Practice Relating to Rule 150. Reparation
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’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.”
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.
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.
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  “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).
[footnote in original omitted; emphasis in original]