List of abbreviations
- AFSA
Armed Forces Security Agency
- BND
Bundesnachrichtendienst
- CIA
Central Intelligence Agency
- CDel
Control Delegation
- FIS
Federal Intelligence Service
- ICRC
International Committee of the Red Cross
- ILC
International Law Commission
- NSA
National Security Agency
- SND
Strategic Intelligence Service
- SIS
Signals Intelligence Service
1. Introduction
“Without a doubt, it would be the only right thing
for us neutrals to keep the same distance to all
sides.” – Carl Spitteler, Swiss poet (1845–1924)
April 1982: Argentine troops occupy the Falkland archipelago in the South Atlantic, which is under British administration. The Argentine forces use rigged cipher machines manufactured and delivered by Crypto AG, a Swiss-based company. Due to these rigged machines, the Argentine forces’ communications can be read. The Americans, who are involved in Crypto AG and are able to read the communications, regularly pass on the associated intelligence to the British. The British government later reveals that this information was crucial to the sinking of the Argentine navy cruiser ARA General Belgrano. More than 300 people were killed in the attack. The sinking of the ship was a major loss for the Argentine navy.Footnote 2
In February 2020, it became publicly known that under the guise of Swiss neutrality, Crypto AG for decades had manufactured and supplied manipulated cipher machines to governments in over 120 States. The company was controlled by the U.S. Central Intelligence Agency (CIA) and the German Bundesnachrichtendienst (BND).Footnote 3 The Swiss Federal Strategic Intelligence Service (SND), the predecessor organization of the Swiss Federal Intelligence Service (FIS), had known about this intelligence operation since 1993 at the latest. The Swiss intelligence services had access to information and allowed the foreign intelligence services to continue their intelligence operations until 2018.Footnote 4 In a secret report, the CIA called “Operation RUBICON” the intelligence operation of the century. The report stated, “Foreign governments paid the U.S. and West Germany good money for the privilege of having their most secret communications read.”Footnote 5
As a permanently neutral State, Switzerland has committed itself under international law to remain neutral in any future international armed conflict between two or more States, whichever the warring parties may be, whenever and wherever war may break out.Footnote 6 The fact that the Swiss intelligence services, and thus Switzerland, knew about this intelligence operation raises the question of how Operation RUBICON is to be assessed with regard to Switzerland's duties under the law of neutrality. Although some authors argue that there was likely a violation of the law of neutrality,Footnote 7 others argue against it.Footnote 8 In particular, the Swiss Federal Council denies that the law of neutrality was violated in this instance.Footnote 9
Today, the majority of relatively reliable State practice and opinio juris expressions related to the law of neutrality stem primarily from a few classic, permanently neutral States like Switzerland.Footnote 10 As a result, Switzerland has played and plays an important role in the development of the law of neutrality.Footnote 11 Therefore, the reappraisal of Operation RUBICON with regard to the law of neutrality is just as important for Switzerland as it is for the historical reappraisal. Furthermore, the international armed conflict between Russia and Ukraine shows that classic State-versus-State armed conflicts are still possible in the twenty-first century. Europe's security architecture is radically changing as can, for instance, be seen with the likely accession of Sweden and Finland to NATO. The law of neutrality is more topical than it has been for a long time, and the current situation will not continue without discussions about the duties under the law of neutrality in contemporary international law.
Therefore, the aim of this article is to add another piece to the reappraisal of Operation RUBICON as it relates to the law of neutrality, as well as to the current debates about Switzerland's duties under the law of neutrality in contemporary international law. This aim will be achieved by reviewing the publicly known facts about Operation RUBICON, analyzing this information on the basis of the relevant legal foundations of the law of neutrality, and outlining potential implications of the case for Swiss neutrality. The research objective will be achieved by means of an in-depth analysis of the relevant literature. An inductive approach is utilized.
The article is structured as follows: Chapter 2 describes the publicly available information on Operation RUBICON. Chapter 3 provides a theoretical overview of the legal basis with regard to the law of neutrality. Drawing on the previous chapters, Chapter 4 presents a legal analysis of Switzerland's duties under the law of neutrality. Chapter 5 then discusses the potential implications of Operation RUBICON for Swiss neutrality (with a particular focus on Switzerland's neutrality policy).
2. Operation RUBICON
Chapter 2 describes the publicly available information on Operation RUBICON and provides the factual basis for the assessment of the operation as it relates to the law of neutrality.
2.1. Background
The Gentleman's Agreement
In 1952, Boris Hagelin (born in a small town near Baku, Azerbaijan, in 1892), who, prior to moving to Switzerland, had lived in Sweden and the United States, established Crypto AG in the Swiss canton of Zug.Footnote 12 The year before, Hagelin had entered into a gentleman's agreement with the U.S. Armed Forces Security Agency (AFSA) on the sale of cipher machines. By 1957, the gentleman's agreement between Hagelin and the National Security Agency (NSA), which had succeeded the AFSA in 1952, generally included the limitation of sales of Crypto AG's most sophisticated, “secure” cipher machines (e.g., CX-52) to countriesFootnote 13 approved by the United States. Countries not on the list would receive weaker, “less secure” cipher machines.Footnote 14
The SPARTAN Program
In 1958, the CIA took the lead in the relationship with Hagelin and entered into a mutual “licencing agreement.”Footnote 15 The agreement basically had the same content as the gentleman's agreement but was in writing. Hagelin could sell the stronger, more sophisticated machines to any NATO country, plus Sweden and Switzerland. Sales to other countries (i.e., of the weaker cipher machines)Footnote 16 were arranged on a case-by-case basis. The CIA gave this project the cryptonym “SPARTAN.”Footnote 17 In intelligence jargon, this was a classic “denial operation”—one designed to prevent adversaries from obtaining certain weapons, technologies, and/or information that would give them an advantage.Footnote 18 After 1967, the CIA and the NSA completely designed the inner workings (i.e., the cryptologicFootnote 19) of the machines. Thereafter, Crypto AG always made at least two versions of its cipher machines: a secure model that was sold to U.S. allies and a rigged model that was sold to the rest of the world. By deliberately weakening Crypto's algorithms, the U.S. intelligence agencies were able to break the encryption of the machines in a matter of seconds—a task that might otherwise have taken months.Footnote 20 The significance of how the SPARTAN program developed is described in a classified, comprehensive CIA reportFootnote 21 of the events: “Imagine the idea of the American government convincing a foreign manufacturer to jimmy equipment in its favor, talk about a brave new world.”Footnote 22 The partnership between the U.S. intelligence agencies and Hagelin had evolved from a “denial operation” into an “active measures operation.” Crypto AG was no longer just restricting sales of its best cipher machines; it was actively selling machines that were engineered to betray the customer.Footnote 23
MINERVA
By the end of the 1960s, Hagelin was nearly eighty years old. His sale of the company was imminent. After the West German intelligence agency, BND, offered to buy Crypto AG in partnership with the Americans, Hagelin sold his shares to the CIA and the BND on June 4, 1970. The two intelligence agencies were now joint owners of Crypto AG and controlled nearly every aspect of the company's operations (i.e., hiring decisions, designing technology, sabotaging algorithms, and directing its sales targets). To cover the agreement, the CIA and the BND decided on a series of cryptonyms. Crypto AG was code-named “MINERVA.”Footnote 24 The operation was code-named “THESAURUS,”Footnote 25 but in 1987, it was changed to “RUBICON”Footnote 26.Footnote 27 With the end of the Cold War and the Bühler affair,Footnote 28 the Germans decided to exit the operation. On July 4, 1994, the CIA became the sole owner of Crypto AG.Footnote 29 Due to a new change in the encryption market (i.e., a shift from hardware to software) and the emergence of the internet, it became increasingly difficult in the early 2000s for the CIA and NSA to maintain their dominant intelligence position with Crypto cipher machines. These developments made Crypto AG a less valuable asset for the CIA. Therefore, the CIA let Operation RUBICON play outFootnote 30 until the agency exited Crypto AG in 2018.Footnote 31
