On Neutrality, Morality, and Courage
Reflections on the importance of true neutrality for Switzerland by a humanitarian practitioner: Denise Plattner, Former ICRC Legal Delegate.
[Pascal’s Note: The following text was written by Denise Plattner, a legal delegate in the ICRC Operations Department, who carried out several missions with ICRC delegations. After 1987, she was a member of the ICRC Legal Division. Photo by Kevin Paes on Unsplash]
1. Foundations
Neutrality is a concept I had to master as it applies to humanitarian action, as a former lawyer with the International Committee of the Red Cross (ICRC). Like many concepts, it can be simplified or complicated to an extreme degree. Simplifying it has the advantage of bringing out the essence of the principle.
At first glance, neutrality is closer to equality than to abstention. Thus, neutrality in the humanitarian field is closely associated with assistance to victims of armed conflict, that is, with an active attitude. By contrast, neutrality in a context of belligerence requires the neutral State to refrain from taking part in armed operations. The neutral State is, by definition, non-belligerent.
Non-belligerence, however, is not enough to qualify a State as neutral. Indeed, the neutral State must not favor any party to the conflict. The conduct prohibited on this basis lies primarily in the military sphere. Supplying weapons to only one belligerent, or allowing military transports of only one State at war to pass through one’s land territory, are the behaviors most often cited as contrary to the duty of neutrality. Beyond these two examples, the duties of neutral States are set out in detailed provisions reflecting the multiplicity of situations arising in wartime. They reveal an arrangement more flexible than one might suppose at first sight (https://ihl-databases.icrc.org/assets/treaties/200-DIH-20-FR.pdf). Neutrality as applied to naval warfare, in particular, is highly complex (https://ihl-databases.icrc.org/fr/ihl-treaties/hague-conv-xiii-1907?activeTab=default; https://ihl-databases.icrc.org/fr/ihl-treaties/havana-conv-1928?activeTab=default).
The duty not to favor or disadvantage a belligerent may be lifted, wholly or partially, when measures are decided by the United Nations, in particular by the Security Council on the basis of Chapter VII of the Charter of the United Nations, namely in the event of a threat to the peace, breach of the peace, or act of aggression. It should be noted that, in its application to accede to the United Nations Charter submitted to the UN following the popular vote of March 3, 2002, Switzerland declared that “for the United Nations, the neutrality of a Member State is compatible with the obligations arising from the Charter and contributes to the achievement of the purposes of the United Nations. As a member of the United Nations, Switzerland will remain neutral.”
2. The Question of Sanctions
When measures are decided by an organization to which international law recognizes this competence, on account of human rights violations, Switzerland may in turn adopt them, wholly or partially, as shown by the extensive catalogue on the website of the federal administration under the heading “Swiss sanctions”.
The sanctions adopted against Ukraine have been the subject of extensive discussion. Indeed, unlike most of the countries on the above list, an international armed conflict has been raging in that country since its invasion by Russia in February 2022. Moreover, the sanctions against Russia that were decreed by an international body were adopted by the European Union. Yet the European Union is not being attacked by Russia and does not have the task of sanctioning violations of the Charter of the United Nations. To consider that it is thereby making up for the inaction of UN bodies is hazardous. In law, a competence not exercised by one body does not authorize another entity to exercise it in its place. Otherwise, we could consider as legal the public-order activities of a private militia on the grounds that the police are not doing their job. As regards Switzerland, this problem is compounded by the question of the compatibility of the measures taken with neutrality (see in particular Pascal Lottaz’s article, “Neutrality: a peace instrument without sanctions”). Indeed, the measures taken against Russia, whether adopted as “sanctions” or with the aim of weakening that country, an aim clearly advocated in certain American expert circles even before February 2022, result in treatment different from that granted to Ukraine. These various elements tend rather to support the view that Switzerland’s neutrality imposed on it a duty not to treat the two belligerents differently and, consequently, not to enact sanctions at the national level reproducing those decided by the European Union.
