Update: 24.10.2018

Export of war material: the National Council re-establishes order

The Federal Council and the Security Policy Committees of both the Council of States and the National Council do not consider the use of Swiss war material in countries torn by civil war to be a problem. The National Council, however, is concerned. It decided to end the downward spiral in which authorities repeatedly succumbed to the pressure of the Swiss arms industry, which weakened the War Material Ordinance (WMO) at the expense of human rights.

On 26 September 2018, the National Council made clear that it had lost confidence in the government’s ability to effectively define eligibility criteria for the export of war material. This is a partial victory for the coalition that launched a popular initiative against exporting war material to civil war countries. The coalition feels the National Council’s decision is a first step “to finally lend much-needed democratic support to the important discussion on weapons exports.” The coalition remains committed to pursuing this project until the Council of States has also adopted its position.

Historical background and changing balance of power

The history of struggle for power between the peace movement and the armament lobby is long. 10 years ago, at the time when the GSoA initiative “For a Ban on the Export of all War Material” hung over the head of the Swiss armament industry like the sword of Damocles, the Federal Council promised that the situation would improve. In 2008, it included several long-standing peace lobby demands in the WMO. Exports would no longer be allowed to countries that a) are involved in an internal or international armed conflict b) systematically and gravely violate human rights c) rank amongst the least developed countries in the world d) have a high risk that the exported weapons will be used against civilian populations or e) pass on the weapons to a undesired final recipient.

Broken promise - U-turn by the Federal Council

The Federal Council changed its position just five years later. In the meantime, the GSoA initiative had been rejected by voters. In early September 2014, the Federal Council decided to amend the WMO to simplify the export of war material. Specifically, it added an exception regulation to the passage disallowing the export of weapons to countries that systematically and gravely violate human rights (Art. 5 Para. 2 old WMO). Since 1 November 2014, the human rights situation only needs to be considered, meaning that permissions can be granted if there is only a limited risk that the war material to be exported may be used for committing serious human rights violations (Art. 5 Para. 4 new WMO). This situation is the result of the implementation of a motion originating from the Security Policy Committee of the Council of States (SPC-S) which was accepted in the National Council by the president’s casting vote.

Second softening of position

A second step softening the stance took place in April 2016 when the Federal Council lifted the one-year ban on exports to the Middle East (war in Yemen). It redefined the WMO in a way that the ban to export weapons to a country involved in an armed conflict would only apply if an armed conflict was occurring in the recipient country. This meant Switzerland could again export war material to Saudi Arabia.

The lamentations of the weapons industry: industry interests first

In September 2017, various representatives of the weapons industry such as Ruag, Mowag, Thales, Rheinmetall and B & T sent a letter to the Security Policy Committee of the Council of States (SPC-S) complaining about the falling export figures, tracing them back to, in their opinion, the overly strict export regulations compared to other European countries.

When lobbying, the arms industry can rely on a strong network of influential friends. Both Federal Councillor Schneider-Amman and Federal Councillor Parmelin are former members of asuw (Working Committee for Security and Defence Technology). 40 other members of parliament also currently represent this interest group. asuw is one of the key authors of the letter addressed to the SPC-S. Four asuw members are also part of the SPC-S.

Federal Council heeds the lamentations

On 15 June 2018, the Federal Council finally accepted the motion of Federal Councillor Schneider-Ammann to make the following changes: Adjust the eligibility criteria of the War Material Ordinance so that war materials exports are allowed under certain circumstances, even to countries affected by internal armed conflicts. And on the other hand include the national industrial basis in the approval procedures as a separate criterion. By doing this, the Federal Council completely succumbed to the requests of the defence industry. The Security Policy Committees of both the National Council and the Council of States fully supported it.

The National Council takes action

The May 2018 BDP motion “Broadening the democratic basis of arms exports” must be viewed in this context. The motion, which was proposed for rejection by the Federal Council, clearly stated that the Federal Council should no longer be the only body to decide on the export of war material. Such matters should be submitted to parliament so that they can be dealt with democratically. As a result, the criteria for export permits would be addressed in the War Material Act (WMA) instead of the War Material Ordinance (WMO). Unlike current legislation, changes of the legal criteria on arms exports would have to be discussed by both parliamentary chambers and would then be subject to a referendum.

The motion was adopted by a narrow majority of the National Council. It reflects the public’s widespread resistance, which was also reflected in the announcement of a popular initiative against arms exports to civil war countries (the “Amendment initiative”). The Council of States still has to decide on the motion in the second chamber.

