Dietrich Schindler

2.45    Dietrich Schindler, Neutrality and Morality; Developments in Switzerland and in the International Community, in American University International Law Review, Volume 14, 1998, p. 155 – 170

a) Background

The text at hand is a publication of the oral proceedings of the Conference on Neutrality and Morality, and the Holocaust, which took place on the 23rd April 1998 at the American University Washington College of Law. The Conference took place one year after the publication of the Eizenstat I report in anticipation the publication of the documents of the Eizenstat II report. This State Department document (see text Stuart Eizenstat 2.47), addressed among others the dark sides of the behaviour of neutral nations during World War II, of Switzerland in particular. The Holocaust debate brought back the issue of the laws of neutrality, as practised in the past, to the foreground and helped to refocus the discussion on legal and academic aspects as well. All took place at the height of public international criticism of Switzerland, in the United States and elsewhere.

Dietrich Schindler junior brought a learned Swiss perspective on the laws of neutrality to the conference. He is an eminent Swiss scholar who had time and again, among others, opined for the Swiss government on key legal issues. His familiarity with the way United States way dealt with issues of international law was obvious since he had been a visiting professor at the Law School of the University of Michigan. Dietrich Schindler junior is the son of an eminent Swiss lawyer, his father Dietrich Schindler senior, who also was a close observer and analyst of Swiss behaviour in World War II, and had opined on behalf of the Swiss government on the gold transactions of the Swiss National Bank. The irony of small circles Dietrich Schindler senior had also a close relationship to the legal world of the United States; he spent among others research stays at Harvard Law School and was a member of the Swiss negotiation team for the Washington Accord of 1946.

At the time of the conference Detlev Vagts was present and was a notable speaker – simultaneous presence and writing and speaking on Neutrality by two eminent transatlantic scholars. The inclusion of the concept of Morality in the Dietrich Schindlers text as well as Detlev Vagts opinion on the role of Morality in connection with the behaviour of Neutral Nation is to note. The two attitudes – from two scholars of approximately the same age and from both sides of the Atlantic – though show an interesting difference on the role of the concept of morals as regards to issues of international law or issues to be solved in international conflicts such as the case of the Holocaust. The burning issues raised by the Eizenstat report I (see text 2.47) concerning the behaviour of Switzerland in World War II did not raise issues of the compliance of Switzerland and Swiss Enterprises in international law in the strict sense, it was of great importance under the pressure of the Zeitgeist that the text at hand of Dietrich Schindler injected to the discourse and discussion the concept of morality as a legal concept. The text serves to better understand the legal dimension of the concept of morality at the time of the conference, which was 50 years after World War II.

b) Summary

The text is a detached and mainly legal analysis. It has been published as scholarly article in the American University International Law Review.
In part I on Swiss Neutrality Schindler deals with two conditions and characteristics of Swiss Neutrality, Switzerland’s geographic situation in general and its internal political structure. Neutrality, according to Schindler, became a shield behind which each Canton in Switzerland as a whole could cultivate its internal way of life without being disturbed by international affairs. All the core values of Swiss political life, such as individual freedom, democratic wealth-government and peaceful coexistence of different religious and linguistic groups, were realised on the basis of a policy of neutrality in foreign affairs. The strong army served to defend these achievements against foreign encroachments, In Schindler’s view neutrality coupled with military defence thereby became almost synonymous terms. This understanding of neutrality was particularly strong during the period of Nazi and Communist Totalitarianism.
In the section on Swiss Neutrality in World War II Schindler first examines whether moral considerations should have made Switzerland relinquish its neutrality during World War II and join the Allied war efforts. The text discusses the question, whether Switzerland’s handling of neutrality calls for serious criticism. Regarding the first point, Schindler explains the difficulties of Switzerland to declare war during the war without being attacked. He also explains why Switzerland still refused to declare war at the end of the hostilities in order to gain admittance to the San Francisco Conference that established the United Nations. This, according to Schindler, would have been considered an act of sheer opportunism, contrary to honour and morality. Switzerland that time was convinced, that its humanitarian and diplomatic services were more helpful to the allies than entering the war. It was also Detlev Vagts, conclusion that during the war Switzerland managed to respect the rules of law of neutrality as codified in Hague Conventions on Neutrality of 1897, with only minor exceptions. The emphasis put on legality gave Swiss neutrality a technical appearance. Legality, in certain cases according to Schindler, served to avoid moral questions.
Schindler points out, that a fault of Switzerland was to overestimate neutrality following the end of the war by continuing to consider neutrality as the only policy guaranteeing its independence in the future. Schindler points out that Switzerland’s unhappy membership in the League of Nations strongly influenced its behaviour during and after World War II. Switzerland’s policy in World War II is now under examination by two commissions that consist of both Swiss and foreign members. The Volcker Commission is examining assets in dormant bank accounts, and the Bergier Commision, is examining the entire historic relationship of Switzerland to Nazi Germany.
With regards to Swiss neutrality since World War II Schindler notes that at that time Switzerland was exposed to a type of isolation it had never experienced before. An important factor was the 1946 Washington Accord on German Assets in Switzerland and on Gold as well as the exclusion of neutrals from the San Francisco Conference of 1945. Schindler describes the change of the role of and the reputation of neutral nations during the cold war to the positive. Unexpectedly, however, the Cold War ended the position of neutrals. Switzerland was forced to adapt its neutrality to new circumstances departing from certain longstanding policies of neutrality. Changes in the world, according to Schindler, had enabled Switzerland to act more in solidarity with the international community. A certain cleavage between the government and the people remained. In spite of such restraining forces, neutrality is no longer a condition of Swiss independence and security.
Concerning the issue of Neutrality and Morality Schindler closely analyses the developments that have determined the relationship between neutrality and morality as legal concepts in international law in the international community. In the Cold War period of resurrection of neutrality, little attention was paid to morality. After the end of the Cold War, when the world attended a relative high degree of unity, neutrality lost most of its significance while more attention was given to morality. Most important, was the recognition of principles and of international law imposing an obligation on states to observe certain moral standards in all circumstances. These principals have narrowed down the freedom that the old laws of neutrality had left to the neutrals, Schindler states at the end of the text:
“Obviously, the rules listed here do not concern neutral states alone. All states have an obligation to act in conformity with the moral standards laid down in international law. All states therefore are called upon to take action if atrocities such as those committed in World War II are committed and to prevent such acts with all the means at their disposal. Problems, such as arms trade, gold transfers, and heirless assets, discussed in recent years with respect to the neutrals of World War II, are no longer problems of neutral states alone. They concern all states and can be resolved only if all states participate in regulating them and observe the respective rules. Such rules, unlike the old law of neutrality, should be applied not only in interstate wars going on between other states, but at all times: and particularly in cases of internal armed conflicts and violations of human rights occurring in other states.”

c) Text

You can find a scan (PDF) of the original text here:
A_2.45_SCHINDLER_Neutrality and morality

© Prof. Jens Drolshammer, office@drolshammer.com,  www.drolshammer.net

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