Règle correspondante
Switzerland
Practice Relating to Rule 158. Prosecution of War Crimes
Switzerland’s Basic Military Manual (1987) provides:
1. Violations of the laws and customs of war must be punished. Those responsible may be brought either before the courts of their own country or before the courts of the injured State, or before an international tribunal.
2. Each Contracting Party is also bound to search for and prosecute in its own courts persons who have committed grave breaches of the provisions of the law of nations in time of war. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 198.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
152 War crimes, i.e. violations of the international law of armed conflict, must in serious cases be reported to the investigating military authorities by the competent superior. Sanctions are the responsibility of the military justice system. The competent commander is responsible for disciplinary sanctions for minor offences.
17 Sanctions for violations of the international law of armed conflict
17.1 General provisions
234 Violations of the international law of armed conflict are punished according to the provisions of the Swiss Penal Code or the Military Criminal Code.
238 The Swiss judicial authorities are required to open a criminal procedure against any Swiss citizen or foreign person where the suspect is present in or has a close connection with Switzerland, regardless of whether the offence has taken place in Switzerland or abroad (for the precise rules on the prosecution of war crimes committed by foreign nationals outside Switzerland, see Art. 9 of the Military Criminal Code). 
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, §§ 152, 234 and 238.
[emphasis in original]
Switzerland’s Military Criminal Code (1927), as amended, states that the provisions of its chapter dealing with “Offences committed against the law of nations in case of armed conflict” are “applicable in case of declared war and other armed conflicts between two or more States” and also provide for “the punishment of violations of international agreements if these agreements provide for a wider scope of application” (Article 108). The Code provides for the punishment of offences listed under this chapter, and especially – among other more specific offences – of “anyone who contravenes the prescriptions of international conventions relating to the conduct of hostilities, as well as to the protection of persons and objects, [and] anyone who violates other recognized laws and customs of war”. 
Switzerland, Military Criminal Code, 1927, as amended, Articles 108–114.
Other offences, such as pillage committed in time of war or marauding on the battlefield are also to be punished. 
Switzerland, Military Criminal Code as amended, 1927, Articles 139–140.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states in a chapter entitled “Offences committed against the law of nations in case of armed conflict”:
1. The provisions of the present chapter apply in case of declared wars and other armed conflicts between two or more States …
2. The provisions of international agreements are also punishable if these agreements provide for a wider scope of application. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 108(1)–(2).
The Code further states:
Any person who has contravened the prescriptions of international conventions on the conduct of hostilities and on the protection of persons and objects, [and]
any person who has violated other recognized laws and customs of war must be punished with three years’ or more imprisonment or with a monetary penalty unless more severe provisions are applicable or, in less serious cases, with a year imprisonment or less. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 109(1).
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:
Art. 3
1 Subject to military criminal law are:
1. Persons subject to military service, during their military service, with the exception of those on leave who commit, without a link to service of the troop, offences under art. 115 to 137b and 145 to 179;
2. Officials, employees and workers of the military administration of the Confederation and the cantons, for acts relevant to national defence, and when they are in uniform;
3. Persons subject to military service, when they are in uniform outside service and commit offences under art. 61 to 114 and 138 to 144;
4. Persons subject to military service, even outside service, in relation to their military situation and their official duties, as well as persons who were subject to military service insofar as they have not fulfilled their official duties;
6. Professional military persons, contracted military persons, persons who are part of the border guard corps as well as persons who, according to Article 66 of the Federal law of 3 February 1995 on the army and the military administration, carry out peace support service, for offences committed during the service, offences committed outside service but related to their military obligations or military situation, and offences they commit in uniform;
8. Civilians or foreign military persons, for acts under art. 115 to 179 which they commit while employed or mandated by the armed forces or the military administration while working with the troops;
9. Civilians or foreign military persons who commit abroad against a Swiss military person one of the acts under … chapter 6bis (art. 110 to 114) [war crimes] of Part 2 or of art. 114a [punishability of superiors].
