Practice Relating to Rule 139. Respect for International Humanitarian Law
Switzerland’s Basic Military Manual (1987) states: “Switzerland has undertaken to respect the rules of the law [of armed conflict].”
The manual further states: “The laws and customs of war must be observed by Governments, the civilian and military authorities as well as by individuals, military or civilian.”
The manual also provides that commanders “are responsible for ensuring that their troops respect the Conventions”.
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “Whenever possible, I shall prevent potential violations of the Law of Armed Conflict. I have to report violations to my superior as quickly as possible, even if comrades have committed them.”
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
4 Respect for and implementation of the legal rules in all types of operation are a command task and an integral part of individual discipline.
151 Understanding of the international law of armed conflict during operations is part of the armed forces’ basic readiness.
169 All military personnel must be familiar with the four principles [distinction, military necessity, proportionality and limitation] in a way that allows them to automatically make the right decision in the heat of battle.
[emphasis in original]
Switzerland’s Regulation on the Ten Basic Rules for the Protection of Cultural Property (2013) states: “I will prevent – whenever and wherever possible – any violation of the rules on cultural property protection and will report any such violation to my superiors at once.”
In a declaration adopted in 2002 with regard to respect for the 1949 Geneva Conventions in the context of the fight against terrorism, the Swiss National Council stated:
The Swiss National Council calls upon all States to respect the Geneva Conventions, in particular today with regard to the “war against terrorism”:
–in practical terms (treatment of combatants, of prisoners, of civilians);
–in legal terms (application de jure: unconditional and non-selective).
The Swiss National Council calls upon the authorities of all States in no way to question the legitimacy and legal force of the humanitarian rules which are established in the Geneva Conventions.
In a resolution adopted in 2002 on the occasion of the 25th Anniversary of the Additional Protocols, the Swiss Council of States solemnly recalled “the importance to have and to respect universal humanitarian rules” and expressed its firm belief in “the essential role which the national Parliaments can play in order to protect the victims of armed conflicts”.
In 2005, in a report in response to a parliamentary postulate on private aecurity and military companies, Switzerland’s Federal Council stated:
5.3.3 Obligations of the state with regard to private security companies
Common Article 1 of the four Geneva Conventions states that the States Parties undertake to respect and to ensure respect for the present convention under all circumstances. This means that the States Parties must see to it that all state players respect international humanitarian law. Moreover the contracting states have the duty to ensure that third parties, whether they are other states or private entities, also observe international humanitarian law. States cannot escape their obligations under international humanitarian law by placing certain tasks in the hands of private companies. In fact they have to ensure even more that the private security companies which they deploy in conflict situations, which are based in their state or which are operational on their territory, respect international humanitarian law. In addition, the contracting states are obliged to prosecute especially in cases of serious breaches of the Geneva Conventions regardless of where the act took place or the nationality of the perpetrator.
5.6 Switzerland’s obligations under international law and its role as a contracting party and depositary of the Geneva Conventions
As a contracting party to the Geneva Conventions, Switzerland has the duty to respect and “to ensure respect for the Conventions”. This involves the duty to see to it that the Geneva Conventions are observed by other states and individuals, including any Swiss-based private security companies active in conflict situations. This applies all [the] more so if Switzerland has itself mandated security companies to carry out certain tasks in conflict situations.
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.
6.3 List of measures proposed by the Federal Council
The Federal Council intends to take the following steps:
1. The Federal Council will call for administrative bodies to comply with the limits imposed by the Federal Constitution upon the delegation of security duties to private companies.
2. The Federal Council will invite the cantons to harmonise their legal systems.
3. The Federal Council is willing to review the possibility of setting minimum conditions for the Swiss government’s use of private security companies to perform security duties.
4. The Federal Council is willing to review the advisability of requiring providers of military or security services based in Switzerland with operations in crisis and conflict zones to obtain approval, or of subjecting them to a licensing system.
5. The Federal Council, as far as possible in cooperation with the ICRC, wishes to initiate an international process aimed at contributing to an intergovernmental discussion, enhancing and clarifying the obligations under international law on the part of states and other actors, and studying regulatory models on the national, regional and international levels.
In 2008, in its response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
3. As depository state and contracting party to the  Geneva Conventions, Switzerland wishes to underline the importance of respect for international humanitarian law by all the parties to the conflict, whether this concerns state armed forces, armed groups or individuals. Its call to respect international norms is thus addressed to all the parties to the Israeli-Palestinian conflict.
Israel has the right and the duty to protect its territory and population against attacks. However, as a party to the conflict, it is bound by the obligations emanating from international humanitarian law. Furthermore, disrespect of the rules of international humanitarian law by one party to the conflict cannot legitimize violations of the law by the other party.
