Legal Aspects of Swiss Refugee Policy during the Second World War

Walter Kälin

This expert report describes the current state and development of international and national legal norms relevant to Swiss refugee policy during the Second World War and develops legal criteria from this analysis that can be employed for a comprehensive assessment of this policy. The first part of this study is concerned with refugee law, especially the development of the legal definition of a refugee and the non-exclusion («Non-Refoulement») principle. The second section concerns government by executive authority (Vollmachtenregime) and focuses especially on prescriptive law (Verordnungsrecht), which was used for the implementation of Swiss refugee policy.

For refugee law, the period between the end of the First World War and the end of the Second World War was one of fundamental change. The tremendous press of refugee problems after the First World War, and especially the reaction to the terrible events before and during the Second World War, led to the development of a definition of refugees that evolved from a description of a group of people whose numbers caused difficulties in the country that accepted them to a concept increasingly characterized by the idea of human rights which focused on persecution on the basis of race, religion, nationality, political convictions or membership in a specific social group. The anchoring of the non-exclusion principle, that is, the prohibition of returning refugees to states where their lives were in danger, is closely connected with this development. These pillars of contemporary international and national refugee law, however, did not emerge until the end of what, from our view today, was a hesitant and painfully slow process. It did not become established until the Geneva Convention on Refugees in 1951.

On a national level, the laws concerning refugees in many European states before and during the Second World War were characterized by a narrow definition of refugees that had its roots in the nineteenth century. This was true of Switzerland as well, where the law granted asylum and protection from deportation only to «political refugees», that is, persons who were in danger in their country of origin because of forbidden political activities. Swiss national law offered no special status or protection to people who were persecuted for other reasons. Thus, Jews and others persecuted on racial grounds were not included in asylum law.

On the level of international law, it is possible to follow the step-by-step expansion of the concept of refugee. In a series of different agreements, the category of refugee was expanded to include separate, exactly defined groups of persons from specific states, including Germany. Being accorded the status of refugee did not necessarily bring with it special legal status or protection, however, although the non-exclusion principle did begin to take hold for these groups during this period. The relevant agreements generally did not prohibit denial of entry at the border; rather the protection they provided was limited to those refugees who were able to flee into the interior of the country. For Switzerland there was a corresponding obligation arising from a 1936 agreement concerning the legal status of refugees from Germany.

Government by executive authority during the war years, that is, the transferal of wide-reaching legislative and constitutional powers from the Federal Assembly to the Federal Council was (and is) almost unanimously considered acceptable by legal experts. The decisive factor was, in essence, the argument that threats to the stability and integrity of the state existing at the time made such measures necessary. However, approval of emergency law did not necessarily mean that all the measures it put in place were legal. The decisive question was whether these measures went beyond what was needed to accomplish their purpose, in terms both of content and duration.

This expert report closely examines the legality of the obligation to deposit refugee assets and the «solidarity tax», the problematic nature of the «J»-stamp, and the treatment of refugees in internment and refugee camps. It was the task of this expert opinion to create general criteria according to which these measures might be judged; a final assessment of specific situations must be left to the Independent Commission of Experts Switzerland – Second World War.

Mindful of this limitation, the following picture emerges: by today’s standards, several aspects of Switzerland’s treatment of the refugees it took in during the Second World War would be considered unlawful. An assessment from the point of view prevailing at the time would reach a different conclusion: The obligation to deposit refugee assets and the legal treatment of refugees in the internment and refugee camps was unusual, but certainly compatible with national and international laws of the time, as long as they were not considered picayune in specific circumstances and did not violate specific obligations arising from reciprocal right-of-residence agreements (Niederlassungsverträge). The laws of the time accorded individuals little protection. The concept of human rights scarcely existed in international law and the perception of basic rights was not free from authoritarian tendencies.

Levying a solidarity tax was problematic to the extent that it conflicted with reciprocal right-of-residence agreements, which protected emigrants and refugees with «tolerance permits». The «J»-stamp also posed legal difficulties. Even if limitations on the rights of German Jews to enter Switzerland did not conflict with constitutional prohibitions of discrimination, such limitations still violated the reciprocal right-of-residence agreement with Germany and, considered in light of Swiss law, represented at least a legally gray area. The fact that Switzerland gave Germany the opportunity to place the same restrictions on Swiss citizens of the Jewish faith was also extremely problematic according to the legal standards of the day.