Swiss neutrality as viewed by the International Committee of the Red Cross
Switzerland and the ICRC both set great value on their respective policies of neutrality but important principles distinguish the two models, as the ICRC's Director for International Law and Cooperation within the Movement, François Bugnion, explains.
(Translation of speech given on 26 May 2004 to members of the Nouvelle Société Helvetique, at the International Red Cross and Red Crescent Museum in Geneva.)
First of all let me thank you for having asked the International Committee of the Red Cross to make a presentation on the subject of neutrality to the Nouvelle Société Helvétique, which has itself done so much in the past to preserve Switzerland’s unity, independence and neutrality, in particular during the darkest hours of our country’s history.
More precisely, the topic proposed for discussion was “Swiss neutrality as viewed by the International Committee of the Red Cross.” It could of course be said that, as a basic tenet of Swiss foreign policy, neutrality is an issue on which the ICRC is not supposed to express an opinion, since the Fundamental Principles of the Red Cross and Red Crescent require it to refrain from engaging in controversies of a political, racial, religious or ideological nature. We could therefore put an end to our meeting right now. However, some of you might feel cheated.
As a matter of fact, Swiss neutrality is a very topical issue and one that must be addressed at a time when Switzerland is pondering the future of its relations with the rest of the world.
To ask how the ICRC views Swiss neutrality is by implication to recognize that its relations with Switzerland are not identical to those it has with other countries. The fact that the ICRC was set up in Switzerland by Swiss citizens, that it has its headquarters there and that it recruits the members of its governing body from among that country’s citizens is in itself enough to show that it has a special relationship with Switzerland. Moreover, Switzerland is the country that convened the international conferences that adopted the Geneva Conventions, of which Switzerland is the depositary State, and on which the ICRC bases its action.
We shall therefore examine the nature of this special relationship and, in particular, the connection between Swiss neutrality and ICRC neutrality.As you know better than I do, Swiss neutrality dates back to the Final Act of the Congress of Vienna, or even, some historians claim, to the defeat inflicted on the Swiss at Marignan. Whatever the case may be, Swiss neutrality became positive law by virtue of the Final Act of the Congress of Vienna and the Second Treaty of Paris of 20 November 1815  . Under these treaties, the great powers of Europe recognized that " the neutrality and inviolability of Switzerland, and its independence from all foreign influence, [were ] in the true political interests of all of Europe " and guaranteed the country’s permanent neutrality  .
In fact, neutrality has often been perceived as a constitutive feature of the Swiss Confederation. Had our country taken sides during the two world wars, there is no doubt that i t would have been torn asunder and lost its independence.However, neutrality is also a constitutive feature of the ICRC. The diplomatic conference of August 1864, which adopted the first Geneva Convention, was called the Conférence internationale pour la Neutralisation du Service de Santé militaire en Campagne and the idea of neutrality was central to the efforts made to ensure the protection of military medical services on the battlefield. As for the ICRC, it began playing its distinctive role as a neutral intermediary between belligerents in the 1870 Franco-Prussian War and it is as a specifically neutral and independent intermediary that the ICRC is defined in the Statutes of the International Red Cross and Red Crescent Movement adopted by the 25th International Conference of the Red Cross (Geneva, October 1986)  .
For a long time ICRC neutrality was identified with Swiss neutrality, just as Red Cross neutrality was often assimilated to the regime of neutrality in the law of nations, the use of the same term leading people to believe that it referred to the same notion.
Is this really the case?
Legally speaking, a neutral State has four duties:
Unless it has been attacked, a neutral State must refrain from taking any part in the hostilities – a self-evident point.
- A neutral State must not favour one party over another, but must treat all belligerents impartially  ;
A neutral State must not allow its territory to be used as an operational base by one of the belligerents; it must prevent troops and convoys from pa ssing through its territory and radio-telegraph stations, other devices for the purpose of communication, recruitment agencies, etc., from being installed on its territory;
- Finally, a neutral State must tolerate that the parties to a conflict use their rights as belligerents against it (everyone remembers how hard hit Switzerland was by the sea blockades and measures of economic warfare to which the belligerents resorted during the two world wars)  .
