Independent Commission of Experts Switzerland - Second World War
Switzerland and Refugees in the Nazi Era
1 The Problem
Information about the deportation and murder of Jews reached Switzerland during the summer of 1942. The editor-in-chief of the Sentinelle, Paul Graber, decided in August 1942 to publish these reports and simultaneously protest against the rejection of refugees at the Swiss border. He justified his decision to the office of the censor with the following:
«The events that have been reported are of such a nature that every journalist who works to defend humanitarian values has a solemn holy duty to condemn them. Such condemnation is a part of defending the values we hold most dear.... Beyond any national considerations, regardless of which country they affect, we must defend the humanitarian values that are in danger of being destroyed by war and by factors giving rise to war, with all our might.»
At the same time, Swiss authorities were in possession of more extensive and precise information. Despite this, they decided to close the border, to take in only a small number of persecuted people and to reject «those who seek refuge solely on racial grounds, such as Jews». They justified this decision with the generally threatening situation the scarcity of food, military dangers, the fear of possible social and political unrest as well as by the fact that Switzerland was obliged to care for the emigrants and interned military personnel already in the country. The «full boat» became the symbol of this policy.
After the war, when the destruction of European Jews came to characterize this era, there were other attempts at justification. One had not known what really took place in the Third Reich; one did what one could under the circumstances; what, after all, could Switzerland, a small country threatened by Hitler, have done? Between these attempts at justification, which emphasize the complexity of the situation at the time and the difficulties it posed for decision-makers, and the position held by Graber, that humanitarian values must be defended at all costs, lies a vast chasm. It illustrates both the problem on which this report focuses as well as the different ways of viewing that problem.
More than half a century has passed since these events. The Independent Commission of Experts Switzerland Second World War is examining a period that raises fundamental questions for all of humanity. The Second World War was a war like no other. It was a combination of a military confrontation of heretofore unknown dimensions and genocide, the systematic extermination of millions of men, women and children.
At times Switzerland was threatened by Nazi Germany; at the same time, it was tied to its neighboring state in myriad ways. Therefore, our task is to examine the policies of the Swiss authorities and the ways in which the population reacted. We must raise the question why Swiss authorities did not change their policies, despite the information they had received and why there was such a weak public response.
The report presents both known facts and new research results. It places them in a wider background without, however, making any claim to discovering a complete and definitive explanation. Rather, it offers attempts at explanations of past events, set in the context of the period and utilizing facts from sources most of which were not available at the time.
2 Switzerland's International Role
Four aspects characterize Switzerlands international role: the tradition of asylum, humanitarian traditions tied to Switzerlands neutrality, international obligations, and the countrys significance as a financial center.
First, Switzerland saw itself as a nation with a long-established tradition of asylum. The fact that Switzerland was also perceived this way abroad was founded in the generosity shown in its acceptance of refugees at various times in previous centuries. However, granting asylum was always accompanied by restrictions. Distinctions were made between desirable and undesirable refugees, and the latter were pressured to find permanent asylum elsewhere. Despite these restrictions, the Swiss tradition of asylum was an argument for an open refugee policy during the Nazi period; at the same time, it motivated innumerable Swiss citizens from all social, political and religious walks of life to help the refugees, sometimes, in so doing, taking the risk of committing illegal acts. Switzerlands reputation as a traditional country of asylum also lay behind the hopes of the persecuted who sought refuge there. The Swiss Confederations responsibility became even more significant during the course of the war as Switzerland became one of the few havens for asylum not occupied by Nazi Germany and thus one accessible to refugees.
Secondly, Switzerland tied its policy of neutrality to a commitment to humanitarianism, and its situation as a neutral state during wartime offered expanded opportunities of fulfilling that commitment. As the site where the Red Cross was created, Switzerland was recognized by other countries as a nation dedicated to the welfare of war victims. The specific conditions of the Second World War opened possibilities of intervention for Switzerland but also confronted it with unexpected responsibilities. In January 1942, the Federal Council appointed a delegate to the international relief organizations who was to ensure that the relief activities of semi-private and private organizations remained consistent with Switzerlands foreign policy interests and especially its diplomatic role as a protecting power of foreign interests. The central problem for humanitarian policies lay in the fact that decisions-makers clung to a narrow understanding of neutrality despite their knowledge of the situation and concentrated on civilian and military war victims. They were not willing to recognize the difference between war and genocide. Thus, the victims of Nazi persecution were not the focus of Switzerlands humanitarian commitment, neither during the war nor after it.
