Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

EAC Files: Lot 55 D 375

Memorandum by the Political Adviser to the United States Delegation to the European Advisory Commission (Mosely)²²

[Extracts]

[London,] January 22, 1945.

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5. Present Status.

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This instruction of December 12,²³ which is still in force, has proved difficult to interpret inasmuch as it contains several important inconsistencies. Mr. Winant can hardly withdraw the U.S. draft directives from the Commission before receiving the long-promised “overall directive”. To do so would confuse our colleagues and leave before the Commission only the less satisfactory British draft directives.

Furthermore, since authorization is given to split up the substance of JCS 1067 into separate broad directives, it is hard to see what advantage is to be gained by withdrawing and refusing to discuss our series of directives which in the final analysis are designed to cover for the period of Allied control in Germany the same field treated in JCS 1067 for the brief interim period between the surrender or collapse of Germany and the setting up of Allied control machinery. The U.S. draft directives are criticized as being already too detailed, but JCS 1067 in some parts glosses over important fields requiring Allied agreement with rather meaningless and vague generalizations, while in other parts, such as the Finance Section, it goes into far greater detail than the U.S. draft directive on Control of Finance.

There is another important reason why Mr. Winant cannot effectively use JCS 1067 as the only basis for E.A.C. discussions. JCS 1067 is designed to cover the interim period, probably very short, between the end of hostilities and the establishment of joint Allied control machinery in Berlin. E.A.C. discussions may not initially attempt to cover long-term policies but they must eventually cover a longer period than that dealt with in JCS 1067. In fact policy agreements reached in the E.A.C. may not even come into effect until after the interim period covered by JCS 1067 has ended. It is therefore evident that the guidance contained in JCS 1067 is not suitable as the sole basis for agreement in the E.A.C. for the period of joint Allied control.

Upon the receipt of an “overall directive” it will be possible to take up in the E.A.C. the question of recommending agreement on such a paper. However, the U.S. Representative should not be put in the position of holding out for such a paper to the exclusion of consideration of a series of directives. If we did so and if the other Delegations were equally adamant in refusing to consider such a paper, the E.A.C. would once again reach a deadlock similar to that of a year ago when the form of the Surrender Instrument could not be agreed upon. In this case the U.S. would be open to the accusation by its Allies of having broken the basic agreement to handle the treatment of Germany as a joint matter.

It would not solve the question for the U.S. Representative to agree to split the subject matter of JCS 1067 (or the revised version), if he is bound, on a “take-it-or-leave-it” basis, not to enlarge in any respect on the policies contained therein. He can and will press throughout the negotiations for broad and brief policy statements. That has in fact been the U.S. point of view from the beginning.

However, it will be necessary, before reaching agreement, to consider policies lying outside the scope of JCS 1067. For one thing, the British are bound to raise many points contained in their directives, and the Soviet Representative has listed in writing (memorandum of October 25)²⁴ a series of broad policy questions on which his Government wishes early discussion in the E.A.C. We cannot bluntly refuse to discuss the applicability and wisdom of the Soviet, British and French proposals by merely saying they are outside the scope of JCS 1067 and ipso facto unnecessary.

6. History of the General Order.

The idea of having a General Order dates from the beginning of the E.A.C. discussions in January–February 1944, when the character of the future Surrender Instrument was under consideration. The U.K. Delegation had originally presented a detailed draft Instrument of seventy articles. The U.S. and Soviet Governments strongly preferred a short document containing a blanket provision for the later issuance of all necessary additional requirements.

In February 1944 the U.S. Government instructed Mr. Winant to propose in the E.A.C. such a short form of instrument.²⁵ The accompanying explanatory statement of U.S. views,²⁶ in which General Hilldring concurred in writing, contained a paragraph to the effect that it was contemplated that the additional requirements omitted from the British longer terms would be handed to the German Authorities when the Surrender Instrument was signed. The Soviet Representative made the same promises. After a considerable period of deadlock, the U.K. Delegation acceded to the American and Soviet proposal, on the understanding that the substance of the long British terms would be covered in proclamations and general orders.

In fulfilment of the undertaking entered into by our Government, the U.S. Delegation proceeded to prepare a draft General Order based in the main on the provisions omitted from the U.K. draft instrument. The draft General Order was submitted to the War Department in July 1944 and to the State Department on August 1.²⁷

After receipt of Mr. Winant’s telegram of October 7, comments on the General Order were prepared and cleared in Washington. These comments, contained in JCS 1103,²⁸ stressed the desirability of reaching an agreement with our Allies on the matters covered in the General Order but objected to the assumption that the General Order would be published as an order to the Germans at the time of surrender. JCS 1103 pointed out that certain articles of the General Order did not contain direct instructions to the Germans but merely provided for the later issuance of such instructions by the Allied representatives in Germany. In addition to these general comments, JCS 1103 contained a few specific proposals for change in the text.

It should be pointed out that in London the question of what parts of the General Order would be published to the German people has been considered as open for later discussion either in the E.A.C. or in the nucleus Control Groups.

The use of the term “General Order” has undoubtedly confused the issue in Washington. It is clear from the history of the E.A.C. negotiations that it was never intended to provide the specific direct military orders, such as the Commanders-in-Chief would issue to the Germans in giving effect to the agreed policy directives to be issued to those Commanders-in-Chief by their Governments. The U.S. Delegation has consistently felt that direct orders of that nature should be worked out by the military in the nucleus Control Groups.

The so-called General Order has been intended as an extension of the Surrender Instrument to cover non-military requirements not contained in the Instrument. Basically, it should be an agreement among the Occupying Powers to jointly exercise powers over certain fields. Such a preliminary “agreement to agree” is a valuable safeguard to have in hand prior to undertaking the negotiation of the separate directives.