Quite obviously, the role of neutral intermediary that the Conference wanted to assign to the International Committee required that the latter should have its headquarters in a small, neutral country. Had the Committee been set up on the territory of a great power, it would inevitably have become the diplomatic toy of that power and in times of war it would have been paralysed.All this does not mean that ICRC neutrality is the same as Swiss neutrality, however. The former can be distinguished from the latter by its basis in law, the aims it serves and the content of its regime  . The legal status of a neutral country like Switzerland is governed by customary law and various international treaties, in particular Hague Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land and Hague Convention XIII concerning the Rights and Duties of Neutral Powers in Naval War, of 18 October 1907. ICRC neutrality is based on the organization’s consistent practice over the years and on the recognition afforded to this practice by the international community, as well as on the Fundamental Principles of the Red Cross and Red Crescent adopted by the 20th International Conference of the Red Cross, held in Vienna in October 1965  and reaffirmed by the 25th International Conference, held in Geneva in October 1986 .
For Switzerland, neutrality is a means of preserving its unity, independence and territorial integrity. For the ICRC, neutrality is a condition for action: if the ICRC is to carry out its humanitarian activities and fulfil the mission that was assigned to it, it must refrain from taking sides and from favouring one belligerent over another.
The law of neutrality applies only in wartime. While Switzerland’s neutral status imposes certain obligations on the country in peacetime as well, their sole purpose is to preserve Switzerland’s neutrality in time of war. For the ICRC, on the other hand, neutrality is a permanent obligation. The organization could not abandon its neutrality, even temporarily, without compromising its ability to help conflict victims.
The obligations that the law of neutrality imposes on a neutral State are above all military ones requiring that State to refrain from taking part in the hostilities and from providing military support to any of the belligerents. As regards political and economic matters, a permanently neutral State must also refrain from making commitments that would prevent it from meeting its obligations in wartime. As for the rest, it is free to act as it pleases. Nothing prevents it from expressing an opinion, and traditionally neutral States such as Austria, Sweden and Switzerland have not held back. The ICRC, on the other hand, must refrain from engaging in controversies, whatever their origin or nature. Indeed, the principle of neutr ality adopted by the 20th International Conference of the Red Cross (Vienna, 1965) stipulates as follows:In order to continue to enjoy the confidence of all, the [International Red Cross and Red Crescent] Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature  .
Finally, although Switzerland is a neutral country and did not join the United Nations until 2002, it has applied the economic sanctions adopted by the Security Council under Chapter VII of the UN Charter  . The ICRC, for its part, cannot apply international sanctions. On the contrary, it must seek to keep its lines of communication open with States subject to sanctions and maintain humanitarian relations with them.
Thus, the primary duty of neutral States is of the nature of abstention. Since the end of the Second World War, it is true, Swiss neutrality has on the whole been an active one, characterized by Switzerland’s willingness to propose its good offices and by its solidarity with war-affected people. Fundamentally, however, Swiss neutrality is distinguished by an attitude of reserve. ICRC neutrality, on the other hand, makes it possible for the organization to help all conflict victims without discrimination; it implies, not a withdrawal into oneself, but an attitude of openness towards all belligerents.
While it is thus obvious that ICRC neutrality was originally built on Swiss neutrality, it is no less obvious that its leg al basis, purpose and nature are different. It imposes a much stricter reserve on the ICRC than the law of neutrality does on the Swiss authorities and on legal entities based in Switzerland, but it is also distinguished by an attitude of openness to the world and an availability to help conflict victims, to whatever party they may belong.Finally, I would like to dispel a widespread misconception. For the ICRC, as for any other Red Cross or Red Crescent institution, it would be out of the question to adopt a neutral attitude towards violations of the Geneva Conventions. If, except in precisely defined cases  , the ICRC refrains from publicly denouncing the violations it learns about, this is because the experience acquired over the past hundred years and more has convinced it that persuasion, confidential dialogue with the belligerents and humanitarian diplomacy are the most effective means of bringing such violations to an end. This has nothing to do with neutrality . Once it became aware of the specific nature of its neutrality, the ICRC sought to give it a firmer basis and to keep itself at a proper distance from the Swiss State. With this in mind, it did two things. First of all, it broadened its recruitment base. Since December 1992, Swiss nationality has no longer been a condition for becoming a delegate. As a result, almost half our delegates in the field are no longer Swiss, and English is now the working language in many of our delegations – a major change in our institutional culture. Nevertheless, Swiss nationality remains a condition for the recruitment of members of our governing body, the ICRC Assembly  .
Secondly, the ICRC and the Swiss Federal Council, wishing to provide a legal basis for the ICRC’s independence, concluded a headquarters agreement that guarantees both the organization’s independence and its freedom of action in Switzerland. The agreement, which was signed in Bern on 19 March 1993 , is an interesting, and to our knowledge, relatively exceptional case of a treaty governed by public international law concluded between a State and a legal entity based in that State.
