-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. General
- II. Paragraph 1: Military legislation, organization, training and equipment of the armed forces
- III. Paragraph 3: Military facilities of the cantons
- Recommended further reading
- Bibliography and Materials
I. General
A. History of origins
1 The Federal Constitution of 1874 had a comparatively detailed military constitution in Articles 8 to 22 aBV. It was based on the idea that the military sovereignty of the Confederation took precedence over that of the cantons. The sovereignty of the cantons, which were guaranteed their own troops, was to come into play only where it did not hinder the purpose of the Confederation.
2 The military constitution stipulated that legislation on the army was a matter for the Confederation (Art. 20 para. 1, first sentence aBV). The implementation of the "relevant laws", i.e. their execution, was to be carried out by the cantonal authorities within the limits to be determined by federal legislation and under the supervision of the Confederation (Art. 20 para. 1 second sentence aBV).
3 Art. 20 para. 2 aBV established federal competence for all military instruction and armament, whereas in the Federal Constitution of 1848 it was precisely military instruction that was still divided between the Confederation and the cantons. The procurement of clothing and other equipment as well as their maintenance was the responsibility of the cantons. According to paragraph 3, however, the costs incurred were paid by the Confederation. The conscripts were also to receive their initial equipment, clothing and armament free of charge (Art. 18 para. 3 aBV). This provision found its way into the Constitution after some cantons had passed on some of the procurement costs to the conscripts. The cantonal competence in the area of equipment was not least a concession by the Confederation, after the draft of 5 March 1872 had provided for exclusive federal competence in this area and the transfer of ownership of all war material to the Confederation.
4 Finally, the Confederation was granted the right to take over the cantonal military sites and military buildings for use or as property in return for a fair (adequate) compensation (Art. 22 para. 1 aBV).
5 With the total revision of the FC of 1999, the defense constitution was concentrated in a few articles. Art. 20 and Art. 22 aBV were merged into Art. 60 para. 1-3 FC. At the outset, this article contains the legislative competence of the Confederation in the field of military affairs and establishes the competence for equipment and training. The organization of the armed forces is now also mentioned. The cantonal competence to enact implementing legislation is no longer explicitly mentioned. It results from the federalism of enforcement. Paragraph 2 describes the shared competence in the area of cantonal troops and procurement. The right to take over cantonal military sites and military buildings for use or as property in return for payment has now been combined in paragraph 3 in a general "right to take over" in return for payment.
6 With the Army Reform XXI in 2002, in force since January 1, 2004, the legislator abolished the cantonal troops. The constitutional order of competences remained untouched, since the total revision of 1999 already guaranteed no more cantonal troops. At the same time, the legislature revised Art. 118 MG ("The military is a matter for the cantons, insofar as it is assigned to them. [...]"). Now it is clarified: "The military is a matter of the Confederation as well as of the cantons, as far as it is transferred to them. [...]". The new wording was not intended to change the content. Its only purpose was to emphasize the original responsibility of the Confederation, without, however, relieving the cantons of their co-responsibility.
7 The division of competences underwent its greatest change in 2004 with the adoption of the federal decree on the reorganization of financial equalization and the division of tasks between the Confederation and the cantons (NFA). The NFA aimed to ensure a proper division of tasks and competences between the Confederation and the cantons in the long term and to eliminate false incentives and duplications. As a result, paragraph 2 of Art. 60 FC was deleted without replacement as of January 1, 2008. Enforcement responsibility in the logistical area (i.e. army materiel) now lay exclusively with the Confederation. Centralization was a business necessity, especially in the face of a greatly reduced army. The joint responsibility of the cantons was not diminished from a state policy point of view (cf. the following presentation under I.B.).
B. Today's division of powers between the Confederation and the cantons
8 Article 60 para. 1 FC declares military legislation, organization, equipment and training to be a federal matter and thus a comprehensive and exclusive federal responsibility for the military. The enumeration - organization, equipment, training - is, in the view expressed here, purely declaratory today and no longer has any independent significance, since, in addition to legislation (Art. 60 para. 1 FC), enforcement (Art. 118 MG) is also the responsibility of the Confederation. It must therefore be understood in a historical context.