2 The persons mentioned under paragraph 1, numbers 1, 2, 6 and 8 are, during the full duration of their engagement abroad, subject to military criminal law if they commit abroad an act punishable according to the present law.
Art. 4
In case of active service are subject to military criminal law also, if and to the degree decided by the Federal Council:
4. Military internees of belligerent States who belong to their armed forces, militias or voluntary corps, including organized resistance movements, civilian internees and refugees who are under the military’s charge;
5. Officials, employees and workers of the military administration of the Confederation and the cantons, including those of military establishments and workshops, of services and establishments of vital interest, in particular of water distribution services, waterworks, electrical power stations, gas works and hospitals.
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 and 4, the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … war crimes (Part 2, chapter 6bis [war crimes] and art. 139 [pillage]);
2. Prisoners of war, for offences under this code, including those they have committed, in Switzerland or abroad, during the war and before the beginning of their captivity, against the Swiss state or army, or against persons belonging to the Swiss army;
3. Enemy parlementaires and the persons accompanying them, if they abuse their position to commit an offence;
4. Civilian internees in regions of war or under occupation;
5. Foreign military persons who make themselves culpable of … a war crime (Part 2, chapter 6bis, and article 139).
2 The provisions on the punishability of superiors (art. 114a) are applicable to the cases under paragraph 1, number 1(d) and number 5. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 3(1)(1)–(4), (6), (8)–(9) and (2), 4(4)–(5) and 5(1)(1)(d), (2)–(5) and (2).
[footnotes in original omitted]
In the same part, the Code further states:
Art. 10
1 If the personal conditions are fulfilled, the present code is applicable both to offences committed in Switzerland and to those committed abroad.
1bis The present code applies to persons mentioned in art. 5 [paragraph 1], number 1, letter d and number 5, who have committed abroad one of the acts under … chapter 6bis [war crimes] of Part 2 or art. 114a [punishability of superiors] if they are present in Switzerland, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland.
1ter Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognized by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there;
c. the necessary evidence cannot be obtained.
1quater The present code applies to persons who have committed abroad, against a Swiss military person, one of the acts under … chapter 6bis [war crimes] of Part 2 or art. 114a [punishability of superiors], if they are present in Switzerland or have been extradited there because of this act, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 10(1)–(1 quater). The German language version of Article 10(1ter)(b) notes: “the suspected perpetrator is no longer in Switzerland and is not expected to return there; or”.
[footnotes in original omitted]
In the chapter on war crimes, the Code states:
Art. 110
Articles 112–114 [listing a number of violations of IHL, in addition to those under Art. 111] 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:
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. 114
1 The penalty shall be a custodial sentence not exceeding three years or a monetary penalty for any person who, in the context of an armed conflict, violates, in a way not repressed by Articles 111–113, a provision of international humanitarian law whose violation is punishable by virtue of customary international law or an international treaty recognized as binding by Switzerland.
2 The offence is subject to disciplinary punishment if it is not of much gravity. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110–114.
[footnotes in original omitted]
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states:
Book One: General Provisions
Part One: Felonies and Misdemeanours
Title One: Scope of Application
Art. 3
1 Any person who commits a felony or misdemeanour in Switzerland is subject to this Code.
Art. 9
This Code does not apply to persons whose offences are subject to military criminal law.
Book Two: Specific Provisions
Title Twelveter: War Crimes
Art. 264b
Articles 264d–264j [listing a number of violations of IHL] 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:
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. 264j
The penalty shall be a custodial sentence not exceeding three years or a monetary penalty for any person who, in the context of an armed conflict, violates, in a way not repressed by Articles 264c–264i, a provision of international humanitarian law whose violation is punishable by virtue of customary international law or an international treaty recognized as binding by Switzerland.
Title Twelvequater: Common Provisions for Title Twelves’ and Title Twelveter
Art. 264m
1 A person who carries out an act under Title 12bis and 12ter [on war crimes] or Art. 264k [on the criminal liability of superiors] while abroad is guilty of an offence if he is in Switzerland and is not extradited to another State or delivered to an international criminal court whose jurisdiction is recognised by Switzerland.
