相关规则
Switzerland
Practice Relating to Rule 150. Reparation
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
Nonfeasance in international law or activities running counter to international law which can be ascribed to states raises the question of their so-called state responsibility. Important rules regarding state responsibility are contained in the [2001] “Draft Articles on Responsibility of States for Internationally Wrongful Acts” of the “International Law Commission” of the United Nations (ILC), a document reflecting international customary law.
A state can be held responsible for acts carried out by its authorities who contravene international law. Conduct running counter to international law of an individual, a group of individuals, or a corporate body which are not state bodies can also be ascribed to a state if the named actors are empowered on the basis of the laws of this state to carry out sovereign activities, or if in their activities they in fact act under the instructions or under the direction or control of this state. In addition, the conduct of an individual or group of individuals, according to international law, is considered to be an act of the state if the individual or group of individuals, in the absence or default of the official authorities actually assume sovereign functions, and conditions are such that the exercise of such sovereign functions are required (Art. 5, 8 and 9 of the ILC Draft Articles).
The consequence of this state responsibility is the obligation to provide full reparation in the form of restitution, compensation and satisfaction to the wronged state or if necessary to the international community (Part 2 of the ILC Draft Articles).
Thus the conduct of private security companies mandated by states can potentially be ascribed to a state under international law.
While the “Draft Articles” of the ILC describe state responsibility towards other states or the international community, individuals also have the possibility to bring before certain national and international forums a state which has violated certain rules of international law (international humanitarian law or human rights). However the investigation of the different national and regional possibilities to call a state to account on the basis of international law is beyond the scope of this report. 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.1, p. 48.
[footnote in original omitted; emphasis in original]
In 2006, Switzerland’s Federal Department of Foreign Affairs issued a conceptual framework for dealing with the past, which states:
Although there is no standard model for dealing with the past, Switzerland has strongly contributed to the elaboration of a conceptual framework in this field. The so-called “Joinet principles” constitute the basis of this approach. They identify four key areas in the struggle against impunity:
- The right to know,
- The right to justice,
- The right to reparation,
- The guarantee of non-recurrence.
The right to reparation
The right to reparation, both at the individual level and in collective forms, entails individual measures for victims and their relatives or dependants such as:
- Restitution, i.e. seeking to restore the victim to his or her previous situation;
- Compensation for physical or mental injury, including lost opportunities, physical damage, defamation, and legal aid costs;
- Rehabilitation, i.e. medical care, including psychological and psychiatric treatment.
Collective measures of reparation involve symbolic acts such as annual tributes of homage to the victims or public recognition by the State of its responsibility, which help to discharge the duty of remembrance and help restore victims’ dignity. 
Switzerland, Federal Department of Foreign Affairs, Switzerland’s conceptual framework for dealing with the past, 2006.
In 2010, in response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
Independently of the right to justice, and in line with Switzerland's commitment to peace and reconciliation in Sri Lanka, the Federal Council encourages the Sri Lankan government to address the recent past of the country, in accordance with the three other “Joinet principles” adopted by the Commission on Human Rights of the UN: the right to know, the right to reparation and the guarantee of non-recurrence. 
Switzerland, National Council, Response by the Federal Council to Interpellation No. 10.3457, 8 September 2010, p. 2.
In 2011, Switzerland’s Federal Council issued a communiqué on the continuation of measures promoting peace and human security 2012–2016, which stated:
[Switzerland] will concretely support societies emerging from armed conflicts so that a holistic approach to dealing with the past and to fighting impunity is put in place, combining measures such as fact-finding and truth commission, special courts, reparation and rehabilitation programmes for victims and reform of security institutions to strengthen guarantees of non-repetition. … With regard to the fight against impunity, Switzerland will refer in its action to relevant international principles that provide a strategic framework of reference for taking measures focused on the rights of victims and the obligation of States in the area of truth, justice, reparation and guarantees of non-repetition of violations (“Joinet principles”). 
Switzerland, Federal Council, Communiqué on the continuation of measures promoting peace and human security 2012–2016, 29 June 2011, pp. 5909–5910.
In 2012, in a statement before the UN Security Council during a debate on women, peace and security, Switzerland’s chargé d’affaires a.i. stated:
We strongly encourage more systematic measures to enhance protection and prevent the recurrence of sexual violence through transitional justice approaches. These measures should combine the fight against impunity as well as the recognition of the rights of victims – for example through appropriate reparations[.] 
Switzerland, Statement by the chargé d’affaires a.i. of Switzerland before the UN Security Council during a debate on women, peace and security, 23 February 2012.
In 2013, Switzerland’s Federal Department of Foreign Affairs issued the document “Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000)”, which states:
The concept of [d]ealing with the past stems from the Principles against Impunity developed by Louis Joinet and approved by the UN Commission on Human Rights in 1997. These principles recognise the rights of victims and the duties of states in combating impunity in cases of grave violations of human rights and international humanitarian law. The Principles against Impunity call for combined initiatives to ensure the realisation of these rights and obligations in the following areas: the right to know, the right to justice, the right to reparation and the guarantee of non-recurrence. 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, p. 5.