Third, Swiss authorities had fought for the Confederations entrance into the League of Nations and pushed for the establishment of the Leagues headquarters in Geneva. As international tensions and conflicts escalated during the 1930s and the League of Nations proved unable to alleviate them, Switzerland began a steady withdrawal from its international commitments and in 1938 declared its return to complete neutrality. Although Switzerland had become involved in the issue of Russian and Armenian refugees, its efforts on behalf of refugees from Germany were restricted to modest efforts on the diplomatic level. The signing of a provisional arrangement on July 4, 1936 regarding refugees from Germany was the last obligation Switzerland assumed in this regard on the international level.
Fourth, the period between 1914 and 1945 was a time of growth and consolidation for Switzerland as a financial center. Financial relationships became a central factor in Switzerlands international relations. While the upswing was founded on liberalism, based on the free flow of international capital, Switzerland at the same time adopted a policy regarding the flow of human beings that represented a rejection of nineteenth century liberalism. This contrast deepened during the war as Switzerland on the one hand rejected foreign currency restrictions and control of the flow of capital, in contrast to other states, while on the other hand, it erected barriers against refugees it considered elements of a supposed «excessive foreign influence («Überfremdung»)».
These four characteristics gave Switzerland some maneuvering leeway both in regard to the Third Reich as well as to other states. For Nazi Germany, Switzerlands standing as a financial center was especially valuable, as was the import of Swiss industrial products. The Reich also undertook efforts to show consideration for Switzerlands activities as a protecting power of foreign interests and for the work of the International Red Cross. The Germans considered Swiss diplomatic protection for German civilians and military personnel interned in Allied nations very important. The Allies, on the other hand, vehemently criticized Switzerland for its cooperation with the Axis powers. In addition to its economic relations with the Allies and its diplomatic tasks as a protecting power, Switzerland was also able to underscore to the Allies its humanitarian commitment and asylum policy, by emphasizing the acknowledgement and gratitude it had earned from every individual it had helped or saved.
3 Switzerland and the Refugees
Swiss refugee policy consisted of elements of long-term significance, such as the structural guidelines of Swiss policy regarding foreigners, and elements of short-term significance, such as Swiss policy toward Nazi Germany with its measures of persecution and the waging of war by the Axis powers, all of which were tightly interwoven.
Since the First World War, Swiss authorities had made the fight against «excessive influence by foreigners» an issue of primary importance. The role of the Federal Police for Foreigners of the EJPD, created as a central agency for the realization of this policy, was strengthened during the 1920s through legislative regulations. Moreover, there were numerous measures in economic and cultural life aimed at repelling all that was foreign, so that there was widespread popular consensus for a population policy aimed at reducing the number of foreigners in Switzerland to a minimum.
Antisemitism was of particular significance. Nourished by older strains of Christian hostility toward Jews, it had delayed the achievement of political equality for Jews in nineteenth century Switzerland as in many other European states. This antisemitism was mostly unspoken and kept below the surface, but was deeply ingrained in the social fabric, and the cause for the social, economic, and political marginalization of the small Swiss Jewish minority. It led to underrepresentation of Jews in the administration, economic organizations, and the military, to discrimination in granting citizenship, and finally, to the fact that Jews were not accorded refugee status although they were obviously persecuted. Thus, Heinrich Rothmund, who as the head of the Police Division of the EJPD was responsible both for policy on foreigners and on refugees «for racial reasons», fought against not only «excessive influence by foreigners» but also «excessive influence by Jews (9Verjudung:)» in Switzerland.
Against this background, the negotiations between Switzerland and Germany after the incorporation of Austria in 1938 resulting in the marking of passports of German Jews with the «J»-stamp are part of a history that cannot be limited to the «dark years» of National Socialism. Although Rothmund rejected the introduction of this discriminatory measure and considered introducing a mandatory visa for all German citizens, the Federal Councils reaction to the systematic expulsion of Jews from the Reich was to adopt various measures to keep Jewish refugees out of the country without damaging Switzerlands relationship to the Nazi regime. Thus, the authorities based their visa practice on racial categories of «Aryan» and «non-Aryan» applicants and used them in administrative practice. The failure of the Evian Conference in the summer of 1938 and the restrictions put into effect by other states, strengthened Switzerlands determination to reject Jewish refugees, so that finally an agreement was reached that represented a moral capitulation to Nazi racial antisemitism.
