COMMITTEE ON RIGHTS OF CHILD EXAMINES REPORT OF SWITZERLAND ON CHILDREN AND ARMED CONFLICT

Committee on the
Rights of the Child

9 January 2006

Chamber A

The Committee on the Rights of the Child today reviewed the initial report of Switzerland on how that country is implementing the provisions of the Optional Protocol to the Convention on the Rights of the Child on children and armed conflict.

In opening remarks to the Committee, Jean-Daniel Vigny, Minister and Member of the Swiss Mission to the United Nations Office at Geneva, said Switzerland was attached and committed to preventing the involvement of children in armed conflicts both in Switzerland and abroad. Switzerland did not enrol or recruit children on a mandatory basis: the army was a militia, and all male citizens had to do their military service. There were no armed groups operating on Swiss soil, nor had there been any enrolment of children on Swiss soil. If armed groups enrolled children in Switzerland, they would be in violation of the Criminal Code, and would be punished.

Committee Expert Jacob Egbert Doek, who served as Rapporteur for the report of Switzerland, said recruitment outside Switzerland of children under 15 would apparently fall under the jurisdiction of Switzerland if it had been carried out by a person with a close link to Switzerland. However, the nature of what was considered to be a “close link” with Switzerland was in some cases surprising. There was a necessity to clarify whether this jurisdiction applied only to the case of the recruiter, or also to that of the recruit. Did Switzerland consider the possibility of prosecuting not only those who recruited children under 15, but also under 18, he asked.

Other Committee Experts raised questions related to, among other things, who attended short military training courses; whether there was a form of peace education in schools; whether Switzerland was open to receive children who had been involved in situations of armed conflict; issues linked to the voluntary enrolment of female citizens; whether Switzerland was open and ready to receive young people requesting asylum when these had been involved in armed conflicts, and how was this done; and whether there were texts underway which would directly sanction the enrolment of children, as so far it appeared that this was punished indirectly.

The Committee will release its formal, written concluding observations and recommendations on the initial report of Switzerland on the Optional Protocol towards the end of its three-week session which will conclude on 27 January.

The delegation of Switzerland consisted of representatives of the Federal Department of Foreign Affairs, and the Federal Department of Defence, Protection of the Population and of Sports.

As one of the 192 States parties to the Convention, Switzerland is obliged to present periodic reports to the Committee on its efforts to comply with the provisions of the treaty. The delegation was on hand during the meeting to present the report and to answer questions raised by Committee Experts.

When the Committee reconvenes in public on Wednesday, 11 January at 10 a.m., it will consider the initial report of Kazakhstan to the Optional Protocol to the Convention on the sale of children, child pornography and child prostitution (CRC/C/OPSA/KAZ/1).

Report of Switzerland

The initial report of Switzerland to the Optional Protocol on children and armed conflict (CRC/C/OPAC/CHE/1) describes the legislative, administrative, judicial and other measures applicable in Switzerland in respect of the rights guaranteed by the Protocol. The recruitment of children has been generally prohibited in Switzerland since 1 May 2002. Upon ratification of the Protocol, Switzerland deposited an internationally binding declaration providing for a minimum age of 18 years for recruitment of volunteers. The definition of the child in Swiss law is identical to that in the Convention, since under Swiss family law every person is considered to be a child until the age of 18, when he or she attains majority. Switzerland’s commitment to the rights of the individual, democracy and the principles of the rule of law constitutes one of the five objectives of its foreign policy. For this reason, Switzerland does everything possible to ensure better protection in law and in practice for children, who are among the most vulnerable members of society.

The best interests of the child constitute a guiding principle of Swiss law. The Federal Constitution makes special mention of children and young people in its list of fundamental rights and social objectives. At the legislative level, too, various laws take account of the best interests of the child, including the Swiss Civil Code and Criminal Code. Freedom of opinion implies the right to express that opinion; it is enjoyed by all natural and legal persons, whether minors or of age, and guaranteed by article 16 of the Federal Constitution, inter alia. Implementation of the Protocol in Switzerland follows the general principles of the Convention: to the extent that those principles are reflected in Swiss law as a whole and apply to all citizens, then they are applicable a fortiori to soldiers. Under article 1 of the Protocol, States parties are required to raise the minimum age for direct participation in hostilities from 15 to 18. In Switzerland, minors are protected by domestic law, which prohibits both compulsory and voluntary enlistment of children.

Switzerland takes the view that, since the Convention on the Rights of the Child defines the child as anyone below the age of 18, all children must be protected, which means not enlisting children even if they volunteer. The raising of the recruitment age to 18 is thus in line with Switzerland’s general policy on human rights and international humanitarian law. Moreover, by its declaration accepting a recruitment age of 18, Switzerland has made clear that it wishes to provide effective protection in practice to children in armed conflicts and thereby work for the prohibition of child recruitment everywhere in the world. Switzerland also believes it is in its own interest not to recruit young people who are still immature. Enlisting only persons who are of age means all are subject to criminal law and military criminal law.

Presentation of Report

JEAN-DANIEL VIGNY, Minister and Member of the Swiss Mission to the United Nations Office at Geneva, said Switzerland had committed itself to voluntary recruitment at age 18 when the Protocol was ratified. Recruitment of children was prohibited on a general basis since 2002. Switzerland was attached and committed to preventing the involvement of children in armed conflicts both in Switzerland and abroad. The report had been circulated and developed with the various departments of Swiss administration, and civil society had been consulted. Article 1 of the Protocol had to do with direct involvement in hostilities - in Switzerland, mandatory or voluntary recruitment of children was prohibited, and there was very strict control as to the age of recruits.