2.2. Targets and Impacts
After the CIA and the BND acquired Crypto AG in 1970, Crypto AG became the world leader in the sale of cipher machines.Footnote 32 The initial agreement between the CIA and the BND was that NATO countries, plus Sweden and Switzerland, were allowed to buy secure (unreadable) cipher machines from Crypto AG. However, over time, an increasing number of countries were removed from the secure list (although the Germans were very reluctant to do this). Unsecured (readable) cipher machines were also sold to allies.Footnote 33 The CIA and the BND were able to read the diplomatic and military communications of many countries across the board. At its best, Crypto AG counted more than 120 governments, including numerous armed forces and intelligence agencies, among its customersFootnote 34.Footnote 35 With the electronic cipher machines that the Americans and Germans had manipulated, the NSA could read 96% of the intercepted communications.Footnote 36 At times, Operation RUBICON accounted for over 40% of the NSA's total machine decryptions, while for the Germans, the operation was even more important, accounting for 90% of the BND's intelligence reports on foreign affairs.Footnote 37
Scientia potentia est Footnote 38: Unsurprisingly, Operation RUBICON played a role in many historical events:
– On September 11, 1973, the Chilean socialist president, Salvador Allende, was overthrown in a bloody coup d’état by the military under the leadership of General Augusto Pinochet—with the active support of the CIA.Footnote 39 Chile owned rigged cipher machines from Crypto AG. The CIA was therefore able to use the collected information in its ongoing intelligence relationships with some of the coup's plotters.Footnote 40
– On September 17, 1978, following twelve days of peace negotiations at Camp David under the guidance of the United States, Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin signed the Camp David Accords, which led to the 1979 Egypt–Israel peace treaty. Due to Egypt's manipulated cipher machines from Crypto AG, the United States was able to read its communications with allied Arab States during the negotiations.Footnote 41 “How valuable was it to be able to read Egypt's diplomatic correspondence in 1979 during the Camp David negotiations between Israel and Egypt?” the CIA report asks. “The correct answer is: priceless.”Footnote 42
– Shortly after the start of the Iranian Revolution in 1979, students stormed the U.S. embassy in Tehran and took fifty-two employees hostage. They wanted to force the extradition of the overthrown Shah, who had fled to the United States. The hostages were freed after 444 days. The Iranians’ rigged cipher machines played an important role in the hostage crisis as former NSA director and deputy CIA director, Bobby Ray Inman, confirmed to the Washington Post. President Jimmy Carter personally inquired almost daily about the latest findings from the surveillance of Iranian communications.Footnote 43
– In April 1982, Argentine troops occupied the Falkland archipelago in the South Atlantic Ocean, which is under British administration.Footnote 44 Thanks to rigged cipher machines from Crypto AG, the Argentine armed forces’ communications were readable. The information was then passed on by the Americans to the British. The British government later revealed that communications intelligence was crucial to Prime Minister Margaret Thatcher's decision to sink the ARA General Belgrano, an Argentine navy light cruiser, causing the death of more than 300 people. This was a major loss for the Argentine navy.Footnote 45
– On April 5, 1986, a bomb exploded in the La Belle nightclub in West Berlin, which U.S. soldiers often frequented. Three people died and more than 200 were injured. After the attack, President Ronald Reagan blamed Libya for it: “Our evidence is direct, it is precise, it is irrefutable.” He even referred to decoded communication transmissions between the Libyan embassy in East Berlin, which had received the orders to carry out the attack, and the foreign ministry in Tripoli. On April 15, 1986, the United States ordered retaliatory air strikes against Libya.Footnote 46
– In December 1989, the United States invaded Panama to depose the country's ruler at the time, Manuel Noriega. Due to the Vatican's rigged cipher machines, the United States knew that Noriega was hiding in the Apostolic Nunciature of the Holy See. On January 3, 1990, Noriega surrendered to U.S. troops and was flown out to Miami where he was sentenced to forty years in prison for drug trafficking.Footnote 47
The CIA in its report concluded that Operation RUBICON “was the intelligence coup of the century. Foreign governments were paying good money to the United States and West Germany for the privilege of having their most secret communications read by at least two (and possibly as many as five or six) foreign countries.”Footnote 48
2.3. Swiss Involvement
Following media revelations of Operation RUBICON in February 2020, the Control Delegation (CDel)Footnote 49 of the Swiss Parliament decided to conduct an inspection in connection with the cooperation between Crypto AG and foreign intelligence services.Footnote 50 The CDel adopted its inspection reportFootnote 51 on the Crypto AG case on November 2, 2020.
The CDel's inspection report found that the Strategic Intelligence Service (SND), a predecessor organization of the Federal Intelligence Service (FIS), knew from 1993 onward that foreign intelligence services were behind Crypto AG. The CDel states that, after 2002, intelligence cooperation as foreseen in Art. 99, para. 6,Footnote 52 of the Federal Act on the Armed Forces and Military Administration of 1995,Footnote 53 between the American and Swiss intelligence services, has to be assumed. According to the CDel, the information that Switzerland was able to acquire thanks to its knowledge of the “weak” encryption procedures of Crypto AG's cipher machines, demonstrably provided Switzerland with an intelligence benefit over the years. The CDel states that, even though it was legally permissible for the Swiss intelligence services and foreign services to jointly use a company in Switzerland to obtain information about foreign countries, this cooperation had great political implications. As a result, the CDel considers it wrong that Switzerland's political leadership was not informed about the cooperation until the end of 2019. According to the CDel, the fact that this cooperation remained hidden from the Swiss Federal Council for such a long time also constitutes a deficiency in the Federal Council's leadership and oversight. As a result, the CDel in its report reached the conclusion that the Swiss government over many years shared responsibility for the export of “weak” equipment by Crypto AG.Footnote 54
With regard to the findings of the CDel, a few points should be made. First, the Swiss intelligence services in the past systematically destroyed files. The CDel states that even though it had a sufficient information base to make a general assessment, the records of the Crypto AG case are not complete.Footnote 55
Second, it is highly likely that several high-ranking individuals within the Swiss federal authorities knew the truth about Crypto AG early on. The CIA-MINERVA report states that high-ranking Swiss officials, in particular members of the intelligence services and the Federal Police (Bundespolizei), already knew about the operation at the end of the 1970s.Footnote 56 Furthermore, the CIA report states that Kaspar Villiger, a member of the Federal Council from 1989 until 2003, and head of the Federal Military DepartmentFootnote 57 from 1989 until 1995, was informed about the true circumstances of Crypto AG.Footnote 58 According to the CDel, Kaspar Villiger denies having had any knowledge about the ownership structure of Crypto AG or the ongoing foreign intelligence operation.Footnote 59
Third, two reports were prepared on the Crypto AG case: the CDel report of November 2, 2020, and a secret classified report by Niklaus Oberholzer, a former federal judge. For reasons of secrecy, the CDel was not ready to hand over the classified report to the entire Federal Council.Footnote 60
Fourth, the CDel, in its analysis on the lawfulness of the Swiss intelligence services’ conduct, focused on the domestic legal basis. Although the CDel acknowledges that Switzerland is bound by neutrality, the obligations under the law of neutrality and whether Switzerland violated these obligations were not part of the analysis. In fact, the word “neutrality” only appears once in the entire sixty-four-page report.Footnote 61
3. The Law of Neutrality
Chapter 3 provides a theoretical overview of the law of neutrality and serves to set forth part of the legal basis for the assessment of Operation RUBICON.
