61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

In terms of international law, Switzerland was not obliged to apply a definition
of refugees which went beyond Article 21 ANAG. Indeed, during the period in
question, it was not bound by any international convention which would have
obliged it to grant asylum to refugees. It was only after 1945 that universally
binding norms on the legal status of refugees were established in international
law. As part of the League of Nations’ legislative activities, however, a broader
definition of «refugee» had begun to develop in the 1930s which also encompassed
the victims of the Nazis’ racist and anti-Semitic persecution. It should
be noted that while Switzerland played an active role at international level in
the development of international refugee law, its own restrictive interpretations
were becoming entrenched at domestic level. 25
The crucial factor for the protection of refugees is the principle of nonrefoulement,
i.e. the refugees’ right to be protected from expulsion or return to
the persecuting state. This principle, however, only became accepted after the
Second World War. 26 In practice, the Swiss authorities’ restrictive interpretation
of the term «refugee» meant that before and during the Second World
War, only political refugees whose life and physical integrity were at risk were
protected from expulsion to the country of origin. Under domestic law, all other
civilian refugees could be returned, on principle, to their country of origin. This
option of expulsion was restricted solely by a provision in international law
which Switzerland was obliged to uphold as a result of its ratification of a provisional
arrangement of 4 July 1936 concerning the status of refugees coming
from Germany: Switzerland violated this agreement by handing refugees 27 from
Germany, whose lives were at risk and who had crossed the border (legally or
illegally) and were not apprehended immediately in the border’s vicinity, over
to the German authorities on the borders with Austria or France. 28 The expulsions
to Nazi territory which were carried out by the military authorities in the
1940s, often as a result of minor infractions of discipline, therefore breached
international law if they were targeted against refugees from Germany. 29
Among the refugees who hoped to gain entry to Switzerland were women who
had previously held Swiss citizenship but who had lost it through marriage to
a foreign national. During the period in question, the customary principle
which applied in the administration and legal system was that a Swiss woman
who married a foreigner forfeited her Swiss citizenship. However, this principle
was ameliorated in practice by the rulings of the Swiss Federal Supreme Court.
The Court took the view that a Swiss woman retained her Swiss citizenship if,
following her marriage to a foreigner, she did not automatically acquire his
citizenship and thus risked becoming a stateless person through the loss of her
own Swiss citizenship rights. Based on the Emergency Plenary Powers Decree,
however, the Federal Council withdrew the Supreme Court’s competencies in
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