Règle correspondante
Switzerland
Practice Relating to Rule 88. Non-Discrimination
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, 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:
…
d. … crime against humanity (Part 2, chapter 6) … ;
…
5. foreign military persons who make themselves culpable of … a crime against humanity (Part 2, chapter 6) … ;
…
Chapter 6 – Genocide and crimes against humanity
…
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:
…
i. in relation with one of the acts under chapters 6 [genocide and crimes against humanity] and 6bis [war crimes] or with the aim of systematically oppressing or dominating a racial group, seriously injures the fundamental rights of members of a group of persons by depriving them or stripping them of these rights for political, racial, ethnical, religious or social reasons or any other reason that is contrary to international law.
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)(i).
[footnotes in original omitted]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: “Persons who are not or no longer taking part in the hostilities must be treated humanely without any discrimination. This is especially important in the case of detainees.”
Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.
Switzerland’s Basic Military Manual (1987) provides:
All civilian persons shall benefit from an equal treatment. No one can be disadvantaged because of race, colour, language, religion, political or other opinions, social origin, faith, sex, wealth or any other circumstance.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 148.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
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.
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, § 198.
[emphasis in original]Switzerland’s military manuals provide that medical personnel shall collect and care for enemy wounded, as well as those of friendly forces.
Switzerland, Lois et coutumes de la guerre, Manuel 51.7/III dfi, Armée suisse, 1984, p. 15; 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 70.
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I recover and identify wounded, sick, shipwrecked and dead persons without discrimination as soon as the combat situation allows or the superior orders such.”
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 4.
Switzerland’s Basic Military Manual (1987) recalls: “No adverse distinction can be based on race, nationality, religion, political opinions, language, colour, social condition, birth or other similar criteria.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 97.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
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.
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, § 187.
[emphasis in original]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]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: “Persons who are not or no longer taking part in the hostilities must be treated humanely without any discrimination. This is especially important in the case of detainees.”
Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.
Switzerland’s Basic Military Manual (1987) provides that “practices of apartheid or other inhumane and humiliating treatment based on racial discrimination, implying a serious violation of human dignity”, is a grave breach of the 1977 Additional Protocol I.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 193(2)(c).