3.1. The Contemporary International Law Concept of Neutrality
The word “neutrality” is derived from the Latin expression “ne uter,” meaning neither the one nor the other.Footnote 62 Throughout history, different States used different conceptions of neutrality in different situations. Therefore, a common definition for the international law concept of neutrality does not exist.Footnote 63 Nevertheless, there is common ground on major aspects of neutrality, and legal scholars of the modern international law era have used the same core elementsFootnote 64 to define the concept.Footnote 65 One good definition is provided in the Max Planck Encyclopedia of Public International Law, according to which “‘neutrality’ means a particular status, defined by international law, of a State not party to an armed conflict.”Footnote 66 This status can be a permanent one and entails rights and duties for the so-called neutral State in relation to the belligerent StateFootnote 67.Footnote 68 A permanent neutral status means that a State commits itself through international law not to participate in any future armed conflicts between two or more States. The status can either originate from bilateral or multilateral international treaties or unilateral declarations. The main difference between a permanent neutral status and a non-permanent neutral status lies in additional duties for the permanent State during times of peace (e.g., the permanently neutral State cannot accept obligations in times of peace that would render its duties of neutrality impossible to fulfill in times of conflict).Footnote 69
Essentially, while the neutral State is not to take part in an armed conflict between two or more sovereign States (duty of non-participationFootnote 70), and is to be impartial in its conduct towards warring parties (duty of impartialityFootnote 71), the neutral State has the right to remain apart from, and not be adversely affected by, the international armed conflict.Footnote 72 Thus, the belligerent State is obliged to respect the sovereign rights of the neutral State (e.g., the inviolability of a neutral State's territory). The legal concept of neutrality therefore contains specific rules—that is, a reciprocal framework of corresponding rights and duties. These specific rules that stipulate the legal relationship between neutral States and belligerent States can be found in treaties and/or customary international law and together as a sum constituting the law of neutrality.Footnote 73
The most important international treaties on the law of neutrality are the Hague Conventions from 1907. While certain provisions on neutrality can be found in several of the thirteen conventions, two were entirely devoted to the law of neutrality: i) Hague Convention V: The Rights and Duties of Neutral Powers and Persons in Case of War on Land; and ii) Hague Convention XIII: The Rights and Duties of Neutral Powers in Naval War. Although the Hague Conventions still provide the bases for the law of neutrality, they have certain juridical problem zones (e.g., only a part of customary international law was codified; only a small number of States ratified or acceded to Hague Conventions V and XIII; the provisions of the two conventions only apply between contracting powers and then only if all the belligerents are parties to the convention; and the world was a different one in 1907), limiting their importance as sources of law.Footnote 74 Today, due to the juridical problems and the outdated character of the Hague Conventions, customary international law is the most important source of law for the law of neutrality.Footnote 75
On the one hand, the law of neutrality seeks to preserve friendly relations between neutral States and belligerent States. On the other hand, by drawing a clear distinction between neutral States and State parties to a conflict, the law of neutrality aims to prevent additional States from being drawn into the conflict and to minimize the adverse effects on States that are not parties to the conflict.Footnote 76 By not taking sides in an armed conflict and adhering to neutrality, States usually try to protect their territories, populations, and economies from the negative consequences of the conflict. Therefore, it is often militarily weaker States that make use of the concept of neutrality under international law.Footnote 77
Notably, a differentiation must be made between the law of neutrality and neutrality policy. For permanently neutral States such as Switzerland, a coherent policy with their status under international law is highly important. In this regard, neutrality policyFootnote 78 (i.e., political decisions beyond the law of neutrality) serves as an instrument with the aim of protecting and/or fostering the effectiveness and credibility of a neutral status. In particular, the permanently neutral State aims to strengthen the confidence of third States about its permanent neutral status. This confidence should minimize the risk of violations of neutrality laws during times of conflict.Footnote 79 However, there is no duty to follow a policy of neutrality.Footnote 80
3.2. Scope of Application
In general, the law of neutrality begins to apply with the outbreak of an international armed conflictFootnote 81 (i.e., an international armed conflict between two or more sovereign States). The existence of such a conflict is determined according to international humanitarian law.Footnote 82 However, there are several exceptions to, and restrictions on, this general rule:
• For permanently neutral States, certain peacetime provisions apply as well.Footnote 83
• In practice, the intensity threshold for the application of the law of neutrality may be higher than the threshold for the application of international humanitarian law.Footnote 84
• As a rule of customary international law, the law of neutrality does not apply to international armed conflicts covered by UN Security Council authorization (i.e., pursuant to Chapter VII of the UN Charter).Footnote 85
In general, the law of neutrality ceases to apply if the neutrality-relevant international armed conflict ends. However, it may also stop applying if the neutral State becomes a party to the conflict or if the UN Security Council decides to apply the Chapter VII enforcement measures of the UN Charter. For permanently neutral States, certain peacetime provisions continue to apply.Footnote 86
3.3. General Rights and DutiesFootnote 87
Once the law of neutrality is activated, several rights and duties apply to the neutral State and also to the belligerents. For the neutral State, there is one general right, and there are two general duties:Footnote 88
• General Right of the Neutral State: The neutral State has the right to remain apart from, and not be adversely affected by, the armed conflict.Footnote 89
• General Duties of the Neutral State: The neutral State has the duties of non-participation and impartiality.Footnote 90
The majority of the provisions under the law of neutrality derive from this general right and from these duties. Only a small number of exceptions exist.Footnote 91
The right to remain apart from, and not be adversely affected by, the armed conflict
The right to remain apart from, and not be adversely affected by, the armed conflict is codified in Hague Conventions V and XIII of 1907.Footnote 92 Art. 1, Hague Convention V, stipulates that the territory of neutral powers is inviolable. Therefore, belligerents are prohibited from entering the territory of a neutral State militarily. Since the right defines itself according to the general rules of international law governing State territories (e.g., the primary norms of sovereignty and non-intervention), it implies that the entire territory of a neutral State (land, sea, and air) cannot be used for any kind of military operation, military transit, or any other military purpose.Footnote 93
For permanently neutral States, the rights that exist during an international armed conflict between two or more States are analogous to the rights of non-permanently neutral States.Footnote 94 Additional peacetime rights are rather vague and have almost no importance in practice.Footnote 95
The duty of non-participation
