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

740.00119 EAC/142

The Acting Secretary of State to the Ambassador in the United Kingdom (Winant)

No. 3735

Washington, February 12, 1944.

Sir: I transmit herewith a copy of a letter of February 5, 1944 from the Joint Chiefs of Staff, together with its enclosures, relative to surrender terms for Germany. After further deliberation, the Joint Chiefs of Staff have had prepared and approved an “Instrument and Acknowledgment of Unconditional Surrender of Germany” and a “Memorandum in Support of United States Views” for presentation to the European Advisory Commission. These documents are attached as enclosures to the letter of February 5.

The Joint Chiefs of Staff consider that this draft instrument of surrender is in conformity with the general principles set forth in documents WS–10a and WS–12, previously transmitted to you, and has the additional advantage of brevity. You are accordingly requested to submit these two documents to the Commission for its consideration.

You will observe from paragraph six of the “Memorandum in Support of United States Views” that the Joint Chiefs of Staff would prefer that the comprehensive provisions set forth in the British draft of surrender terms be issued subsequent to surrender as directives to the German authorities.

Very truly yours,

Edward R. Stettinius, Jr.

[Enclosure]

The Joint Chiefs of Staff to the Secretary of State

Washington, February 5, 1944.

My Dear Mr. Secretary: The Joint Chiefs of Staff have considered the “Draft German Armistice” received from the Representatives of the British Chiefs of Staff. The Joint Chiefs of Staff have reached the following conclusions with respect to this British document which it is understood is now before the European Advisory Commission for consideration:

a. That there is a wide difference of opinion between the views expressed in the “Draft German Armistice” and accompanying memoranda submitted by the Representatives of the British Chiefs of Staff and the views contained in the documents WS–10a and WS–12 prepared by the Working Security Committee.

b. That a U.S. draft instrument of surrender in conformity with the general principles outlined in the documents WS–10a and WS–12 should be transmitted to the U.S. member of the European Advisory Commission for submission to the Commission.

c. That the “Instrument and Acknowledgment of Unconditional Surrender of Germany” should be brief.

In furtherance of the aforementioned conclusions, there have been prepared for the Joint Chiefs of Staff and approved by them, two documents entitled “Memorandum in Support of U.S. Views” and “Instrument and Acknowledgment of Unconditional Surrender of Germany.” The Joint Chiefs of Staff recommend that these two documents, copies of which are enclosed, be transmitted to the U.S. member of the European Advisory Commission for submission by him to the Commission.

Sincerely yours,

For the Joint Chiefs of Staff:

William D. Leahy

,
Admiral, U.S. Navy,
Chief of Staff to the Commander in Chief of the Army and Navy

[Subenclosure 1]

Instrument and Acknowledgment of Unconditional Surrender of Germany⁹⁸

I. The German land, sea and air forces and all forces of any other nationality serving under their commands, wherever located, acknowledge their total defeat, and hereby surrender unconditionally to the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, acting by authority of the Governments of the United States, the United Kingdom, and the Union of Soviet Socialist Republics and in the interests of the United Nations.

II. The German High Command will, immediately upon the acceptance of this unconditional surrender, order the immediate cessation of hostilities of any kind against forces of the United Nations, and will direct German military, naval and air authorities in all theaters to issue forthwith appropriate instructions to those under their command.

III. The German High Command will forthwith order all persons and individuals within Germany and German-controlled territories to refrain from the destruction of or damage to military, naval and air property, installations and equipment, and all other property of whatever kind, real or personal, public or private.

IV. The German High Command will order immediate compliance on the part of all residents of Germany and German-controlled territories with the provisions of the annexed proclamation and orders and of all future proclamations, orders, ordinances, and instructions as may be issued by or under the authority of the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics or the Governments of the United States, the United Kingdom and the Union of Soviet Socialist Republics.

V. All of the resources and facilities of Germany and of the German people, including all rights, powers and privileges of any and all character whatsoever will be placed undamaged at the disposal of the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, and the Governments of the United States, the United Kingdom and the Union of Soviet Socialist Republics, acting in the interests of the United Nations.

VI. The Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, and the Governments of the United States, the United Kingdom and the Union of Soviet Socialist Republics, acting in the interest of the United Nations, will take such measures and issue such orders and instructions for the occupation and governing of Germany and German-controlled territories as may be deemed by them to be appropriate.

VII. All German authorities, civil and military, and the German people, will comply with and faithfully execute such duties and conditions as may be imposed by the occupation authorities. The German authorities and people will in particular, and in addition to such other duties and conditions as may be imposed, extend full cooperation to the occupation authorities and to all of the United Nations in apprehending and making available for trial by the United Nations as they may determine, all persons of German nationality and other persons within Germany or subject to German jurisdiction who are or may be charged with having committed war crimes.