9 As a consequence, only the enforcement tasks explicitly provided for by federal legislation remain with the cantons. In particular and illustratively, the following enforcement tasks are to be mentioned:
Pre-orientation and orientation meeting (Art. 11 para. 2 MG, Art. 97 para. 1 VMDP);
Issuance of marching orders (Art. 87 para. 4 lit. a VMDP) as well as assessment of service transfer requests (Art. 91 para. 1 VMDP in conjunction with Annex 6) for recruitment, but not the execution of recruitment (Art. 11 para. 3 MG in conjunction with Art. 98 VMDP);
Military control (Art. 102 VMDP), esp. handling of requests for foreign leave (Art. 43 ff. VMDP);
Receipt, but not approval, of service transfer requests for basic and cadre training services up to subaltern officers (Art. 90 para. 2 VMDP in conjunction with Annex 6);
Off-duty shooting (Art. 125 MG and Art. 34 ff. Shooting Ordinance), e.g. the operation of shooting ranges, the recognition of shooting clubs and their allocation to shooting ranges;
levying the military service tax (Art. 22 WPEG);
Operation of information centers in the event of mobilization for active duty (Art. 13 VMob);
Disciplinary authority on the journey to enlistment and discharge (Art. 195 para. 2 and 4 MStG); also of practical relevance is disciplinary authority in the event of non-compliance with compulsory firing and failure to comply with the order to attend orientation day or recruitment;
(Disciplinary) detention outside the service (Art. 191 para. 5 MStG) and the execution of sentences passed by the military justice system (Art. 211 ff. MStP).
10 In isolated cases, the federal legislature turns directly to the municipalities for enforcement - for example, when announcing mobilization for active service (Art. 14 para. 1 VMob) - or imposes military burdens on them (Art. 132 MG):
Provision of premises in the event of mobilization for active duty or assistance (Art. 14 para. 3 and 4 VMob);
Provision of shooting ranges free of charge for off-duty shooting (Art. 133 MG). The municipalities have the right to choose. They may operate a shooting range themselves or participate in a shooting range of another municipality (joint facility). Before a new shooting range is built, it must be clarified whether a community facility is an option. Alternatively, municipalities can secure a shooting right at a private shooting range. They pay the private owner for the maintenance and renovation of the shooting range in accordance with the Subsidies Act (SuG). However, the claim only exists if the private shooting range is not located on the commune's own land (Art. 8 Shooting Range Ordinance) - a differentiation that hardly seems tenable from a factual point of view.
II. Paragraph 1: Military legislation, organization, training and equipment of the armed forces
A. Military legislation
11 Military legislation is a matter for the Confederation, i.e., it may regulate all factual matters relating to the armed forces. Military legislation consists of the following, formal laws: Military Law (MG), Federal Law on Military Information Systems (MIG), Military Criminal Law (MStG), Military Criminal Procedure (MStP), Military Insurance Law (MVG), Federal Law on Compulsory Military Service (WPEG), and parts of the Acquisition Replacement Law (EOG). Formal military legislation is supplemented by numerous ordinances of the Federal Council, the DDPS and, in some cases, the Federal Assembly, as well as by a steadily growing number of treaties under international law in the areas of training cooperation, peacebuilding and armaments cooperation.
12 The cantons have no authority to enact substantive military law. They are only responsible for enacting the necessary enforcement provisions (cf. e.g. Art. 22 para. 4 WPEG). The cantonal enforcement provisions can be found partly in their own introductory laws, but more frequently in the cantonal administrative organization law.
B. Organization
13 According to Art. 60 para. 1 FC, the organization of the armed forces is the responsibility of the Confederation. The military system is divided into two branches: the armed forces and the defense group (federal military administration). However, they do not have separate legal bases.
1. The Armed Forces
14 The armed forces are a sui generis state organization. It must be based on the principle of militia (Art. 94 MG). The Federal Assembly reserves the basic authority to determine the organization of the armed forces (Art. 93 MG). It has regulated the structure as well as the target and effective numbers in a separate ordinance (Art. 1 and 2 AO) and authorized the Federal Council to determine the structures and Group V to implement the detailed organization (Art. 4 and 5 AO). By the chosen form of enactment, the Federal Assembly deliberately withdrew its decision on the organization of the armed forces from referendum.
2. The Defense Group
15 Group V is part of the central administration of the Confederation. It is divided into five administrative units in accordance with the principles of Art. 8 GAOA (Art. 11 OV-VBS). The purpose of Group V is to ensure the readiness and further development of the armed forces (Art. 10 para. 2 OV-VBS). Accordingly, Group V is structured as a mirror image of the armed forces organization. Due to the quasi congruent and overlapping organization, professional military personnel de facto have a dual role as members of the armed forces and administrative employees, with the latter dominating outside of active service. On the other hand, certain functions of the armed forces and the military administration are deliberately filled in personnel union or de iure as a double hat. For example, the Chief of the Armed Forces heads both Group V (Art. 10 OV-VBS) and the Armed Forces (Art. 2 lit. a AO): "He shall form the link between the head of the DDPS (political function) and the armed forces."
