Swiss llilitsry Justice

• Author: Rene Depierre
• Pages: 04

1. ISTRODUCTION

If the m d y of qusstions of S r i s law presents great difficulties owing to the orerlapping of federnl, cantonal,' and occasionally even municipal laws, this 1s not the ease in military matters, since the hsart af the applicable mles is to be found in the federal legislation of the Confederation. However, it is also true that history has strongly marked the evolution of institutions in this area, and one c&nnot study these institutions if the charaoter of the federal State

1s disregarded. Ons mwt also take into account the plurality of

languages and the organization of the Army, which 1s based on Buniqua system of militia.

That is why it is fimt neewary to place military justice in its narianul and organic context, and then to examine its origins and evolution b*fore nttempting to examine its present organization and jurisdiction.

11. THE NATIONAL AKD ORCTASIC COSTEXT

-4. THE HfSTORIC AND POLITICAL CO.VTEXT

1. Dsvelopment of the Federd Sfmture

In tha present a-odd. Then even the large centralid nations e.1~ attempting to unite, it may Seem curious, or even anachronistic, that

'"%e ODllnionr and coneluaons "resented herein m e those of the author and do not nmssa~ily re~rerent the ~leweoi The Judge Adroeate Qeneral'e Schwl or Bnr Other governmental agene? or any agener al the Sm~ss Coniederaflm The Blither and the lliliioiu Lou' RmiBZL; gratefully acknowledge the W I F I ~ or ~ ~ l l h a m 5. SheDmd. Captain. J A W V S. Arms. ior bia assistance in frmblatlog this article iram French and in heiDlng to pmmare If fer publieation. Captain SheBard 1s currently on the Swll and Faculty of The Judge Adroeate General's Schcd C 6 Army, Charloffesnlle. Virginia.

**Legal Adviser Department oi Pollee, LByIBnne. Sintrerland; 1rL.B.. EdFersltj oi Lsusanne, Pubstlfufe Clerk, Covrf of the Dillnet oi Ii~ns8nne. 185%5 4 Substitute Clerk. Cantonal Court oi Vaud. 185457, First Llevtenanf swim Arm?.

'Member States of the 8nlal Caniederatlon are Called ''canton8 ', These are in the oflelal orderZnh, Frlburg. lolathurn. Base;, Schakhaused, ADpenreil, St Gallen, draubd den. Aareau. Thurgau. neino. Tsud. Valsis, Seuchsfel, and Ceoers. The CanfOnd Oi .LPwnlell, Bssel and Cnfernald are each dlrided info two mbesntann.

Zurieh Berm Lurern Uri Schntz rnlemaid Clam

MILITARY LAW REVIEWn couritrp small as Switzerland should have a fsderal structure which IS composed of no less than 25 states.' But each state has its

OWI himry. often iery different from that of its neighborz! More-over, cdntons were no1 all united at once, and, finally, four national

The firsr cmtoiis nere united during the internal struggles af the Holy Romnn Empire. Certain athels joined the federation folloamg the Burgundinn Wars, Orher cantons n ~ r e cnrred out of earlier mem-bers of the federation and sere Inter Rdmitted to the federal league due to the intercession of Sapoleon Bonaparte. The last cantons joined the union at the rimeaf the FrenchRestoration.'

Bsfare 1798, ihe dare Fiench Republicm troops entered Switzerland. the confederated cantons were linked by a netnork of alliances with various treaties ahich differed greatlj-.' After the short period of tile Helvetian Republic, the Act of Jledimon. imposed h? Sapoleon Bonaparte in 1803, and the Fsderal Pact of 1815 created B common federal rie. But until 1818. the cantons remained sorereign md retained their own armies. TTntil that date. rhe Confederarion presenred rhe same characteristics as B number af present-day alliances. The supreme organ of state, the Diet. resembled a diplamaric conierencemore than B parliament.

On September 12. 1848. on rhe concluiion of the Sanderbund Tar.' on vis ndopred which mnde Sivitzerland B federal

languages ale r€?ognized:

SWISS MILITARY JUSTICE

stnte and no longer R confederation. The term "Confederation," nwertheles, nas retained to define tha centrd stata. That constitution TBS

rerised in 1R71 and has undergone numerou~ mdfications shoe that tima which have grestly incrsased fedaral authority at the antons' rrpense.

Fevertheless, the cantons hare conserved e. large mount of autonomy and more often than not are charged nith the execution of the federal laws. In particulnr, they have retained authority, nith B few 8xeep-tions, over mntten of judicial orgnniaation and procedure.'

2. Deaelopment of oFederal Amy

Until tha advent of the Helretinn Republic of 1798, there was no federal amy. Haxerer, the omtons already had & csrrain number of common rules nhich had established B real unity of military doetrine. These mlea concerned the cornon defense and forbade civil

warns

In 1803, when Sapolaon impasad t h

Act of Mediation, he createda federal umy TO &SSLIP~

the guarantee rhich the cantons had mutually promised each other. These troops were farmed of contingents from the cantons whose numbers were proportianate to the papulation of tha stttes of the confederation. It wm the first inroad on the sover-eignty of the cantons. The oantons, however, retained their ownarmies.

