القاعدة ذات الصلة
Switzerland
Practice Relating to Rule 100. Fair Trial Guarantees
Section A. General
Switzerland’s Basic Military Manual (1987) provides that, when captured, “saboteurs … cannot be punished without prior judgment”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 46.
The manual notes: “In judicial proceedings, some minimum guarantees in accordance with the regime of the rule of law shall be granted to those accused of possible war crimes and who no longer benefit from prisoner-of-war status.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 66.
The manual adds: “Article 75 [of the 1977 Additional Protocol I] contains a series of provisions that guarantee to the accused a fair trial.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 153.
The manual further provides:
A person found guilty of a criminal offence committed in connection with the armed conflict shall be sentenced only in accordance with a judgment … This judgment shall be rendered by an impartial and regularly constituted tribunal which follows the generally recognised principles of a regular judicial procedure.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 175.
According to the manual, it is a grave breach of the 1949 Geneva Conventions to deprive prisoners of war and civilians of “their right to be tried by an impartial and regularly constituted tribunal, in accordance with the conventions”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 192(b); see also § 193(2)(e).
In an article entitled “Judicial guarantees”, the manual states: “Prisoners of war prosecuted for war crimes shall benefit from the rights prescribed by [the 1949 Geneva Convention III].”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 201.
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:
…
c. the requirement to treat all persons involved in the proceedings equally and fairly and to grant them the right to be heard.
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 3(1) and (2)(c).
Switzerland’s ABC of International Humanitarian Law (2009) states: “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 … a number of judicial guarantees.”
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 20.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
…
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.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]