Success and support for the Amendment initiative

The Amendment initiative is backed by the Alliance against Arms Exports to Civil War Countries. This independent alliance consisting of various well-known political representatives, aid agencies, and church organisations, started its campaign on 10 September 2018 and immediately received widespread support from the public. The fact that the campaign collected 50,000 signatures during the first two months demonstrates that Swiss citizens are displeased with the export of war material “made in Switzerland” and the Confederation’s failure to comply with the respective obligations.

The Alliance welcomed the National Council’s decision, but stated in a press release on 26 September 2018, that it will pursue its popular initiative project until the Council of States also adopts the BDP motion and the planned changes to the War Material Ordinance are definitively abandoned.

Non-transparent practice

There are also major deficiencies in Swiss concession practice. The responsible State Secretariat for Economic Affairs SECO lacks transparency with regard to the approval of weapons exports. The interpretation of Art.22 WMA (War Material Act) or Art. 5 WMO (War Material Ordinance), which define the preconditions for the granting of an export permit has not been sufficiently clarified. What remains particularly unclear is which human rights criteria are taken into consideration by SECO when deciding whether or not to grant a permit.

While scandals about Swiss weapons in the wrong hands have attracted attention from the media, the Swiss Federal Audit Office published the results of its tests on the transfer of war material on 3 September 2018. The reports stated that the Confederation does not currently have sufficient control over arms exports. The supervisory authority concluded that the SECO cannot currently guarantee that Swiss weapons are not used to commit violations of human rights.

International set of rules

Besides the national WMA and the WMO, there are also some international contracts that limit the exports of war materials, such as the Arms Trade Treaty (ATT).

Arms Trade Treaty

As the first of its kind, the ATT sets standards binding by international law for the regulation and control of international business with conventional weapons. The ATT obliges the contracting states to check whether the weapons to be exported will be used to commit serious human rights violations and thus to find out whether or not international humanitarian law will be violated.

During international negotiations, Switzerland advocated a comprehensive arms trade treaty with the highest possible international standard, universal applicability and a wide scope. But the ATT is just a collection of minimum standards. WMA and WMO both set stricter criteria, at least on paper. There is a danger that the Federal Council will take the ATT as a pretext to loosen the existing stricter Swiss regulations. This cynical approach –calling for stricter standards on an international level and loosening national restrictions at the same time – is all the more repulsive because Switzerland was elected to chair the ATT Secretariat.

Geneva Conventions

Article 1 of the four Geneva Conventions calls for the contracting parties “to respect and to ensure respect for the present Convention in all situations.” How far this commitment is valid remains a matter of discussion between member states, the UN and NGOs.

GAccording to GSoA, by ratifying the Geneva Convention, Switzerland undertook to refrain from all measures which might promote violations of international humanitarian law, and to take the necessary steps whenever possible to ensure that all parties in a conflict adhere to the rules of humanitarian law. This includes refusing to export war materials to parties that might use the weapons for violations of human rights.

Barbara Frey, the former UN Special Rapporteur for the Prevention of Human Rights Violations Committed with Small Arms, made the same argument. In her view, Article 1 also bans the delivery of war material to actors who will use it to commit violations of international humanitarian law or to states where there is a severe risk of doing so. In such cases, a state is not only allowed to refuse to grant an export permit, it is obligated to refuse.

But the Confederation is taking another view. In its approach, applying international humanitarian law to a conflict does not imply an export ban according to Article 5, Para. 2, lit. a of the WMO. In the Confederation’s view, Article 1 only requires a state to stop exporting war materials if the war material is knowingly being used to violate international humanitarian law. Therefore, applying international humanitarian law alone does not mean a general ban of war material exports to military conflict zones.

Article 1 of the Geneva Conventions has clearly been poorly implemented in Switzerland and elsewhere. But the lack of an international practice on Article 1 and patchy implementation do not mean that the obligation does not exist per se.

Commentary by humanrights.ch

Tragically, the export of war material continues. The fact that the Federal Council has already loosened the restrictions of the WMO twice, which it issued in 2008 just before the popular vote on the Ban of Weapons Initiative, is highly problematic, both from a political and ethical perspective. It is even more worrying that SPC-S, SPC-N and the Federal Council have caved to pressure from the arms industry again. To allow weapons to be shipped to countries torn by civil war is an absolute breach with the Swiss humanitarian tradition.

It seems hypocritical that, over the past ten years, the Federal Council has repeatedly given higher priority to the economic interests of weapon export companies than to human rights issues, and at the same time continues to promote Switzerland’s humanitarian tradition and commitment to human rights. The BDP’s motion is an important step forward that prevents the Federal Council from changing the eligibility criteria whenever it sees fit simply by amending ordinances. But the struggle is far from over. The BDP’s motion still needs to be adopted by the Council of States. In addition, the regulatory practice must meet international humanitarian legal standards and must be transparent.

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