Foreign Relations of the United States, Diplomatic Papers, 1945, European Advisory Commission, Austria, Germany, Volume III

740.00119 EAC/4–245

Memorandum by the United Kingdom Representative on the European Advisory Commission (Strang)¹³

E.A.C. (45) 28

London, March 30, 1945.

Allied Declaration for Use in the Event of There Being No Central German Authority To Sign the Instrument of Unconditional Surrender

The Instrument of Unconditional Surrender of Germany, prepared by the Commission and approved by the United Kingdom, United States and Soviet Governments, provides for its signature by representatives of the German Government and of the German High Command.

2. During the early discussions in the Commission on the draft Instrument of Surrender, the United Kingdom Delegation suggested that it might be wise to prepare alternative drafts to meet the case in which there would be a central German authority to sign the Instrument and the case in which there would be no such authority. It was, however, decided to proceed on the assumption that there would be a German signature. The U.K. Delegation have, however, continued to hold this alternative hypothesis in mind. It is for this reason that they proposed the insertion, in the Commission’s report dated: 14th November, 1944,¹⁴ covering the Agreement on Control Machinery in Germany, of a reference to the possibility that the machinery of control might have to be adjusted to meet conditions in which there would not be a central administration in Germany; and that they have appended to the U.K. draft directives circulated to the Commission notes showing how these directives would apply in the event of the disintegration of the central German administration.

3. It now seems increasingly probable that at the moment of the final German collapse there will be no central German authority, civil or military, capable of speaking for Germany as a whole or of giving effect to the requirements of the Allies. In that event the Allies will have to dispense with any German signature to the Instrument of Surrender and will have by unilateral act to declare their terms and assume the necessary authority and powers in Germany.

4. The U.K. Delegation have therefore prepared, and now submit for consideration by the Commission, a draft Declaration (Annex A) which adapts for this purpose, for use in case of need, the Instrument of Unconditional Surrender recommended by the Commission to the United Kingdom, United States and Soviet Governments on 25th July, 1944. In the draft France has been added as a party to the Declaration. I also attach (Annex B), for the convenience of my colleagues, a list showing the places in which the draft Declaration differs from the Instrument of Surrender.¹⁵

5. A change in the title of the Instrument is necessary to meet the new hypothesis, since no formal surrender by a central German authority would in fact have taken place. Furthermore, the Preamble has been recast in order to provide at the very outset, rather than in the body of the document as is done in Article 12 (a) of the Instrument of Surrender, for the assumption by the four Allied Governments of the authority and powers which they intend to exercise in Germany and which represent indeed the authority on which the Declaration itself is based. By the Declaration the Allies assume all necessary authority and powers in respect of Germany without effecting the annexation of, or the formal acquisition of sovereignty over, Germany.

6. The articles of the Declaration follow very closely those of the Instrument of Surrender. As the Declaration rests on the assumption that there are no competent central German authorities, the references in the Instrument to “the German authorities” have either been omitted or qualified so as to designate local authorities.

7. When the draft Instrument of Surrender was under discussion in the Commission, the U.K. Delegation proposed that a provision for the surrender of war criminals should be included in it. This proposal was not accepted, on the ground that, since the German signatories might themselves prove to be war criminals, the inclusion of a provision providing for the apprehension of war criminals might make it less likely that German signatures to the Instrument would be obtainable. No such objection would apply to the inclusion of a clause about war criminals in a unilateral Declaration of the kind now in question. The U.K. Delegation therefore now propose that a provision for the surrender of war criminals should be included in the Declaration.

W[illiam] S[trang]

Annex A

Declaration made at . . . . . . . on . . . . . . . regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United Kingdom, the United States of America, and the Union of Soviet Socialist Republics and the Provisional Government of the French Republic.

The German armed forces on land, at sea and in the air have been completely defeated and Germany is no longer capable of resisting the will of the United Nations. Germany has thereby become subject to such terms and measures as may now or hereafter be imposed upon her.

There is no Government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country and compliance with the requirements of the United Nations.

It is in these circumstances necessary, without prejudice to any subsequent decisions that may be taken respecting Germany, for the United Nations to make provision for the cessation of any further hostilities on the part of the German armed forces, for the maintenance of order in Germany and for the administration of the country, and to announce the immediate terms with which Germany is required to comply.

The Representatives of the Supreme Commands of the United Kingdom, the United States of America, the Union of Soviet Socialist Republics and the French Republic, hereinafter, called the “Allied Representatives,” acting by authority of their respective Governments and in the interests of the United Nations, accordingly make the following Declaration:—

The Governments of the United Kingdom, the United States of America, the Union of Soviet Socialist Republics and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany.

The Governments of the United Kingdom, the United States of America, the Union of Soviet Socialist Republics and the Provisional Government of the French Republic will hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being part of German territory.

In virtue of the said authority and powers the Allied Representatives issue the following instructions with which Germany shall comply:—

Article 1

Germany will forthwith cease all hostilities against the forces of the United Nations on land, at sea and in the air.

Article 2

(a) All armed forces of Germany or under German control, wherever they may be situated, including land, air, anti-aircraft and naval forces, the S.S.,¹⁶ S.A.¹⁷ and Gestapo,¹⁸ and all other forces or auxiliary organisations equipped with weapons, will be completely disarmed, handing over their weapons and equipment to local Allied Commanders or to officers designated by the Allied Representatives.

