Foreign Relations of the United States: Diplomatic Papers, 1944, The Near East, South Asia, and Africa, The Far East, Volume V

Lot 122, Box 53

Memorandum Prepared by the Committee on Post-War Programs⁸⁰

PWC–284a

[Washington,] November 13, 1944.

Japan: Terms of Surrender: Underlying Principles

I. Introduction

This Government has demanded the unconditional surrender of Japan as well as of Germany. Before this unconditional surrender is achieved, it will be necessary for this Government and other United Nations to decide certain basic issues.

II. Basic Factors

1. Significance of Unconditional Surrender

It is obvious from the various statements of the United Nations that hostilities will be carried on against Japan until that nation has laid down its arms on the basis of unconditional surrender or until it has been completely defeated. While there may be different interpretations as to just what is meant by “unconditional surrender”, there would seem inherent in the expression the right of the victors to impose whatever items they wish on the vanquished. Such an interpretation would not postulate that the instrument stating this fact was in any sense contractual. The instrument might be a unilateral statement by the Japanese authorities surrendering unconditionally and declaring that they will not oppose any measures which the United Nations consider necessary to carry out their policy.

The draft of the instrument of unconditional surrender of Germany, which the European Advisory Commission transmitted on July 25, 1944⁸¹ to the Governments of the United States of America, the United Kingdom, and the Union of Soviet Socialist Republics for their acceptance, states:

The German Government and the German High Command, recognizing and acknowledging the complete defeat of the German forces on land, at sea, and in the air, hereby announce Germany’s unconditional surrender.

The document also contains an announcement by “the Representatives of the Supreme Command of the United Kingdom, the United States of America, and the Union of Soviet Socialist Republics, … acting by authority of their respective Governments and in the interests of the United Nations”, of the “terms of surrender with which Germany shall comply”. To be assured of the necessary authority for any action which the Allies may wish to take, it is further stated that “the United Kingdom, the United States of America, and the Union of Soviet Socialist Republics shall possess supreme authority with respect to Germany … The Allied Representatives will present additional political, administrative, economic, financial, military and other requirements arising from the surrender of Germany”.

2. Should the Instrument of Unconditional Surrender for Japan be Contractual or Declaratory?

One of the first questions in connection with the unconditional surrender of Japan is whether the surrender instrument should be contractual or declaratory. International law recognizes contractual instruments made in accord with the law of war between commanders of opposing belligerents (armistices, capitulations) and contractual instruments made between sovereign states (treaties, conventions). A contractual instrument of either type would seem to be contrary to the conceptions of unconditional surrender because it would impose limitations upon the victor arising either from the terms of the contract or from the implication that the rights of the victor are limited to those expressed in the contract. Furthermore, if there should be no authority in Japan competent to bind that country, a contractual instrument might raise issues concerning the powers of the Japanese signatories to contract for their Government. Finally, the Secretary of State has already stated, in a telegram to London, dated March 16, 1944⁸² in connection with the German surrender instrument, that we wish to avoid any implication that a contractual relationship is involved.

As the Hague Rules of Land Warfare (Art. 35)⁸³ and the United States Rules of Land Warfare, 1940 (sees. 244–47) recognize capitulations as contractual instruments, if the instrument of unconditional surrender is a unilateral declaration by those Japanese authorities who exercise actual control over the Japanese armed forces, such an instrument would not imply a contractual relationship.

3. What Japanese Authority Should Sign the Surrender Instrument?

The Japanese constitution provides that “the Emperor has the supreme command of the Army and Navy” (Article 11), and that he “declares war, makes peace and concludes treaties” (Article 13). In all probability he would consult his highest advisers, including the Cabinet, the Privy Council and the High Command prior to signing any surrender instrument. However, the actual command of military and naval affairs and responsibility for all military operations is in the hands of the Imperial Headquarters, a body formally presided over by the Emperor and composed of the Chiefs of the Army and Navy General Staff, the Ministers of War and Navy, the Inspector General of Military Education, and the Inspector of Aviation. Consequently, the most conclusive and therefore the most desirable form of acknowledgment of unconditional surrender would be a document to that effect signed by the Emperor, and countersigned by authorized representatives of the Imperial Headquarters (the High Command) to assure recognition by the armed forces of Japan’s unconditional surrender.