Nor was Switzerland during the war an island isolated from the rest of the world. A network of relationships and mutual obligations tied it to other states, even if the war made maintaining these ties more difficult. Despite the Germans secrecy, plausible information about the extermination of Jews reached Zurich, Basel, Bern, and Geneva. Switzerlands geographic location made it the nexus for information and it became the place, especially after the occupation of the non-occupied part of the south of France by the Germans in November 1942, where Swiss and international relief organizations concentrated their efforts. Relations between federal authorities and the relief organizations were marked by the efforts to keep refugee acceptance and their range of actions to an absolute minimum. The following example illustrates the discrepancy between knowledge and behavior, between the high level of information and political passivity that coexisted: Gerhard Riegner, the representative of the Jewish World Congress in Geneva, informed the Allies, from Switzerland, about the Nazi policy of extermination. At the same time, plans to publicly denounce this genocide were shelved in Bern, the federal capital, as well as at International Red Cross headquarters in Geneva.
Even after they were informed about the unbelievable and unimaginable events taking place, the federal authorities like the governments of most other states made few changes in their policies regarding refugees. Most frequently, the neutral states demonstrated indifference and passivity or attempted to accommodate the Nazi system. Thus, in both 1938 and 1942 Switzerland was able to use the actions of other states as an argument to justify closing its borders. Caught in the complex web of German-Swiss relations and confronted with the consequences of the world war, Swiss decision-makers attempted to preserve the Swiss Confederations independence and economic stability. They considered the fate of the refugees a secondary problem. Although Switzerlands international role gave them several trump cards, they rarely chose to play them for the defense of basic human values.
4 Acceptance and Rejection of Refugees
In the summer of 1942, Swiss authorities came to the conclusion that for military, political, and economic reasons, Switzerland, with few exceptions, could take in no additional refugees. Moreover, the military leadership recommended consistent rejection of refugees at the border as a method that would deter future refugees from even attempting to find shelter in Switzerland. For these reasons, the number of expulsions rose steeply beginning in August 1942 and remained high until the fall of 1943; more than 5,000 rejections of asylum-seeking refugees are documented in writing during this period alone, out of more than 24,000 documented rejections for the entire wartime period. Before and during the war there were cases of rejection and expulsion that border officials either did not document in writing or where the documentation was not preserved. The number of people who did not try to enter Switzerland either following the rejection of their application for a visa by a Swiss consular office, or in the wake of information about restrictive Swiss policy, is uncertain. Thus, the exact number of people Switzerland could have saved from deportation and murder remains unknown.
Despite the decision to deny asylum to all refugees except «political» ones, Switzerland took in 21,000 Jewish refugees during the war, out of a total of 51,000 civilian refugees. There were three reasons for this. First, refugees were accepted if they fell into the so-called «hardship category». Secondly, as a rule they were not expelled if they managed, after secretly crossing the border, to reach the interior of the country, although a number of cases have been documented in which they were nevertheless expelled. Third, the authorities adopted less restrictive policies beginning in the fall of 1943. Numerous refugees who fled in connection with political and military events in Italy and crossed into Switzerland through its southern border took advantage of this opportunity. However, the persecution of Jews as Jews was not recognized as a reason for asylum until July 1944, and there were relatively few Jews among those who benefited from the relaxation of restrictions in 1943.
Due to the contradiction between regulations mandating general rejection of refugees and the actual day-to-day practice, where in individual cases there was a chance of being accepted, some officials and innumerable private citizens tried to save refugees who appeared at the border. This complex situation gives rise to the question of areas of jurisdiction and responsibility. The Federal Council, which had been granted extraordinary powers by parliament at the beginning of the war, and the army leadership, to whose goals numerous areas of political and social life had been subordinated, played central roles. The limitations on the jurisdiction of the parliament and on democratic freedoms, for example freedom of the press, also meant that officials had broad powers. Individual officials had a considerable amount of leeway and discretion in which to make decisions, both in Bern and at the border. Therefore, one should not talk about a collective responsibility on the part of the Swiss population: the stark inequality in the distribution of power and thus responsibility is much too obvious. This can be seen clearly when one retraces the paths taken by refugees that led in one case to acceptance and in another to rejection.
