Operation RUBICON: An Assessment With Regard to Switzerland's Duties Under the Law of Neutrality

Abstract

AbstractUnder the guise of Swiss neutrality, the Swiss-based company Crypto AG for decades 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). The Swiss intelligence services had known about this intelligence operation since 1993 at the latest, had access to relevant information, and allowed the foreign intelligence services to continue their operation until 2018. For the permanently neutral State of Switzerland, this raises the question of how Operation RUBICON is to be assessed with regard to Switzerland's duties under the law of neutrality.This author finds that it was unlikely that Switzerland, in its complicity in Operation RUBICON, violated its duties under the law of neutrality. However, if—and this is unlikely but cannot be completely ruled out—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. At the very least, Switzerland's complicity in Operation RUBICON plays into its image as a Western neutral and is therefore relevant in terms of Swiss neutrality policy. In any case, it is crucial for Switzerland to refrain from complying with intelligence operations such as Operation RUBICON and to preserve (guided by equidistance, international law, and Switzerland's humanitarian tradition) its permanent neutrality, even during today's challenging circumstances.