2 Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognised by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there.
3 Article 7 paragraphs 4 and 5 [on the principle of ne bis in idem] applies unless the acquittal, or the remission or application of time limits for the execution of the sentence abroad has the aim of protecting the offender from punishment without justification. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 3(1), 9(1), 264b, 264c, 264j and 264m; see also Articles 4–7. The German, Italian and Romansh language versions of Article 264m (2)(a) note: “a foreign authority or an international criminal court whose jurisdiction is recognized by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court; or”.
[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: “The criminal justice authorities are obliged to commence and conduct proceedings that fall within their jurisdiction where they are aware of or have grounds for suspecting that an offence has been committed.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 7(1).
In the Grabež case in 1997, a person born in the former Yugoslavia was prosecuted by a Swiss Military Tribunal for violations of the laws and customs of war under the Swiss Military Penal Code as amended on charges of beating and injuring civilian prisoners in the camps of Omarska and Keraterm in Bosnia and Herzegovina. The Tribunal held that it had jurisdiction under Articles 108(2) and 109 of the Military Penal Code as amended over violations of the laws and customs of war, grave breaches of the 1949 Geneva Conventions III and IV and of the 1977 Additional Protocol I, and violations of the 1977 Additional Protocol II, but acquitted the accused for lack of sufficient evidence. 
Switzerland, Military Tribunal at Lausanne, Grabež case, Judgment, 18 April 1997.
In the Niyonteze case in 1999, a Swiss Military Tribunal convicted a Rwandan national for, inter alia, grave breaches of IHL committed in Rwanda on the basis of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II. 
Switzerland, Military Tribunal at Lausanne, Niyonteze case, Judgment, 30 April 1999.
In a resolution adopted on the occasion of the 25th Anniversary of the 1977 Additional Protocols in 2002, Switzerland’s Conseil des Etats invited “national parliaments to examine the totality of the most appropriate legislative and judicial means in order to … better prevent and repress violations of this law”. 
Switzerland, Conseil des Etats, Declaration concerning the Protocols additional to the Geneva Conventions, 12 June 2002, Summer Session 2002, Seventh Session, Official Bulletin, No. 02.048 (provisional version of the text).
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
The [1949] Geneva Conventions and the [1984] UN Convention on Torture oblige the States Parties to prosecute serious infringements against both conventions. This obligation is based on the principle of universal jurisdiction and thus applies if the crime takes place in another country and is not against or by a national of that state.
Accordingly, under certain conditions, Swiss legislation considers cases of grave violations against the Geneva Conventions, genocide, other war crimes and torture as falling under Swiss criminal jurisdiction on the basis of the principle of universal jurisdiction. 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.2.3, pp. 49–50; see also Section 4.5.3.1 pp. 33–35, Section 5.3.3, p. 46 and Section 6.1.4 pp. 54–55.
[footnotes in original omitted; emphasis in original]
The report further stated: “Under the Geneva Conventions, Switzerland, as a contracting party, also has the duty to call to account Swiss nationals or foreigners living in Switzerland, whether they are employees of private security companies or not, if they have committed war crimes.” 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.6, pp. 50–51; see also Section 5.5.2.2, p. 49.
(emphasis in original)
In 2006, Switzerland’s Federal Department of Foreign Affairs issued a conceptual framework for dealing with the past, which stated:
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 … 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. 
Switzerland, Federal Department of Foreign Affairs, Switzerland’s conceptual framework for dealing with the past, 2006.