This report places particular significance on the reconstruction of these journeys and thus on the experiences of the refugees. Despite gaps in archival data, research was carried out about the routes refugees took in their flight, the dangers they faced, the situation at the border, the various actions taken by officials at the border and at their desks, and the help provided by the general population. This has resulted in a differentiated picture that vividly depicts the refugees hazardous situation and the types of treatment they found in Switzerland. Using well-documented case studies, the report follows the path and the fate of a few refugees from their place of origin to the Swiss border, considering both the significance of internationally organized refugee relief operations and the conditions of individual flight. Many refugees used the services of so-called «helpers» to cross the border, some of whom acted out of financial incentive, others for political, religious or humanitarian reasons. On the Swiss side, the refugees met officials who sometimes showed understanding for their situation and helped them, and sometimes reacted with harshness, including antisemitic contempt and physical violence. The latter is documented by the example of the practice of expelling refugees in Geneva in the fall of 1942. Those responsible were later convicted in court for their actions, which shows that the measures taken in Geneva assumed extraordinary dimensions. Conditions there cannot be considered exceptional, since brutal implementation of expulsions has been documented for other stretches of the border as well, and furthermore, the decision-making authorities, who hoped that a consistent policy of rejecting refugees would have a deterrent effect on others, hesitated for a long time before intervening.
Life in the reception camps run by the military, where the refugees spent their first weeks or months in Switzerland, was marked by strict supervision and discipline as well as, in some cases, a scarcity of food and clothing. The decision makers perceived the refugees more as a security risk than as persecutees in need of protection, resulting in barely tolerable living conditions in many camps. Moreover, many military camp commanders and their staff were not qualified for their assignment. The housing available later in civilian camps and homes differed very little in a material sense from the conditions under which mobilized soldiers or the civilian population lived. Under the conditions of a wartime economy, Swiss day-to-day life was also marked by numerous restrictions, particularly in regard to the supply of rationed foodstuffs and clothing and in the labor market, where there was general obligatory work service and the entire population was involved in the «Anbauschlacht» (a campaign to achieve economic self-sufficiency by utilizing all available land). Refugees were thus less likely to complain about physical conditions than the lack of understanding they found among Swiss officials. Grave errors were made in the policy of separating families, isolating refugees from the local population, and in banning them from the work-force while at the same time requiring them to perform labor that was often unsuitable because of the refugees physical condition and their training. These measures for which the political authorities were responsible, would have been easier to bear had the directors of the homes and camps been kinder to the refugees and attempted to identify with their situation. The report also shows that the central administration of the camps and homes tended to look for directors who were primarily interested in order and discipline, although there were also camps in which the refugees felt comfortable, in so far as this was possible in exile.
Although, meanwhile, there are various publications about the homes and camps, the circumstances of those refugees assigned to live in private homes is not well known. A large number of refugees, after a temporary stay in a camp, were transferred to private housing, provided either free of charge, as for example Pastor Paul Vogts «free places» campaign in the fall of 1942, or more typically, for a rental fee.
5 Financial Aspects
The examination of the financial aspects of refugee policy, one of the core areas with which the Commission was charged by the Federal Council, reveals a complex situation. Swiss decision-makers were focused on the crisis at the end of the First World War, the economic crisis of the 1930s, and later, during the war, on securing an adequate supply of provisions for the country. Refugees from Germany, above all Jews, were subjected to economic discrimination and exclusion after the National Socialists had assumed power. This escalated after 1937 to a policy of seizure and confiscation of property, which extended across the entire area of German occupation during the war and ended in the killing centers with the imagination-defying theft of «gold from the dead» (Totengold).
The cantons were able to issue short-term residence permits for refugees entering Switzerland during the 1930s, for which they demanded collateral and pledges of payment. This might be as much as several times an annual salary in one case, while in another it was waived completely. Thus the cantons structured the acceptance of refugees according to criteria they did not need to define. Within the framework of Swiss federalism, they had far-reaching autonomous authority in refugee policy, although this was later considerably restricted during the war. Nevertheless, the cantons through their executive authority as police forces and through the conference of canton police directors were integrated into the policy of the EJPD. This played a role even when some cantons, as for example Basel-Stadt, adopted a more liberal refugee policy and others, such as Thurgau, a harsher one.
