Swiss neutrality and human rights obligations in the Russo-Ukrainian war
By the end of February 2022, the United States (US) and the European Union (EU) had jointly decided to impose sweeping sanctions on Russia’s financial, energy, and military-technology sectors for its then less than a week old war of aggression in Ukraine. These sanctions were unexpectedly also joined by Switzerland, a country whose neutrality is the subject of historical consensus, modern colloquial expression, and which has come to shape the central identity of the nation, real and perceived. At the same time, Switzerland prides itself on its special role in upholding human rights around the world, a position which, despite best intentions, is not strictly neutral. Although it joined economic sanctions against Russia, which then-Swiss president Alain Berset argued was in keeping with its neutrality, the nation has been under constant criticism for maintaining the remainder of its policies towards the conflict - reciprocity, re-export of war materials, and geopolitical positioning. Moral and legal arguments thus permeate the discussion, but the question remains - how far is Swiss neutrality compatible with international human rights obligations in Ukraine?
Swiss history and rights of neutral states
Switzerland is not the only neutral state in Europe (it shares this title with Austria, Ireland, and Malta), but it can claim to be the oldest. Swiss neutrality dates back to the 16th century originally, although its codification into international law came only after the Napoleonic wars in 1815, with complete recognition after the Hague Convention in 1907. This Convention likewise sets out the rights of neutral states under international law, and therefore within the scope of international conflict, the foremost of which is territorial inviolability (Article 1). The Swiss government also emphasises this right, partially out of necessity, but also to justify a military for defensive purposes, as well as an extensive arms industry. The latter is what has come under criticism since the start of the war in Ukraine, and is covered in detail in the following section, especially when it comes to the issue of re-export. As far as Swiss commitment to international law is concerned, Article 7 of the Convention states that a neutral state should not “prevent the export or transport… of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.” This provision goes hand in hand with Article 9, which in turn states that any restrictive measures implemented need to be reciprocal - apply to all belligerent sides equally.
Having considered the viewpoint on neutrality of international law, it is also imperative to consider that of Switzerland internally. It is one of the only nations in the world to enshrine neutrality into its constitution, where it states that “neutrality is not designated as a purpose of the Federation or as a foreign policy principle. It is represented as a means to an end.” By the end, the founders presumably meant safeguarding independence. This goes contrary to the idea of absolute neutrality as a part of Swiss identity (which is backed up by the fact that 53% of Swiss nationals reject the idea that absolute neutrality should be codified into the constitution), and suggests that it is thus primarily motivated by national interest. Such a goal is not in itself unjustified. On the other hand, when defending the current international position on the war in Ukraine, the then-Swiss president cited “commitment to peace” and “humanitarian law” as the chief factors. Switzerland has indeed been heralded as a defender of human rights around the world, and its unique neutrality-based vantage point has enabled their effective participation in a number of representations and peace negotiations. At the same time, the enshrinement of human rights into international law came only after the aforementioned Hague Convention, in the United Nations’ Universal Declaration of Human Rights (UDHR) from 1948. That there might be tension between the two is thus not completely surprising.
Commitment to human rights
Switzerland has prided itself on a clear stance for safeguarding human rights around the world, and already cooperates with a number of non-neutral alliance organisations (including NATO) on humanitarian missions. At the same time, the issue of human rights, or more specifically, human rights violations is intrinsically related to conflict, where the majority of such violations occur. In the past, Switzerland has allowed itself a bit of room when it comes to reconciling its neutrality with such a humanitarian stance, mostly by offering to neutrally represent a belligerent country on the territory of its adversary. A similar proposal was made to Russia with respect to representing Ukraine on its territory, one that was, however, rejected on the grounds that Swiss neutrality had been compromised by its participation in international sanctions against Russia. Nevertheless, broader relations between Russia and Switzerland have not suffered.
With its ascension to membership in the United Nations (passed by 55% favour in a referendum in 2002), however, it remains questionable whether neutrality on the war in Ukraine - a conflict that has been declared in violation of international law by the UN General Assembly - constitutes a sufficient policy in keeping with Swiss commitment to international human rights and humanitarian law. As a result, critics of the Swiss position on Ukraine have increasingly called the policy “opportunistic and outdated”, and Swiss neutral identity “a myth”. The following thus concentrates on the main issues with a neutral position on the conflict in question.
