2.46 Detlev Vagts, Editorial Comment, Switzerland, International Law and World War II in American Journal of International Law, 1997, S. 466-475
The text at hand is an editorial comment which appeared in the American Journal of International Law in 1997. At the time of publication there was a sudden upsurge in discussions regarding Holocaust cases that brought back unsettled issues of the post-World War II period. In that context the Swiss behaviour during and after World War II under the laws of neutrality caught Detlev Vagts attention: He particularly focuses on a brief review of the international law issues that were relevant to Switzerland’s decisions during World War II. He writes in the introduction of the text that his judgment that the behaviour of Switzerland during World War II was compatible with the rules of international law in effect does not dispose of issues of humanity and morality. Vagts’ widely read note attempted to explain Swiss behaviour, particularly since the government in Bern was quite legalistic in its approach to the questions of the time and continued to be so.
The text is an effort of historical reconstruction to help understand the influence that the concepts of neutrality, that were part of a framework within states, had on the decisions of the Swiss government from 1939 to 1945. In view of the development that over time the moral standing of neutrals had declined, the function of the law and the policy of neutrality had continuously changed during the wars between Germany and France in 1867 to 1871, between Russia and Japan in 1904 to 1905, in World War I from 1914 to 1918 as well as in World War II from 1939 to 1945. The neutrality of Switzerland had a broader and special basis in international law. Switzerland never was a warlike country involved in repeated combat with its neighbours. It last experienced foreign occupation during the period of French hegemony, when it was known as the Helvetic Republic. The settlement at the Congress of Vienna produced an international declaration of November 20, 1815, that Switzerland should be “permanently neutral”. This status implied obligations for both Switzerland and other states. Switzerland was supposed to refrain from un-neutral activities and other states were not to invade the country or interfere with its sovereignty.
Vagts was a speaker at the same conference, Neutrality, Morality, and the Holocaust, as Dietrich Schindler jun (see text), which was held in Washington DC on the 23rd April 1998. in the time between the publication of the Eizenstat I report and the Eizenstat II report. In the meantime he had published another text, Neutrality Law in World War II, Cordoza Law Review, 1998. At the conference he spoke on the subject, The Traditional Legal Concept of Neutrality in a changing Environment.
While the text at hand only tangentially mentioned moral issues involved in behaviour of the Swiss Government and Swiss enterprises during and after World War II the text of Vagts presented at the conference had an important section under the heading Modern “Neutrality” – The moral issues.
His profound knowledge of the specific historic facts and the political dynamics leading to the sudden upsurge of the discussions is also shown in Detlev Vagts, Jens Drolshammer and Peter Murray, Mit Prozessieren den Holocaust bewältigen? Die Rolle des Zivilrechts und Zivilprozesses beim Versuch der Wiedergutmachung internationaler Katastrophen in which he penned the part I Historischer Hintergrund der Diskussion (historic background of the discussion), p. 513 – 517, which openly shows his conviction that only the inclusion of the moral dimension with and beyond the strict legal dimension could lead to a credible and fruitful discussion of the issues suddenly raised 50 years after the end of World War II.
Detlev Vagts was an eminent Professor of Law at Harvard Law School with particular knowledge of Europe, from the history of many of its countries to the various legal and professional cultures of the continent. He was a leading figure of the post-World War II group of internationalists teaching at Harvard Law School. He was a bridge builder, in particular with legal systems and legal cultures in the Atlantic area. He is known for putting the internationalization of the legal professions on the map of globalization of the law. Detlev Vagts has always commented on internationally sensitive and current issues, in particular in his role as the editor and editor in chief of the American Journal of International Law. He always treasured his European background and embedded his teaching and writing in a true comparative tradition. He was a calm and firm voice in matters of international law for many years even in times in the eyes of hurricanes of the Harvard Law School itself.
Because it is essential for a sophisticated overview of Switzerland and Swiss legal culture during and after World War II to have an understanding of the pivotal elements of Switzerlands neutrality in the perception of non-Swiss observers (Drittsicht) and Swiss participants (Selbstsicht) themselves, this summary is more extensive.
In the text Detlev Vagts deals with issues at hand under the title I territorial integrity of a neutral, II trade by neutrals, III neutrals as intermediaries, IV refugee policy and V financial matters.
1) territorial integry of a neutral.
In the passage territorial integrity of a neutral Detlev Vagts notes that Switzerland was not invaded in World War II by either side, but that there were incursions into its airspace by both sides. During the period between the fall of France and the start of the war against the Soviet Union in the summer of 1941, Switzerland lived under the Sword of Damocles of the Third Reich; it became known afterwards that the German general staff had been ordered to prepare a contingency plan for “Operation Tannenbaum”, planning the invasion of Switzerland, which after Hitler’s focus shifted east became less probable.