16 Only in the case of a large deployment of troops in active service does the Federal Assembly elect a general (Art. 85 MG).
3. Other military authorities
17 With Group V and the Armed Forces, the following authorities have a close factual relationship:
The military criminal authorities (Art. 4a et seq. MStP) consist of the Chief Auditorate as part of the central administration and the military justice system. Comparable to the division of tasks between Group V and the armed forces, the Chief Auditorate ensures favorable framework conditions so that the military justice system can fulfill its mandate (Art. 9 OV-VBS). The Office of the Chief Auditor is listed in the DDPS Organizational Ordinance as an independent administrative unit and is not subordinate to Group V. Accordingly, the members of the military justice system are not subject to the command authority of the armed forces (Art. 3 para. 1 AO). Disciplinary authority is vested in the Chief Auditor (Art. 8 para. 1 MJV). This separation under administrative organization law and decoupled command and disciplinary authority contribute to the hierarchical-institutional independence of the military justice system. Such independence is already required under international law for an effective investigation into alleged violations of the right to life or the prohibition of torture (Articles 2 and 3 ECHR). The military courts are made up of members of the military judiciary and the armed forces (so-called military judges). They are elected by the Federal Council or the Federal Assembly (cf. Arts. 7, 11 and 14 MStG). An election by the army/Group V would not be permissible and would violate the right to an independent court (Art. 6 para. 1 ECHR).
The Federal Office of Armaments (armasuisse) acts, among other things, as the central procurement agency for Group V and the armed forces (competence according to Annex 1 Org-VöB). It also participates in international armaments cooperation (Art. 109b MG). Finally, it is responsible for the real estate management of the DDPS (Art. 8 para. 1 lit. b VILB and VAI) and the execution of decommissioned material (Art. 16 para. 1 MatV). The decommissioning of major weapon systems must be approved by the Federal Assembly (Art. 109a para. 4 MG); e.g. decommissioning of the F-5 Tiger fighter aircraft.
At the cantonal level, there are the district commands or the cantonal military authorities, which are responsible for carrying out the tasks assigned to them.
C. Training
18 According to Article 60 para. 1 FC, the Confederation is responsible and thus also obliged to train its military personnel. Thorough training is a prerequisite for the functioning of the armed forces as an instrument of security policy. From a legal perspective, the training obligation can be traced back to international law of war and, in the area of (police) firearms use, to human rights (see II.C.1. below). The Confederation trains its military personnel both at home and abroad, in some cases transferring the training to third parties (cf. II.C.2./3. below).
1. training obligation
19 The content of training is based on the tasks of the armed forces (Art. 46, Art. 66 para. 2 [for peace support service] and Art. 93 para. 1 MG). In the area of its core competence, defense, Switzerland has committed itself by ratifying the Geneva Conventions and the Additional Protocols to train its members of the armed forces in the law of war. This obligation reads (almost) unanimously in all agreements and additional protocols: "Les Hautes Parties contractantes s'engagent [...] notamment à en incorporer l'étude dans les programmes d'instruction militaire [...], de telle manière que les principes en soient connus de l'ensemble de leurs forces armées [...].
20 This is a legal obligation ("legal obligation"). However, the Geneva Conventions do not specify the form in which training is to take place. In practice, the international law of war is taught through regulations and in theoretical and practical modules of training. In addition, the rules of international law of war are to be integrated into all military exercises. In addition, Article 7 para. 1 of the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict (SR 0.520.3) obliges the military to train its own troops in the protection of cultural property.
21 The exercise of the army's police powers (Art. 92 f. MG and Art. 5 ff. ZAG) also requires careful training. The more serious the potential encroachment on fundamental rights, the more intensive the training must be. Article 2 of the ECHR imposes a "positive duty" on the contracting states, according to which the use of firearms must be trained ("trained in the use of firearms"). The ECtHR calls for "clear guidelines and criteria governing the use of force". This requirement must be met by issuing rules of engagement (ROE), which specify the use of force and are summarized in pocket cards.
22 With regard to the militia system of the Swiss Armed Forces, special attention must be paid to training so that members of the Armed Forces can (re)act lawfully and appropriately in the event of the use of force, be it within the framework of police powers or the international law of war.
2. Training service
23 Training service is governed by Articles 41-64 MG. It is composed of voluntary pre-service training (Art. 64 MG), basic training (Art. 49 MG), cadre training (Art. 55 MG), and formation training service (Art. 51 MG):
Voluntary pre-service training is offered from the age of 15 and in selected specialties (e.g., medical, cyber, military music, air force [SPHAIR]; Art. 3 para. 1 VAusb). The participants are not yet functionally integrated into the armed forces, which means that the training is in line with the Optional Protocol on the Involvement of Children in Armed Conflict. Third parties can be entrusted with the implementation of pre-service training by means of a public law contract (Art. 64 para. 2 MG in conjunction with Art. 3 paras. 2 and 3 VAusb-VBS).
