61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

neutral power has a right to trade with all belligerents. Similarly, the neutral
power is not obliged to restrict press freedom or, indeed, its citizens’ freedom
to express their opinions, out of consideration for the belligerents; there is no
duty to uphold neutrality of opinion. 60
An important aspect of neutral status is neutrality policy. This is understood as
«the principle that a permanently neutral state should do everything, and omit
nothing, at its political discretion in order to avoid being drawn into future
wars». 61 Like neutrality law, neutrality policy serves to preserve neutral status. 62
In this respect, neutrality policy has particular significance as it addresses those
areas which are legally disputed or difficult to define and which can therefore
be described as «grey areas» of neutrality law. This applies especially to the
period of the Second World War: «total war» and the Holocaust created a new
reality of warfare which was not encompassed adequately or at all by the Hague
Conventions of 1907. This created new scope for discretion in the interpretation
of neutrality law.
The question as to whether, during the Second World War, Switzerland
discharged its duties under neutrality law arises especially in connection with
the export and transit of war material. Under the Hague Conventions, the
export of war material 63 by a neutral power to a belligerent is prohibited, as is
the transit of war material by a belligerent across neutral territory. 64 What is
permitted, however, are the export and transit of war material to belligerents by
private suppliers. The distinction between state and private export and transit
is therefore crucial. It is clear that a supply of weapons must be attributed to
the state if it is «commissioned» by state institutions. This was the case, for
example, when the Eidgenössische Pulverfabrik in Wimmis and the Eidgenössische
Munitionsfabrik in Altdorf supplied powder and cartridge cases – needed
in the manufacture of war material for delivery to Finland and Germany – to
the Werkzeugmaschinenfabrik Oerlikon throughout the war. The War
Technology Division of the Federal Military Department (Kriegstechnische
Abteilung des Eidgenössischen Militärdepartements) was the driving force in both
cases. As these weapons supplies were commissioned by the military administration,
they can be attributed to the Federal Government and thus constitute
a violation of neutrality. 65 The «state» character of war material exports is also
undisputed if a neutral state commissions a private weapons manufacturer to
supply a belligerent with arms. This occurred in summer 1940, when the Head
of the War Technology Division called upon Oerlikon to supply war material
«as a matter of urgency», «in the greatest possible amount» and «as quickly as
possible» to Germany. 66
On principle, a duty of equal treatment applied in respect of all the restrictions
and prohibitions imposed by the neutral power on the export and transit of war
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