Russo-Ukrainian war: reciprocity and re-export
Two aspects of Swiss neutrality have been the subject of criticism since the start of the war in Ukraine: reciprocity and re-export. The former is a principle enshrined in the Hague Convention under Article 9, as mentioned previously. However, outside of the remaining provisions mentioned, the principle of reciprocity applies to any other internal laws as well. In practice, this means that although Switzerland joined international sanctions against Russia at the start of the war, any change in this situation, including any such measures ever being taken against Ukraine, would necessarily receive the same response. Thus, the Swiss position is kept neutral. Further evidence of this is the reluctance to seize Russian assets held in Switzerland, which have been frozen with the imposition of international sanctions. It has been argued that a seizure of these assets could facilitate funding for the post-war reconstruction of Ukraine. Nevertheless, the criticism levelled against Switzerland in this matter is not entirely sound, since almost no other major financial actors have thus far moved to seize frozen Russian assets. The only exceptions to this practice are Canada and Croatia. The suggestion that the principle of reciprocity renders Swiss neutrality incompatible with its human rights commitments and obligations still appears unfounded.
A more prominent source of criticism is Switzerland’s insistence to prohibit the re-export of arms and ammunition manufactured on its territory. This policy, however, is not to be found in the Hague Convention, but is instead the result of an internal law - the Federal Act on War Materiel (1996). According to this act, re-export of military equipment, weapons, and repurposed civilian equipment is prohibited, but certain clauses also restrict manufacture, trade, transit, and transfer of intellectual property. Re-export is usually permitted where the parts in question have been sufficiently integrated into a new product (not re-exported unmodified) and/or their value as a part of it is negligible. Such exceptions are provided by the Federal Council, however, the interpretation of the law has mostly been a conservative one - exceptions to the legal framework have repeatedly been proclaimed impossible. With respect to supplying Ukraine, a number of potential arms and ammunition have already been stopped, most notably Germany’s request to send anti-aircraft ammunition originating in Switzerland, as well as certain other weapon systems requested by Spain and Denmark. The former case gained the most notoriety, after Germany decided to restart domestic production of Gepard Tanks (normally supplied by Switzerland) to get around a re-export ban, as well as requesting to buy back Leopard 2 tanks to replace those they had previously sent to Ukraine. In addition to prohibiting re-export and thus supply to Ukraine by others, Switzerland was criticised for recently getting rid of a number of weapons that would have been useful to Ukraine. The Federal Act in question has thus roped the neutral country into a difficult situation, considering its international obligation of reciprocity.
Future developments
According to the most recent polls, 55% of the Swiss population supports lifting the heavy restrictions on re-export, a figure that would be unthinkable before the start of the war in Ukraine. Despite the staunch opposition to any changes voiced repeatedly by the country’s former president, a multi-party consensus is emerging on the need for reform. Currently, a bill is under discussion that would amend the original Federal Act in two possible ways: first, re-export permissions would be made easier for countries that are deemed as “sharing Swiss values”; alternatively, re-export would be permitted five years after the original supply. This initiative crucially comes after Switzerland’s European partners have made it clear that, this time, there would be consequences. Although the arms industry’s contribution to the Swiss economy is almost negligible (2.5%), neutrality in light of the war in Ukraine has already cost Swiss companies certain contracts.
Yet while Switzerland might continue underscoring its commitment to human rights, obstacles remain as well. Not only is it unclear that the proposed bill would pass in the legislature at this stage, but alternative options are few and far in between, and would mostly require national referendums that would further prolong the process. The situation is not ameliorated by the fact that certain weapon systems are to date only manufactured in Switzerland. More than one country would have to make changes to its arms industry to accommodate for any complete loss of this source.
Conclusion
The future of Swiss neutrality and the fact that it is being debated at all underscore the impact that Russian aggression in Ukraine has had on European security architecture. Pressure is also building for other neutral states, such as Austria, which has also come under attack, since its Raiffeisen Bank International has remained the largest Western lender in Russia. The question remains: can a state openly supporting international human rights remain militarily neutral in the face of a conflict such as the one persisting in Ukraine? It would seem that international law makes this possible; it is the internal legislative restrictions and national interest that do not. If Swiss neutrality is indeed the product of “law, interests of the country, international situation, and history and tradition”, then a couple of these priorities are in need of realignment. For a small state like Switzerland, however, any reconciliation of human rights and a neutral policy will be a long and arduous decision.