61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

national law after the Second World War have resulted in central elements of
neutrality policy (international humanitarian law, international human rights
protection) being subject to significant legal reinforcement and enhanced
status.
The challenge to the constitutional state by the Nazi system of injustice
The «seizure of power» by the National Socialists in 1933 destroyed the
Weimar Republic’s constitutional law. The basic rights enshrined in the Constitution
were invalidated; the institutions of representative democracy were
replaced by the «Führerprinzip» (dictatorship) and a (plebiscite) appeal to a
racially-defined community («Volksgemeinschaft»). The federal state structures
were subject to the policy of «conformity» («Gleichschaltung»), separation of
powers gave way to monism of power. Formal guarantees such as those of the
independence of the judiciary and fair trial decayed. Laws, insofar as they
continued to exist, were reinterpreted in order to achieve the power-political
and criminal aims of the regime and to abolish rights of freedom, political
rights, and property protection in the «greater interest» of the totalitarian state.
Even ostensible acknowledgements of legality were at odds with the concept of
law, as for instance in 1938 when criticism was voiced in the National Socialist
Party newspaper Der Stürmer that «random Aryanisation» should not be
tolerated in a «constitutional state». All in all, it is now clear just how grievous
was the absence of full-fledged international law serving as a «safety-net», that
is to say, as a basis and legitimisation for the legal order created by states of the
international community.
The legal revolution which was effected in Germany under the banner of
National Socialism did not leave Switzerland’s constitutional system unscathed.
Not that Swiss jurists would have conducted any meaningful discourse with the
new Nazi order. Instead, it was resolutely rejected or simply ignored, and
jurisprudence in Switzerland went its own way. Nor was the incorporation of
German law into Switzerland’s constitutional system contemplated at any time.
However, Switzerland reacted to the external power-political challenge to the
extent that in 1939 the Federal Assembly empowered the Federal Council to
pass emergency legislation. In so doing, it emulated the 1914 decree introducing
a system of government by emergency plenary powers (Vollmachtenregime)
for the First World War (and designated as constitutional by the Federal
Supreme Court at the time) and thus built on a dubious practice dating from
the 1930s whereby the Federal Assembly on numerous occasions employed
emergency clauses to exclude Federal laws from approval by referendum.
Relying on the Emergency Plenary Powers Decree (Vollmachtenbeschluss) of
30 August 1939, the Federal Council was empowered to intervene in the consti-
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