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Switzerland
Practice Relating to Rule 129. The Act of Displacement
Switzerland’s Basic Military Manual (1987) provides: “Individual or mass forcible transfers, as well as deportations of civilian persons out of the occupied territory, are prohibited, regardless of the motive.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 176; see also Article 153 and Lois et coutumes de la guerre, Manuel 51.7/III dfi, Armée suisse, 1984, p. 38 and 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. 107.
According to the manual, “deportation and illegal transfers … constitute a grave breach”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 192 and 193(2).
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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f. unlawful deportation [or] transfer … of persons;
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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.
…
Art. 112c
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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h. as a member of an occupying power, … transfers all or part of the population of the occupied zone within or outside that zone.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110, 111(1)(f) and (2) and 112c (1)(h).
[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. genocide [Art. 108] or crime against humanity [Art. 109] (Part 2, chapter 6) … ;
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5. foreign military persons who make themselves culpable of genocide [Art. 108] or a crime against humanity [Art. 109] (Part 2, chapter 6)[.]
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Chapter 6 – Genocide and crimes against humanity
Art. 108
The penalty shall be a custodial sentence of life or a custodial sentence of not less than ten years for any person who with the intent to destroy, in whole or in part, a national, racial, religious, ethnical, social or political group, as such:
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d. forcibly transfers or makes being transferred children from a group to another group.
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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h. deports persons from the region in which they are legally present or forcibly transfers them.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5), 108(d) and 109(1)(h).
[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:
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c. forcibly transferring children of one group to another group or having children of one group forcibly transferred to another group [by other persons].
Switzerland, Penal Code, 1937, as amended in 2009, Article 264(c).
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:
…
f. unlawful deportation [or] transfer … of persons;
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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.
…
Art. 264g
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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h. as a member of an occupying power … transfers all or part of the population of the occupied zone within or outside that zone.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b, 264c (1)(f) and(2), and 264g (1)(h).
[footnote in original omitted]In 1988, the Swiss Federal Department of Foreign Affairs issued a note concerning the lawfulness of the Israeli authorities’ deportation to Lebanon of four Palestinian activists from the West Bank of Jordan. After deciding that the 1949 Geneva Convention IV applied to the situation in the region, the note concluded that Article 49 of the Convention
expressly prohibits individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, regardless of their motive …
It would appear that by evacuating four Palestinian civilians – irrespective of whether or not they were agitators – Israel contravened the Fourth Convention. This represents a “grave breach” in the meaning of article 147 [of the 1949 Geneva Convention IV].
Switzerland, Federal Department of Foreign Affairs, Directorate for Public International Law, Note on the prohibition to expel and deport the population of an occupied territory – Applicability of the 1949 Geneva Convention IV to the territories occupied by Israel, 20 January 1988, reprinted in Annuaire suisse de droit international, Vol. 46, 1989, pp. 248–249.
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 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 the deportation of civilians”.
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.3.1, p. 45.
Switzerland’s ABC of International Humanitarian Law (2009) states:
Displaced persons
Internally displaced persons differ from Refugees in that they are displaced within their own country. They are entitled to the protection accorded to all Civilians. International humanitarian law expressly prohibits the forcible transfer of civilians in both international and non-international conflicts, defining it as a War crime.
…
Means and methods of warfare
Even in war not everything is allowed. Various means and methods are prohibited, including … Deportation[.]
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 16 and 29.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated that:
3.4 [Increasing use] of anti-guerrilla tactics
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Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … [T]he forced displacement of the civilian population is prohibited, insofar as it is not required by the security of these persons or by imperative military reasons.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]Switzerland’s Basic Military Manual (1987) provides: “Belligerents shall conclude special agreements in order to evacuate the wounded, sick, infirm, elderly … and maternity cases … from besieged areas.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 33.
The manual states, however:
A total or partial evacuation of a given occupied area may be undertaken if the security of the population or imperative military reasons so demand … In principle, such transfers must only take place within the occupied territory.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 176.