As a result of the economic crisis during the depression, a complicated clearing system arose in bilateral financial transactions between Switzerland and Germany that was regulated in several clearing agreements. This was significant particularly for refugees who emigrated during the 1930s as well all for those who lived in Switzerland and depended on monetary transfers from the Reich. While the export of capital from Germany had been prohibited since 1931, returns on capital remaining in Germany, as well as pensions, could initially be transferred to Switzerland. After 1937, Switzerland and Germany continually limited these possibilities by reciprocal agreement. The limitations affected only the emigrants at first and were later extended to include all foreigners. After 1940, with the exception of German citizens who had settled in Switzerland, no foreigners could receive monetary transfers from Germany. The Germans interest in gaining access to refugee assets and the desire of the Swiss economy to reserve scarce clearing funds for Swiss needs complemented each other, while the needs of the refugees, just as those of other private individuals without a lobby, fell by the wayside. Moreover, clearing agreements, similar to many other treaties, were usually published incompletely. This contradicted the principle that laws became valid for the individuals concerned only after they had been published, and thus impeded the ability of the refugees to learn about transfer conditions and to include them into their plans.
When German Jews permanently residing in Switzerland were stripped of their German citizenship by the 11th Directive to the Reich Citizenship Law in 1941 and the National Socialists also wanted to exclude them from financial transactions as now-stateless persons, the officials and business representatives of the Swiss Clearing Commission resisted, refusing, in contrast to the Swiss Department of Justice and Police (EJPD) and the Swiss Clearing Office, to recognize this removal of citizenship. Their position was based on the one hand on the realization that the loss of citizenship was wrong and illegal and did not need to be carried out by Switzerland. On the other hand, the Clearing Commissions involvement in this case was only on behalf of those individuals already residing in Switzerland for a long time and who, after having been excluded from financial transactions, might eventually need public welfare support. With regard to emigrants and refugees, Jean Hotz, director of the Trade Division, stated in March of 1939 that the Clearing Commission too had no interest in «allowing itself to be led by sentimental considerations thereby obstructing the work of the Federal Police for Foreigners in protecting Switzerland from emigrants».
Since refugees in Switzerland were subject to a general employment prohibition and transfer of funds from abroad was difficult or impossible, depending on the country of origin, they could support themselves only if they had assets in Switzerland. Under certain circumstances they were then welcome as business partners, taxpayers, or «guests» in the crisis-ridden hotel industry. For most refugees, however, this was not the case. They were dependent on foreign aid, which was extended through the great efforts of relief organizations and private individuals. The greatest burden was borne by Jews in Switzerland, who were forced to support not only the refugees but also Swiss Jews who had returned from Germany. The issue of costs became acute after the incorporation of Austria in 1938. By refusing to contribute to these costs, the EJPD succeeded in binding the relief organizations into its restrictive policy.
Between 1933 and 1947, the relief organizations linked in the Swiss Central Office for Refugee Relief (SZF) paid about 70 million Swiss francs. The share of the Swiss Jewish Association for Refugee Relief (VSJF) was 46 million Swiss francs. VSJF received a considerable amount of this money from Jews in Switzerland. Moreover, the Swiss federal government increased its subsidies after 1944, which originally had been intended only as aid for those leaving Switzerland. More than half of the VSJFs relief funds, however, came from the American Jewish Joint Distribution Committee, which transferred about 16 million francs to Switzerland between 1939 and 1945 and about the same amount again between 1945 and 1950.
After Swiss assets in the U.S. were blocked in June 1941, receiving financial support from the United States became more difficult due to measures taken by both sides. The contingent of dollar transfers (Dollarübernahmen) approved by Switzerland to benefit the relief organizations was not exhausted by Swiss authorities. In May 1942, the Swiss National Bank (SNB) excluded the American Jewish Joint Distribution Commitee from financial transfers to Switzerland and did not allow them to resume until the end of 1943. Moreover, the SNB no longer accepted dollar transfers for refugees who had entered Switzerland after January 1, 1942. It is noticeable that during the same period in which persecution was becoming more intense in France, and the Swiss authorities were rejecting thousands of refugees, Switzerland was also making it more difficult for refugees and the relief organizations that helped them, to receive currency transfers. There is no proof that this policy was targeted and occurred as the result of coordination between police officials and economic interests. It is more likely that these simultaneous restrictions of the chances of successful flight and the available sources of financial support for the refugees had to do, among other things, with Switzerlands increasing isolation. This isolation, however, was not only a consequence of military developments, but was also consciously chosen by Switzerland itself. This can be seen, for example, in the rejection of offers of aid from the United States by the Federal Council and its delegate to the international relief organizations. Their humanitarian policy was not based on the desperate straits of the refugees but on political and strategic considerations.
