Practice Relating to Rule 150. Reparation
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).
Thus the conduct of private security companies mandated by states can potentially be ascribed to a state under international law.
While the “Draft Articles” of the ILC describe state responsibility towards other states or the international community, individuals also have the possibility to bring before certain national and international forums a state which has violated certain rules of international law (international humanitarian law or human rights). However the investigation of the different national and regional possibilities to call a state to account on the basis of international law is beyond the scope of this report.
[footnote in original omitted; emphasis in original]
In 2006, Switzerland’s Federal Department of Foreign Affairs issued a conceptual framework for dealing with the past, which states:
Although there is no standard model for dealing with the past, Switzerland has strongly contributed to the elaboration of a conceptual framework in this field. The so-called “Joinet principles” constitute the basis of this approach. They identify four key areas in the struggle against impunity:
- The right to know,
- The right to justice,
- The right to reparation,
- The guarantee of non-recurrence.
The right to reparation
The right to reparation, both at the individual level and in collective forms, entails individual measures for victims and their relatives or dependants such as:
- Restitution, i.e. seeking to restore the victim to his or her previous situation;
- Compensation for physical or mental injury, including lost opportunities, physical damage, defamation, and legal aid costs;
- Rehabilitation, i.e. medical care, including psychological and psychiatric treatment.
Collective measures of reparation involve symbolic acts such as annual tributes of homage to the victims or public recognition by the State of its responsibility, which help to discharge the duty of remembrance and help restore victims’ dignity.
In 2010, in response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
Independently of the right to justice, and in line with Switzerland's commitment to peace and reconciliation in Sri Lanka, the Federal Council encourages the Sri Lankan government to address the recent past of the country, in accordance with the three other “Joinet principles” adopted by the Commission on Human Rights of the UN: the right to know, the right to reparation and the guarantee of non-recurrence.
In 2011, Switzerland’s Federal Council issued a communiqué on the continuation of measures promoting peace and human security 2012–2016, which stated:
[Switzerland] will concretely support societies emerging from armed conflicts so that a holistic approach to dealing with the past and to fighting impunity is put in place, combining measures such as fact-finding and truth commission, special courts, reparation and rehabilitation programmes for victims and reform of security institutions to strengthen guarantees of non-repetition. … With regard to the fight against impunity, Switzerland will refer in its action to relevant international principles that provide a strategic framework of reference for taking measures focused on the rights of victims and the obligation of States in the area of truth, justice, reparation and guarantees of non-repetition of violations (“Joinet principles”).
In 2012, in a statement before the UN Security Council during a debate on women, peace and security, Switzerland’s chargé d’affaires a.i. stated:
We strongly encourage more systematic measures to enhance protection and prevent the recurrence of sexual violence through transitional justice approaches. These measures should combine the fight against impunity as well as the recognition of the rights of victims – for example through appropriate reparations[.]
In 2013, Switzerland’s Federal Department of Foreign Affairs issued the document “Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000)”, which states:
The concept of [d]ealing with the past stems from the Principles against Impunity developed by Louis Joinet and approved by the UN Commission on Human Rights in 1997. These principles recognise the rights of victims and the duties of states in combating impunity in cases of grave violations of human rights and international humanitarian law. The Principles against Impunity call for combined initiatives to ensure the realisation of these rights and obligations in the following areas: the right to know, the right to justice, the right to reparation and the guarantee of non-recurrence.
The Action Plan also states:
Greater inclusion of a gender perspective during and after violent conflicts in emergency aid, reconstruction and in dealing with the past
SUBORDINATE GOAL 3
Switzerland implements UNSCR [UN Security Council resolution] 1325 during and after violent conflicts, as well as in fragile contexts through its bilateral measures for emergency aid, reconstruction and dealing with the past.
3 Activities, programmes and projects focused on dealing with the past (DwP) incorporate gender aspects in in all four areas: Right to Truth, Right to Justice, Right to Reparation, Guarantee of Non-Recurrence).
[emphasis in original; footnote in original omitted]
In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict, Switzerland’s chargé d’affaires stated:
We remain most concerned by reports of serious violations of international humanitarian law and human rights in Syria. … In view of the extent of the violations and the number of victims in Syria, a holistic approach will be required in order to address the victims’ right to know, right to justice, right to reparation, and the guarantee of non-recurrence, within the framework of a political solution to the conflict.