Swiss parliament once again deviates from the path of neutrality
Confiscation of Russian state assets violates international law and the Federal constitution
by Dr iur. Marianne Wüthrich
On 7 March 2024, the Council of States by a narrow majority adopted five identical motions from the National Council, which the latter approved in the autumn session of 2023 with 123 yes to 54 no. According to the will of Parliament Switzerland should internationally advocate for a justification based on international law for the confiscation of Russian state assets. These motions are not entirely easy to understand but they do not give the Federal Council green light to expropriate Russian state assets in Switzerland. In addition, the assets of private owners are not up for discussion, since the Federal Office of Justice FOJ has made it clear that their expropriation would violate international law and the Federal Constitution. But the Yes vote by both Councils has strengthened the Federal Council in its untenable foreign policy activism, which takes Switzerland far away from neutrality and the prudence of our forefathers.
Motion text: “The Federal Council is assigned to take measures on the international level to work out foundations for a reparations mechanism in favour of a state that has been attacked in violation of international law and at the expense of the state assets of the belligerent aggressor. In international coordination, the principles of international law must be clarified, and a concrete mechanism be proposed that allows the state assets (including central bank funds) or state-related funds (including assets of state-owned enterprises) frozen by the sanctions to be transmitted lawfully to the attacked country.” (Motion 23.3264. Andrey Gerhard. International legal bases for reparation payments to Ukraine)
“Clarifying the principles of international law”
means overriding them
In plain language, it means that the USA and their satellites can steal Russian central bank assets and assets of state-owned companies (for example the energy companies Gazprom and Rosneft) that are held in Western bank accounts and squander the stolen money for the “reconstruction” of Ukraine. “Clarifying the principles of international law” in reality means to override these with regard to Russia and to settle the matter according to the “rules-based order” of the “Western values”. Here the Swiss parliament would have to clarify that it will not accept such actions of the Federal Council. Instead, it encourages the Federal Council to stumble on along its wrong path contrary to law and neutrality on the tightrope of Biden & Co.
One of the motion’s authors, Gerhard Andrey (Green Party, Fribourg), for example, easily declared on 28 September 2023 in the National Council: “Around 300 billion dollars from the Russian National Bank to which Russia has no access due to the embargo, are blocked in the West. In Switzerland alone, it is estimated to be 5 billion dollars [according to other estimates over 7 billion, mw]. The connection between the perpetrator of the damage and the owner of such assets is very clear here. I am sure that you and I will therefore find the following logical and stringent: Russia destroys, Russia must pay.”
Andrey and most of the other voters in both councils admit it: Firstly, there is no basis in international law for such plundering of the accounts of other states and secondly, the endeavour to bend into shape (pardon, “adapt”) the international law - and the own national law! - in the direction desired by the “Western values” is “very complex”.
Council of States
narrowly misses its significance
as a “chamber of reflection”
Unfortunately, on 7 March, the Council of States confirmed the alarming decision of the National Council by a narrow margin of 21 to 19 votes with three abstentions, although its Legal Affairs Committee had recommended rejection of the bill by 7 votes to 5. Nevertheless, several Councillors of States from various parties commented on the issue in a way allowing us to breathe more freely again, and in the end members of the Council across all parties voted against the motion. It’s a pity it wasn’t enough. Here are some remarkable excerpts.
“State assets are
protected by state immunity
guaranteed by international law”
Pirmin Schwander (SVP, Schwyz), for the Commission: “State assets are protected by the state immunity guaranteed by international law. State assets, including central bank assets, may not be confiscated in favour of a third country under the currently applicable principles of international law and according to Swiss legal practice. According to the majority of the Commission it befits the small neutral state of Switzerland and Switzerland’s reputation badly to discuss and take measures to remedy conditions being contrary to international law with measures being contrary to international law.” Councillor of States Schwander quotes the approval of the UN Convention on the Immunity of States and their Property from Jurisdiction by the Federal Council 2004: “Since numerous international conferences and organisations have established themselves on Swiss territory, our country has a particular interest in the legal certainty provided by a globally applicable regulation on state immunities.”
‘Reparation payments’
is always the word of the victor
to the defeated (Versailles Treaties)
Beat Rieder (Centre party), a member of the Council of States from the canton of Valais, makes a historical connection: “State immunity is one of the oldest and most fundamental principles of customary international law.” Switzerland was involved in the preparation of the aforementioned 2004 UN Convention: “Swiss diplomacy was very proud of this convention at the time. Why? The rules are essentially based on the principles applied by the Swiss Federal Supreme Court since 1918.” Rieder poses the question: “What should the Federal Council do now against this background of international law, which Switzerland has played a key role in shaping? It should develop a concept to confiscate the state assets and also the central assets of the belligerent aggressor in a war of aggression contrary to international law and use them for reparations [...]. Of course, you can do that. But apart from that, the word ‘reparations’, which you use, is actually already tainted. The creators of this UN agreement at the time also recognised this; in a war it is always the word of the victor against the loser. Let me remind you of the Versailles treaties and what then resulted from the reparations payments under the Versailles treaties.” Comment: However, Russia is far from losing the war.
