Why shouldn't military service be compulsory?
Compulsory military service
Why are only Swiss men compulsory military service?
According to Article 59 of the Federal Constitution, every Swiss citizen is obliged to perform military service (if the term “military service” is used in the following text, it also means alternative civilian service). This duty is a priori in contradiction to the equality between women and men laid down in Article 8 paragraph 3 of the Federal Constitution. According to federal court rulings, compulsory military service for men is a permissible exception (lex specialis) to the principle of equal treatment of the sexes. The Federal Supreme Court stated that, due to physiological and biological differences, women are on average considered to be less suitable for military service (see BGer 2A.47 / 2002 of May 23, 2002 and BGer 2C_221 / 2009 of January 21, 2010). In its decision 2C_1051 / 2016 of August 24, 2017, the Federal Supreme Court confirmed its previous case law on this question. Furthermore, he points out that it is not the Federal Supreme Court but the constitutional authority that has to decide whether this regulation is objectively sensible or, if necessary, should be changed.
In a decision from 1991 (2A.433 / 1990 of September 17, 1991, not published), the Federal Supreme Court also declares that the Equal Opportunities Act and the constitutional article were created with the aim of primarily improving the situation of women and not to impose even more obligations on them (equality as adjustment downwards instead of upwards).
When the principle of gender equality was incorporated into the federal constitution in 1981, the federal court refused to extend conscription to women (unpublished judgment 2A.433 / 1990 of September 17, 1991).
The European Court of Human Rights (ECHR) and the Court of Justice of the European Communities (ECJ) do not see the restriction of military and alternative service to men as a violation of the principle of actual equality between women and men. When it comes to organizing security, the states are left with a great deal of discretion.
Military service is voluntary for Swiss women. However, if a Swiss woman has registered with the military, she must take part in the recruitment process and is required to serve in the military as soon as she is classified and classified as fit for duty. Once compulsory for military service, you have the same rights and obligations as men who are compulsory military service. However, she is not required to provide replacement service (e.g. in the event of postponement or unfit) because this is not provided for under constitutional law. The Federal Supreme Court has also confirmed this principle in its case law (2C.221 / 2009 of January 21, 2010).
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