During the war, Switzerland was never compelled to allow German armed forces transit rights across the country. Thus, the only German soldiers who were ever transported across Switzerland were 3000 troops so severely wounded that Swiss army doctors concluded that they would be unfit for service for a long time. The Allies also never invaded Switzerland, but they flew over the country on many occasions. The Swiss were rarely able to intercept these flights, often because they lacked night fighters. The Allied flights often crossed Switzerland en route from England to targets in northern Italy. In about ten cases, bombs were dropped on Swiss territory, most seriously in the city of Schaffhausen on April 1, 1944. In addition, the Royal Air Force bombed Basel twice. Many Allied entries into Swiss airspace were by bombers damaged in action over targets in Germany and unable to return home. In the closing months of the war, the Swiss government, according to Detlev Vagts after “considerable soul-searching”, decided to permit a substantial deviation from neutral behaviour in the matter of transport of British troops from Italy to Britain for redeployment while war with Germany was still in progress.
2) Trade by neutrals
Trade by neutrals with warring parties was permitted under the traditional rules. Detlev Vagts shows that the expressions of indignation in the current writings about Switzerland during the war at the fact that the Swiss traded with the Nazi are ill-founded. The trade not only was legal, but inevitable. The dependency of the Nazi regime on Switzerland and Switzerland on the Nazi regime was reciprocal for the Swiss could not have survived without German supplies. Detlev Vagts shows that two aspects of Swiss trade policy seem vulnerable to criticism as departures from the legal rules on neutrality. First the Swiss government in effect advanced funds to Germany so that it could import Swiss goods. In 1941, under German pressure, Switzerland forbade the export of goods through the mail.
3) Neutrals and intermediaries
One of the classic activities of a neutral is the furnishing of offices to the warring parties. Detlev Vagts shows that negotiations did take place in Switzerland for the separate surrender of the German army forces in Italy. The Swiss communications system passed
messages back and forth between Japan and the Allies that led to the ceremonies of surrender. Detlev Vagts especially mentions the fact that Switzerland was designated by both Germany and the Western Allies as the Protecting Power under the Geneva Convention of 1929 with respect to prisoners of war. He describes the difficult and later contested work of the International Committee of the Red Cross.
4) Refugee policy
Neutrals have a right and at least a moral obligation to provide shelter for those attempting to flee war, persecution and their attendant cruelties. The real blood, according to Detlev Vagts, on Switzerland’s honour lies in its treatment of refugees from Nazi horrors. He describes the objectionable Swiss practice persuading the Germans to adopt the practice of stamping the passports of German Jews with a “J”. Most dreadful, according to Detlev Vagts, was the turning away of some twenty thousand Jews who were attempting to escape from Nazism in 1942 after the nature of the threat to them from the Holocaust had become apparent, at least to policy-making members of the Swiss Government.
The Swiss President apologized for this action during the proceedings commemorating the fiftieth anniversary of the end of World War II. The enormity of this cruel action quite overshadows the fact that it did not violate international law as it was understood in 1942. The matter became subject to international law only with the adoption of the Protocol Relating to the Status of Refugees in 1967. The Swiss rejection of these terribly endangered persons took place in the context of the country’s acceptance of a very substantial number, apparently nearly three hundred thousand, of refugees of various categories from 1933 onward.
5) Financial matters
The original focus of the revived interest in Swiss behaviour in the 1940s was the issue of numbered bank accounts maintained in Swiss institutions by persons who had perished in the Holocaust. Detlev Vagts notes that the editorial comment will not consider that subject since it is not a matter of public international law but of actions by private institutions and, incidentally, because the facts are at this point so unclear that it is hard to comment meaningfully on the complex issue.
However, he turns his attention to other areas of financial activities of the Swiss government. During the war, the Swiss government, the Swiss national bank and private institutions entered into dealings with the German Government and German individuals. The origins of the German assets transferred to Switzerland were in some cases, according to Detlev Vagts, of such a shadowy character as to raise questions. The transfer of the monetary gold reserves of the governments and central banks which had come under Nazi control in 1940 has lead to the recent discussions of “looted gold” and Switzerland’s behaviour. The practice and its illegality under the rules then in place, however, according to Detlev Vagts, were not clear. As a matter of strict international law, according to Detlev Vagts, the questions were laid to rest by the so-called Washington Accord of 1946, in which the parties involved agreed upon a lump-sum settlement.
Detlev Vagts comes to the following conclusion: “On the whole, the behaviour of the Swiss Government during the World War II was in compliance with the rules of international law, including the rules of neutrality, as they were then understood. There were lapses in connection with trade and transit, though some of them leaned in favour of the Allies. With respect to the gold transactions, it does appear that there were violations of international law, but that fifty years ago a reasonable and binding settlement of those claims was achieved. A case can be made for the proposition that the trespasses on Switzerland’s rights as a neutral that were committed by the warring parties were substantially more serious than the Swiss lapses. When one passes from legal to moral questions, the issues become much more subjective and this Comment cannot deal confidently with them. It is, however, worthwhile to think about Winston Churchill’s
contemporaneous judgment, that of a statesman who knew how difficult it was to navigate the ship of state in such turbulent waters”.