If there should be no Emperor in Japan to acknowledge the unconditional surrender of Japan, or if he should refuse to sign, it follows that the highest available military authorities should sign such a document.

4. Who should Receive the Unconditional Surrender of Japan?

The next important question relating to Japan’s unconditional surrender is: Who Should Receive the Unconditional Surrender of Japan? In view of the pledge in the Declaration of the United Nations that the Governments signatory thereto would not make a separate armistice or peace with the enemy, it would seem incumbent upon whomever receives the unconditional surrender of Japan to do so on behalf of all of the United Nations at war with Japan. Furthermore, the Department of State has already recommended for Japan that:

The forces to be used for combat purposes in Japan should include, if not prejudicial to the effectiveness of military operations, units of those allied countries which have actively participated in the war against Japan. (Japan: Occupation and Military Government: Composition of Forces to Occupy Japan—PWC–111.)⁸⁴

If this policy is adopted, presumably those nations most vitally interested in the surrender of Japan would participate in the combat forces against that country. However, certain members of the United Nations at war with Japan, as, for example, the Commonwealth of the Philippines, might find it impossible, for practical reasons, to participate in the combat operations against the homeland of Japan even though they had actively participated in the war against Japan.

In view of these circumstances, the Theater Commander should be duly authorized to receive the unconditional surrender of Japan on behalf of all of the United Nations at war with Japan.

5. What Nations Should Determine the Policies and Participate in Dafting the Documents Connected with the Surrender of Japan?

An extremely important question in connection with the unconditional surrender of Japan is: What members of the United Nations should determine the policies and participate in drafting the documents connected with the surrender of Japan? The Declaration of the United Nations, signed January 1, 1942⁸⁵ by twenty-six countries at war with one or more of the Axis powers, and later adhered to by other nations, declares:

Each government pledges itself to cooperate with the governments signatory hereto and not to make a separate armistice or peace with the enemies.

Therefore, if only a limited number of nations actually formulate the instrument of unconditional surrender for Japan and the documents containing the measures to be applied by the United Nations as a consequence of this surrender, this procedure might be interpreted by the other signatory governments as counter to this pledge. Furthermore, while the Cairo Declaration of December 1, 1943 was made jointly by the heads of the Governments of the United States, Great Britain and China, the Declaration itself states that “the three Allies in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan”. The question then arises as to whether this Declaration should be interpreted to mean that these three nations alone, or these three countries together with the other United Nations at war with Japan, should be responsible for (1) determining the policies and procedures to be followed in connection with the surrender of Japan, (2) drafting the instrument of surrender for Japan, and (3) drafting the measures with which Japan must comply after surrender.

There is the further question as to whether the inclusion of the Soviet Union is dependent on its entrance in the war against Japan. The Four Nation Declaration signed at Moscow, November 1, 1943, implies that such is the case. It reads:

Those of the signatories at war with a common enemy will act together in all matters relating to the surrender and disarmament of that enemy.

The recent Anzac agreement⁸⁶ and subsequent statements of the Governments of Australia and New Zealand reflect the feeling of resentment of those countries in not having been permitted to participate in many of the basic policy decisions on the war and the peace in the Pacific. If they are not consulted on the problems bearing upon the surrender of Japan, it is probable that their resentment on this score will increase.

Here a clear distinction should be drawn between the procedure to be followed in the treatment of two different problems. First, that of obtaining the unconditional surrender of Japan, and second, that of determining and implementing the policies to be adopted by the United Nations following Japan’s unconditional surrender. As regards the first problem, since the United Nations in their joint declaration of January 1, 1942 announced “that complete victory over their enemies is essential”, it is to be assumed that each of these nations will be completely satisfied by an unconditional surrender.