In 2008, in its sixth periodic report to the Committee against Torture, Switzerland stated:
G. Current bills
2. Criminal law
13. On 23 April 2008, the Federal Council adopted the message on the amendment of federal laws with a view to implementing the [1998] Rome Statute of the International Criminal Court. This bill envisages the incorporation in the Criminal Code of a new offence of crimes against humanity and the express enumeration of the most serious war crimes. A new distribution of powers between the civil and military criminal prosecution authorities is also envisaged with regard to the prosecution of genocide, crimes against humanity and war crimes. The power to prosecute perpetrators of such acts would thus be regulated as follows: the Swiss civil justice system would have jurisdiction to prosecute and try Swiss civilians and foreigners (civilian or military), while the military authorities would have jurisdiction only to prosecute and try acts committed by members of the Swiss army and persons (Swiss or foreign, civilian or military) having committed one of the above crimes against a member of the Swiss army. If … Switzerland is at war, only the military authorities have jurisdiction. The message will be discussed by Parliament in the course of 2008. 
Switzerland, Sixth periodic report to the Committee against Torture, 18 March 2009, UN Doc. CAT/C/CHE/6, submitted 2 July 2008, § 13.
[footnote in original omitted]
Switzerland’s ABC of International Humanitarian Law (2009) states:
Introduction
Although international humanitarian law is intended mainly for States and parties to a conflict (e.g. armed groups), many of its provisions must also be respected by individuals. States are obliged to respect the norms, to suppress any violations, and either themselves prosecute persons responsible for grave breaches, in particular of war crimes, or extradite such persons. …
Implementation
The term implementation refers to the measures necessary to ensure that international humanitarian law is respected. States are the first ones to be responsible for implementation. They must in all cases respect and ensure respect for international humanitarian law, by incorporating its provisions in national legislation including in criminal law to ensure that War crimes are punishable. Furthermore, governments must take all necessary measures to suppress violations. In the case of grave breaches, the States must themselves prosecute the perpetrators, or hand them over to another contracting party for prosecution….
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. … States are under an obligation to prosecute or extradite persons suspected of having committed war crimes on their territory. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 4, 24 and 40.
In 2009, in response to a postulate by the Commission on Foreign Policy before the National Council, Switzerland’s Federal Council wrote: “[The Federal Council] has notably reminded the authorities of Sri Lanka of their responsibilities to carry out inquiries concerning allegations of violations of international humanitarian law and human rights law and to bring to justice persons suspected of having committed violations of international law.” 
Switzerland, National Council, Response by the Federal Council to Postulate No. 09.3472, 19 August 2009, p. 1.
In 2010, in its Report on Foreign Policy, Switzerland’s Federal Council stated: “As concerns Switzerland’s ability to prosecute international crimes, Parliament approved the modification of federal laws in view of the implementation of the Rome Statute of the ICC”. 
Switzerland, Federal Council, Report on Foreign Policy 2010, 10 December 2010, Section 3.1.6, pp. 1057–1059.
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated: “Switzerland reminds the Syrian authorities of their responsibility to investigate all allegations of violations and to bring to justice alleged perpetrators of international law, in particular those suspected of having committed war crimes”. 
Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, including Switzerland, the permanent representative of Canada stated:
Holding perpetrators to account [for] grave violations against children continues to be rare as indicated by the Secretary-General in his annual report, and yet is a crucial element towards protecting children’s rights. The Friends encourage Member States to strengthen national accountability mechanisms and judicial capacities, including by developing child protection legislations that criminalize all grave violations against children. In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role. 
Switzerland, Statement by the permanent representative of Canada during a UN Security Council debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, namely Andorra, Australia, Austria, Belgium, Benin, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Ghana, Guatemala, Hungary, Italy, Japan, Jordan, Liechtenstein, Mali, Mexico, Namibia, Netherlands, New Zealand, Norway, Peru, Portugal, San Marino, Slovenia, Slovakia, South Africa, the Republic of Korea, Sweden, Switzerland, Tanzania and Uruguay, 17 June 2013, pp. 1–2.
In 2013, Switzerland’s Federal Department of Foreign Affairs issued the “Strategy on the protection of civilians in armed conflicts”, which states: “When allegations of violations are made, the parties to the conflict must see to it that investigations are carried out and that those who commit crimes are judged in order to avoid impunity.” 
Switzerland, Federal Department of Foreign Affairs, Strategy on the protection of civilians in armed conflicts, 2013, p. 11.