As the number of refugees attempting to enter Switzerland increased in the summer of 1942, and the cantons refused to share in the costs, and as the funds of the relief organizations were exhausted, the federal government significantly increased its financial involvement. From 1939 through 1945, it had spent 83 million francs for refuge policy, an amount that includes funding for shelter and food as well as administrative costs and the costs of regulatory measures. With the decree of April 1, 1946, the Federal Council waived repayment of these expenditures by country of refugee origin, but in subsequent years demanded that refugees repay part of their maintenance costs. By 1950, the Confederations allocations had reached 128 million francs.
In order to cover at least part of the cost of food and shelter, and in order to prevent the undermining of wartime economic regulations, the Federal Council in 1943 decided to confiscate the assets of refugees who had entered Switzerland illegally, and placed them in the trusteeship of the Swiss Volksbank. In reaching this decision, the Federal Council was motivated by organizational and legal issues in light of the considerable problems encountered in the administration of refugee assets by the army in the reception camps. The bank made every effort to maintain the accounts correctly. The archival sources also show evidence, however, of antisemitic stereotypes as well as fear of competition and harassment during the introduction of the measure for the compulsory administration of refugee accounts. This is attested to by the behavior of federal agencies, economic associations, and private individuals. To a great extent, the refugees were powerless against the decisions of the officials, which could have grave consequences in individual cases.
The so-called «solidarity tax», a special tax for wealthy emigrants, was meant as a contribution by the refugees to the costs of their maintenance. The revenues raised by this special tax, which was levied several times, were distributed to the relief organizations coordinated under the auspices of the SZF; with the agreement of VSJF, the funds were distributed in proportion to the amount of relief aid each organization provided. The tax revenues came primarily from Jewish refugees. The tax assessment led to numerous appeals, and the introduction of the tax, which the relief organizations also welcomed, was based on arguments that had little relevance to the situation of the refugees. Financial solidarity was demanded of people whose economic existence had been destroyed, who were forbidden to work, and whose residence in Switzerland was only approved for a few months. Moreover, this special tax was legally doubtful in cases where it was levied on individuals guaranteed equal treatment in various bilateral right-of-residence agreements (Niederlassungsverträge). It was particularly questionable that this special tax was also imposed on individuals who had acquired rights of residence after September 1, 1929, considering that they could no longer return to their native countries. This applied also to German Jews residing in Switzerland, whose denaturalization in 1941 violated the Swiss ordre public. The EJPD cared little about such legal matters, since it knew that Jews were unwanted in many countries and had in effect lost the protection of international treaties, even if they still retained their citizenship.
6 Legal Aspects
One of the central legal problems of Swiss refugee policy is Switzerlands adoption of certain clauses of German race laws. This is particularly true for the marking of the passports of German Jews with the «J»-stamp when Switzerland made antisemitic laws the basis of its own entry practices, as well as the depriving of German Jews living abroad of their citizenship through the 11th Decree to the Reich Citizenship Law on November 25, 1941. Since the race laws, as the Federal Court ruled during the war, were contrary to the Swiss ordre public, the Swiss legal and administrative measures that followed from them were also illegal. The report shows that Swiss authorities were aware of this to varying degrees and shows that there were considerable differences in carrying out the process of deprivation of citizenship. In this context, it is most disturbing that the EJPD on the one hand supported depriving German Jews of their citizenship in November 1941 by withdrawing their right of residence, but less than four years later, in February 1945 when federal authorities froze German assets in Switzerland or administered from Switzerland, treated these same, now-stateless German Jews, as German citizens and blocked the assets of refugees along with all other German assets.
