61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

economic links with the belligerent states. According to prevailing theory and
practice, there was no general duty to uphold economic neutrality. The gold
transactions between the Swiss National Bank (SNB) and Germany’s
Reichsbank thus did not violate neutrality law in force at the time. 72 On the
other hand, Switzerland’s neutrality in no way justified the acquisition of gold
which had been expropriated in violation of international law, and certainly did
not impose any obligation on Switzerland to purchase this gold. Rather, the
standards by which these transactions must be judged are the provisions
governing the protection of property in the Hague Convention Respecting the
Laws and Customs of War on Land of 1907 and other principles of international
law.
The gold transactions between the Reichsbank and the SNB during the Second
World War are legally problematical in that they included gold which had been
expropriated by the German authorities in violation of international law. 73 In
particular, the gold supplies included looted gold, i.e. confiscated and
plundered gold, as well as gold which had been stolen from the murdered and
surviving victims of Nazi persecution. 74
The Swiss Civil Code (Schweizerisches Zivilgesetzbuch, ZGB), which governed the
legal relations between the Reichsbank and the SNB, recognises good-faith
acquisition of movables by non-entitled persons. This means that the good-faith
purchaser of movables (such as gold) may, under certain circumstances, acquire
such articles lawfully even if the seller was not entitled to transfer ownership (as
in the case of confiscations which violate international law, for example). In line
with this principle, which is set out in Article 934 of the Swiss Civil Code, the
SNB was thus able to claim ownership of the gold supplied by the Reichsbank
provided that it could show that it had acted in good faith when purchasing the
gold. Under Article 3 (2) of the Swiss Civil Code, this applied only if the SNB’s
Governing Board, despite exercising the increased vigilance as required, was
unable to establish any unlawful origin of the gold under international law. 75
The claim put forward by the SNB’s management after 1943 that it had
purchased the gold from Germany in good faith based on its genuine belief in
the gold’s lawful origin, is extremely dubious, however. In its report on the gold
transactions during the Second World War, the ICE points out that the SNB
governors were aware as early as 1941 that Germany was in possession of looted
gold. 76 No Swiss court ruled on this issue.
Can any Swiss responsibility under international law be derived from the
SNB’s gold purchases? For liability under international law, at least two
preconditions must be met: the existence of an internationally wrongful act,
and its attributability to Switzerland. Many of the gold purchases by the SNB
were undoubtedly based on wrongful actions under international law 77 – i.e.,
403