Bergier Commission - Law and Legal Practice

Law and Legal Practice

The commission outlines a number of instances where established law as interpreted by the courts was ignored by the Federal government ruling by decree under the emergency powers granted to it by Federal parliament in 1939. One of the most important aspects was the abandonement of constitutional principal of equality before the law which had far reaching impact on the treatment of foreigners, minority citizens and contributed to the failure of the state to offer any diplomatic protection to Swiss Jews residing in Nazi occupied territory. They conclude, "...diplomatic practice increasingly came into line with the ethnic «völkisch» criteria adopted by the Nazi state, an approach which sharply conflicted with the constitutional equality enjoyed by Jews in Switzerland since 1874."

With respect to refugees, under existing Swiss domestic law, only refugees whose life was at risk because of political activities could be granted asylum. This meant those who were fleeing because of racial persecution could be returned to the persecuting government. However, in July 1936, Switzerland ratified a provisional arrangement concerning the status of refugees coming from Germany: "Switzerland violated this agreement by handing refugees27 from Germany, whose lives were at risk and who had crossed the border (legally or illegally) and were not apprehended immediately in the border’s vicinity, over to the German authorities on the borders with Austria or France."

The commission identified a number of areas, particularly in the domain of private international law, where the courts applied the doctrine of "ordre public" which is an explicit ethical component of law: for example, Swiss courts "consistently took the view that Nazi anti-Semitic legislation must be deemed to constitute injustice which violated all legal principles and should therefore not be applied in practice." However, this doctrine based on what was right and proper under Swiss law was not extended to practices which were incompatible with more universal, non-codified principles such as the principle of humanity.