Basic training comprises recruit school (Art. 49 MG) and specialized courses (Art. 50 MG). Recruit school lasts 18 weeks and must be commenced no later than twelve months after recruitment. It is generally completed without interruption. Exceptionally, it can be "fractionated" (Art. 57 VMDP). In addition, it is possible to perform the entire training service voluntarily in one piece (Art. 54a MG, so-called "Durchdiener"). However, the proportion of those serving in the military is limited in order to maintain the militia principle and to ensure that the system functions properly.
The training service of the formations comprises the refresher courses (WK) including preparation and discharge work (Art. 51 and 53 MG).
24 The training service also includes support services for the benefit of third parties, e.g. major national and international sporting events in Switzerland or cultural events, as well as spontaneous assistance. Originally, spontaneous assistance was dealt with under the chapter assistance service (Art. 67 ff. MG). In the context of the WEA 2014, this was corrected and spontaneous assistance was transferred to the training service of the formations. Since the 2021/2022 revision, not only members of the armed forces can be deployed in the training service of the formations, but also in basic training for support services and spontaneous assistance (Art. 48d MG). At the same time, it is emphasized that the training benefit must be in the foreground, although exceptions may be granted for major sporting events and cultural events of national or international significance (the so-called Lauberhorn article). Requests for support of large civil events must be approved restrictively in order to maintain the principle of competitive neutrality (Art. 94 para. 1 FC).
25 Training service can also be performed in the military administration (Art. 59 MG). Here, too, the focus must be on the training benefit. In the view expressed here, applications must again be approved restrictively, since members of the armed forces compete with civilian job seekers. With the addition of paragraph 4, the legislature has already countered the false incentive to have one's own personnel serve in the military administration in order to reduce personnel costs by collecting compensation for loss of earnings.
26 Training also includes off-duty shooting (Art. 63 MG). The annual shooting exercises are carried out by recognized shooting clubs (Art. 63 para. 2 MG in conjunction with Art. 3 para. 1 Shooting Ordinance). The authorized shooting clubs receive compensation for this in accordance with the SuG (Art. 38 Shooting Ordinance).
27 Insofar as military societies and umbrella organizations organize voluntary training activities, the DDPS supports them with benefits in kind and in cash. The support of these self-chosen training activities is, according to the opinion represented here, a financial aid according to the SuG, to which a corresponding claim exists (Art. 10 ff. VATV). The competent military administration has a discretionary power in the recognition of shooting clubs, military societies and umbrella organizations. In doing so, it must observe the principle of equality of rights, the duty to safeguard public interests and the principle of proportionality. Insofar as the recognition of a new association presupposes a military need/requirement, the military administration cannot avoid reviewing the activities of the associations already recognized and taking them into account in its decision (cf. Art. 2 para. 2 VATV and Art. 19 para. 2 lit. c Shooting Ordinance).
28 Military training should increasingly be recognized by civilian institutions; for example, military leadership training or military driving licenses.
3. International training cooperation
29 Military training projects and exercises are increasingly taking place with foreign partners. Possible cooperation partners include other states, the United Nations (UN), the European Defence Agency (EDA) and, within the framework of the political initiative "Partnership for Peace (PfP)", NATO. The Federal Council's foreign policy decision to accept the invitation to join the PfP was brought before parliament or the people in vain. With the emergence of armed conflicts in the European area, repeated demands were made, on the one hand for strengthening and on the other (for reasons of neutrality policy) for withdrawal from the PfP. In terms of neutrality, participation in the PfP and international training cooperation in general is not objectionable as long as it is not accompanied by a duty to provide assistance. Due to Switzerland's geographic location and small size, international training cooperation is important for the Swiss Armed Forces, for example for air force exercises and generally for military cooperation capability (interoperability) and knowledge exchange.
30 The Federal Council can conclude implementation agreements with foreign partners for specific training projects and exercises or negotiate a general framework agreement (Art. 48a MG). In the latter, it lays down the key parameters such as the scope of training cooperation, state liability, etc. Group V can carry out smaller international training projects directly on the basis of such a framework agreement. Larger training projects and exercises require a technical agreement/arrangement, which Group V can conclude independently in the case of an existing framework agreement (general subdelegation in Art. 106 para. 3 VMDP). In the absence of a framework agreement, Group V applies to the Federal Council for authorization to conclude specific implementing agreements (Art. 48a para. 1 GAOA). In practice, the authority to conclude agreements is granted once a year by means of a collective authorization.
