Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
Switzerland’s Basic Military Manual (1987) provides: “If the execution of an order constitutes a crime, the commander or superior who has given this order is punishable as well as the author of the breach.”
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
5 Superiors must only give orders that can be carried out legally. Other than the individual criminal responsibility of the authors, superiors are also criminally responsible. In fact, the criminal responsibility of the superior is engaged when he orders, does not hinder or does not subject to disciplinary sanction a violation of the international law of armed conflict or of national law, or if he does not report the case of grave breaches to the prosecution authorities. He is also responsible for misbehaviour of which he could have or should have known, insofar as he does not take any measure to hinder them.
17.2 Personal responsibility
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 led to a criminal offence.
[emphasis in original]
Under Switzerland’s Criminal Code (1927), as amended, if the execution of an order is a punishable act, the superior who issued the order is punishable as the perpetrator of the act.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states: “If the execution of an order constitutes a crime or offence, the chief or superior who has given this order is punishable as perpetrator of the act.”
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:
1 If carrying out an official order constitutes an offence, the commander or the superior who has given that order is punishable as author of the offence.
2 The subordinate who commits an act on order from a superior or in obeying instructions that bind him in a similar manner is also punishable if he is aware, at the time of the facts, of the punishable character of his act. The judge can reduce the penalty.
[footnotes in original omitted]