The powerful states of this world
will never sign such an agreement
Rieder favours the “system of absolute state immunity over a system that will inevitably trigger chaos in international law and which we can already be sure will never be signed by the powerful states of this world [...]. Why? Because it is precisely these states that very often wage wars and often wars that violate international law; the veto powers of the UN Security Council should be mentioned in particular.” [emphasis mw]
Comment: Afghanistan is a striking example. Today, half of the population there suffers from hunger, while the USA and its fellow warriors pay no reparations for the hundreds of thousands of dead and wounded and the enormous damage they have caused with their decades-long war of aggression. On the contrary, the USA is imposing sanctions on the country and refusing to hand over its looted central bank assets.
Beat Rieder, a member of the Council of States, concludes: “These motions harm Switzerland as a neutral state and contribute nothing to solving wars, either in Ukraine or elsewhere.” [emphasis mw]
“These are the facts”
Before we turn to the statesmanlike remarks of member of the Council of States Daniel Jositsch, we must once again take note of the unworthy attitude (and the simple horizon?) of the Federal Councillor unfortunately responsible for Swiss foreign policy.
Federal Councillor Ignazio Cassis: “The facts are indeed very clear: Russia has seriously violated international law. It must therefore compensate for the damage caused, that is the law. The Council of Europe set up a register in May 2023 to determine the damage caused. The Federal Council has joined this register.
International discussions are currently underway on compensation mechanisms, in which Switzerland is participating with its knowledge, its skills and its entire history in this area. These are the facts.”
Firstly, Cassis talks about “facts” that are not facts: “This is current law” - precisely not, which is why the “values West” wants to invent “new” law to its liking. Secondly, he uses Switzerland’s treasures to puff himself up: “Switzerland is participating with its knowledge, its skills and its entire history.”
So why didn’t Parliament replace Ignazio Cassis with Beat Rieder or Daniel Jositsch at the Federal Council elections in December 2023? •
(Translation of all quotes by Current Concerns)
Does the Russian ambassador have to explain to us what is right and what is wrong?
Russia and its leaders have stated several times that they consider this to be pure heist.
Such a confiscation decision, if implemented, would affect both the legal integrity of the global financial system and Switzerland’s reputation as a constitutional state and a reliable financial centre.”
mw. Sergey Garmonin, Ambassador of the Russian Federation to Switzerland, on 7 March 2024 on X (formerly Twitter). With his words, he confirms the above-mentioned statements in the Council of States and at the same time warns of the effects on the international financial system and on Switzerland’s reputation.
“It’s our job to take responsibility” (Daniel Jositsch, Council of States member, SP, ZH)
“I simply believe we have to be careful. International law protects the small states, not the big ones; they don’t need it. You can also see that they ignore it at times. In other words, the stronger international law is, the smaller states like us are protected. What we need to do is strengthen international law. This initiative and the efforts of the Federal Council together with other states are moving in the opposite direction. I therefore urge caution. In my view, the motions should not only be rejected because the Federal Council is already pursuing the matter. Rather, the Federal Council must also be given the signal: You can always discuss, dear Federal Council, but please be careful. Because international law protects states, even if we don’t like it. Now you can say – as Mr. Caroni has eloquently pointed out – that Ukraine and Russia are a special case. It’s an aggression and so on.
I’ll simply tell you that in international politics, the definition of aggression and of who attacked whom and why and who is in the right is not always as clear as it is here. Moreover, it is very often a question of interpretation. As I said, the more we can rely on international principles, as the Commission rapporteur has explained here, and the greater the acceptance of such international principles, the more we will be protected.
If you start saying that we want such a legal framework in order to confiscate money from other states, then at some point someone will come along and think that we have done something and that it is justifiable to confiscate our money.
Incidentally: We are particularly affected by Russia’s attack on Ukraine – and so am I – but there are hundreds of other conflicts where someone has attacked someone else. We can then consider each time whether we want to collect the money there again. I have nothing against the Federal Council considering how this could be done. I would simply urge caution and therefore recommend that you – reluctantly – reject the motion. I say reluctantly because I know fully well that the journalists will come back later and say, Mr. Jositsch, why don’t you want to help Ukraine? But it is not our job to simply feel good here, but to take on a certain responsibility and also to try a little to make policy and legislation for the long term and not to run after every ball like a young kitten. Just because the journalists say we have to do something now, we do it, and then next year we do it differently again because we suddenly realise that it’s not so clever after all. We should act with a certain amount of restraint, especially here in the Council of States, and it is therefore with a heavy heart that I recommend that you reject these motions.”
(Translation Current Concerns)