31 As in the case of peace support or assistance service abroad, the Federal Council must regulate the status of the armed forces members to be deployed by means of a "status of forces agreement" (SOFA) and, if necessary, the protection of information under international treaty law. Parliament has delegated the necessary treaty-making powers to it on a sectoral basis (Art. 150a and 150 para. 4 MG). For training cooperation, the parties regularly declare the PfP troop statute applicable, although in individual cases it must be examined whether concretizations are necessary in the respective implementation agreement (for example, with regard to competencies for technical or criminal investigations in the recipient state).
D. Equipment
1. Procurement
32 The Confederation is responsible for the procurement of army equipment (Art. 60 para. 1 FC). The repetition in Art. 106 para. 1 MG is purely declaratory in view of the present order of competences. Moreover, the competence to procure the necessary material results from the administration of requirements and would not require a special legal basis: the administration procures what it needs to fulfill its legal tasks.
33 The guideline for procurement is Article 93 of the MG, according to which the armed forces must be equipped in such a way that they can perform their tasks in a timely and complete manner. In view of the far-reaching implications, the Federal Council obtained the mandate for the procurement of new combat aircraft by means of a federal decree pursuant to Art. 28 para. 1bis lit. c and para. 3 ParlG (so-called planning decree). The federal decree was confirmed in the referendum of 27 September 2020.
34 The principle of proportionality further requires that, when exercising police powers, task forces must be equipped in such a way that the use of firearms is not the only, but the last effective means of coercion (ultima ratio); for example, through additional equipment with irritant spray or destabilization equipment. The individual equipment depends in each case on the specific mission.
35 The Federal Office of Armaments (armasuisse) is primarily responsible for procurement (Art. 12 OV-VBS). To ensure the supply of equipment, the Confederation may also acquire stakes in armaments companies (Art. 1 ff. BGRB). For a period of four years, it defines the strategic goals to be achieved by the defense companies (Art. 3 para. 1bis BGRB). For example, the strategic goals for RUAG MRO include support for the maintenance of Swiss Armed Forces systems (maintenance, inspection, repair). Under certain circumstances, participation in defense companies enables quasi-in-house procurements, which are excluded from the material scope of procurement law (Art. 10 para. 3 lit. d SOA). These companies are also subject to various exemption provisions with regard to licenses under the War Material Act (WMO). In active service, the Federal Council may order military operation for private companies entrusted with public tasks, such as companies under the BGRB (Art. 81 MG).
36 The Federal Assembly decides on the payment framework for the financial resources of the armed forces for four years at a time (Art. 148j MG; Art. 20 FHG). This merely signals the willingness of Parliament to approve this amount within the framework of the budget decisions. The Federal Council submits the concrete credit requests to the Federal Assembly annually with the Armed Forces Dispatch. The payment framework and the approval of the credits are issued by simple federal decree (Art. 148j MG and Art. 25 para. 2 ParlG). This is not subject to a referendum (Art. 141 para. 1 lit. c in conjunction with Art. 163 para. 2 FC).
37 The procurement of army equipment is subject to certain legal peculiarities:
According to Art. III CAP, the contracting parties may take measures necessary for the protection of their essential security interests for the procurement of arms, munitions and war material or procurements indispensable for national defense. The Swiss legislator has generally excluded these procurements from the scope of the treaty (Annex 5 para. 1 lit. c BoeB). At the discretion of the contracting authority, an award procedure may be dispensed with altogether or the invitation procedure may be chosen if the protection objectives permit this (Art. 10 para. 4 lit. a SOA). If the invitation procedure is chosen, the contracting authority is not bound by threshold values (Art. 20 para. 3 SO). Legal recourse is excluded for reasons of security policy (Art. 52 para. 5 SOA). Compensation transactions (offsets) are permitted outside the scope of the State Treaty (Art. IV No. 6 GPA e contrario).
If weapons, means and methods of warfare (weapons systems) are newly procured, modified or put to a different use, they must be examined for their conformity with international law (Art. 36 ZP I in conjunction with Art. 11 MatV). Group V subjects the procurement object to an independent, internal administrative review and assesses whether the procurement object and the planned use are compatible with the basic principles and the special provisions of international law of war. For this purpose, it may order firing trials and further tests. Final approval may be subject to conditions and requirements (e.g. restriction of the use of irritant spray in international armed conflict).