First and foremost, the duty of non-participationFootnote 96 prohibits a neutral State from actively participating in an international armed conflict between two or more States (e.g., the use of military force during hostilities).Footnote 97 Furthermore, neutral States must abstain from providing any military support to a belligerent in such a conflict (duty of abstention). Broadly speaking, this implies that the neutral State is not allowed to take any action that may impact the outcome of the conflict (e.g., enhancing the fighting power of a belligerent).Footnote 98 For instance, the neutral State is prohibited from supplying warships, ammunition, or any other war material to warring parties (cf. Art. 6, Hague Convention XIIIFootnote 99). A neutral State is also precluded from providing massive financial support to a conflict party.Footnote 100 Closely linked to the duty of neutral States to abstain from providing any military support to conflict parties is the prohibition on granting any rights to belligerents with regard to the use of the neutral territory for military purposes. This primarily includes any direct or indirect military use of the neutral territory. For instance, belligerents are not allowed to march through and fly over neutral territory or to transit troops, munitions, or other supplies through neutral territory (cf. Art. 2, Hague Convention VFootnote 101).Footnote 102
The general duty of non-participation is not only a passive duty but also an active one. While the neutral State has the right to remain disassociated from the armed conflict, it needs to ensure that belligerents do not use its neutral territory for military operations (duty of non-toleration Footnote 103).Footnote 104 The standardFootnote 105 that a neutral State is required to exercise in order to fulfill its duty of non-toleration is based on the international law “obligation of due diligence.”Footnote 106 Therefore, the neutral State is bound to reject, with all means at its disposal, any violation of its neutrality, including by force (cf. Art. 5, Hague Convention V; Arts. 3, 8, 9, 24, and 25, Hague Convention XIII).Footnote 107 However, the use of military force is only permissible in the case of legitimate self-defense pursuant to Art. 51 of the UN Charter.Footnote 108 Furthermore, the neutral State is not bound to take any defensive action that might endanger its existence as a State.Footnote 109
The duty of impartiality
The duty of impartialityFootnote 110 is reflected in Art. 9, Hague Conventions V and XIII.Footnote 111 First and foremost, it requires that all the neutral State's duties be applied to all parties in the conflict.Footnote 112 According to Oppenheim, “the duty of impartiality […] comprises abstention from any active or passive co-operation with belligerents.”Footnote 113 Furthermore, the duty of impartiality entails a prohibition of discrimination. However, this does not include a duty of exact equal treatment.Footnote 114 This means that the neutral State must apply the specific measures it takes based on its neutral rights and duties in a subsequently equal way between the belligerents.Footnote 115
Additional Duties of the Permanently Neutral State
For a permanently neutral State, there are additional duties under the law of neutrality. The twoFootnote 116 primary duties are the following:
• The permanently neutral State is prohibited from participating in an armed conflict that activates the law of neutrality.Footnote 117
• The permanently neutral State must activate the law of neutrality in all neutrality-relevant armed conflicts.Footnote 118
Apart from the primary duties of the permanently neutral State, there are also secondary duties. The secondary duties aim to ensure that the permanently neutral State is able to uphold its primary duties in every future international armed conflict between two or more States. Therefore, these peacetime secondary duties constitute a pre-effect Footnote 119 of permanent neutrality and supplement the primary duties of the permanently neutral State.Footnote 120 Following the Swiss and Austrian positions, the following two secondary duties can be enumerated:Footnote 121
• A permanently neutral State must avoid attachments (e.g., membership in a military alliance with a reciprocity effect, such as NATO) that possibly inhibit the duty of abstention in case of an international armed conflict between two or more States (the so-called secondary duty of abstention).
• A permanently neutral State must prepare an effective defense (i.e., not necessarily armed forces) in order to comply with the duty of non-tolerance in the case of an international armed conflict between two or more States (the so-called secondary duty of non-tolerance).
It should be noted that the concrete arrangement of the secondary duties has varied extensively over time. Secondary duties are therefore highly influenced by neutrality policy. Thus, while secondary duties are in their core legal duties, they are wrapped in a political mantle.Footnote 122 As such, they can be placed in a grey area between the law of neutrality and neutrality policy.Footnote 123 It should also be pointed out that treaty law for permanent neutrality is either nonexistent or weak. Additionally, the arrangement of customary international law often lacks a uniform and widespread State practice.Footnote 124
4. Assessment of Operation RUBICON with Regard to Switzerland's Duties Under the Law of Neutrality
Chapter 4 provides a legal analysis of Operation RUBICON with regard to Switzerland's duties under the law of neutrality.
4.1. Application of the Law of Neutrality
An assessment of Operation RUBICON under the law of neutrality must involve a determination of whether the law of neutrality applied to one of the situations where Operation RUBICON potentially played a role.
First, as described in section 3.2, the law of neutrality is generally only applicable to, and during, international armed conflicts between two or more sovereign States. Thus, possible internal armed conflicts (e.g., the Chilean coup d’état in 1973) and international tensions (e.g., the taking of U.S. hostages by a group of Iranian students in 1979 and the subsequent tensions between the United States and Iran) are not considered for the assessment of the case under the law of neutrality.Footnote 125
Second, the international armed conflicts between two or more States must be of a certain duration and intensity.Footnote 126 Thus, the law of neutrality does not cover sporadic attacks and brief armed conflicts (e.g., the U.S. retaliatory air strikes against Libya in 1986).Footnote 127
Third, the status of neutrality only applies to the relations between the neutral State and the belligerent States.Footnote 128 Relations between neutral States and non-belligerent States are therefore not subject to the law of neutrality, even during an international armed conflict between two or more States (e.g., Switzerland's relations with the United States during the international armed conflict between the United Kingdom and Argentina in 1982). Similarly, Switzerland cannot violate the law of neutrality in connection with the conduct of a belligerent State towards another neutral State, even if Switzerland facilitated the conduct (e.g., the alleged facilitation of the interception of the communications of the Holy See during the U.S. invasion of Panama in 1989). An exception to the rule that the status of neutrality only applies to the relations between the neutral State and the belligerent State could only be constructed if Switzerland knew that the United States would use Switzerland's conduct against one belligerent State in favor of another belligerent State (e.g., during the Falklands War in 1982, the United States passed intercepted information about Argentina's military plans to the United Kingdom). However, such knowledge is hard to prove.Footnote 129
Finally, the law of neutrality does not apply to international armed conflicts covered by UN Security Council authorization (e.g., the military intervention against Iraq in 1991 or the 2011 military intervention in Libya).Footnote 130
As a result, not many situations remain to which the law of neutrality applied, and Operation RUBICON potentially played a role. For two conflicts, the aforementioned requirements do apply:
• The military intervention by NATO States (including the United States) against the Federal Republic of Yugoslavia in 1999 (i.e., the Kosovo War).Footnote 131
• The U.S. and U.K. invasion of the Republic of Iraq in 2003 (i.e., the Iraq War).Footnote 132
During the Kosovo War, Switzerland applied the law of neutrality between March 23, 1999, and June 8, 1999. During the Iraq War, Switzerland applied the law of neutrality between March 20, 2003, and April 16, 2003.Footnote 133 YugoslaviaFootnote 134 and Iraq were both clients of Crypto AG during those periods and had received rigged cipher machines.Footnote 135 The United States, as one of the belligerent parties, was able to read the encrypted communications of the rigged Crypto AG cipher machines of one of the opposing belligerent parties.Footnote 136 Therefore, in both conflicts, Operation RUBICON played a role.