Likewise, the ICRC has no reason to be concerned about the fact that Switzerland, reviving an old tradition, is conducting a more dynamic policy of good offices than it has in the past, provided that humanitarian issues are not used as a stake in political negotiations.
The ICRC may also serenely contemplate the day when Switzerland, recognizing that it is geographically and historically European, will decide to take part in building the new Europe. In the present state of European law, Switzerland’s membership in the European Union would not compromise its status as a neutral State. Austria, Finland, Sweden and, only a few weeks ago, Cyprus and Malta joined the European Union without abandoning their neutrality. EU membership would no more compromise Swiss neutrality than membership in the UN has, nor would it jeopardize ICRC neutrality.
The issue would no doubt be more delicate if Switzerland were ever to consider joining the Atlantic Alliance and its military arm, NATO. Could membership in such an alliance compromise the ICRC’s ability to pursue its humanitarian activities or to play its role as a neutral intermediary between belligerents? Could the ICRC still keep its communication lines open with all belligerents? And how would it be perceived by a State in conflict with the Atlantic Alliance?
I am not aware that the ICRC has ever examined or adopted a position on this subject. Were the question ever to be raised, I personally believe that the ICRC should not attempt to influence the choice of the Swiss people and cantons since the ICRC’s principle of neutrality also applies to Switzerland and Swiss politics . On the other hand, I do believe that in such a case the ICRC should reexamine its relations with Switzerland and determine how it could better dissociate its neutrality from Swiss foreign policy. If Switzerland were ever to abandon its neutrality, there is no doubt that the ICRC would find a way of preserving its own neutrality. But it would no longer be the same ICRC, just as Switzerland, were it ever to join a military alliance, would no longer be Switzerland as we know it today.
These are only hypothetical considerations, however. At this stage, the ICRC must simply acknowledge the complementary nature of its neutrality and Swiss neutrality, two distinct forms of neutrality that are linked by history but serve their own specific aims.
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1. Déclaration des Puissances sur les Affaires de la Confédération Helvétique du 20 mars 1815 et Acte d'accession de la Diète du 27 mai 1815; Acte portant Reconnoissance et Garantie de la neutralité perpétuelle de la Suisse et de l'inviolabilité de son territoire, Annexe au Traité de Paris du 20 novembre 1815, in Clive Parry (ed.), The Consolidated Treaty Series , New York, 1969-1981, Vol. 64, pp. 5-12, and Vol. 65, pp. 299-300.
2. Acte portant Reconnoissance et Garantie de la neutralité perpétuelle de la Suisse et de l'inviolabilité de son territoire, Annexe au Traité de Paris du 20 novembre 1815, in Clive Parry, op. cit., Vol. 65, p. 299.
3. " The International Committee may take any humanitarian initiative wh ich comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an istitution. " Statutes of the International Red Cross and Red Crescent Movement, Article 5.3, International Review of the Red Cross (IRRC), No. 256, January-February. 1987, pp. 25-44, ad p. 33.
4. Thus, a neutral State that adopts legal measures to restrict or prohibit the export of war material and munitions must apply them impartially to all belligerents.
5. Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907; Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval Warfare, The Hague, 18 October 1907; and Declaration concerning the Laws of Naval War, London, 26 February 1909 (unratified), Dietrich Schindler, Jiri Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 4th edition, Martinus Nihoff Publishers, Leiden / Boston, 2004, pp. 1399-1406, 1407-1416 and 1111-1122.
6. “The territory of neutral Powers is inviolable.” Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, Article 1.
7. Conférences internationales des Sociétés de Secours aux Blessés militaires des Armées de Terre et de Mer, tenues à Paris en 1867 , 2nd edition, Éditions Baillière & Fils, Paris, 1867, Part I, pp. 317-319, and Part II, pp. 151-153.
8. Ibid. , Part II, p. 184.
9. Marion Harroff-Tavel was the first to question the dogma that ICRC and Swiss neutrality were identical, in " Neutralité et politique " , 18 May 1988, and " Quelques questions souvent posées à propos du principe de neutralité " , 16 September 1988, ICRC Archives, BAG 012.
10. XXth International Conference of the Red Cross, Vienna, October 2-9, 1965, Report , Austrian Red Cross Society, Vienna, 1965, pp. 51-2 and 99-100.
11. Statutes of the International Red Cross and Red Crescent Movement, IRRC, No. 256, January-February 1987, pp. 25-59, ad pp. 27-28.
12. Statutes of the International Red Cross and Red Crescent Movement, Preamble, IRRC, No. 256, January-February 1987, pp. 27-28.