2. Army material
38 Army material includes personal equipment (armament, clothing, baggage and special equipment in accordance with Art. 3 para. 1 VPAA) and other army material (Art. 105 lit. b MG). Personal equipment remains the property of the Confederation and may not be used for private purposes (Art. 114 MG).
39 The army material is administrative property. According to the view expressed here, this is true even if Group V provides commercial services and transfers army equipment to third parties in return for payment (Art. 41 FHG in conjunction with Art. 148i MG). This is also reflected in the fact that commercial services are only provided if they do not interfere with the main task of the armed forces. The levy is not an actual task, but an opportunity to rent temporarily unused army equipment to third parties, for example. The requirement of competitive neutrality must always be taken into account (Art. 94 para. 1 FC). Under certain circumstances, discounts or price reductions are granted, which means that the army material is given as a kind of financial aid. The charge, insofar as it is not a financial aid, is agreed in a civil law contract.
40 The members of the armed forces have a duty of care for the army material. They are liable for their personal equipment and the (army) material entrusted to them in the course of duty in the event of loss or damage (Art. 139 para. 2 MG; lenient causal liability) or, in general, for damage resulting from intentional or grossly negligent breach of duty (Art. 139 para. 1 MG; fault-based liability). Special liability provisions (Art. 135 para. 2 MG) are reserved, such as Art. 75 SVG for damage caused by driving without orders/permission (so-called stolen driving).
41 Army equipment is specially protected under criminal and disciplinary law (Art. 73 MStG, misuse and squandering of army equipment). In contrast to civil criminal law, anyone who negligently damages or causes damage to or destruction of an object entrusted to him in the course of his duties is also punished. Explicitly, the unauthorized wearing of the Swiss army uniform by non-servicemen is also punishable (Art. 331 StGB). The same applies to persons liable for military service (Art. 73 MStG), whereby Art. 22 VPAA specifies off-duty occasions on which they are authorized to wear the uniform. Wearing the uniform abroad requires the approval of the military protocol (Art. 4 Ordinance on the Wearing of Foreign Uniforms in Switzerland and Swiss Military Uniforms Abroad). The latter additionally obtains the consent of the receiving state, since wearing the Swiss army uniform abroad could otherwise be perceived as an unfriendly act.
42 Upon discharge from the armed forces, certain items of equipment may be left to the members of the armed forces as property (Art. 26 ff. VPAA; e.g. equipment without camouflage print and personal weapon). The main purpose of the transfer of the personal weapon is to enable members of the armed forces to continue shooting with the army weapon after leaving the armed forces. The ordinance requires an additional shooting certificate (e.g. field shooting) and not only the fulfillment of the legal shooting obligation. In addition, a weapons acquisition certificate is required (Art. 29 f. VPAA).
43 If there are concrete indications of danger with the personal weapon or its misuse by service personnel, the district command must order the precautionary removal of the personal weapon (Art. 17 VPAA). Moreover, the Federal Administrative Court affirmed the liability of the federal government (and not of the cantonal district command, which had no knowledge of the specific circumstances) after an army member who had been declared unfit for service shot a policeman with his army pistol and injured a second during the eviction of his apartment.
44 In 2011, the Swiss population rejected the popular initiative "For protection against gun violence." According to this, the weapon would have had to be stored off duty by the army. A later transfer for ownership would have been excluded in principle.
III. Paragraph 3: Military facilities of the cantons
45 Numerous military installations are still owned by the cantons. The Confederation may (unilaterally) take over these to the extent necessary, i.e. taking into account the public interest and proportionality. This right of takeover is directed exclusively against the cantons and not against private parties. When exercising the takeover right, the Confederation owes the cantons an appropriate (equitable) but not full compensation. In this respect, paragraph 3 is not an (ordinary) expropriation title, but a constitutional special expropriation right.
46 Until now, the Confederation and the cantons reached a consensus on the use of cantonal weapon ranges and concluded a public-law contract (Art. 6 VWS). The so-called armory agreement between the Federal Council and a cantonal government is followed by use agreements and other, more specific agreements at departmental and office level.
47 Since 2018, compensation has been based on the tenant model (Art. 7 VWS). The federal government has thus abandoned its long-standing compensation model, which consisted of interest, amortization, and maintenance expenses as well as a daily compensation per head and vehicle.
48 As in the case of the site evaluation of a new building, when deciding on a cantonal facility to be taken over, on the one hand the provisions of public law on use must be consulted so that the intended military use can actually be realized. On the other hand, the special provisions of international law of war must be taken into account in the decision-making process. Namely, military targets may not be located, as far as practical, within or near densely populated areas (Art. 58 lit. b ZP I), near installations and facilities containing dangerous forces (Art. 56 no. 5 ZP I), and near cultural property (Art. 8 lit. b Second Protocol of 26.3.1999 to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, SR 0.520.33).
