(CN) - Though Swiss men have to serve in the military or pay a tax, Europe's human rights court found on Thursday that Switzerland does not discriminate by exempting women and foreign residents.

Fabian Brun, a Swiss citizen, spent 104 days in the Swiss army after being drafted in 2000. The following year, military doctors warned that continued service could trigger problems for him including insomnia, depressive reactions and self-destructive behavior, and declared him unfit for duty.

Brun was ordered to pay Switzerland's military-service exemption tax, including assessments of 204 Swiss francs (about $259) for 2005 and 320 Swiss francs (about $406) for 2010.

Brun argued a national law that requires men who do not complete their military obligations to pay instead is discriminatory because Swiss women and foreign nationals living in the country neither have to serve nor pay.

After more than a decade of losing that argument before Swiss authorities and courts, ending with a 2016 Federal Supreme Court defeat, he took his case to the European Court of Human Rights, arguing that Switzerland had violated the human rights convention underpinning the court.

Instead, the judges unanimously sided with Switzerland.

A key question was whether the levy functions as an ordinary tax or as part of Switzerland's military-service system. The judges opted for the latter view.

"The obligation to pay the tax in question has the nature of a solidarity obligation in the national defense rather than a fiscal obligation," the court said.

That finding weakened Brun's comparison with women and foreign nationals. Because neither group is subject to compulsory military service, the court concluded they were not in a situation comparable to his.

The judges also rejected his broader claim that Switzerland unlawfully treats Swiss men differently when it comes to military obligations. They accepted the government's argument that maintaining an effective defense system is a legitimate objective and stressed that countries enjoy broad discretion in organizing their armed forces.

For foreign nationals, the court pointed to practical and legal complications that could arise if non-citizens were required to serve in the military of a country whose nationality they do not hold. 

The judges noted that "it would be problematic if foreign nationals were called up for compulsory military service to defend a country of which they were not nationals" and that "this would inevitably give rise to bilateral difficulties with many states, involving conflict situations arising from a dual obligation to serve." The court also observed that no Council of Europe member requires foreign nationals to perform compulsory military service.

The debate over women proved more difficult. While the court acknowledged that distinctions based on sex generally require particularly strong justification, it accepted Switzerland's argument that expanding conscription to women is unnecessary for a military built around current defense needs. Swiss authorities have long maintained that physiological and biological differences justify keeping compulsory service limited to men.

The judges noted that, during the period relevant to Brun's case, Norway was the only Council of Europe member state that had extended compulsory military service to women. Norway adopted gender-neutral conscription in 2013 and began drafting women in 2015, becoming the first NATO member to require military service from both sexes.

Elsewhere in Europe, countries such as Finland, Austria and Greece still draft only men, while France, Belgium and the Netherlands have abandoned peacetime conscription altogether.

That leaves Switzerland in a relatively small group of European countries where military service remains a core civic obligation. Under the Swiss Constitution, military service is generally mandatory for Swiss men, while women may volunteer. Men who do not serve must pay the exemption tax, and the armed forces rely heavily on a militia model built around citizen-soldiers rather than a large professional force.

The system remains politically popular. Swiss voters rejected a proposal to abolish conscription in a 2013 referendum, with nearly three-quarters voting to keep it, a sign that compulsory military service still enjoys broad support even as many European countries have scaled it back or abandoned it altogether.

Not everyone sees the issue as fully settled.

Alice Margaria, assistant professor of law and reproduction at the University of Zurich Faculty of Law, said the outcome was unsurprising because women and foreign nationals are not subject to compulsory service and therefore are not directly comparable to Brun.

She also noted that states traditionally receive significant leeway in national security matters. At the same time, Margaria said it would have been interesting for the court to briefly engage with broader questions about why compulsory service remains limited to men and whether historical ideas about masculinity and national defense still play a role. She emphasized, however, that the court was under no obligation to address those larger societal issues in a case focused on the exemption tax.

The result surprised few. The reasoning raised more eyebrows.

Sibilla Bondolfi, a legal correspondent at Swiss public broadcaster SRF who has written extensively about conscription and gender equality, noted before the ruling that Switzerland's Federal Supreme Court had already acknowledged a tension between male-only conscription and constitutional guarantees of equal treatment. According to Bondolfi, Swiss judges have generally taken the position that any change must come from lawmakers or voters because the male-only draft is written directly into the constitution.

After reading Thursday's judgment, Bondolfi said she was struck by the court's reliance on tradition and public attitudes as part of its reasoning. She said the decision appeared to accept the premise that expanding compulsory military service to women could affect the effectiveness of Switzerland's defense system, an assumption she viewed as "derogatory and discriminatory."

Brun represented himself throughout the Strasbourg court proceedings after receiving permission from the court to do so. No public contact information for him could be located.

The Swiss Federal Office of Justice said only that it had taken note of the ruling and would analyze it.

The judgment is not yet final. Under the European Convention on Human Rights, either side has three months to request referral to the court's Grand Chamber. Such requests are accepted only in exceptional cases. Unless that happens, Thursday's ruling will become final, leaving Switzerland's men-only conscription system and the exemption tax that accompanies it intact.

Courthouse News reporter Eunseo Hong is based in the Netherlands.

Source: Courthouse News Service