The prohibition for Swiss nationals to serve in foreign armed forces: Professor Thierry Godel’s new book is published on Weblaw

28/07/2023
Law
Prof. Dr Thierry Godel

Article 94 of the Military Criminal Code prohibits Swiss citizens from performing foreign military ser-vice, recruiting or facilitating the enlistment of Swiss nationals, with certain exceptions. In his latest book, UniDistance Suisse’s Assistant Professor Thierry Godel studies Article 94’s application in the context of modern warfare.

Book summary (excerpt from the book)

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The theme of foreign engagements by nationals of neutral Switzerland is not new and has already been the subject of numerous parliamentary interventions. In the 1940s, Swiss citizens joined, for example, the International Brigades of the Spanish Civil War, or the French Resistance to fight against Nazism, enlisted in the German army (Wehrmacht), or joined foreign intelligence services; now they mainly enlist in foreign or international legions but also serve in insurgent, regional, or terrorist groups whose internal organization differs from the hierarchy established within a traditional (or government) army.

Like other international or non-international armed conflicts, the war in Ukraine is an example of a so-called "hybrid" war during which all terrestrial and virtual means are used to weaken the enemy militarily, politically, and economically. Men and women can now serve from Switzerland simply by using new technologies.

This contribution studies the jurisprudence of military courts rendered in the last decade. The author examines the practical consequences of the Military Court of Cassation's interpretation of the notions of "foreign army" and "military service" since 1928. In particular, the author is interested in the relevance of maintaining subjection to a military or "quasi-military" command as the intangible core of "foreign military service" in the context of modern wars (notably cyberwars) and with the emergence of new disorganized armed entities. To reinforce Article 94 of the Military Penal Code's effectiveness: new avenues of reflection are presented, including introducing a central criterion of "active participation in military efforts", which can cover any civilian or military action deployed within a war effort. »