In 2008, in its response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
The Federal Council follows the situation in the Middle East with interest and has, on several occasions, called upon the parties to the conflict to respect international humanitarian law and the protection of the civilian population anchored in it. On 29 February 2008, the Federal Department of Foreign Affairs once again called upon the parties to respect international law and to exercise the utmost restraint.
In 2009, the Swiss Federal Council created the Interdepartmental Committee for International Humanitarian Law. Switzerland’s Federal Department of Foreign Affairs stated:
The Interdepartmental Committee for International Humanitarian Law
Switzerland is obliged to implement and to further promote International Humanitarian Law at home as well. The Interdepartmental Committee for International Humanitarian Law (ICIHL) fosters and coordinates activities in this area.
The Interdepartmental Committee is tasked with the administration/internal exchange of experience and information on International Humanitarian Law and its implementation in Switzerland. It ensures optimum coordination among the Federal authorities and maintains relations with the scientific community, civil society, and other organizations concerned with International Humanitarian Law, such as the International Committee of the Red Cross (ICRC).
The Interdepartmental Committee participates in the training of the Swiss authorities personnel and persons outside the Federal administration in matters of International Humanitarian Law. The Committee also supports the ICRC in its yearly up-date of its study on Customary International Humanitarian Law. In so doing, the Committee compiles new declarations, legal texts, and judgements on the part of Switzerland.
The Federal Council set up the Interdepartmental Committee for International Humanitarian Law further to a recommendation of the International Red Cross and Red Crescent Movement. Some 100 States already boast of this type of committee recognized by the ICRC.
Federal Department of Foreign Affairs FDFA
The Swiss Interdepartmental Committee is composed of representatives of the FDFA, the DDPS [Federal Department of Defence, Civil Protection and Sport], the FDJP [Federal Department of Justice and Police], the FDEA [Federal Department of Economic Affairs, Education and Research – EAER], and the FDHA [Federal Department of Home Affairs]. The Directorate of International Law (DIL) at the FDFA holds the Chairmanship. Every year, the Committee approves an action plan setting down the corresponding priorities and objectives.
[emphasis in original]
Switzerland’s Protection of Civilians in Armed Conflict Strategy (2009) states:
The FDFA [Federal Department of Foreign Affairs] has thus defined three strategic objectives with corresponding specific outcomes for the next four years:
- The normative framework ensuring the protection of civilians in armed conflict is adequate, known and respected by all parties involved
- The involved parties, in particular non-state actors, comply with the normative framework and respect their obligations.
[emphasis in original]
Switzerland’s ABC of International Humanitarian Law (2009) states:
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. …
The parties to a conflict must respect international humanitarian law in all circumstances and regardless of the behaviour of the other side. A State Party cannot evade its own obligations arguing that the other Party is failing to uphold international humanitarian law. Thus a State Party accused of a violation cannot justify its actions on the grounds that the other Party committed a similar violation. …
Respecting and ensuring respect for international humanitarian law is one of the most important obligations of the States Parties to the Geneva Conventions of 1949. The States Parties are also required to incorporate the provisions of the Geneva Conventions into their own national legislation and to work for the dissemination of international humanitarian law in peacetime as well as during Armed conflict.
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. States are also responsible for disseminating international humanitarian law. …
Private military and security companies
There is a trend for States in conflict situations to pass on an increasing number of tasks to private military and security companies. These tasks include the protection not only of Civilians and civilian infrastructure but even of army personnel and military infrastructure, the training of soldiers and police, and services in the areas of consultancy, logistics, the operation of weapons systems as well as intelligence gathering and in some cases combat support. These private actors are regularly in contact with persons who are protected by international humanitarian law, and sometimes even participate directly in hostilities. The employees of these companies are obliged to respect international humanitarian law, and the States concerned must ensure that they do so.
In 2006, Switzerland in collaboration with the International Committee of the Red Cross (ICRC) launched an international initiative to ensure that private military and security companies operating in conflict zones respect international humanitarian law and Human rights. In 2008 the initiative resulted in the release of the so-called Montreux Document.
Promotion of international humanitarian law
The global fight against Terrorism
, the growing phenomena of the Direct participation in hostilities
of civilians, the increase in the number of Non-state actors
involved in conflicts as well as technological developments are only some of the challenges that international humanitarian law has currently to face. Although the existing rules of international humanitarian law are sufficient to respond to these challenges, the implementation of these rules is still incomplete. It is therefore important that the actors concerned ensure a higher degree of respect for and implementation of international humanitarian law, in particular through the reaffirmation and the dissemination of the existing rules as well as through the further clarification of some of them.
In 2009, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Switzerland stated:
The current situation in Gaza cries out to us the importance of the issue we are discussing today. The main victims of the Israeli-Palestinian conflict are civilians. … In this context, we must stress how important it is that the provisions of international law, in particular those of international humanitarian law, do not remain empty words but that they are effectively implemented on the ground to ensure the maximum protection of the civilian population. …
Switzerland therefore reiterates its call for … strict compliance with international law by all parties to the conflict. This includes in particular the obligation to respect the principles of distinction, proportionality and precaution.