The Action Plan also states:
GOAL 3
Greater inclusion of a gender perspective during and after violent conflicts in emergency aid, reconstruction and in dealing with the past
SUBORDINATE GOAL 3
Switzerland implements UNSCR [UN Security Council resolution] 1325 during and after violent conflicts, as well as in fragile contexts through its bilateral measures for emergency aid, reconstruction and dealing with the past.
Measures
3 Activities, programmes and projects focused on dealing with the past (DwP) incorporate gender aspects in in all four areas: Right to Truth, Right to Justice, Right to Reparation, Guarantee of Non-Recurrence). 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, pp. 16–17.
[emphasis in original; footnote in original omitted]
In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict, Switzerland’s chargé d’affaires stated:
We remain most concerned by reports of serious violations of international humanitarian law and human rights in Syria. … In view of the extent of the violations and the number of victims in Syria, a holistic approach will be required in order to address the victims’ right to know, right to justice, right to reparation, and the guarantee of non-recurrence, within the framework of a political solution to the conflict. 
Switzerland, Statement by the chargé d’affaires of Switzerland before the UN Security Council during a debate on the protection of civilians in armed conflict, 19 August 2013.
Switzerland’s Basic Military Manual (1987) provides: “The belligerent State that is the victim of violations of the [1949 Geneva] Conventions can take the following measures: … if need be it can demand compensation.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 195(a).
Switzerland’s Law on (State) Responsibility (1958), as amended, provides: “The Confederation shall be liable for any damage unlawfully caused to a third party by an official in the exercise of his or her official duties, regardless of the fault committed by the official.” 
Switzerland, Law on (State) Responsibility, 1958, as amended, Article 3(1).
The Law further provides:
If the official has committed a fault resulting in death or bodily harm, the competent authority may, taking into consideration the special circumstances of the case, award the victim or the relatives of the victim adequate moral damages.
Whoever suffers unlawful moral injury has the right, if the official has committed a fault, to be paid damages therefor, provided that this is justified by the gravity of the injury and that compensation has not otherwise been given by the official concerned. 
Switzerland, Law on (State) Responsibility, 1958, as amended, Article 6.
In its judgment in the Spring case in 2000 dealing with the claim of a Jewish Auschwitz survivor against the Swiss Confederation for 100,000 Swiss francs in compensation for having been handed over in November 1943 by Swiss border guards to German troops, Switzerland’s Federal Court referred to a possible right to compensation on the ground of Switzerland’s Law on (State) Responsibility as amended. It stated, however, that, as a condition for the applicability of this law, the right to compensation would not have to be barred by statutes of limitation or by laches. The Federal Court, stating that the claimant based his right to compensation, inter alia, on the alleged illegal handing over to the German authorities which he had qualified as complicity in genocide, referred to Article 75(1) bis of the Swiss Penal Code and Article 56 bis of the Swiss Military Criminal Code. It stated that even under these provisions, which excluded the applicability of statutes of limitation to, inter alia, genocide and grave breaches of the 1949 Geneva Conventions or other international agreements on the protection of victims of war if the offence was particularly serious given the circumstances, the alleged criminal acts were barred. The Federal Court also referred to the principle according to which statutes of limitation under penal law could also be applicable to the right under civil law. It further stated that the claim was also barred by statutes of limitation under (the applicable national) public law. Therefore, in the merits, the Federal Court dismissed the claim. Nevertheless, it awarded the claimant 100,000 Swiss francs in compensation for the procedural costs. 
Switzerland, Federal Court, Spring case, Judgment, 21 January 2000.
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
Nonfeasance in international law or activities running counter to international law which can be ascribed to states raises the question of their so-called state responsibility. Important rules regarding state responsibility are contained in the [2001] “Draft Articles on Responsibility of States for Internationally Wrongful Acts” of the “International Law Commission” of the United Nations (ILC), a document reflecting international customary law.
A state can be held responsible for acts carried out by its authorities who contravene international law. Conduct running counter to international law of an individual, a group of individuals, or a corporate body which are not state bodies can also be ascribed to a state if the named actors are empowered on the basis of the laws of this state to carry out sovereign activities, or if in their activities they in fact act under the instructions or under the direction or control of this state. In addition, the conduct of an individual or group of individuals, according to international law, is considered to be an act of the state if the individual or group of individuals, in the absence or default of the official authorities actually assume sovereign functions, and conditions are such that the exercise of such sovereign functions are required (Art. 5, 8 and 9 of the ILC Draft Articles).
The consequence of this state responsibility is the obligation to provide full reparation in the form of restitution, compensation and satisfaction to the wronged state or if necessary to the international community (Part 2 of the ILC Draft Articles). 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.1, p. 48.
[footnote in original omitted; emphasis in original]
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
Nonfeasance in international law or activities running counter to international law which can be ascribed to states raises the question of their so-called state responsibility. Important rules regarding state responsibility are contained in the [2001] “Draft Articles on Responsibility of States for Internationally Wrongful Acts” of the “International Law Commission” of the United Nations (ILC), a document reflecting international customary law.