The CDel's 2020 inspection report shows that the Swiss intelligence services knewFootnote 137 from 1993 onward that foreign intelligence services were behind Crypto AG. According to the CDel, after 2002, intelligence cooperation between the U.S. and Swiss intelligence services must be assumed.Footnote 138 While the present author does not know whether rigged Crypto AG cipher machines were exported from Switzerland to the Federal Republic of Yugoslavia or Iraq after 1993, according to current and former intelligence officials, intelligence kept arriving. The CIA let Operation RUBICON play out until it exited Crypto AG in 2018.Footnote 139
Since the law of neutrality was applicable to two conflicts where Operation RUBICON played a role (i.e., the United States as one of the belligerent parties was able to read the encrypted communications of the rigged Crypto AG cipher machines of one of the opposing belligerent parties), and Switzerland at those points in time knew about Operation RUBICON, and during the Iraq invasion even directly profited (i.e., according to the CDel, intelligence cooperation between U.S. and Swiss intelligence services has to be assumed after 2002) from the intelligence operation that was partly unfolding (i.e., the production and export as well as the maintenance of rigged cipher machines by Crypto AG) on its own territory,Footnote 140 an examination of how this conduct is assessed vis-à-vis Switzerland's duties under the law of neutrality is needed. The following assessment focuses on the duties most pertinent to the case.Footnote 141
4.2. Duty to Refrain from Supplying War Material to Belligerents
Trade of war material under the law of neutrality
In current State practice, the limitation of the trade in war material is one of the most common practical applications of the law of neutrality.Footnote 142 As part of the duty of abstention (an outflow of the general duty of non-participation), Art. 6, Hague Convention XIII, stipulates that “the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.”Footnote 143 This rule is regarded as customary international law and is therefore analogically applied to land and aerial warfare.Footnote 144 As a result, the law of neutrality forbids the governmental trade of war material with one of the belligerents in an international armed conflict between two or more States.Footnote 145 The question is, however, whether this rule also applies to the private trade of war material.
Today, the distinction between governmental and private trade of war material under the law of neutrality is predominantly regarded as outdated in contemporary legal doctrine.Footnote 146 Compared to 1907, circumstances in terms of the trade of war material have changed. While the idea of a State controlling the private trade of war material through legal regulation did not exist in 1907,Footnote 147 nowadays international law (i.e., the Arms Trade Treaty [ATT]Footnote 148) obliges States to establish and maintain a national control system for all trade of conventional arms. Almost all States, including Switzerland, regulate the private trade of war material through domestic legal export licencing processes. Furthermore, this practice is also reflected in UN Security Council Resolutions,Footnote 149 establishing arms embargos according to Art. 41 of the UN Charter. Thus, the distinction between governmental and private trade of war material no longer reflects State practice.Footnote 150 Today, the State makes the final decision about the private export of war material. Therefore, private trade in war material can be attributed to the State.Footnote 151
These developments led to the formation of new customary international law.Footnote 152 Art. 6, Hague Convention XIII, has evolved into a general prohibition on the trade of war material during international armed conflicts between two or more States.Footnote 153 It should be noted, however, that the Swiss Federal Council in its foreign policy reports still recognizes the separation of governmental and private trade of war material under the law of neutrality.Footnote 154 However, Switzerland has, through its domestic war material legislation, indirectly conformed to the newly developed customary international rule to prohibit all (including private) trade in war material to belligerents of international armed conflicts between two or more States.Footnote 155 Furthermore, the trade of war material under the law of neutrality has more practical relevance than other aspects of the law of neutrality, and, as a result, State practice and opinio juris are more extensive. Therefore, with regard to the export of war material under the law of neutrality, Switzerland is unable to almost single-handedly determine the course of customary international law. In addition, Switzerland's practice as to the export of war material has been inconsistent in the past.Footnote 156
Today, it can be concluded that Switzerland (including its private sector), under the law of neutrality, has the duty to refrain from providing war material to belligerents in an international armed conflict between two or more States. Whether this duty already existed in 1999, during the Kosovo War, or the Iraq invasion in 2003, is open to debate. While it was argued in the early 1990s that a customary international rule had developed with regard to the equal treatment of governmental and private trade in war material under the law of neutrality,Footnote 157 at that point in time, the ATT did not exist. Furthermore, Switzerland had not yet implemented any domestic provision that would prohibit the private export of war material if the country of destination was involved in a neutrality-relevant international armed conflict.Footnote 158 However, an even bigger question mark with specific regard to the case of Operation RUBICON is the definition of war material under the law of neutrality.
Definition of war material under the law of neutrality
Another question requiring an answer is whether Crypto AG's cipher machines fall within the definition of war material under the law of neutrality. Art. 6, Hague Convention XIII, speaks of “war material of any kind whatever” and common Art. 7, Hague Conventions V and XIII, speak of “anything which could be of use to an army or fleet.” The wording of the Hague Conventions suggests a broad interpretation of what constitutes war material under the law of neutrality.Footnote 159 The two World Wars reinforced a broad interpretation. Total economic warfare and economic sanctions coupled with far-reaching contraband lists led to a consolidation of a broad interpretation of war material under the law of neutrality.Footnote 160 Therefore, the older legal doctrine defined war material under the law of neutrality as all goods that are of use in conflict situations or all conflict-relevant goods.Footnote 161 However, the newly developed customary international law rule to jointly assess governmental and private trade of war material also changed the traditional interpretation of war material under the law of neutrality. If the broad interpretation is used, this could factually lead to a trade embargo imposed by neutral States on belligerents in an international armed conflict between two or more States.Footnote 162 This would undermine the original free-trade character of the law of neutrality. The newer legal doctrine therefore follows a narrower interpretation of war material under the law of neutrality.Footnote 163
For instance, Oeter defined war material under the law of neutrality as “military devices, which have the primary purpose of inflicting damage.”Footnote 164 Following this narrow interpretation, dual-use and civilian goods, which can also be used for military purposes, cannot be defined as war material under the law of neutrality.Footnote 165 Such a narrow interpretation of war material is from 1980 onward reflected in State practice. For instance, in the Iran-Iraq conflict (1980–1988), both the United Kingdom and the Federal Republic of Germany followed a status of neutrality. Both States stopped the export of war material. For the United Kingdom, the export halt was limited to lethal arms, respectively, lethal items. For Germany, the export stop included all war material according to its domestic legislation as well as dual-use goods, which did have the primary purpose of killing people.Footnote 166 Switzerland has also adopted a narrow interpretation of war material under the law of neutrality. During the Iran-Iraq conflict, Switzerland halted the export of war material. An exception was only made for the export of training aircraft (i.e., mainly Pilatus PC-7s), nowadays considered to be so-called special military goodsFootnote 167 under Swiss legislation.Footnote 168 During the military intervention against the Federal Republic of Yugoslavia in 1999,Footnote 169 and the invasion of the Republic of Iraq in 2003,Footnote 170 Switzerland also followed a narrow interpretation. Today, Switzerland interprets war material under the law of neutrality according to the Swiss Federal Act on War Material (AWM) and the Ordinance on War Material (WMO).Footnote 171 While Switzerland excludes special military goods from the definition of war material under the law of neutrality,Footnote 172 international lawFootnote 173 includes it as long as it has the potential for lethal use during combat.Footnote 174
Therefore, while cipher machines (categorized as dual-use goods under the Wassenaar Arrangement of 1996)Footnote 175 could have been subsumed under the broader definition of war material under the law of neutrality in the first half of the twentieth century, they are unlikely to fall under the narrower interpretation of State practice from 1980 onward.
Conclusion
Switzerland, in its complicity in Operation RUBICON, did not violate its duty under the law of neutrality “to refrain from providing war material to belligerents.”