About the author
Jan Imhof studied at the Faculty of Law of the University of Bern (MLaw with a focus on public administration law) and was subsequently admitted to the bar of Bern. From 2020 to 2022, he worked as a research assistant in the International Law of War Legal Service (KVR) in the Armed Forces Staff, Federal Department of Defense, Civil Protection and Sport (DDPS). He is a member of the military judiciary in the Foreign Affairs Department and currently works as a court clerk at the Criminal Division of the Regional Court of Bern-Mittelland.
Recommended further reading
Albertini Gianfranco/Armbruster Thomas/Spörri Beat, Militärisches Einsatzrecht, Zürich 2016.
Freiburghaus Dieter/Buchli Felix/Honegger Edith, Das Duopol der legitimen Gewalt im schweizerischen Bundesstaat, Cahier de l’IDHEAP 223/ 2005.
Griffel Alain, Der Grundrechtsschutz in der Armee, Zürich 1991.
Häner Isabelle/Lienhard Andreas/Uhlmann Felix/Vogel Stefan/Kern Markus/Achermann Alberto, Besonderes Bundesverwaltungsrecht, 9. Aufl., Basel 2021, S. 517-523.
Lienhard Andreas/Häsler Philipp, Verfassungsmässigkeit des Entwicklungsschrittes 2008/11 der Schweizer Armee, VPB 2007.2 S. 9-75.
Meyer Hansjörg, Grundaufgabe der Armee und weitere Aufgaben des Staates, in: Schweizer Rainer J. (Hrsg.), Sicherheits- und Ordnungsrecht des Bundes, Band III/1, Basel 2008.
Moeckli Daniel, Sicherheitsverfassung, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2020, S. 629-651.
Müller Reto Patrick, Innere Sicherheit Schweiz, Basel 2009.
Müller Reto Patrick/Greuter Stéphanie, Der grundrechtliche Rahmen für Anti-Terror-Operationen in Europa, Bern 2021.
Rechsteiner David, Recht in besonderen und ausserordentlichen Lagen, Zürich et al. 2016.
Saladin Gerhard M., Einsatz der Armee zur Unterstützung ziviler Sicherheitsorgane des Bundes, in: Schindler Benjamin/Kiener Regina/Bühler René (Hrsg.), Sicherheits- und Ordnungsrecht des Bundes, Band III/2, Basel 2018, S. 315-366.
Bibliography and Materials
Armeebotschaft 2021 vom 17.2.2021, BBl 2021 S. 372 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2021/372/de, besucht am 24.5.2023.
Armeebotschaft 2022 vom 16.2.2022, BBl 2022 S. 615 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2022/615/de, besucht am 24.5.2023.
Biaggini Giovanni, Kommentierung zu Art. 60 BV, in: Biaggini Giovanni (Hrsg.), BV Kommentar, 2. Aufl., Zürich 2017.
Birke Rainer, Strafverfolgung nach dem NATO-Truppenstatut, Dresden 2003.
Blumer Patrick/Wildt Anna, Änderung des Militärgesetzes und der Armeeorganisation 2022: Reform der Reform?, S&R 2/2022, S. 80-92.
Botschaft des Bundesrates an die hohe Bundesversammlung vom 20.5.1874, betreffend die Abstimmung vom 19. April 1874 über die abgeänderte Bundesverfassung, BBl 1874 I S. 699 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1874/1_699__/de besucht am 24.5.2023.
Botschaft über eine neue Bundesverfassung vom 20.11.1996, BBl 1997 I S. 1 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1997/1_1_1_1/de, besucht am 24.5.2023.
Botschaft über das Fakultativprotokoll von 2000 zum Übereinkommen über die Rechte des Kindes betreffend die Beteiligung von Kindern an bewaffneten Konflikten vom 5.9.2001, BBl 2001 S. 6339 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2001/1081/de, besucht am 24.5.2023.
Botschaft zu einem Planungsbeschluss über die Beschaffung neuer Kampfflugzeuge vom 26.6.2019, BBl 2019 S. 5081 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2019/1777/de, besucht am 24.5.2023.
Botschaft zur Änderung der Rechtsgrundlagen für die Weiterentwicklung der Armee vom 3.9.2014, BBl 2014 S. 6955 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2014/1566/de, besucht am 24.5.2023.
Botschaft zur Änderung des Militärgesetzes und der Armeeorganisation vom 1.9.2021, BBl 2021 S. 2198 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2021/2198/de, besucht am 24.5.2023.