It is entirely understandable that this conclusion may appear shocking to those who consider that the aggressor cannot be treated like the victim of aggression, since that would amount to an unacceptable concession to the guilty party. These divergent positions reveal the opposition between an ethic of conviction and an ethic of responsibility (see in particular Professor Wolf Linder’s article, “Ist die schweizerische Neutralität unmoralisch?”).
The ethic of conviction consists in condemning and then punishing the guilty party; the ethic of responsibility seeks rather to restore a situation consistent with the law. However, the proponent of the ethic of conviction will point out that the belligerent who acted unjustly “must not win the war” and that only its defeat restores the law.
In reality, recourse to armed force is never simply “a bolt from the blue.” It follows growing hostility between two countries, which the international community has failed to appease, and which has probably seen repeated violations of a duty that exists before the prohibition of war, namely the duty to maintain friendly relations with other States. One can never recall too often the provisions of the Charter of the United Nations that set out this duty, notably Article 1, paragraph 2, as well as those of the “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,” adopted by the United Nations on October 24, 1970 (Res. 2625 (XXV)).
A neutral State that works actively to ensure that diplomacy replaces the language of arms unquestionably acts more morally than those who inflame tensions, then sanction the aggressor, and then indefinitely oppose the return of a peace that they continue to regard as unjust for as long as their demands are not met.
As for sanctions decided by United Nations bodies, the popular initiative of April 11, 2024 in favor of enshrining neutrality in the Swiss Constitution reserves them under Article 54a, paragraph 3, second sentence.
3. Neutrality and the Private Economy
Does neutrality prohibit economic activities connected with armaments, in particular the arms trade, provided that the belligerents are treated equally? The website of the Federal Department of Foreign Affairs states that the neutral State must “treat all parties to the conflict equally with regard to the private export of war material” (https://www.eda.admin.ch/fr/neutralite).
However, Swiss law, fortunately, prohibits “business with foreign countries … if the destination country is involved in an internal or international conflict” (Article 22a, paragraph 2, letter a of the Federal Act on War Material).
As regards other economic activities, they are subject to no restrictions, naturally subject to the application of sanctions. This situation is open to several criticisms. Those who uphold the guilt of one of the belligerents consider it immoral to continue trading with it. Moreover, the neutral State, which already appears to be in a comfortable position simply because it does not suffer the horrors of war, may be accused of abusively profiting from the good health of its economy. Reflections on Switzerland’s attitude during the Second World War certainly reflect these ethical questions.
If the neutral State does not sanction the violation of the prohibition on the use of force in international relations, subject to sanctions adopted by the United Nations, international law has, since 1949, provided it with a clear legal basis for taking measures of retorsion in the event of violations of humanitarian law, as we shall see in the following paragraph.
4. Neutrality in the Face of Violations of Humanitarian Law?
It is legitimate to question the morality of a different response depending on whether the violation concerns “ius ad bellum,” which governs the right to take up arms, or “ius in bello,” namely the set of rules applicable once the conflict has broken out. However, we have seen that the violation of the prohibition on the use of armed force is the outcome of a process during which hostile manifestations have taken place over a certain period, most often many years, with varying degrees of responsibility among the different actors involved. It therefore marks the general failure of the obligation to preserve peace incumbent on the international community as a whole, as well as, when war is prolonged, the failure of the obligation to bring it to an end as quickly as possible. International law nevertheless limits the effects of the use of force, with a view to protecting as far as possible the right to life and to humane treatment of the populations concerned.
First, the competence of bodies tasked with human rights responsibilities does not end when an armed conflict occurs, and we have seen that neutrality does not, in itself, preclude the application of sanctions decided by these bodies.
International humanitarian law, applicable as soon as a conflict breaks out, and the Convention on the Prevention and Punishment of the Crime of Genocide, are more focused on the criminal punishment of perpetrators of offences than on mechanisms for implementing human rights. However, Article VIII of the Convention provides for the right of any contracting party to call upon the competent organs of the United Nations. The neutral State is therefore entitled to make use of this competence, where appropriate.
