How easy is it for Switzerland to declare Hamas a terrorist organisation?

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The Swiss government has expressed its willingness to ban Hamas, but doing it is not so simple. There will be consequences for humanitarian aid, peace negotiations and the Swiss financial sector.  

On October 11, the Swiss government took an unprecedented position after the attacks on Israeli civilians by Islamist group Hamas from the Gaza Strip.  

“The Federal Council takes the stance that Hamas should be designated as a terrorist organisation. It has tasked the METF (Middle East Task Force) to examine the legal options to this end,” said an official press releaseExternal link from the Federal Department of Foreign Affairs.  

Only groups linked to al-Qaeda and the so-called Islamic State are currently recognised under Swiss law as terrorist groups. Even though Hamas has been designated a terrorist organisation by the United States, the United Kingdom, Canada and the European Union (EU), previous attempts by Swiss parliamentarians have all failed.  

“Under existing law this can be done only if the United Nations Security Council designates Hamas as a terrorist organisation, which it has not done. Hence, Switzerland will need to create a special legislation which would need to be approved by parliament,” Marco Sassòli, professor of international law at the University of Geneva told SWI swissinfo.ch.  

Even then it is unlikely to be a permanent ban. Despite the fact that al-Qaeda and the so-called Islamic State were designated terrorist groups by the United Nations, the Swiss government could only institute temporary bans on them that have to be renewed every few years.  

Humanitarian concerns 

Then there is the practicality of implementing a ban. Switzerland contributes around CHF20 million a year to the regular budget of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and to around 30 NGOs on the ground in Palestine (CHF5 million in 2022). According to Sassòli, it would be near impossible to guarantee that all these organisations have nothing to do with Hamas.  

“We all condemn the attack by Hamas but they still run the Gaza strip. If you want to deliver food, medicine or help children there you will have to speak to Hamas. You cannot fly in by helicopter!” says Sassòli. 

The EU is still managing to send aid to Palestinians despite putting Hamas on its terror group list as far back as 2003, a decision that was unsuccessfully challenged several times in court. However, the recent attack prompted an urgent review of the EU’s assistance to Palestine.  

“Our humanitarian support to the Palestinian people is not in question. Yet it is important that we carefully review our financial assistance for Palestine. EU funding has never and will never go to Hamas or any terrorist entity. So we will now again review the entire portfolio in light of an evolving situation on the ground,” said European Commission President Ursula von der Leyen in a speechExternal link yesterday.  

But Switzerland is in a better position than the EU to juggle having Hamas on its terror list while continuing to provide much-needed aid to Palestinians.  

“If Switzerland does pass a special legislation designating Hamas as a terrorist organisation it should have an exception clause for genuine and neutral humanitarian service to the population. There is already such an exception in the Swiss penal code provision outlawing activities considered as supporting terrorism,” says Sassòli. 

He is referring to Article 260 External linkof the Swiss criminal code that deals with penalties for supporting a “criminal or terrorist organisation”. It has an exemption clause says that the penalty “does not apply to humanitarian services provided by an impartial humanitarian organisation, such as the International Committee of the Red Cross, in accordance with the common Article 3 of the Geneva Conventions of 12 August 1949”. 

The trickier question will be channeling money to people in need in Palestine through the Swiss financial system.  

“Even with an exception for humanitarian assistance it will have an indirect freezing effect. No bank will transfer money to a place run by a group on a terror list,” says Sassòli. 

Reputation and integrity are important key factors for the Swiss financial centre, according to Robert Reinecke, a spokesperson for Swiss Bankers Association. 

“The anti-money laundering measures have been continuously expanded and tightened in recent years. Banks are subject to comprehensive due diligence and reporting obligations to prevent money laundering and financial crime,” he says. 

Peacemaking credentials at risk 

Declaring Hamas a terrorist organisation could also affect Switzerland’s ability to serve as a mediator or messenger in the Middle East. The Alpine nation’s neutrality has made it a trusted partner in the region with neutral Switzerland currently representing the diplomatic interests of Iran in Egypt and Canada, the US in Iran and Iran in Saudi Arabia (and vice versa).  

According to the government’s response to a parliamentary question in 2021, Switzerland’s relations with Israel and Hamas are also on a good footing. 

“Switzerland’s policy of inclusive contact and good offices in this context is appreciated by key international players such as the US and the EU, particularly during crises. Israel is also regularly informed by Switzerland of its contacts with Hamas,” the government said.  

Switzerland’s diplomatic value in the region would thus be affected if it blacklists Hamas, according to Sassòli.  

“Negotiations are on with the United States over Israeli hostages that also involve Turkey and Qatar. It will be difficult for Switzerland to play a role in such negotiations if Swiss law considers Hamas a terrorist organisation,” he says.