This entry has been drafted by a member of the APILS team on the basis of publicly available materials. Its content has been neither peer reviewed nor checked for accuracy by any government official.
Legal basis
Switzerland is a state party to AP I and as such under the obligation of Article 36 AP I to conduct a legal review of new weapons, means or methods of warfare. An explicit legal basis to conduct legal reviews has first been established in 2007 of which the latest revision is in force since 1 May 2018 (Materialverordnung VBS, MatV). The provision is part of a binding regulation by the Ministry of Defence, Civil Protection and Sport which regulates the procurement, usage and decommissioning of military goods within defence. It addresses, among others, the armed forces and the governments armament procurement agency, however, not other government agencies such as the civilian police or the border force.
Review authority
The regulation assigns the authority to conduct legal reviews to the ‘responsible unit’ of the Armed Forces Staff. Switzerland has publicly stated that a “multidisciplinary approach or access to the various relevant areas of expertise is required at some stage in the process” of a legal review.
Scope of review
The regulation requires that all new weapons, means or methods of warfare (which are summarized as “weapon systems”) as well as their alterations or modifications of the use must be reviewed for compatibility with international law.
“Weapon systems” that must be reviewed are defined as following:
- All means that are designed to kill or injure humans or to temporarily impair their performance.
- All means that are designed to destroy, damage or temporarily neutralize objects in the context of warfare.
- Ammunition, projectiles or substances causing effects outlined in the paragraphs a and b.
- Platforms which can deliver means outlined in the paragraphs a, b and c.
Standard of review
The regulation requires that a review determines compatibility with international law (völkerrechtliche Konformität), however, does not further specify what provisions of international law must be taken into account or what rules or principles of IHL ought to be considered. However, Switzerland has publicly stated that Article 36 AP I does “not limit the scope to instruments of IHL” and that “all other elements and provisions of international law” must be considered in a legal review.
Conduct of review
Legal reviews must be conducted before the drafting of a “concept” — which may in particular include the concept of use as well as the training concept of the new or modified weapons system — and before its introduction to the troops.
Outcome and effect
New weapons, means or methods of warfare cannot be introduced to the troops without a positive declaration that they conform with international law. Furthermore, Switzerland has publicly stated that “while Article 36 only requires that the review takes place, the binding nature of the outcome follows logically from the purpose of the review”.
References
Key documents
- Federal Department of Defence, Civil Protection and Sport, Ordonnance du DDPS sur l’acquisition, l’utilisation et la mise hors service du matériel = Verordnung des VBS über die Beschaffung, die Nutzung und die Ausserdienststellung von Material [Directive on the Material of the Armed Forces] AS 2018 1391 (28 March 2018)
Other resources
- Weapons Review Mechanisms: Submitted by the Netherlands and Switzerland (7 November 2017) CCW/GGE.1/2017/WP.5
- Vincent Boulanin and Maaike Verbruggen, SIPRI Compendium on Article 36 Reviews (SIPRI, December, 2017) 16–17