Botschaft zur Armeereform XXI und zur Revision der Militärgesetzgebung vom 24.10.2001, BBl 2002 S. 858 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2002/118/de, besucht am besucht am 24.5.2023.
Botschaft zur Neugestaltung des Finanzausgleichs und der Aufgaben zwischen Bund und Kantonen (NFA) vom 14.11.2001, BBl 2002 S. 2291 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2002/316/de, besucht am 24.5.2023.
Botschaft zur Totalrevision des Bundesgesetzes über das öffentliche Beschaffungswesen vom 15.2.2017, BBl 2017 S. 1851 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2017/417/de, besucht am 24.5.2023.
Botschaft zur Volksinitiative «Für den Schutz vor Waffengewalt» vom 16.12.2009, BBl 2010 S. 137 ff., aufrufbar unter https://www.fedlex.admin.ch/eli/fga/2010/37/de, besucht am 24.5.2023.
Die Sicherheitspolitik der Schweiz. Bericht des Bundesrates (SIPOL-B 21) vom 24.11.2021, BBl 2021 S. 2895 ff.; abrufbar unter https://www.fedlex.admin.ch/eli/fga/2021/2895/de, besucht am 24.5.2023.
Diggelmann Oliver/Altwicker Tilmann, Kommentierung zu Art. 60 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Flachsmann Stefan/Fluri Patrick/Isenring Bernhard/Philippin Edgar/Röthlisberger Jean-Marie, Disziplinarstrafordnung. Das militärische Disziplinarstrafrecht, 6. Aufl., Zürich et al. 2022.
Flachsmann Stefan/Immenhauser Martin, Die Unabhängigkeit der Militärjustiz, Jusletter 13. Mai 2019.
Gill Terry et al., Leuven Manual on the International Law Applicable to Peace Operations, Cambridge 2017.
Imhof Jan, Subdelegation von Vertragsabschlusskompetenzen an Verwaltungseinheiten, Umsetzung und Entwicklung am Beispiel der internationalen militärischen Ausbildungszusammenarbeit, LeGes 32 (2021) 1.
International Committee of the Red Cross, Commentaries on the Geneva Conventions and Additional Protocols, https://ihl-databases.icrc.org, besucht am 24.5.2023.
Kolb Robert/Hyde Richard, An Introduction to the International Law of Armed Conflict, Oxford 2008.
Krage Philipp, Teilrevision des Militärgesetzes durch die WEA und ihre Auswirkungen auf die Aufgaben der Armee, S&R 2/2017, S. 79-96.
Lang Christoph Ignaz, Umweltschutzrecht und Militär, Zürich 1997.
Lampert Michael/Stauffer Thomas, Organisation der Gruppe Verteidigung – Dilemma zwischen Militärverwaltung und Armee?, Bern 2017.
Lazzarini Claudio, Die anerkannten militärischen Schiessvereine, Zürich 1985.
Lubishtani Kastriot, Kommentierung zu Art. 60 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand, Constitution fédérale, Basel 2021.
Meyer Hansjörg/Reto Patrick Müller, Kommentierung zu Art. 60 BV, in: Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), St. Galler Kommentar, Die Schweizerische Bundesverfassung, 4. Aufl., Zürich 2023.
Saladin Gerhard M., Der verfassungsrechtliche Grundsatz des Milizprinzips der Schweizer Armee, Zürich et al. 2012.
Schindler Benjamin, Schusswaffeneinsätze der Armee in Friedensförderungsdienst: Rahmenbedingungen des Schweizer Rechts, S&R 2/2008, S. 94-102.
Spring Alexander, The International Law Concept of Neutrality in the 21st Century. An Analysis of Contemporary Neutrality with a Focus on Switzerland, Zürich et al. 2014.
Strategische Ziele des Bundesrates für die RUAG MRO Holding AG in den Jahren 2020-2023 vom 23.10.2019, BBl 2020 S. 1316, abrufbar unter https://www.fedlex.admin.ch/eli/fga/2022/1316/de, besucht am 24.5.2023.
Timm Donald A., Supplement Arrangements, in: Fleck Dieter (Hrsg.), The Handbook of the Law of Visiting Forces, 2. Aufl., Oxford 2018, S. 408-412.
Voetelink Joop, Military Law Enforcement, in: Fleck Dieter (Hrsg.), The Handbook of the Law of Visiting Forces, 2. Aufl., Oxford 2018, S. 261-274.
Wirz Heinrich L./Strahm Florian A., Armee, Bund und Kantonale Militärhoheit. Die verfassungsrechtliche Zentralisierung des schweizerischen Wehrwesens und ihre Folgen, Schriftenreihe BiG Nr. 45, 2010.