Norma relacionada
Switzerland
Practice Relating to Rule 151. Individual Responsibility
Switzerland’s Basic Military Manual (1987) provides: “The violations of the laws and customs of war, commonly known as war crimes, engage the individual responsibility of those who committed them.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 191.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
3 All military persons are in principle personally responsible for their acts or omissions. …
187 Prisoners must be humanely treated at any time and in any place. … The State is responsible for the treatment of prisoners; each individual may be held liable for violations.
198 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. … The State is responsible for the treatment of prisoners and internees. Each individual is held liable under criminal law for violations.
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.
236 Under Art. 109 of the Military Criminal Code, any person who violates the provisions of international treaties on the conduct of war and the protection of persons and goods or other recognized laws and customs of war is liable to imprisonment of up to three years or in serious cases of up to 20 years. In minor cases, disciplinary sanctions apply.
17.2 Personal responsibility
242 Every person is in principle responsible for his acts and omissions.
243 For criminal offences committed under official orders, the superiors or persons who issued the order are punishable, even though they have not personally committed the offence. The subordinates are liable as well if they were aware that executing the order would lead to a criminal offence.
244 Therefore subordinates and superiors are criminally liable. 
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, §§ 3, 187, 198, 234, 236 and 242–244.
[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, 1927, as amended, 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 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. 12a
1 A felony or misdemeanour may also be committed by a failure to comply with a duty to act.
2 A person fails to comply with a duty to act if he does not prevent a legal interest protected under criminal law from being exposed to danger or from being harmed even though, due to his legal position, he has a duty to do so …
3 Any person who fails to comply with a duty to act is liable to prosecution only if, on the basis of the elements of the offence concerned, his conduct is, in the circumstances, as culpable as it would have been had he actively committed the offence.
4 The judge can reduce the punishment. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 12a.
The Code further states:
Art. 13
1 Unless the law expressly provides otherwise, a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully.
2 A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. A person acts wilfully as soon as he regards the realization of the act as being possible and accepts this.
3 A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care. A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and commensurate with his personal capabilities. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 13.
The Code also states:
Art. 21
1 The judge can reduce the penalty if the execution of a crime of a felony or misdemeanour is not pursued to its completion or if the result necessary for the completion of the offence does not occur or could not occur. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 21(1).
The Code further states:
Art. 23
1 Any person who has intentionally incited someone else to commit a felony or a misdemeanour incurs, if the offence has been committed, the penalty applicable to the person who has committed the offence.
2 Any person who has attempted to incite someone else to commit a felony incurs the penalty applicable to the attempt of that felony.
Art. 24
The penalty is reduced for any person who has intentionally assisted another to commit a felony or a misdemeanour. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 23 and 24.
In a chapter on “Felonies or misdemeanours that create a collective danger”, the Code states:
Art. 171b
1 Any person who, in accordance with a plan, carries out specific technical or organizational measures, the nature and extent of which indicate that the offender intends to commit any of the offences listed below shall be liable to a custodial sentence not exceeding five years or to a monetary penalty:
c. War crimes (Art. 111–112d);
2. If the offender, of his own volition, does not complete the preparatory act, he shall not be liable to any penalty.
3. It shall also be an offence for any person to carry out the preparatory acts abroad, provided it was intended to commit the offences in Switzerland. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 171b (1)(c) and (2)–(3).
[footnote in original omitted]
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a title on war crimes, states in the book on general provisions:
Art. 11
1 A felony or misdemeanour may also be committed by a failure to comply with a duty to act.
2 A person fails to comply with a duty to act if he does not prevent a legal interest protected under criminal law from being exposed to danger or from being harmed even though, due to his legal position, he has a duty to do so …
3 Any person who fails to comply with a duty to act is liable to prosecution only if, on the basis of the elements of the offence concerned, his conduct is, in the circumstances, as culpable as it would have been had he actively committed the offence.
4 The judge can reduce the penalty 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 11.
The Code further states:
Art. 12
1 Unless the law expressly provides otherwise, a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully.
2 A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. A person acts wilfully as soon as he regards the realization of the act as being possible and accepts this.
3 A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care. A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and commensurate with his personal capabilities. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 12.
The Code also states:
Art. 22
1 The judge can reduce the penalty if the execution of a crime of a felony or misdemeanour is not pursued to its completion or if the result necessary for the completion of the offence does not occur or could not occur. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 22(1).
The Code further states:
Art. 24
1 Any person who has intentionally incited someone else to commit a felony or a misdemeanour incurs, if the offence has been committed, the penalty applicable to the person who has committed the offence.
2 Any person who has attempted to incite someone else to commit a felony incurs the penalty applicable to the attempt of that felony.
Art. 25
The penalty is reduced for any person who has intentionally assisted another to commit a felony or a misdemeanour. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 24 and 25.
Under the title “Felonies and misdemeanours against public peace”, the Code also states:
260bis
1 Any person who, in accordance with a plan, carries out specific technical or organizational measures, the nature and extent of which indicate that the offender intends to commit any of the offences listed below shall be liable to a custodial sentence not exceeding five years or to a monetary penalty:
j. War crimes (Art. 264c–264h).
2. If the offender, of his own volition, does not complete the preparatory act, he shall not be liable to any penalty.
3. It shall also be an offence for any person to carry out the preparatory acts abroad, provided it was intended to commit the offences in Switzerland. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 260bis(1)–(3).
[footnotes in original omitted]
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 Criminal 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 Swiss Military Criminal Code as amended over violations of the laws and customs of war, grave breaches of the 1949 Geneva Convention III, the 1949 Geneva Convention IV and 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 and former burgomaster for, inter alia, grave breaches of IHL committed in Rwanda on the basis of common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II. The defendant had been charged, in the context of the Rwandan genocide in 1994, with inciting the population to kill Tutsis and moderate Hutus and with exhorting refugees to go back to their homes, with the intention of having them killed and taking their property. The Tribunal sentenced the accused to life imprisonment. 
Switzerland, Military Tribunal at Lausanne, Niyonteze case, Judgment, 30 April 1999.
In 2000, the Military Court of Appeals partially upheld the judgment, reducing the sentence to 14 years’ imprisonment. It found that the defendant was guilty under Article 109 of the Swiss Penal Code relating to violations of the laws of war, common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II. 
Switzerland, Military Court of Appeals, Niyonteze case, Judgment, 26 May 2000.
At the final instance, the Military Court of Cassation, partially dismissing the previous judgment, confirmed the findings on the guilt of the defendant. 
Switzerland, Military Court of Cassation, Niyonteze case, Judgment, 27 April 2001.
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
5.5.2 Individual responsibility under international criminal law
5.5.2.1 Introduction and legal sources
Certain violations of international law result in individual criminal responsibility directly based on international law. The legal sources of relevant international criminal law are certain international agreements such as the [1949] Geneva Conventions and the UN Convention on Torture of 1984. Customary international law is also of great importance. … The crimes against international law named in the [1998] Rome Statute of the International Criminal Court reflect customary international law, as is broadly recognised.
5.5.2.2 Acts constituting an offence
Acts which constitute an offence that are of potential relevance for private security companies operating in conflict situations include war crimes and crimes against humanity as well as individual acts such as torture and the forced disappearance of individuals. 
Switzerland, Report by the Swiss Federal Council on Private Military and Security Companies, 2 December 2005, Section 5.5.2, p. 49.
[footnotes in original omitted; emphasis in original]
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:
Article 122
1. The person suffering harm may bring civil claims based on the offence as a private claimant in the criminal proceedings.
2. The relatives of the victim have the same right provided they bring their own civil claims against the accused. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 122(1) and (2).