A state can be held responsible for acts carried out by its authorities who contravene international law. Conduct running counter to international law of an individual, a group of individuals, or a corporate body which are not state bodies can also be ascribed to a state if the named actors are empowered on the basis of the laws of this state to carry out sovereign activities, or if in their activities they in fact act under the instructions or under the direction or control of this state. In addition, the conduct of an individual or group of individuals, according to international law, is considered to be an act of the state if the individual or group of individuals, in the absence or default of the official authorities actually assume sovereign functions, and conditions are such that the exercise of such sovereign functions are required (Art. 5, 8 and 9 of the ILC Draft Articles).
The consequence of this state responsibility is the obligation to provide full reparation in the form of restitution, compensation and satisfaction to the wronged state or if necessary to the international community (Part 2 of the ILC Draft Articles). 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.1, p. 48.
[footnote in original omitted; emphasis in original]
In 2006, Switzerland’s Federal Department of Foreign Affairs issued a conceptual framework for dealing with the past, which states:
Although there is no standard model for dealing with the past, Switzerland has strongly contributed to the elaboration of a conceptual framework in this field. The so-called “Joinet principles” constitute the basis of this approach. They identify four key areas in the struggle against impunity:
- The right to know,
- The right to justice,
- The right to reparation,
- The guarantee of non-recurrence.
The right to know
The right to know the truth and the duty to remember involve both the individual right of victims and their families to learn the truth about what happened to them or their loved ones and the collective right of society to know the truth about past events and circumstances which led to gross human rights violations. These are an important part of the necessary measures to prevent the risk of human rights violations recurring.
In addition, it involves an obligation on the part of the State to undertake measures to preserve the collective memory and so to guard against the development of revisionist arguments. The most frequently used instrument to ensure this right is the extra-judicial commission of inquiry, also known as truth and reconciliation commissions. Their two-fold purpose is to dismantle the administrative machinery that has led to abuses in the past in order to ensure that they do not recur and to preserve evidence for the judiciary. The second measure often entails documentation and the preservation of archives relating to grave human rights violations.
The right to justice
The right to justice and the duty to investigate and to prosecute imply that any victim can assert his or her rights and receive fair and effective remedy for abuses suffered. This includes the expectation that the person or persons responsible will be held accountable to the law and that reparations will be forthcoming. It also entails the obligation on the part of the State to investigate violations, to arrest and to prosecute the perpetrators and, if their guilt is established, to punish them.
The right to reparation
The right to reparation, both at the individual level and in collective forms, entails individual measures for victims and their relatives or dependants such as:
- Restitution, i.e. seeking to restore the victim to his or her previous situation;
- Compensation for physical or mental injury, including lost opportunities, physical damage, defamation, and legal aid costs;
- Rehabilitation, i.e. medical care, including psychological and psychiatric treatment.
Collective measures of reparation involve symbolic acts such as annual tributes of homage to the victims or public recognition by the State of its responsibility, which help to discharge the duty of remembrance and help restore victims’ dignity.
The guarantee of non-recurrence
The guarantee of non-recurrence includes vetting/lustration and institutional reform. It emphasizes the need to disband para-military armed groups (DDR), to reform security institutions, repeal emergency laws, and to remove officials from office who are implicated in serious human rights violations following a fair and transparent procedure. It also foresees the reform of state institutions in accordance with the norms of good governance and the rule of law. 
Switzerland, Federal Department of Foreign Affairs, Switzerland’s conceptual framework for dealing with the past, 2006.
In 2013, Switzerland’s Federal Department of Foreign Affairs issued the document “Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000)”, which stated:
The concept of [d]ealing with the past stems from the Principles against Impunity developed by Louis Joinet and approved by the UN Commission on Human Rights in 1997. These principles recognise the rights of victims and the duties of states in combating impunity in cases of grave violations of human rights and international humanitarian law. The Principles against Impunity call for combined initiatives to ensure the realisation of these rights and obligations in the following areas: the right to know, the right to justice, the right to reparation and the guarantee of non-recurrence. 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, p. 5.
The Action Plan also states:
GOAL 3
Greater inclusion of a gender perspective during and after violent conflicts in emergency aid, reconstruction and in dealing with the past
SUBORDINATE GOAL 3
Switzerland implements UNSCR [UN Security Council resolution] 1325 during and after violent conflicts, as well as in fragile contexts through its bilateral measures for emergency aid, reconstruction and dealing with the past.
Measures
3 Activities, programmes and projects focused on dealing with the past (DwP) incorporate gender aspects in in all four areas: Right to Truth, Right to Justice, Right to Reparation, Guarantee of Non-Recurrence). 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, pp. 16–17.
[emphasis in original; footnote in original omitted]
In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict, Switzerland’s chargé d’affaires stated:
We remain most concerned by reports of serious violations of international humanitarian law and human rights in Syria. … In view of the extent of the violations and the number of victims in Syria, a holistic approach will be required in order to address the victims’ right to know, right to justice, right to reparation, and the guarantee of non-recurrence, within the framework of a political solution to the conflict. 
Switzerland, Statement by the chargé d’affaires of Switzerland before the UN Security Council during a debate on the protection of civilians in armed conflict, 19 August 2013.