The Federal Pad of August 7, 1815, did not provide for a federal army, but it did instirute a federill military staff, which implied a limitation on the military poxers of the cantons. However, the cantons rerninrd authority ox-er the instruction, arming and equipment

Sonderbund) : In the Protestant cmtons the idea of a Federal State ~reralled. WBT broke out befaeen me two groups The Protestant cantonal troops. under the mmmand 02 General Dofour, -aged a rapid ~Rnlnslgn duilny the mwse of rhleh acts whleh could have hindered the subsequent es:nbllahment of B laatlng mace aere aralded.

' Insrmoeh 88 the provislonr of the federal Canstitutlon do not nake any mer,. non of mlllrary Justlee. one might qwsnon rrhether the eaialence of the mllifarp courts is eonsfltuflonal. The same problem mlght be asked cansidering the?"Brantee of an ordinary judge provided by Artlele 58 of the Consfitutlon The Question has been resolred smrmaflleb See, on this suDjWt' Willi. Die Tren.nun8 der mlllfarisehen ran der burgerlichen Qedehibsrkelt Ilr9Ch Sehneizeria-chem Rechl (The Separatlan Befieen Xlhtam and Civilian Jurisdiction In Swlss Law) (19s) sod the iesYLlle of Ihls work bp Steinsr in IQX Resne militsire 8usse (59Lsr Militarp Re~leal 458 Gmren, Lo garanlle du juie nn

Courts), m rhe eolleetlie mark, La Libeile du eitaren (Llbell? of Citizens). Dvbllrhed by the Sl\lsa Facultlea of Law. at page 212 et *e*. i1%81 : Deplerre, Lo lrisficia If,iilor Saira (Sriss >Illitam Justle). In 189Reilsta Espanola de Dereeho M~Illar iSpanlsh Reriev of Mllttary Law) 101e1 re?

' Ci The Boldler'n Menual. p. 91

of the troops. As for the cadres. henceforth they xere farmed in Rcentral school to which a training camp wa8 added. Finally, & milit q wrreillance committee made efforts to unify the But the canton5 held firmly to the principle of cantonal

After the Sonderbund War, the Constitution of 1848 nnd the TAW

of 1650 Concerning the Yilitar]- Organization of the Confedderarion maintained the system of cantonal contingents. but submitted the instruction of the troops to the rigid control of the Feder~l Council. Xobilizntion at the time of the Franco-Pmmian ITtr of 1870 rerenled the inadequacies of this system. dcwrdinglr. Then the Federal Constitution TRS revised in 1874, B federal amy mas set up. Howerer, rhe cantons retained certain areas of responsibility, primarily d h regard to the troops who had previous17 constituted pnrt of their wntinpsnt. Conversely, only the confederation had authority om? new and technicill arms. but the oantona retained control of administratire marters.'*

TITO constitutional articles dehs the relative powers: lrliCie I9 The federal army mm~rI8es :

1. Corm of troops from the cmima: b) all Swilsa who do not belong to these eomi. but who are nevertheless sublwt to militarr senlee.

Jvrledicilon over both the army and Its eqdpment prodded bT lnw Is the pmrlnee of the ConfederstlonIn case of danger. the Confederation also bas the eirluslve end direct right to command the men mcormorated Into the federal army. and all the other milltari resour_ of the canton8The eantona command mllltsn farces from thelr territory Insofar 88 that right 15 DOL limited by the Conalltutlon or by federal laws.

lrticla ZD The laws mneeming the organlzatlon of the Army emanate from Ih? Confederation. The execution of the military laws in the cantons ~ l l l be secomplirhed by the cantonal avtbarlties under IImitaIlons whleh wl11 be Rred b r federal le~l~laflonand under the iu~erilsl~nof the

Confederationllillfarp ~nrtiueflon. RE B whole. belong8 to the Confederation; tbe eame

1% lrYe Of armamenr.

The wp~1plni and mnlntenanee of clothing and equlpmenr remsln In The cantonal jurlsdlitlon honewr, the reaultlne e r ~ m e r w111 be made good to the cantons by the Confedmallon. sreordlnr to the mle6 ta be eilsbllrhed byfederal legislation.

"Pee Lob mtlweB uouciolsca. In Cent Cinguanle In8 de'Hlstmre VsudolsP. 1503-1933 (The Valid Mllltl8, In EO Tears of Vaud Hiafory, 1803.19531, n 88

I'

The Soldier's Manusi. p 83.

"Article 21 of the Conrfltutian also ;tlpulat~i "The camgorltron of thew corps of trows. the rernons1bilil.v for maintaming their etrength. and the norn~. nation and PrOmDflan of the officers of these ~01~1

belanqa to the Cantons. wlth the reserrsflon of the general lrgulaltoni whleh will be tranrmltted to them by the Canfedeiatlon?'

SWISS MILITARY JUSTICE

These two articles mere applied in the military organization law

3. Policy of Keutrality andS'ervice Abroad

After rhe defeat of hlarignano (today Jlelegnano) in 1515, the Swiss L c ~ p m renounced the policy of conquest that they had undsr-taken, particularly in northern Italy. One might say that llarignano also marked the beginning of the policy of neutrality.'*

But that battk also marked the beginning af military service abroad. From that rims, Swiss regiments became engaged in all the European countries, under a system ealld L'military eapitulations"

At the present...