13. The Swiss Federal Council’s orders of 7 and 8 August 1990 made Switzerland party to the economic sanctions that the Security Council had just adopted against Iraq after the invasion of Kuwait.
14. " Action of the ICRC in the event of breaches of international humanitarian law " , IRRC , N° 221, March-April 1981, pp. 76-83.
15. For a contrary and, in our view, mistaken opinion, see Max Huber, " Croix-Rouge et Neutralité " , Revue internationale de la Croix-Rouge (RICR) , No. 209, May 1936, pp. 353-363.
16. “[The ICRC ] co-opts its members from among Swiss citizens.” Statutes of the International Red Cross and Red Crescent Movement, Articl e 5.1, IRRC, No. 256, January-February 1987, p. 32.
17. Agreement between the International Committee of the Red Cross and the Swiss Federal Council to determine the legal status of the Committee in Switzerland, IRRC , No. 293, March-April 1993, pp. 152-160. For an analysis of this agreement, see Christian Dominicé, " L'accord de siège conclu par le Comité international de la Croix-Rouge avec la Suisse " , Revue générale de Droit international public , Vol. 99, No. 1, January-April 1995, pp. 5-36.
18. General Assembly resolution 45/6 of 16 October 1990 ( Resolutions and Decisions adopted by the General Assembly during its Forty-fifth Session (18 September - 21 December 1990), Vol. I, General Assembly, Official Records: Forty-fifth Session, Supplement No. 49 A, Document A/45/49, p. 15).
19. " The International Committee of the Red Cross (ICRC), having noted that its name has been mentioned several times in connection with the vote that will determine whether Switzerland enters the United Nations, wished to reiterate its position: this is a choice involving foreign policy that will be made by the people and cantons of Switzerland. The ICRC will therefore abstain from intervening and from taking position on either side. Consequently, neither those who support nor those who [disapprove of ] Switzerland’s entering the United Nations have reason to draw any substance from the fact that the ICRC will not take sides in this matter. " The ICRC and the vote determining whether Switzerland will enter the UN, ICRC press release No. 1516 (21 January 1986).
“The International Committee of the Red Cross (ICRC) has noted the abusive references made to its name, emblem and activities in connection with the referendum on Swiss membership of the United Nations, to be held on 3 March. It wishes to stress that it is a humanitarian organization independent of any State, including Switzerland, and therefore objects to being used as a tool in a political campaign.
Given the major role played by the United Nations in the field of humanitarian action, the ICRC maintains an open and constructive dialogue with its bodies, as it does with member States. Notably, the ICRC cooperates in full independence with certain specialized UN agencies in the best interests of the victims of armed conflict. Consequently, the issue of Swiss membership of the United Nations has no bearing on the essential nature of the ICRC as an organization or on its ability to act. " Grave misuse of the emblem in campaign on Swiss membership of the United Nations, ICRC press release No. 02/01 (11 January 2002).
20. " As the Federal Council has already stated on several occasions, a firm commitment to ensuring respect for international law in general, and for human rights law and international humanitarian law in particular, is perfectly compatible with Switzerland’s status as a neutral country. The Federal Council believes that such a commitment cannot be construed as activism, especially when the purpose is to point out the need to respect international humanitarian law and thereby restore a climate of trust, prior to any resumption of political dialogue between the parties to the conflict. Thus, in denouncing breaches of the Geneva Conventions, the Federal Council does not wish to condemn one party or another, but to express its commitment to ensuring that each party respect the rules of international humanitarian law. " Reply given by the Swiss Federal Council on 8 May 2002 to a question submitted on 15 April 2002 by National Councillor Hans Feh r – ICRC translation. (Conseil national, 02.1046 – Question ordinaire urgente déposée par Fehr Hans, Activisme du Conseil fédéral contraire à la neutralité, 15 avril 2002, et réponse du Conseil fédéral du 8 mai 2002.)
21. The federal authorities would seem to share this view: " The fundamental principles that govern the ICRC’s action – independence, neutrality, impartiality – also apply with respect to the Swiss government. The Federal Council has always respected these principles and will continue to do so. Likewise, it is in the ICRC’s interest to maintain its independence from the Swiss authorities. " Statement issued by the Swiss Federal Council on 21 December 1981 concerning Swiss membership in the United Nations – ICRC translation. (Message concernant l'adhésion de la Suisse à l'Organisation des Nations Unies (ONU), du 21 décembre 1981, tiré à part de la Feuille fédérale , 1981, N° 81.O81, pp. 75-76.)