One thing that worries C.A.D.³² is the notion that the British are pushing the General Order because they feel that it is necessary in order for the victors to “take powers” in Germany. C.A.D. feels that the British believe the Allies’ powers derive, not from the unconditional surrender of Germany, but from agreements with the Germans or from proclamations and general orders announcing the powers which they will exercise. Without regard for the British position—and there is little reason to believe they hold the views attributed to them by C.A.D.—the U.S. Delegation feels that agreement among the Allies to exercise certain powers jointly in no way restricts the range of the Allies’ power, which, according to the Surrender Instrument, is absolute. In other words, a General Order setting forth additional requirements to be imposed on the Germans would merely be a first instalment under Article 12 of the Surrender Instrument. In no sense would it be a contract with the Germans limiting the absolute power of the victors to issue further orders to them on any and all subjects.

Since the receipt of JCS 1103, the U.S. Delegation, working closely with representatives of the U.S. side of SHAEF and of the U.S. Control Group, has been elaborating a part of the matter covered in the draft General Order in a form suitable for issuance as a direct order to the Germans. The resulting paper will be short, covering approximately 20 percent of the contents of the original document. It is believed that it will fully meet the criticism of JCS 1103.

In order to meet its commitment of last March in the E.A.C. the U.S. Delegation has also been redrafting the General Order as a whole in a form suitable for conclusion as an Allied agreement. This program was concurred in by the officers from the U.S. side of SHAEF, who recognize that Allied agreement on the subject matter of the General Order is essential. It is not known how the other Delegations on the E.A.C. will react to the idea of turning the General Order into an agreement and extracting a small portion of it as an order to the German people. If the Ambassador is to receive a U.S. overall directive for negotiation, it is possible that that paper might be combined with the substance of the General Order as an Agreement or General Policy Directive. In advance of receiving the overall directive from Washington, this thought is merely a matter of speculation.

7. Directive on “United Nations Prisoners of War”.

In October 1944 the Soviet and British Delegations requested early negotiation in the E.A.C. concerning the handling of United Nations prisoners of war found in Germany upon surrender. By telegram 9134 of October 24³³ Mr. Winant requested instructions and guidance on this subject. On December 1 the E.A.C. agreed to appoint a special Committee on Prisoners of War and Mr. Winant, by his telegram 10609 of that date, again requested either instructions or clearance in Washington of the revised U.S. draft directive on this subject, submitted by him on October 23. In mid-December General Barker of G–1 SHAEF³⁴ was consulted by Mr. Winant’s Joint Advisers regarding this problem and his views were reported by Embassy’s telegram 11158 of December 15.³³

On January 6, 1945, Mr. Winant’s Military Adviser was informed from Washington that active efforts were being made by a War, State and Navy Coordinating Committee to arrive at a statement of U.S. views on this question. Up to January 22 no statement of U.S. views had been received. The E.A.C. Committee on United Nations Prisoners of War has therefore been unable to meet. For this Committee to meet before a U.S. position had been formulated would mean accepting as a basis for discussion the U.K. draft directive, which is less favorable to U.S. interests than the proposed U.S. draft directive.

8. Directive on “Disarmament of German Armed Forces and Disposal of Enemy Equipment”.

A directive on this subject was prepared by the U.S. Advisers³⁵ and was reviewed in Washington during the flurry of clearances in October 1944. It was then revised by the U.S. Joint Advisers in accordance with the detailed comments of the Joint Chiefs of Staff and was resubmitted on November 18,³⁶ for confirmation of its expression of J.C.S. and State Department views prior to being submitted to the E.A.C.

In early December other Delegations pressed for early discussion of disarmament and demilitarization of Germany, and the E.A.C. agreed to set up a Committee of experts to work on this subject. By telegram 10856 of December 7 Mr. Winant requested clearance of the revised U.S. draft directive or preparation of a new statement of U.S. policy. Up to January 22 no instruction had been received from Washington.

It should be pointed out in passing that no policy relating either to the treatment of United Nations prisoners of war or to the disarmament of the German armed forces is contained in JCS 1067 as known to the Delegation. Department’s 10371 of December 12 specifically promised that “the subject of United Nations prisoners of war, as well as other subjects not included or inadequately covered in JCS 1067, would be incorporated in further guidance formulated in Washington and transmitted to the U.S. Representative on the E.A.C.” On two key subjects—prisoners of war and the disarmament of Germany—such instructions have been requested in vain for seven weeks and the consideration of these subjects in the E.A.C. is at a standstill.

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22. This memorandum reviewed the problems relating to the formulation of policy directives on Germany for the United States Delegation during 1944, and it recapitulated some of the principal correspondence between the Delegation in London and the Department of State on these problems. Nearly all of that correspondence is included in this collection of documents. The omitted portions of the memorandum included the following numbered items: 1. Clearance of U.S. Papers in Washington; 2. An Alternative to Presentation of U.S. Policy Directives; 3. Speeding up of Clearance in October 1944; 4. Reversal in Washington’s Treatment of Directives; and 9. Certain Basic Fallacies.
23. The reference is to telegram 10371, December 12, to London, p. 418, which was summarized in the immediately preceding omitted portion of this item.
24. See telegram 9227, October 26, from London, p. 369.
25. See instruction 3735, February 12, to London, p. 167.
26. Ante, p. 171.
27. Not printed, but see footnote 24, p. 365.
28. See footnote 25, p. 366.
32. Civil Affairs Division, War Department.
33. Not printed.
34. Maj. Gen. Ray W. Barker, Chief of the G–l (Personnel) Division of the Supreme Headquarters, Allied Expeditionary Force.
33. Not printed.
35. Directive not printed.
36. Revised directive not printed.