Dietrich Schindler, ‘Fragen des Neutralitätsrechts im Zweiten Weltkrieg’ Unabhängige Expertenkommission Schweiz – Zweiter Weltkrieg – Commission Indépendante d’Experts Suisse – Seconde Guerre Mondiale, Band 18 (2001) [Questions of the law of neutrality in World War II].
Schindler – Fragen des Neutralitätsrechts im Zweiten Weltkrieg
Background
Dietrich Schindler is a distinguished emeritus Professor of Public Law at the University of Zurich. One of the successors of Max Huber, he particularly excelled in humanitarian international public law, human rights, neutrality policy, federalism and the law of European integration. His work in assessing the role of Switzerland during World War II was of particular importance in redefining the law and policy of neutrality of Switzerland following a period dominated by a restrictive understanding developed by Rudolf Bindschedler, the legal advisor of the Federal Government in the 1950s and discussed in a separate entry.
Summary
As a neutral country, Switzerland was under the international law on neutral countries during World War II. The law of neutrality was in the 19th century compacted to a supporting part of customary international law and was subsequently updated in the V and XIII. codified in the Hague Convention of 1907. These agreements are situated in the context of traditional warfare of the 19th century and for many problems of modern warfare they offered no solution. The law of neutrality played only a modest role in World War II, even more so than disregarded the belligerents to a large extent its obligations to the neutrals. However, these violations of neutrality have not led to a repeal or amendment to the law of neutrality.
The status of neutrality rights and duties of neutral state are connected by general international law. The obligations set out in the Hague Convention are essentially limited to prohibiting war aid (abstention obligation), and the duty to prevent the use of their territory for military purposes (prevention or defense obligation). A general obligation on economic neutrality exists, however, in principle; the neutral state has a right to trade with all parties to the conflict. The neutral state is under no obligation to restrict the freedom of the press and even the freedom of expression of its citizens out of consideration for the warring parties.
The question of whether Switzerland has complied with its legal obligations under neutrality in World War II, arises in particular in connection with the export and transit of war material. According to the Hague Convention, the export of war material on the part of a neutral state to a belligerent State is prohibited, as well as the transit of war material of a belligerent state through neutral territory. Basically however, permitted the export and transit of war materials to belligerents by private suppliers. The distinction between public and private export and transit is thus of fundamental importance. It is undisputed that an arms shipment is then attributable to the State, if it is “caused” by state organs. The ICE trial on war material exports shows that different weapons deliveries at the request of the military administration were made: these were attributable to the federal government and published thus neutrality unconstitutional.
Next arises in connection with the transit of war material, the question of control obligations of the neutral state. The obligation of the neutral state to prohibit belligerents the use of its territory for military purposes, requires appropriate controls. In this sense, must be described as violation of neutrality that among left the Swiss authorities during World War II , to carry out effective checks on cargo trains.
Finally Schindler turns to the granting of credit for war material as a possible violation of neutrality. The neutrality law prohibits neutrals granting loans to States to support the war effort. The neutral State may, however, allow private grant loans to belligerents, but he should not have access to grant such loans. The completion of the Swiss-German Agreement of 9 August 1940 granted the Swiss government clearing loans that served the German war funding. Even Italy received 1940 and 1942 substantial loans for Swiss war material. These loans were in violation with the applicable law of neutrality.
Translated from: http://www.chronos-verlag.ch/php/book_latest-new.php?book=978-3-0340-0618-7&type=Zusammenfassung.