As for the second problem, those countries which have actively participated in the war against Japan will have the major responsibility for carrying through whatever policies are adopted. Consequently, those countries, rather than all the United Nations at war with Japan, should determine the basic policies and procedures to be followed subsequent to Japan’s unconditional surrender. Up to the present time, military and naval operations in the Pacific Theater have been carried on almost entirely by the United States so that this Government has a primary responsibility to formulate, at the earliest possible date, the basic policies and procedures which it believes should be followed in connection with Japan’s unconditional surrender.

When this Government has determined its own policy, probably the most desirable way to reach an agreement on these matters with the other United Nations would be for the United States to present its views to the United Kingdom and China, and the Soviet Union, if it has entered the war against Japan. After a preliminary exchange of views among themselves on these matters, these countries might invite the other United Nations which have actively participated in the war against Japan also to express their views, in order to obtain the largest possible measure of agreement. After receiving their suggestions, the leading powers should formulate definitively the documents containing the basic policies and procedures and transmit these documents to the other United Nations which have actively participated in the war against Japan.

6. What Nations Should Discharge the Responsibilities and Exercise the Powers Resulting from the Unconditional Surrender of Japan?

Many of the United Nations at war with Japan will be unable to participate in combat operations against the homeland of Japan or to discharge the responsibilities arising from this unconditional surrender, such as the responsibilities connected with the military government of Japan. The Department of State has recommended that:

With the completion of military operations and after the unconditional surrender of Japan, there should be, so far as practicable, allied representation by those countries which have actively participated in the war against Japan in the army of occupation and in military government. (Japan: Occupation and Military Government: Composition of Forces to Occupy Japan—PWC–111.)

If such a policy is adopted, it is impossible to determine at the moment just what countries would be affected, but it is reasonable to assume that at least the United States, the United Kingdom, and China would be considered as having actively participated in the war against Japan. Other countries which so far are in a position to make a similar claim include Australia, New Zealand, Canada, the Netherlands and the Philippines. Additional countries having territories in the Far East which so far have not participated in the war against Japan, may at a subsequent date do so and thereby establish a claim for representation.

To be consistent with the recommendation of the Department just cited, the responsibilities resulting from unconditional surrender should be discharged, and the powers should be exercised primarily by the United States, China and the United Kingdom, and the Soviet Union, if it has entered the war against Japan, with the assistance of those United Nations which have actively participated in the war against Japan.

7. Extent of Authority to be Exercised

The Department of State has recommended the military occupation of Japan, and that adequate forces be available.

To occupy all of the prefectural capitals, other important cities and strategic areas, including divisional headquarters and industrial districts, as soon as possible after capitulation of Japan. (See: Japan: Occupation and Military Government: Extent of Occupation—PWC–110a.)⁸⁷

The unconditional surrender of Japan would make it possible for the United Nations to assume the supreme authority with respect to Japan and to exercise powers beyond those given a military occupant by international law. There would seem to be considerable advantage in the United Nations incorporating in a document or documents those measures which they intend to impose on Japan following its unconditional surrender and the general policy they expect to follow in regard to the post-war treatment of Japan.

The documents should be transmitted to the Japanese upon the receipt of their acknowledgment of unconditional surrender and should specify the initial military measures with which Japan must comply as the consequence of unconditional surrender. They should, for example, provide for military government by the United Nations in Japan and for the demobilization and disarmament of the Japanese armed forces. They should state that, in addition, the United Nations would exercise whatever political and economic functions may be necessary to achieve their objectives and that directives to that effect would be issued from time to time.

A statement of the policy of the United Nations in regard to the treatment of Japan might emphasize that: (1) The United Nations aim to destroy Japanese militarism and those forces responsible for Japanese aggression and thus to prevent Japan from again becoming a menace to world peace. (2) The United Nations have as their basic objective and ultimate aim the formation of a “Japan properly discharging its responsibilities in the family of peaceful nations”. (Japan: Postwar Objectives of the United States in Regard to Japan—PWC–108b.)⁸⁸ (3) The United Nations will, as soon as conditions in Japan permit, facilitate the establishment of a government by the Japanese people which will forward these policies. These objectives indicate that the United Nations do not intend to destroy Japan as a state or permanently to subordinate it to the United Nations.

