61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

5 Law and Legal Practice
During the National Socialist era, Switzerland was not an isolated legal area
with no reference to the outside world: on the contrary, from 1933, a legal
confrontation with the Nazi state began here which was apparent in all fields of
legal activity – legislation, administration, and the judiciary. At the heart of this
conflict lay one fundamental question: how should a democratic and liberal
state under the rule of law respond to the power-political challenge posed by the
Axis powers now progressively encircling Switzerland and to a regime based on
the deprivation of rights and the systematic flouting of the rule of law as a
constitutional principle?
At international level, the Nazi dictatorship raised fundamental issues of international
law. In many areas of life, «classic» international law, with its traditional
structures rooted in the 19 th century, afforded poor protection against the
flagrant injustice of the Nazi state. What was to prove particularly fateful was
the absence of an international system of human rights protection, which only
came into being after 1945. Nonetheless, legal instruments limiting the state’s
powers were already in existence during this period. In particular, they included
the international laws governing the status of foreigners, which, in relations
between states, guaranteed a «minimum standard» of rights to foreign
nationals. The laws of war also established limits which the Nazi regime was
obliged to observe. The seizure of private property in occupied territories
without payment of compensation was a particularly striking example of its
violation of international law.
The issue of how to respond to Nazi injustice also arose in the field of private
international law. From 1933, the Swiss judiciary was required to rule on the
application and/or enforcement of Nazi law in Switzerland. Public order or
Swiss ordre public as a «defence clause» in the system of international civil
procedure and private international law was particularly significant in this
context. According to case law, this was applicable if «domestic notions of
justice would otherwise be violated intolerably». 1
At domestic level, Switzerland’s state and constitutional system underwent a
radical transformation between 1933 and 1945: in 1939, in response to the
foreign policy crisis, the Federal Council was equipped with wide-ranging
emergency powers (known as the Vollmachtenregime, i.e. government by
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