Practice Relating to Rule 98. Enforced Disappearance
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states:
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 [Art. 109] (Part 2, chapter 6) …;
5. foreign military persons who make themselves culpable of … a crime against humanity [Art. 109] (Part 2, chapter 6)[.]
Chapter 6 – Genocide and crimes against humanity
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:
e. with the intention of removing a person from the protection of the law for a prolonged period of time:
1. deprives the person of his liberty on behalf of or with the acquiescence of a State or political organization, followed by a refusal of any indication of his fate or whereabouts,
2. refuses any indication of his fate or whereabouts, on behalf of a State or political organisation or in violation of a legal duty.
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated: “Acts which constitute an offence that are of potential relevance for private security companies operating in conflict situations include … individual acts such as … the forced disappearance of individuals.”
(footnote in original omitted)
Switzerland’s ABC of International Humanitarian Law (2009) states:
Enforced disappearances and arbitrary detention
The concept of “enforced disappearance” refers to cases in which people are apprehended or abducted by agents of the State, their detention is not acknowledged and the fate and/or the place of detention of persons who have been abducted is kept secret. The persons concerned thus lose all legal protection.
Enforced disappearances violate International humanitarian law
and Human rights
. No conflict and no national security considerations can justify such disappearances. The Convention for the Protection of All Persons from Enforced Disappearance was adopted in 2006 but has not yet come into force (status 2008). International humanitarian law nonetheless contains provisions on the enforced disappearance of persons following an armed conflict. In particular, their next of kin have the right to know what has happened to them.
In 2013, in its Report on Foreign Policy 2012, Switzerland’s Federal Council stated:
The International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006 is the first universal international treaty that protects all individuals from the deprivation of liberty committed by a State or with its consent with the aim to remove the person from the protection of the law and conceals his/her fate. This text is fully in line with the position of Switzerland; we view forced disappearance as a serious crime that we strive to fight. Switzerland signed the Convention on 19 January 2011 and opened the corresponding consultation procedure in December 2012.