VIII. Prisoners of war belonging to the forces of the United Nations, and all other nationals of those countries, or of neutral countries, who are confined, interned or otherwise under restraint and German nationals who may be similarly confined, interned or otherwise under restraint of political reasons or as a result of Nazi action, law or regulation which discriminates on the ground of race, creed, color or political belief, will be protected in their persons and property by the German authorities and people pending further instructions. Similar steps will be taken by the German authorities and people to safeguard all property, records and archives, public and private, pending further instructions.

IX. The rights, powers and privileges of the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, the Governments of the United States, the United Kingdom, and the Union of Soviet Socialist Republics, arising as a result of the complete conquest and unconditional surrender of Germany, shall be without limitation of any character whatsoever.

X. The term “occupation authorities” as used herein includes the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, the Governments of the United States, the United Kingdom, and the Union of Soviet Socialist Republics, and any other agency or individual designated by them and acting under their authority.

XI. The present instrument may be denounced by the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics, or by the Governments of the United States, the United Kingdom, and the Union of Soviet Socialist Republics, with immediate effect, if German obligations thereunder are not promptly and completely fulfilled. In such event, said Commanders in Chief and their respective governments will take whatever action may be deemed by them to be appropriate under the circumstances.

XII. This instrument of unconditional surrender will enter into force and effect immediately upon its acceptance by the Supreme Commander of the Allied Expeditionary Forces and the Commander in Chief of the Armed Forces of the Union of Soviet Socialist Republics.

XIII. These provisions are drawn up in the English, Russian and German languages. The English and Russian texts are authoritative.

Signed at___(place)_____, this ___ day of ___(month)___, at ___(hour)___.
____________________________
(Name) (Title)
(Highest German Military Authority)
____________________________
(Name) (Title)
(Highest German Civil Authority)

The foregoing terms of unconditional surrender are accepted by:

____________________________

General, Supreme Commander, Allied Expeditionary Forces

____________________________

General, Commander in Chief, Forces of the Union of Soviet Socialist Republics

[Subenclosure 2]

Memorandum in Support of U.S. Views

1. The United States and the United Kingdom are each committed to the principle that an “unconditional surrender” will be exacted from Germany. With this in mind, it becomes important to define the term unconditional surrender before determining the type of document best adapted to express all that the term implies.

2. It is submitted that an unconditional surrender is an acknowledgment on the part of Germany that:

a. Its military forces are totally defeated and incapable of resisting the accomplishment of the military objectives of the adversary.

b. Its resources and peoples are expended to the point where further resistance is futile.

c. It is ready to submit without question to any terms of military, political, economic and territorial nature which may be imposed upon it by the victor.

3. When such an acknowledgment is made, few words are needed to constitute the unconditional surrender of Germany.

4. Such brief document would be implemented by proclamations, orders, and directives issued to the German military and civil authorities from time to time by the appropriate Allied Commanders. The detailed military directives necessary to implement a short surrender document bear a somewhat similar relationship to such a document as the by-laws of a corporation bear to the corporate charter or the statutory laws of a state bear to its constitution.

5. The advantages of having a short instrument are as follows:

a. It indicates affirmatively that the war has ended.

b. It leaves no room for the insinuation, as might be implied from a lengthy armistice document, that only a temporary suspension of hostilities has occurred.

c. Each covenant of a document necessarily creates a condition of surrender binding in law upon the conquered and the conqueror alike. Each covenant constitutes a subtraction from the powers bestowed upon the victor by the unconditional surrender of the enemy state. There is little room for legal quibbling over a short instrument and the victor cannot be accused of bad faith or a violation of its agreement.

d. No document can be all-embracing or all-inclusive as to foresee every possible contingency. Under a brief document containing broad general provisions there will be no legal obstacles to effect such matters as transfer of population, the immediate creation of a “separate” Austria, the giving of the Czech Government immediate control of Czechoslovakia and similar questions that are bound to arise.

e. A brief instrument will not be an obstacle in the procuring of a new central government, other than the surrender administration, if that be desirable. A brief instrument eases the burden of dealing with a new German central authority in the event there be a change of the central government.

f. A brief instrument eliminates the disadvantages, pitfalls, and embarrassments of a comprehensive document in order to meet unanticipated changing conditions. Experience in Italy should serve as a warning that it is impossible to comprehend in a single detailed document all of the situations which will arise out of the military occupation of an enemy country. The Italian comprehensive document has proved to be insufficient in its scope, limiting the authority of the Allies.

g. The German people, under the Nazi regime, have become accustomed and amenable to order emanating from military or semi-military sources. The position of the Commanders of the Allied forces would be materially weakened if their directives were subjected to legal scrutiny and debate prior to popular acceptance.

6. At the time the instrument is signed by the Germans, it is contemplated that directives will be handed to the German authorities which will have as a basis the provisions presently in the draft comprehensive instrument submitted by the United Kingdom.

98. This document was later circulated in the European Advisory Commission by the United States Representative as an annex to memorandum E.A.C. (44) 8 of February 15, and a copy was transmitted to the Department by the Ambassador in the United Kingdom in his despatch 13980, February 18; received February 26.