However, it is international humanitarian law that seems to us to offer the most interesting legal basis for action by a neutral State against a belligerent that violates its duty of humanity, whether through indiscriminate attacks, ill-treatment of combatants, deprivation of the care owed to the wounded and sick, undue restrictions on supplies to the civilian population, and so on. Indeed, the very first article of the four Geneva Conventions of 1949 states simply that “the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.
Paragraph 181 of the Commentary on this provision, available at the following site, is well worth reading. It should be noted that the list of measures envisaged does not provide for the use of armed force. The legality of so-called “humanitarian” intervention and related concepts, which are moreover highly contested in international law, cannot be founded on humanitarian law, in particular because of the essential separation between “ius in bello” and “ius ad bellum” (see notably Yves Sandoz, “Droit ou devoir d’ingérence, droit à l’assistance: de quoi parle-t-on?”).
Switzerland, as a State party to the Geneva Conventions, has an obligation to take measures to bring Israel to cease committing violations of humanitarian law. Its role as depositary of the Geneva Conventions further amplifies this obligation. Among the possible measures are, in particular, those that many segments of civil society have constantly demanded from the federal authorities, namely:
– the application of measures of retorsion, such as halting ongoing negotiations or refusing to ratify agreements already signed, non-renewal of trade privileges, and reduction or suspension of voluntary public aid;
– the adoption of lawful countermeasures, such as arms embargoes (which Switzerland is required to impose under national law, as we saw above), trade and financial restrictions, flight bans, and the reduction or suspension of aid and cooperation agreements.
As evidenced by the commentary on common Article 1 of the Geneva Conventions, the literature devoted to the duty to ensure respect for humanitarian law is abundant. For our part, we would like to close this paragraph by citing a resolution concerning the fate of Palestinian civilians in the territories under Israeli occupation, which the Security Council adopted unanimously on December 20, 1990: https://docs.un.org/fr/S/RES/681(1990). The President of the United States at the time was George H. W. Bush. Iraq had invaded Kuwait on August 8, 1990, the first UN sanctions had been decided, and Operation “Desert Storm,” “mandated by the United Nations,” to use the words of Wikipedia, was to take place from January 17 to February 28, 1991. Justice on one side, violence on the other: the United States had not yet quite resolved its dilemma!
5. Neutrality and Courage
By remaining faithful to neutrality, the sovereign people indicate to their leaders that they reject any warlike enterprise those leaders might wish to undertake, individually or in alliance with other States. Neutrality does not necessarily protect against aggression by another State. Neutral States, such as Belgium until the First World War, have been attacked. But it at least protects inhabitants from a war that would be triggered by their own leaders. And it signals to the world its attachment to peace and its determination to remain peaceful.
It seems to us by no means a coincidence that Swiss political figures who opt for ever more significant adjustments to neutrality, to the point of increasingly emptying it of its content, are also those who refuse to accede to civil society’s demands for harsher sanctions against Israel because of its proven violations of humanitarian law and the plausible genocide that the International Court of Justice recognized in its order of January 26, 2024.
The mythical heroes of Switzerland, as indeed of all countries, are women and men who knew how to resist the powerful of their time. William Tell would turn in his grave if he were to see that it is pressure against the Swiss government that leads it to participate in the economic weakening of a country that in no way threatens it. If carried out, would these threats affect the prosperity of this country? Better solidarity between rich and poor should make it possible to deal with them, if necessary. Furthermore, it is important that the Swiss population be informed of such pressure, which is of course entirely contrary to the duty to respect Switzerland’s political independence as a sovereign State.
6. Conclusion
The people will soon have to vote on the initiative of April 11, 2024 entitled “Safeguarding Swiss Neutrality.” The history of Swiss neutrality is that of a status imposed by third powers for their own interests, then claimed and defended with as much skill as courage by the successive governments of this country. Accepting this initiative will also be an act of recognition toward those governments, thanks to whom Switzerland was able to develop harmoniously and peacefully for several centuries. For many other arguments as well, we recommend consulting the excellent site with the highly convincing title “Neutrality for Peace and Reconciliation”.