4.3. Duty Not to Tolerate on Neutral Territory Communication Stations or Other Apparatuses for the Purpose of Communicating with Belligerents
In general, the neutral State is bound to repel with all means at its disposal any violation of its neutrality and if necessary by force (this so-called duty of non-toleration is an outflow of the general duty of non-participation).Footnote 176 According to Art. 3, let. A, Hague Convention V, “belligerents are […] forbidden to erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea.” Pursuant to Art. 3, let. B, Hague Convention V, “belligerents are likewise forbidden to use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.”Footnote 177 Art. 5, Hague Convention V, stipulates that “a neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.”Footnote 178
While rules of the law of neutrality in the Hague Conventions of 1907 do not address modern problems of communication technology, the rules contain principles and purposes that remain valid today.Footnote 179 To adapt the rules of the law of neutrality to new circumstances, old rules must, where possible, be interpreted by analogy.Footnote 180 Thus, Art. 3, Hague Convention V, must also apply to modern communication technology as it exists today.Footnote 181 Such logic can also be observed in other treaties. For instance, the commentary of the International Committee of the Red Cross (ICRC) emphasises that “telegraphic” correspondence and communication in Articles 81 and 124 of the Geneva Convention III, relative to the Treatment of Prisoners of War, today includes transmissions by facsimile and e-mail.Footnote 182 With regard to Art. 3, Hague Convention V, the main purpose is to prevent the use of neutral territory for military communications.Footnote 183 Adopting this rule to today's circumstances means that no communicationFootnote 184 station or other apparatus for the purpose of communicating with belligerent forces is allowed on neutral territory.Footnote 185
Crypto AG's cipherFootnote 186 machines are considered cryptographic equipment. The purpose of these devices is to encrypt and decrypt information to secure the communication.Footnote 187 As these machines not only secure messages but also transmit them, cipher machines must be regarded as communications technology. Although they are not “stations” per se, they may also be used for communications between armed forces. In the context of cyber warfare, it is argued that cyber infrastructure, such as computer networks used for military purposes, falls under Art. 3, Hague Convention V.Footnote 188 Thus, if cipher machines are used for the purpose of communicating between armed forces, they could be regarded as “other apparatus for the purpose of communicating with belligerent forces on land or sea.”Footnote 189
The set-up of cipher machines on neutral territory for the purpose of communicating with belligerent forces could therefore fall under the provision. However, as the core of the provision lies in the prevention of military message transmissions from or to neutral territory by belligerent forces, the establishment and operation of a company manufacturing cipher machines (which are not considered as war material under the law of neutrality) on neutral territory would likely not fall under Art. 3, Hague Convention V. Although in the particular case of Operation RUBICON, the manufacture of cipher machines and the communication with cipher machines may be intertwined, as they are two different acts.
Subsuming Operation RUBICON under Art. 3, Hague Convention V, poses two further obstacles:
The first obstacle is in connection with Art. 3, let. B, Hague Convention V. The question is whether Crypto AG's cipher machines served “purely military” purposes in peacetime.Footnote 190 Under the law of war, an object serves a military purpose if it is expected to be used for military ends.Footnote 191 The primary purpose of cipher machines is to secure the communication of confidential information. Whether the cipher machines serve a military or a civilian purpose depends on the context.Footnote 192 This also becomes evident when looking at Operation RUBICON. Crypto AG's rigged cipher machines were not only sold to armed forces but to all kinds of government entitiesFootnote 193 and private companies. Furthermore, the communication that the United States intercepted was used in a variety of contexts (e.g., peace negotiations at Camp David in 1978 and the Iranian hostage crisis in 1979). Therefore, it is rather unlikely that the purpose of Crypto AG's cipher machines used during peacetime was “purely military.”
The second obstacle is connected to Art. 3, let. A, Hague Convention V. The issue is whether the act of establishing a cipher machine for the purpose of communicating with belligerent forces during the Kosovo War or the Iraq invasion was committed on Swiss territory. As described above, the main purpose of Art. 3, Hague Convention V, is to prevent the use of neutral territory for military communication. Crypto's manufacture of (rigged) cipher machines does not likely fall under Art. 3, Hague Convention V. Furthermore, most of the Crypto AG cipher machines were set up and used by belligerents on their own territories or abroad. While it cannot be completely ruled out, there is no information to suggest that belligerents in the Kosovo War or the Iraq invasion, such as the United States, used cipher machines on Swiss territory for the purpose of communicating with their armed forces. In addition, there is no information suggesting that the United States’ interception of communication from rigged Crypto AG cipher machines was conducted on Swiss territory.
It is therefore difficult to establish that, in connection with Operation RUBICON, a belligerent (in particular, the United States) violated Art. 3, Hague Convention V, during the Kosovo War or the Iraq invasion. Without such a violation, Switzerland's duty of non-toleration stipulated in Art. 5, Hague Convention V, was not triggered.
Conclusion
Switzerland, in its complicity in Operation RUBICON, did not likely violate its duty under the law of neutrality “not to allow on neutral territory communication stations or other apparatuses for the purpose of communicating with belligerent forces.”
4.4. Duty Not to Tolerate Military Intelligence Services in Favor of Belligerents on Neutral Territory
On the one hand, according to the special provision in Art. 3, Hague Convention V, in connection with Art. 5, Hague Convention V, the neutral State has the duty not to tolerate on neutral territory, communication stations or other apparatuses for the purpose of communicating with belligerent forces. On the other hand, the neutral State has the general duty of non-toleration. The neutral State must ensure that belligerents do not use its neutral territory for military operations.Footnote 194 As an outflow or combination of these rules, the great classic works of international law have argued that the neutral State has the duty not to tolerate one belligerent's espionage activities against another on its territory.Footnote 195 Domestic legislation of permanently neutral States seems to indirectly confirm such a duty. For instance, the permanently neutral States of AustriaFootnote 196 and Costa RicaFootnote 197 both have domestic legislation prohibiting espionage on their territories. Switzerland, too, in its domestic legislation, criminalizes espionage (including military espionage against a foreign State). Art. 301 of the Swiss Criminal Code states that “any person who conducts or organizes the conduct of military intelligence gathering services on Swiss territory for a foreign state against another foreign state, and any person who recruits persons for or facilitates such services, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.”Footnote 198
The primary purpose of Art. 301 is the protection of Swiss neutrality.Footnote 199 Military intelligence targeted against other States is prohibited because it could disrupt Switzerland's relations under international law with the respective State. It is unnecessary to prove that Switzerland's relations with other States under international law have actually been disrupted. Mere endangerment is sufficient.Footnote 200 According to Omlin, an intelligence service operating in Switzerland's territory that benefits a belligerent State, or a State intending to wage war, is incompatible with the concept of neutrality. It should be noted, however, that Omlin also indicates that Art. 301 constitutes a provision that international law does not require.Footnote 201 However, whether such a domestic provision is required by international law can be disregarded for the current assessment under the law of neutrality. Although part of international law, the law of neutrality contains specific rules (i.e., a reciprocal framework of corresponding rights and duties) regarding the relationship between the neutral State and the belligerents in an international armed conflict between two or more States. The duties under the law of neutrality impose additional restrictions on the affected States. Therefore, a divergence between the duties under the law of neutrality, and duties under general international law, may exist (e.g., the duty to refrain from supplying war material to belligerents or the general duty of impartiality).Footnote 202
To determine the scope of the duty not to tolerate military intelligence services in favor of belligerents on neutral territory, there are a number of sources that can be examined: UN Resolutions,Footnote 203 manuals,Footnote 204 handbooks,Footnote 205 and other instrumentsFootnote 206.Footnote 207 For instance, according to the Helsinki Principles on the Law of Maritime Neutrality, a neutral ship renders a non-neutral service “if it is incorporated into or assist[s] the enemy's intelligence system.”Footnote 208 A similar interpretation for the war on land would suggest a rather broad interpretation. To further understand what the duty not to tolerate military intelligence services in favor of belligerents on neutral territory could exactly mean (at least from a Swiss perspective), a look at domestic court interpretations is recommended.Footnote 209 The Federal Supreme Court of Switzerland uses a broad interpretation of intelligence services.Footnote 210 Legal doctrine mentions that, in the digital age, intelligence services also include the creation, ordering, placement, or installation of spy software.Footnote 211 Art. 301 of the Swiss Criminal Code also includes facilitating the conduct of military intelligence-gathering services. According to established case law of the Federal Supreme Court of Switzerland, it is sufficient that the conduct of the person involved can somehow be included in the chain of acts that collectively comprise the establishment or operation of the intelligence service.Footnote 212 Furthermore, it is sufficient if the offense is partially committed in Switzerland, and the main offense occurs abroad.Footnote 213 Thus, the manufacture and maintenance of rigged cipher machines that allowed the United States to intercept secret communications of another State may fall within the scope of Art. 301 of the Swiss Criminal Code.Footnote 214
However, it is only possible to speak of a violation of neutrality obligations under international law if the rigged cipher machines were manufactured or maintained for a certain customer during a neutrality-relevant conflict and were supplied for the purpose of benefiting the United States during that conflict.Footnote 215 As mentioned in section 4.1, in both relevant conflicts in this instance, the law of neutrality only applied for a very limited period of time.Footnote 216 Therefore, it is rather unlikely that Crypto AG manufactured and exported rigged cipher machines or offered maintenance services to the Federal Republic of Yugoslavia or the Republic of Iraq during these short periods of time. However, this cannot be completely ruled out.
