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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 todays standards, several aspects of Switzerlands
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.
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