[.]
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 8, 20 and 40.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated that:
3.3 Increasing use of guerrilla tactics…
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International humanitarian law also clearly prohibits attacks against the civilian population. The same applies for … torture …
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3.4 … and of anti-guerrilla tactics
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Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. They must thus be treated humanely. Torture is prohibited, even for obtaining crucial information on attacks under preparation or on the structure of a terrorist network.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Sections 3.3 and 3.4, pp. 12 and 15.
[footnotes in original omitted]In 2011, Switzerland’s Federal Council issued a “Communiqué on the continuation of measures promoting peace and human security 2012–2016”, which stated: “There can be no derogation from the prohibition of torture. The fight against terrorism does not reduce the validity of this absolute prohibition.”
Switzerland, Federal Council, Communiqué on the continuation of measures promoting peace and human security 2012–2016, 29 June 2011, p. 5910.
In 2002, in its fourth periodic report to the Committee against Torture, Switzerland stated:
It must also be stressed that, while Swiss criminal law does not contain any provisions specifically against torture, it does cover all aspects of the definition of torture given in article 1 of the Convention [against Torture] and fully meets the stipulations of article 4 [of the Convention against Torture].
Switzerland, Fourth periodic report to the Committee against Torture, 2 July 2004, UN Doc. CAT/C/55/Add.9, submitted 18 December 2002, § 11.
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated: “The prohibition of torture is now expressly stated in article 3, paragraph 10, of the Federal Constitution: ‘Torture and all other inhuman or degrading treatment or punishment are prohibited.’”
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, § 121.