Although Art. 301 of the Swiss Criminal Code also covers intelligence services operating on Swiss territory benefitting States “intending” to wage war, the application to such a case may require certain immediacy.Footnote 217 The general provision of intelligence during peacetime for a potential future belligerent cannot be contrary to neutrality. Such a prohibition would contradict the spirit of the law of neutrality, which in peacetime does not prohibit a State from supplying weapons that could foreseeably be used against another State. This means that, while the manufacture and export of rigged cipher machines or the maintenance of such machines for, and to, possible opponents of the United States in an imminent neutrality-relevant conflict would be covered by the duty not to tolerate military intelligence services in favor of belligerents on neutral territory, the indiscriminate manufacture and export of rigged cipher machines cannot fall under this duty.Footnote 218 In the case of the Iraq invasion, this pre-effect would probably expand the relevant timeframe to be considered for a violation of the law of neutrality by one month.Footnote 219 In the case of the Kosovo War, the expansion of the relevant timeframe to be considered for a violation of the law of neutrality is more difficult to establish, but it would probably not be much longer than that of the Iraq invasion.Footnote 220 Thus, this would not significantly change the fact that for both neutrality-relevant conflicts, the timeframe to be considered for a violation of the law of neutrality was extremely short.
Conclusion
It is unlikely that Switzerland, in its complicity in Operation RUBICON, violated its duty under the law of neutrality “not to tolerate military intelligence services in favor of belligerents on neutral territory.” However, it cannot be ruled out that Crypto AG manufactured and exported rigged cipher machines or offered maintenance services to the Federal Republic of Yugoslavia or the Republic of Iraq during the relevant timeframes to which the law of neutrality applied.
4.5. Duty Not to Deliberately Favor a Belligerent to Offer a Military Advantage
The law of neutrality is based on the fundamental principle that the neutral State must treat all belligerents during an international armed conflict between two or more States in the same way.Footnote 221 In its actions, the neutral State must be impartial towards the belligerents.Footnote 222 The principle of impartiality is expressed, for example, in the preamble to Hague Convention XIII, according to which “it is, for neutral Powers, an admitted duty to apply these rules impartially to several belligerents.”Footnote 223 Furthermore, the principle is reflected in Art. 9, Hague Conventions V and XIII, according to which the neutral State must apply the specific measures it takes based on its neutral rights and duties in a subsequently equal way between the belligerents.Footnote 224 According to Upcher, it is the principle of impartiality that guides the application of the duty of abstention and the duty of non-toleration.Footnote 225
However, the question is whether apart from their implementation through Art. 9, Hague Conventions V and XIII, legal duties can be based directly on the principle of impartiality. Oppenheim's famous definition of neutrality seems to answer the question in the affirmative. According to Oppenheim, neutrality is “the attitude of impartiality adopted by third States towards belligerents and recognised by belligerents, such attitude creating certain rights and duties between the impartial State and the belligerent.”Footnote 226 Furthermore, according to Verlinden, the majority view in contemporary legal doctrine is that a general duty of impartiality exists and that legal obligations can be derived from the principle of neutrality.Footnote 227 This seems logicical since a new customary norm based on the principle of impartiality can always develop through customary international law.
It seems clear that partial behavior, through which a neutral State offers a military advantage to one of the belligerents, violates the law of neutrality.Footnote 228 For instance, although a neutral State does not have to eliminate differences in commercial relations with different belligerents of an international armed conflict between two or more States,Footnote 229 an exceptional economic preference or discrimination of one of the belligerents should generally be regarded as an interference (since it may offer a military advantage) and therefore violates the law of neutrality.Footnote 230 Thus, on the basis of the foregoing, a duty not to deliberately favor a belligerent to offer a military advantage can be inferred from the principle of impartiality.Footnote 231 In view of the basic nature of such a duty, the neutral State's adherence is absolutely necessary with regard to the preservation of the status of neutrality.Footnote 232 Deliberately offering a belligerent the potential to conduct a military intelligence operation on neutral territory would therefore violate the law of neutrality.Footnote 233
As a result, it can be argued that if Switzerland, during the Kosovo War or the Iraq invasion, with the consent and participation of its own authorities, supplied or maintained a Trojan horse (rigged cipher machines) that the United States used against the Federal Republic of Yugoslavia or the Republic of Iraq, such conduct would violate the law of neutrality.Footnote 234 However, as mentioned in section 4.1, in both cases of neutrality-relevant conflicts, the law of neutrality only applied for a very limited period of time.Footnote 235 Therefore, it is rather unlikely that Crypto AG exported rigged cipher machines or offered maintenance services to the Federal Republic of Yugoslavia or the Republic of Iraq during these short periods of time. However, this cannot be completely ruled out.
Similar to sections 4.3 and 4.4, a pre-effect of such a duty during peacetime can only be postulated with great caution. First, the neutrality-relevant conflict would need to be imminent (requirement of immediacy). Second, it would need to be clear that both the advantaged State as well as the disadvantaged State by the Trojan horse would become belligerents in that imminent neutrality-relevant conflict. Third, the manufacture and supply of the Trojan horse would need to serve a military purpose that could offer a military advantage.Footnote 236 For the Iraq invasion, this would probably expand the relevant timeframe to be considered for a violation of the law of neutrality by one month.Footnote 237 For the Kosovo War, the expansion of the relevant timeframe to be considered for a violation of the law of neutrality is more difficult to establish, but it would probably not be much longer than for the Iraq invasion.Footnote 238 Thus, this would not significantly change the fact that, for both neutrality-relevant conflicts, the timeframe to be considered for a violation of the law of neutrality was extremely short.
Conclusion
It is unlikely that Switzerland in its complicity with Operation RUBICON violated its duty under the law of neutrality “not to deliberately favor a belligerent to offer a military advantage.” However, it cannot be ruled out that Crypto AG exported rigged cipher machines or offered maintenance services to the Federal Republic of Yugoslavia or the Republic of Iraq during the relevant timeframes to which the law of neutrality applied.
5. Implications of Operation RUBICON for Swiss Neutrality
Although it is unlikely that Switzerland with its complicity in Operation RUBICON—as the analysis has shown—violated its duties under the law of neutrality, questions remain as to what the case means for Swiss neutrality in general (and in particular, neutrality policy).