On the level of international accords, few laws regulated acceptance or rejection of refugees. According to the terms of the provisional arrangement of July 4, 1936 concerning the legal status of refugees from Germany, to which Switzerland acceded from 1937 on, neither legal nor illegal refugees who were already inside the country could be sent back to Germany as long as they were making efforts to leave Switzerland for another country. Expulsion directly at the border, however, was not covered in this agreement, and individual nations decided on their own how they were to act in such cases. When Switzerland at its western and southern borders sent refugees back to the arms of their persecutors, this did not actually violate the letter of the 1936 agreement. It did, however, violate the intention of the agreement, which was to prevent the returning of refugees to the country where they had been persecuted, and thus was in contradiction to the understanding of international law that developed during the 1930s and came to prevail in the postwar period.
International law barely mentioned the treatment of refugees who had been accepted. The so-called «Martens clause» of the Hague Land War Regulation of 1907 stated generally that all persons were to be treated according to basic humanitarian principle during war. Thus, Switzerland had to meet a minimum standard in providing shelter, food, and care for interned military personnel and civilian refugees that allowed them to live like human beings.
A number of the measures adopted regarding refugees were legally problematical. This was true, as indicated above, for the solidarity tax. Until March 1943 there was no formal legal basis for the practice, which had started in the summer of 1942, of taking refugees assets and administering them. The same is true of wage deductions to which employed refugees were subjected after 1945. Imbued with a sense of their own power, officials took action undeterred by legal ramifications, especially when little resistance was to be expected, which was true, above all, for stateless refugees.
Overall, Swiss refugee policy was generally in conformity with the legal system of that time. The decision to formulate a narrow (political) definition of refugee, which meant that Jewish refugees were not granted asylum, but were subject to the regulations of the Police for Foreigners under the Law on Residence and Settlement of Foreigners (ANAG), and were treated as undesirable foreigners, was a political decision. It was not mandated by law, nor did it violate international or national legal standards. The internment of refugees who were in Switzerland illegally and could not be expelled, was legally permissible. And many measures based on the executive powers granted the Federal Council could be justified by the special circumstances of war. Switzerland generally acted within the framework of the law, but it interpreted those laws to benefit the authority of the state, not the refugees, the people in need of protection. Nothing would have prevented Switzerland from going beyond the minimal standards of international law, or from interpreting or changing national law in favor of the refugees.
It is important that this be stated because a new understanding of rights began to emerge during the war, the way having been paved already in the 1930s, primarily as a function of Nazi Germany's crimes. Via the Nuremberg war crimes trials, this conception evolved into the general declaration on human rights by the United Nations and to other international agreements which accorded greater weight to an individuals rights to freedom and claim for protection, at the expense of the state-wielded authority. Switzerland participated in this process only reluctantly, both after 1933 and after 1945. It kept its distance from the United Nations and clung to its special role. This wish for continuity can also be seen in its policies toward foreigners and refugees. As soon as the war had ended, it pressured the refugees to leave as soon as possible. In 1948, the year in which Switzerland granted permanent asylum to the few hundred elderly or frail refugees still remaining in the country, it revised its law on foreigners in such a way that it continued to reflect the fight against «excessive foreign influence».
7 Two Questions
What would have happened if Switzerland had not pushed for marking the passports of German Jews with the «J»-stamp in the summer of 1938? What would it have meant if Switzerland had not closed its borders for «racially» persecuted refugees in August 1942?
The introduction of the «J»-stamp in 1938 made it more difficult for Jews living in the Third Reich to emigrate. Without Swiss pressure, the passports would not have been stamped until later, perhaps not at all. This would have made it less difficult for refugees to find a country willing to accept them. For many, Switzerland would not have been the goal of their flight. Without the «J»-stamp, however, many victims of National Socialism would have been able to escape persecution through Switzerland or another country.
In 1942, the situation was completely different. Jews had been forbidden to leave the Nazi areas of occupation since 1941 and many thousands of Jewish men, women, and children were being systematically killed daily. For persecuted people, the journey to the Swiss border was already fraught with great danger. When they reached the Swiss border, Switzerland was their last hope. By creating additional barriers for them to overcome, Swiss officials helped the Nazi regime achieve its goals, whether intentionally or not.
There is no indication that opening the border might have provoked an invasion by the Axis, or caused insurmountable economic difficulties. Nevertheless, Switzerland declined to help people in mortal danger. A more humane policy might have saved thousands of refugees from being killed by the Nazis and their accomplices.