Arms, Neutrality and the Hague Court
Arms, Neutrality and the Hague Court Executive report Locarno, 27 October 2026 – Summary of the analytical report on the amendment of 19 December 2025 to the Federal Act on War Materiel (War Material Act, WMA), put to the popular vote on 29 November 2026. The subject of the vote The vote does not concern the law on firearms held by private individuals, but the law governing the manufacture, trade and export of war materiel. The amendment affects three provisions. Art. 22a para. 2bis exempts the 36 countries listed in Annex 2 of the War Material Ordinance (the EU and EFTA States, the United States, the United Kingdom, Canada, Australia, Japan, New Zealand and Argentina) from the exclusion criterion of armed conflict: applications for exports to these countries are granted unless extraordinary circumstances and opposing Swiss interests require a refusal. Art. 22b restores to the Federal Council the power to derogate from all authorisation criteria. Art. 18 makes the non-re-export declaration optional and waives it in principle for components integrated into international value chains. Art. 22 remains unchanged: every authorisation must comply with international law. It is the provision on which the entire analysis rests. Neutrality: compatible, but by interpretation Under the Hague Conventions of 1907, a neutral State must not supply arms to belligerents, either directly or indirectly, while private exports are permitted provided that any restrictions apply equally to all parties. The amendment respects these limits only if art. 22 is applied as an effective limit and if, towards a partner country at war, only materiel without military relevance for that conflict is authorised, as the Federal Council maintains. Compliance is not guaranteed by the text: it is entrusted to the administration. The safety margin that today separates Swiss practice from a possible violation is narrowing. The lesson of Nicaragua v. Germany Nicaragua has brought proceedings against Germany before the International Court of Justice over arms supplies to Israel. Nothing has yet been decided on the merits: the judgment on Germany's preliminary objections is expected after the vote, probably in 2027. The Court has nevertheless reminded all States of their obligations regarding arms transfers, and Germany has defended itself by invoking controls documented case by case. Switzerland's procedural exposure is greater than Germany's: its 1948 declaration accepting the Court's jurisdiction has no time limit, and it has made no reservation to the Genocide Convention. For Switzerland, the conclusion is clear: the vote cannot widen what the country may lawfully do under international law, but it changes its evidentiary position. A more flexible law requires more controls and more documentation. The three provisions: levels of risk For art. 22a para. 2bis, the risk in terms of international responsibility is medium: the presumption of approval reverses the internal burden of justification and makes it harder to prove that each case was assessed. For art. 18, the risk is medium-high: less control over the end use of components does not protect the State; it makes it harder to argue that it could not have known of the risk. For art. 22b, the risk is high: a derogation from the criteria on human rights and the protection of civilians would be an act directly attributable to the State, reported to Parliament only after the fact and beyond the review of the Federal Supreme Court. Indirect supplies and circular exchanges In light of Professor Robert Kolb's study, the law of neutrality prohibits a neutral State from routing its own arms to a belligerent through an intermediary State and, where there is knowledge or a strong probability, from supplying a State that will pass them on to a belligerent. It does not, however, prohibit substitution: selling new arms to a partner that gives its own, older ones to a country at war. Although lawful, substitution remains a risk for the credibility of neutrality, especially when the materiel comes from army stocks or from RUAG. The case of the 25 Leopard 2 tanks sold to Rheinmetall illustrates this. Implementation and trust in the administration A discretionary system requires more administrative capacity than a system based on fixed rules. The shortcomings identified by the parliamentary Control Committees in the F-35 file and in the oversight of RUAG concern precisely documentation, the four-eyes principle and stock control. There is also a decisive point: the clause on on-site checks is tied to the non-re-export declaration. If the declaration is no longer required, the ordinary basis for these checks is lost as well. Further analysis Annex 2 is a technical list based on export control systems, not on democratic quality. According to V-Dem, the United States, the United Kingdom and Italy are undergoing autocratisation, and Hungary is no longer considered a democracy. A comparison with Italy, Germany, France, Belgium and the United States shows that Switzerland has the most consistent record towards international justice, and for that very reason has the most to lose. Should controls fail, international responsibility would fall on the Confederation; individual criminal liability remains possible but difficult to establish. Defence-industrial policy Exports of war materiel reached CHF 948.2 million in 2025, or 0.21% of goods exports. The argument that opening up exports is necessary for the country's defence is only partly true. Public procurement law already allows a national preference. The growing army budget can sustain a core of critical capabilities (drones, cyber defence, sensors, ammunition, maintenance). And the market that sustains employment is mainly civilian and dual-use. That market depends on access to the European market, and thus on the Bilateral Agreements III and a security partnership with the EU, rather than on exports to States at war. The proposals The report sets out eight corrective measures, to be implemented partly by ordinance and partly through a parliamentary initiative, whether the amendment is accepted or rejected: an explicit reference to the law of neutrality in art. 22a; a ban on materiel relevant to an international conflict, with written reasons; a non-derogable core in art. 22b covering the risk of genocide, crimes against humanity and war crimes; a mandatory non-re-export declaration in case of international armed conflict, and due diligence on components; a stricter regime for federally owned companies; an annual reasoned report; on-site checks separated from the declaration, together with organisational measures; a clause against circular exchanges (new art. 22d) for State-origin materiel. No party has so far put forward corrective measures of this kind: there is room for a cross-party initiative after the vote. Conclusion Voting yes or no is a legitimate political choice. The vote of 29 November is a choice about the safety margin, not about international lawfulness. Switzerland's reputation as a neutral State and depositary of the Geneva Conventions is not worth one billion francs in exports, but it is not entirely at stake either: what is at stake is the part of the reform that opens exports to belligerents without verifiable controls. The path is dangerous not because of what it seeks to achieve, but because of the instrument chosen. The report is coordinated with the study by MLaw Lara Capponi, LL.M., "ICJ, Nicaragua v. Germany: Third State Responsibility for Arms Transfer and the Swiss Vote of 29 November 2026". Niccolò Salvioni, attorney and notary, political-institutional analyst, Ticinus – Centro Studi, Locarno