Switzerland did not enrol or recruit children on a mandatory basis: the army was a militia, and all male citizens had to do their military service. These obligations only took effect at the beginning of the year in which the recruit reached 19, and the birth certificate was used to verify this. There was no legal provision to lower the age of recruitment under exceptional circumstances. Switzerland had made the following declaration: “The Swiss Government declares, in accordance with article 3, paragraph 2, of the Optional Protocol, that the minimum age for the recruitment of volunteers into its national armed forces is 18 years. That age is specified by the Swiss legal system.” There were no armed groups operating on Swiss soil, nor had there been any enrolment of children on Swiss soil. If armed groups were to enrol children in Switzerland, they would be in violation of the Criminal Code, and would be punished by imprisonment. The authorities had never yet noted any punishable recruitment or similar activities perpetrated by armed groups, nor any indication that foreign states or armed groups were recruiting children on Swiss soil. Among the important texts which specifically protected children were the Swiss Civil Code and Criminal Code, in particular the provisions referring to children and adolescents.

All of Swiss legislation was presently compatible with the obligations in the Protocol. The Armée 21 reform programme had also made changes to ensure this, and this was before Switzerland acceded to the Protocol. Switzerland supported a number of organizations which protected children’s rights, including those which combated the involvement of children in combat. Through financial assistance, the Federation supported NGOs running activities to help children achieve their rights. On an international level, Switzerland’s efforts to implement the Protocol were ongoing on certain levels. Switzerland had been calling for unilateral ratification of the Protocol, and also cooperated on a financial and other levels with programmes aimed at informing States of the Protocol and its advantages.

Discussion

An Expert said that Switzerland had done a lot to encourage other Member States to abide by the Convention, and had no problems of enrolment of children within its own borders, and therefore the Committee would have to nitpick in order to find subjects for discussion. He therefore asked a question pertaining to criteria for inclusion of a person on the list of those having “close links” with Switzerland. Other Experts raised a series of questions pertaining to who attended short military training courses; whether there was a form of peace education in schools; whether Switzerland was open to receive children who had been involved in situations of armed conflict; and issues linked to the voluntary enrolment of female citizens.

JACOB EGBERT DOEK, the Committee Expert serving as Rapporteur for the report of Switzerland, said as far as recruitment was concerned, this was clear. Recruitment outside Switzerland of children under 15 was apparently under the jurisdiction of Switzerland if it had been carried out by a person with a close link to Switzerland. However, the nature of what was considered to be a “close link” with Switzerland was in some cases surprising. There was a necessity to clarify whether this jurisdiction applied only to the case of the recruiter, or also to that of the recruit. Did Switzerland consider the possibility of prosecuting not only those who recruited children under 15, but also under 18, he asked.

JEAN-DANIEL VIGNY, Minister and Member of the Swiss Mission to the United Nations Office at Geneva, responding to the questions and comments, said that the Swiss judicial authorities would take into account the best interests of the child when applying the Criminal Code. On peace education in schools, there was not, as far as he knew, any form of this in the public schools, but there was human rights education, and as far as the delegation was concerned, this included the rights of the child. Peace was based on the respect of the rights of the person on a national and international level, and human rights education was the major contribution that Switzerland could make to this effect. The major Swiss universities did have international human rights law as a subject. On the list of States with which Switzerland collaborated on the implementation of the Protocol, these were just an example, and Switzerland collaborated with other States, including Burundi and Sierra Leone.

If there were child soldiers present in Switzerland for whatever reason, they could stay, and there was no question of sending them back to the country where they came from, Mr. Vigny said. Switzerland would look after them and had an arsenal of legal provisions which would allow them to be protected. If parents of child soldiers were in Switzerland and were asking for refugee status, they could probably remain. Historically, Switzerland was a federal state founded on law, and women were not able to enjoy their rights as fully as men. This was an area which was not yet fully remedied, but in terms of obligations, it was considered a good thing that they did not have to serve in the military. However, they could participate in military service on a voluntary basis, with all the duties and obligations of their male colleagues.

There was a clear distinction between the armed forces and youth and sport at the Federal level, the delegation said. There was some overlap of material, but there was no possibility for Scouts to be recruited by the armed forces. There were no school systems in Switzerland that would be a first stage for the military. Switzerland had cases of victims of torture who had come from other countries who had an urgent need of assistance, and in these cases there was medical and psychological assistance. Each State was free to exercise territorial jurisdiction on the basis of the active or passive personality with regards to certain crimes.

During the second round of questions, Experts raised questions on whether Switzerland was open and ready to receive young people requesting asylum when these had been involved in armed conflicts, and how was this done; and whether there were texts underway which would directly sanction the enrolment of children, as so far it appeared that this was punished indirectly.

Responding, Mr. Vigny said there was no particular procedure to seek to identify young people who had been involved in armed conflicts, either nationally or internationally, but this suggestion would be sent to the appropriate authorities. Responding to other questions, the delegation said there was a general clause in the Military Criminal Code mentioning violations, and if the tribunals acknowledged that enrolment was a violation and a war crime, then Switzerland would have jurisdiction. The implementation of the Rome Statutes was very general. War crimes usually only took place in a situation of armed conflict, but the enrolment of children could take place before the conflict started, and this was only covered implicitly by the Rome Statutes.

Mr. Vigny asked the Committee what were the specific obligations of States parties regarding the prosecution of acts banned by the Protocol on the basis of universal jurisdiction, saying that Switzerland would like to have the opinion of the Committee on this matter, as it was a very important issue, and would be very useful for Switzerland in the preparation of future legislation. Mr. Doek responded by saying that it was within the purpose of the Protocol to improve protection of children, and this would be strengthened if States were to collaborate with regards to jurisdiction and to strengthen the protection they provided to children between 15 and 17 with regards to recruitment within their territory and to view it as a crime under national law.
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