As mentioned in section 3.1., the aim of the permanently neutral State is to strengthen the confidence of third States in its permanent neutral status. The greater this confidence is, the smaller the risk is for violations of neutrality laws in times of conflict.Footnote 239 The instrument used to achieve this aim is neutrality policy. Switzerland describes neutrality policy as “the totality of measures taken by the permanently neutral [S]tate on its own initiative and irrespective of the duties associated with the law of neutrality in order to ensure the effectiveness and credibility of its neutrality.”Footnote 240 The manner in which the neutrality policy is implemented is at the neutral State's discretion.Footnote 241 Therefore, the interpretation of what is to be considered “effective” and “credible” neutrality lies squarely in the hands of the neutral State.Footnote 242 Although these interpretations vary over time and from State to State, there is a consensus that certain neutrality policy measures enhance the effectiveness and credibility of the permanent neutral status. While most measures enhance both aspects concurrently, the ultimate objective is a coherent neutrality policy.Footnote 243 Generally, the neutrality policy of permanently neutral States includes, but is not limited to, the following measures:
i) an extensive peace policy, including good offices or protective power mandates;Footnote 244
ii) a restrictive neutrality policy regarding conflict-related (including non-international armed conflicts or even regional instabilities) subjects, such as the export of war material, the provision of private security and military services, or military and intelligence service collaborations;Footnote 245
iii) an autonomous national defense policy.Footnote 246
With regard to the export of war material, the Swiss Federal Council recently stated that “if, in certain constellations, war material exports are perceived by the community of States as clearly favoring a party to the conflict, such a perception could—irrespective of the legal qualification of the conflict—have a negative impact on the credibility of Swiss neutrality with regard to future inter-[S]tate conflicts.”Footnote 247 Thus, if a permanently neutral State took an action that resulted in a non-neutral perception (the international community's), such an action could potentially weaken the confidence of third States in its permanent neutral status.
With regard to the matter at hand, according to the CDel, cooperation between the U.S. and Swiss intelligence services—as foreseen in Art. 99, para. 6,Footnote 248 of the Federal Act on the Armed Forces and Military Administration of 1995Footnote 249—has to be assumed after 2002. Since such a measure is within the context of a conflict-related subject, it might have an impact on the effectiveness and credibility of Swiss neutrality. The nationalFootnote 250 and internationalFootnote 251 press coverage and reportingFootnote 252 on Operation RUBICON, as well as the triggered debatesFootnote 253 questioning Switzerland's neutrality, seem to suggest that the credibility of Swiss neutrality in particular was undermined by Switzerland's complicity in Operation RUBICON. Although the Federal Council in its statement about the CDel report pointed out that “there were hardly any reactions from third States towards Switzerland on the corresponding reporting” and that therefore “the case has not affected Switzerland's foreign policy or its credibility,”Footnote 254 comes as no surprise considering the ubiquitousFootnote 255 and clandestineFootnote 256 nature of intelligence operations as well as the legal uncertaintiesFootnote 257 of espionage under international law.Footnote 258 In addition, raising a breach of Switzerland's duties under the law of neutrality twenty and sixteen years after the respective violation makes little sense, both from a legal,Footnote 259 as well as a political,Footnote 260 point of view. The absence of political reactions aimed at Switzerland can therefore not be equated with not affecting the credibility of Swiss neutrality. From the coverage and reporting of Operation RUBCION and the accompanying “gut feeling” of wrongness, it seems clear that Switzerland's complicity in Operation RUBICON at the very least plays into its image as a Western neutralFootnote 261.Footnote 262
However, as neutrality implies a stance of renunciation,Footnote 263 Switzerland's complicity in Operation RUBICON, as shown in the previous chapters, is more than just a mere stance for actions taken by the West. There is a difference between pragmatism and hypocrisy. Switzerland's complicity in Operation RUBICON may raise a legitimate question as to whether Switzerland will adhere to the fundamental principle of impartiality in any future international armed conflicts between two or more States. Whether Operation RUBICON lastingly influenced the confidence of third States in Switzerland's permanent neutral status remains to be seen. Given Switzerland's new non-permanent seat on the UN Security Council, and the international armed conflict in Ukraine, which prompted Switzerland to adopt vast measures against a major geopolitical power, and Swiss politicians’ discussions about the possible export of war material to Ukraine,Footnote 264 Switzerland's neutrality seems to be at a decisive point (similar to the aftermath of the Cold War and, in particular, the 1991 Gulf WarFootnote 265).Footnote 266
6. Conclusion
Based on the author's knowledge, it is unlikely that Switzerland in its complicity in Operation RUBICON violated its duties under the law of neutrality. However, if Crypto AG exported rigged cipher machines or offered maintenance services during (or immediately before) the Kosovo War in 1999 to the Federal Republic of Yugoslavia, or during (or immediately before) the Iraq invasion in 2003 to the Republic of Iraq, Switzerland would have violated its duties under the law of neutrality. Specifically, it would have violated its duty not to tolerate military intelligence services in favor of belligerents on neutral territory, as well as its duty not to deliberately favor a belligerent to offer a military advantage.
In this author's view, it would have been up to the CDel to assess whether such exports or services were provided within the very short, but relevant, timeframes. However, from the content of its published report, it seems rather unlikely that the CDel conducted such an assessment. As a result, a full and transparent reappraisal of Operation RUBICON in the context of the law of neutrality is still lacking. Only an in-depth analysis of the Swiss Federal Archives would likely provide an answer (if the Swiss intelligence services have not already destroyed the relevant documents). Due to the limited scope of this paper, and the closure periods of the Federal Archives, this author was not able to conduct such an assessment.
Switzerland's complicity in Operation RUBICON, at the very least, plays into its image as a Western neutral. However, as neutrality implies a stance of renunciation, Switzerland's complicity in Operation RUBICON is more than just a mere stance for actions taken by the West. Whether Operation RUBICON lastingly influenced the confidence of third States in Switzerland's permanent neutral status remains to be seen.
Even though war in itself has mainly steered away from classic inter-State clashes on battlefields and towards asymmetric and proxy warfare in the twenty-first century, the current conflict between Russia and Ukraine demonstrates that classic State-versus-State armed conflicts are still occuring. The law of neutrality is more topical than it has been for quite a long time. However, similar to the Cold War period, it is difficult to remain neutral between blocs. As evident now, this is a difficult balancing act. How can a State remain neutral (legally, politically, and morally) regarding the gross violations of international law that Russia has committed? Since Art. 51 of the UN Charter (self-defense) applies to the defense of Ukraine, and Russia has been identified as the aggressor by the UN General Assembly,Footnote 267 would this not lead to an exceptional case of the inapplicability of the law of neutrality and provide Switzerland with the option (or even the duty) to discriminate against the aggressor (for instance, by supplying war material to Ukraine)?Footnote 268 And if answered in the affirmative, would this not contradict the main purpose of the law of neutrality (i.e., to constrain the scope and the adverse effects of war)?
Unfortunately, history has taught us that armed conflicts will continue to happen. In today's polarized world, States that effectively and credibly (and thus in a neutral way) bridge the gaps between the poles to uphold or enhance the dialogue remain crucial. Therefore, it is vital for permanently neutral Switzerland to refrain from complying with intelligence operations such as Operation RUBICON and to preserve its permanent neutrality, even during today's challenging circumstances. As Carl Spitteler mentioned in his famous speech “Our Swiss standpoint” in Zurich on December 14, 1914, “Without a doubt, it would be the only right thing for us neutrals to keep the same distance to all sides.”Footnote 269 This credo of equidistance, paired with the upholding of public international law and Switzerland's humanitarian tradition, should remain the needle of Switzerland's neutrality compass.
