61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

opinion which had been commissioned by the SFJC – obviously conflicted with
the Franco-Swiss residency treaty of 23 February 1882, as well as the minimum
standard pertaining to the legal status of foreigners under international law then
in force. 54
Thus on the issue of diplomatic protection, the Federal authorities were also
prepared to abandon fundamental legal principles. The signing of the German-
Swiss agreement on the introduction of the «J»-stamp in 1938 was symptomatic
of this: it gave Germany the opportunity to also mark the passports of the
Swiss Jews who had entered German territory. 55 This flouting of legal and
ethical principles in favour of opportunism and convenience was clearly
expressed by Walter Stucki, Swiss Minister in Vichy, in a personal letter dated
20 December 1941, to the professor of law, Arthur Homberger, on the issue of
diplomatic protection in France:
«Your completely logical, legally correct, and convincing presentation
reminds me of those wonderful times when I was able to sit at my desk and,
as a quiet legal expert, take a position on life’s many questions. Today,
unfortunately, things are completely different: the law has lost a great deal
of its power and power dominates law.» 56
Neutrality law and neutrality policy
As a neutral state, Switzerland was subject to neutrality law during the Second
World War. Neutrality law had developed as a key element of international
customary law in the 19 th century and was later codified in the Hague Conventions
of 1907 (Hague V 57 and Hague XIII 58). These Conventions must be seen
in the context of traditional warfare in the 19 th century: they failed to provide
a solution to many of the problems of modern warfare, which – in addition to
their armed forces – mobilised the belligerent countries’ entire economic and
social resources. In general terms, neutrality law therefore only played a
relatively modest role in the Second World War, especially as the belligerent
countries flouted their obligations towards the neutral powers to a very considerable
extent. Nonetheless, these violations of neutrality did not result in the
abolition or amendment of neutrality law. 59
Under general international law, neutral status creates rights and duties for the
neutral power. The rights set forth in the Hague Conventions are generally
limited to a prohibition on assisting the belligerents in the conduct of war (duty
of abstention), and the duty to prevent the belligerents from using the neutral
powers’ territory for military purposes (duty of prevention or defence). A general
duty pertaining to economic neutrality does not exist, however: in principle, the
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