In 2009, in response to a motion before the Council of States by the Commission on Foreign Policy, Switzerland’s Federal Council stated:
The humanitarian situation in Sri Lanka is of the highest concern to the Federal Council. It deplores the violations of international humanitarian law, in particular the undifferentiated and disproportional recourse to violence that has killed and wounded thousands of persons in the north of the country. …
The Federal Council considers that what is most urgent is to ensure respect of international humanitarian law by all parties to the conflict, the protection of the civilian population and the rapid access of humanitarian organizations, without restriction.
In 2009, in response to a postulate before the National Council, Switzerland’s Federal Council stated:
The Federal Council has, on several occasions during and after the cessation of hostilities in the north of Sri Lanka, launched an urgent appeal to the parties to the conflict to respect international humanitarian law. It 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.
In 2009, in its Report on Foreign Policy, Switzerland’s Federal Council stated:
Since 2005, the FDFA [Federal Department of Foreign Affairs] – through its Directorate of international law – has sought to ensure that private military and security companies [PMSC] better respect international humanitarian law and human rights in areas of conflict. It launched with the ICRC an intergovernmental initiative on the matter. … [T]he Montreux Document on private military and security companies was adopted on [17 September 2008].
The Montreux Document clarifies and reaffirms the obligations imposed by international law on States employing private military and security companies.
According to the norms in force, States cannot circumvent [these obligations] by resorting to the use of private companies: they must take the necessary measures to prevent PMSC from violating international humanitarian law and human rights and put in place the necessary enforcement measures; they directly assume the responsibility for the acts of the PMSC they employ.
[footnotes in original omitted; emphasis in original]
In 2010, in response to a question by a member of the National Council, Switzerland’s Federal Council stated:
The Federal Council has, on several occasions during and after the cessation of hostilities in the north of Sri Lanka, launched appeals to the parties to the conflict to respect international humanitarian law. It 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.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.1 Increasing importance of non-State actors
The analysis concerning private military and security companies does not fundamentally differ from that concerning other non-State actors. They are also bound by international humanitarian law. … Furthermore, questions of State responsibility also arise with regard to private military and security companies. In fact, the  Geneva Conventions require that the High Contracting Parties commit to respecting and ensuring respect for international humanitarian law.
3.4 [Increasing use of] anti-guerrilla tactics
Military responses to guerrilla tactics must be in conformity with the requirements of international humanitarian law. …
5 Possible action by Switzerland
The following list offers a glimpse of the initiatives being carried out, or having been recently concluded, that aim to develop or reinforce the content of international humanitarian law:
- in December 2009, the Federal Council established the Interdepartmental Committee for International Humanitarian Law, which is primarily responsible for questions relating to the application of the law[.]
[footnotes in original omitted]
In 2012, in a speech on the occasion of Public International Law Day, the head of Switzerland’s Federal Department of Foreign Affairs stated:
To be complete, I must add that Switzerland does not forget that, as a High Contracting Party to the  Geneva Conventions, it, too, has the obligation to implement and disseminate international humanitarian law on its own territory. In 2009, the Federal Council, following insofar the example of numerous countries, decided to establish an Interdepartmental Committee for International Humanitarian Law. Switzerland thus reinforces further its commitment on this matter with the support of the Swiss Red Cross.
In 2013, in the “Strategy on the protection of civilians in armed conflicts”, Switzerland’s Federal Department of Foreign Affairs stated:
Axis 1 – Achieve greater compliance with the normative framework
In order to ensure that the law protects victims of armed conflicts, it is important that action be taken before conflicts arise. Examples of measures include the dissemination of information on international humanitarian law, adequate training of armed forces, the adoption of laws aimed at protecting emblems, or the act of punishing violations.
When conflicts arise, all of the parties involved are required to respect the law and ensure effective compliance. 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.
Area of activities 2
Ensure greater understanding of the normative framework
One of the obstacles preventing compliance with the normative framework by parties to armed conflicts is the lack of knowledge (or lack of suitable familiarity) with this framework on the part of those called upon to comply with it.
Familiarity with the normative framework must not only be theoretical, but also practical. Each actor involved in an armed conflict must have sufficient awareness of its obligations in order to comply with them. It is also important that information about the normative framework be disseminated within the population. The normative framework must also be included in national legislation and transposed into doctrine, operational procedures, training and the internal system of sanctions, so that the parties to the conflict are better able to comply.
Lines of action
Switzerland will implement and disseminate information on international humanitarian law on its own territory through the Interdepartmental Committee for International Humanitarian Law (ICIHL). The ICIHL will be responsible for ensuring the exchange of experiences and information on international humanitarian law within the Federal Administration and how it is implemented in Switzerland.