There would be several advantages to the issuance by the United Nations of such basic documents. In the first place, if the Japanese are given some definite indication of the conditions to be imposed on Japan and if they are assured that the United Nations do not intend to destroy Japan as a state, they would be more likely to collaborate with the civil affairs administration. In the second place, the enunciation of these principles should give encouragement to whatever democratic and moderate elements still remain in Japan, as it would indicate the willingness of the occupation authorities to assist in the development of democracy in Japan. In this way, the Japanese would know what was expected of them and would know better how to work towards the reformation of their own country in line with the desires of the United Nations.

8. Special Aspects of Japanese Surrender

The “unconditional surrender” of Japan will be influenced by certain other factors which require analysis. Hostilities against Japan may continue for some time beyond those in Europe. This situation will enable the United Nations to profit from the experiences in Germany, and, where conditions are similar, to modify the procedures related to the unconditional surrender of Japan. Therefore, whatever measures are drafted at the present time should be considered tentative and subject to revision as a result of the European experience.

Even if both the highest military and civil officials in Japan proper should be willing to sign an unconditional surrender instrument, it is likely that there will be isolated contingents on the Asiatic mainland (especially in North China and Manchuria) which will refuse to recognize or abide by the decision reached by their superiors at home. Similar units may exist in isolated places within Japan. The capitulation of any such units could probably be brought about only by direct action against them rather than by continued hostilities against the main centers of Japanese resistance. If it is apparent that the highest recognized military authorities cannot exercise control over any such units the allied occupation authorities should be prepared, nevertheless, to accept the unconditional surrender of Japan in the homeland.

The probable disposition of the Japanese to fight to the end might be moderated if the leaders of the United Nations continue publicly to emphasize the following points:

1. Japan will be expected to surrender unconditionally, but the measures consequent upon this surrender will not be enforced in a spirit of vindictiveness;

2. There will be military occupation of Japan, and political controls and economic restrictions over Japan will be necessary, but these limitations will be progressively relaxed as Japanese attitudes and actions warrant.

3. The ultimate aim of the United Nations is not the destruction of Japan as a nation but the emergence of a Japan properly discharging its responsibilities in the family of nations.

9. Need for Consultation with Our Allies

In view of the importance of the various policies and procedures connected with the unconditional surrender of Japan, as outlined above, it would seem advisable for the Department of State at the earliest possible date, to present the views of this Government to the United Kingdom and China, and the Soviet Union, if it has entered the war against Japan, for their consideration and for the formulation of a common policy.

III. Recommendations

The following recommendations have been considered from the point of view of what now seem to be the most desirable policies and procedures to follow. It may be, however, that conditions both inside and outside Japan will develop in such a way that some of these policies and procedures will not be entirely applicable.

Consequently, it may be necessary to issue supplementary recommendations or to authorize the Allied Theater Commander to decide, within certain designated limits, the most desirable course to follow under the circumstances as they may exist.

It is recommended that:

1. The Emperor should proclaim that Japan has surrendered unconditionally to the United Nations at war with Japan and should command the armed forces and people of Japan to offer no opposition to any measures which the Allies may adopt. At the same time, a document acknowledging Japan’s unconditional surrender and stating that the armed forces and people of Japan have been ordered to offer no opposition to the Allies should receive the Emperor’s official signature and privy seal, should be countersigned by the highest available representatives of the Japanese High Command, and should be delivered to the Allied Theater Commander. This document will constitute the instrument of unconditional surrender of Japan.

2. The Allied Theater Commander for Japan, being duly authorized, should receive the unconditional surrender of Japan on behalf of all of the United Nations at war with Japan.

3. If the several requirements as to the acknowledgment of unconditional surrender by the Emperor are not fulfilled, the Theater Commander should be empowered to determine whether, in the light of existing circumstances, he would accept unconditional surrender of Japan by the highest military authorities of Japan or whether he would by proclamation take over supreme authority of Japan, exercise the necessary powers, and issue directives as provided in Recommendations 7, 8 and 9. In view of the political implications of such a decision, he might wish to have the question brought to the attention of the political authorities of the United Nations principally concerned.

4. In order to fulfill any obligations arising from the United Nations Declaration to the effect that they will not make a separate peace, the United States, the United Kingdom, and China, and the Soviet Union, if it has entered the war against Japan, should, at the appropriate time, inform the other United Nations at war with Japan that they intend to proceed on the basis of the provisions of Recommendation One and Two.

5. To determine the basic policies and procedures to be followed subsequent to Japan’s surrender, the United States should present its views on this subject to the United Kingdom and China, and the Soviet Union, if it has entered the war against Japan, as a preliminary step towards reaching a general agreement. These nations should then invite the other United Nations which have actively participated in the war against Japan to express their views. After receiving suggestions which may be presented, the leading powers should formulate definitively the documents containing the basic policies and procedures and transmit these documents to the other United Nations which have actively participated in the war against Japan.

6. The United States, the United Kingdom, and China, and the Soviet Union, if it has entered the war against Japan, should, with the assistance of those other countries which have actively participated in the war against Japan, exercise the powers and discharge the responsibilities resulting from the unconditional surrender of Japan.

7. Upon Japan’s unconditional surrender the Allied Theater Commander for Japan, being duly authorized, should deliver to Japan the documents referred to in Recommendation Five which would state (a) the initial military and other measures with which Japan must comply in consequence of unconditional surrender, and (b) the general policy of the United Nations in regard to the treatment of Japan.

8. These basic documents should also state, inter alia, that the Allies will provide for military government in Japan, and that in addition, they will exercise supreme legislative, judicial, and executive authority and power to be outlined in later directives.

9. The statement of general policy to be included in these basic documents should emphasize the fact that (a) The United Nations aim to destroy militarism and those forces which are responsible for Japanese aggression, but not to destroy Japan as a state; (b) The United Nations have as their basic objective and ultimate aim the emergence of a Japan properly discharging its responsibilities in the family of nations; (c) The United Nations will, as soon as conditions in Japan permit, facilitate the establishment of a government by the Japanese people which will forward these policies.

10. The Allied Theater Commander for Japan, being duly authorized, should be prepared to receive the unconditional surrender of Japan, even though certain contingents of Japanese armed forces refuse to acknowledge that surrender and continue resistance.

11. The leaders of the United Nations should, in anticipation of unconditional surrender, publicly affirm that (a) the measures consequent upon unconditional surrender will not be enforced in a vindictive spirit; (b) the necessary restrictions and controls on Japan following surrender will be progressively relaxed as Japanese attitudes and actions warrant; (c) the ultimate aim of the United Nations is not the destruction of Japan as a state but the emergence of a Japan properly discharging its responsibilities in the family of nations.

12. The Department of State should, as soon as possible, take such steps as are necessary to obtain the approval of these policies and procedures by the United Kingdom and the Republic of China, and the Soviet Union, if it has entered the war against Japan.

Originally prepared and reviewed by the Inter-Divisional Area Committee on the Far East.

Reviewed and revised by the Committee on Post-War Programs, November 10, 1944.

80. Prepared for the War and Navy Departments, which were drafting material on the subject of surrender terms.
81. Foreign Relations, The Conferences at Malta and Yalta, 1945, p. 113.
82. No. 1976 (13 EAC), printed in vol. i, under section entitled “Participation by the United States in the work of the European Advisory Commission,” part V.
83. Annex to convention IV signed October 18, 1907, Foreign Relations, 1907, pt. 2, pp. 1207, 1213.
84. March 13, p. 1202.
85. Foreign Relations, 1942, vol. i, p. 25.
86. January 21; see memorandum by the Director of the Office of Far Eastern Affairs, June 23, p. 1266, and footnote 56.
87. April 17, p. 1230.
88. May 4, p. 1235.