(b) The personnel of the formations and units of all the forces referred to in paragraph (a) above shall, at the discretion of the Commander-in-Chief of the Armed Forces of the Allied State concerned, be declared to be prisoners of war, pending further decisions, and shall be subject to such conditions and directions as may be prescribed by the respective Allied Representatives.

(c) All forces referred to in paragraph (a) above, wherever they may be, will remain in their present positions pending instructions from the Allied Representatives.

(d) Evacuation by the said forces of all territories outside the frontiers of Germany as they existed on the 31st December, 1937, will proceed according to instructions to be given by the Allied Representatives.

(e) Detachments of civil police to be armed with small arms only, for the maintenance of order and for guard duties, will be designated by the Allied Representatives.

Article 3

(a) All aircraft of any kind or nationality in Germany or German-occupied or controlled territories or waters, military, naval or civil, other than aircraft in the service of the Allies, will remain on the ground, on the water or aboard ships pending further instructions.

(b) All German or German-controlled aircraft in or over territories or waters not occupied or controlled by Germany will proceed to Germany or to such other place or places as may be specified by the Allied Representatives.

Article 4

(a) All German or German-controlled naval vessels, surface and submarine, auxiliary naval craft, and merchant and other shipping, wherever such vessels may be at the time of this Declaration, and all other merchant ships of whatever nationality in German ports, will remain in or proceed immediately to ports and bases as specified by the Allied Representatives. The crews of such vessels will remain on board pending further instructions.

(b) All ships and vessels of the United Nations, whether or not title has been transferred as the result of prize court or other proceedings, which are at the disposal of Germany or under German control at the time of this Declaration, will proceed at the dates and to the ports or bases specified by the Allied Representatives.

Article 5

(a) All or any of the following articles in the possession of the German armed forces or under German control or at German disposal will be held intact and in good condition at the disposal of the Allied Representatives, for such purposes and at such times and places as they may prescribe—

(i) all arms, ammunition, explosives, military equipment, stores and supplies and other implements of war of all kinds and all other war material;

(ii) all naval vessels of all classes, both surface and submarine, auxiliary naval craft and all merchant shipping, whether afloat, under repair or construction, built or building;

(iii) all aircraft of all kinds, aviation and anti-aircraft equipment and devices;

(iv) all transportation and communications facilities and equipment, by land, water or air;

(v) all military installations and establishments, including airfields, seaplane bases, ports and naval bases, storage depots, permanent and temporary land and coast fortifications, fortresses and other fortified areas, together with plans and drawings of all such fortifications, installations and establishments;

(vi) all factories, plants, shops, research institutions, laboratories, testing stations, technical data, patents, plans, drawings and inventions, designed or intended to produce or to facilitate the production or use of the articles, materials and facilities referred to in subparagraphs (i), (ii), (iii), (iv) and (v) above or otherwise to further the conduct of war.

(b) At the demand of the Allied Representatives the following will be furnished:—

(i) the labour, services and plant required for the maintenance or operation of any of the six categories mentioned in paragraph (a) above; and

(ii) any information or records that may be required by the Allied Representatives in connection with the same.

(c) At the demand of the Allied Representatives all facilities will be provided for the movement of Allied troops and agencies, their equipment and supplies, on the railways, roads and other land communications or by sea, river or air. All means of transportation will be maintained in good order and repair, and the labour, services and plant necessary therefor will be furnished.

Article 6

(a) The German authorities concerned will release to the Allied Representatives, in accordance with the procedure to be laid down by them, all prisoners of war at present in their power, belonging to the forces of the United Nations, and will furnish full lists of these persons, indicating the places of their detention in Germany or territory occupied by Germany. Pending the release of such prisoners of war, the said German authorities will protect them in their persons and property and provide them with adequate food, clothing, shelter, medical attention and money in accordance with their rank or official position.

(b) The German authorities concerned will in like manner provide for and release all other nationals of the United Nations who are confined, interned or otherwise under restraint, and all other persons who may be confined, interned or otherwise under restraint for political reasons or as a result of any Nazi action, law or regulation which discriminates on the ground of race, colour, creed or political belief.

(c) Without prejudice to the foregoing provisions of this Article the German authorities concerned will hand over control of the places of detention there mentioned to such officers as may be designated for the purpose by the Allied Representatives.

Article 7

The German authorities concerned will furnish to the Allied Representatives:—

(a) full information regarding the forces referred to in Article 2 (a), and, in particular, will furnish forthwith all information which the Allied Representatives may require concerning the numbers, locations and dispositions of such forces, whether located inside or outside Germany;

(b) complete and detailed information concerning mines, minefields and other obstacles to movement by land, sea or air, and the safety lanes in connection therewith. All such safety lanes will be kept open and clearly marked; all mines, minefields and other dangerous obstacles will as far as possible be rendered safe, and all aids to navigation will be reinstated. Unarmed German military and civilian personnel with the necessary equipment will be made available and utilised for the above purposes and for the removal of mines, minefields and other obstacles as directed by the Allied Representatives.

Article 8

There shall be no destruction, removal, concealment, transfer or Scuttling of, or damage to, any military, naval, air, shipping, port, industrial and other like property and facilities and all records and archives, wherever they may be situated, except as may be directed by the Allied Representatives.

Article 9

Pending the institution of control by the Allied Representatives over all means of communication, all radio and telecommunication installations and other forms of wire or wireless communications, whether ashore or, afloat, under German control, will cease transmission except as directed by the Allied Representatives.

Article 10

The forces, nationals, ships, aircraft, military equipment, and other property in Germany or in German control or service or at German disposal, of any other country at war with any of the Allies, will be subject to the provisions of this Declaration and of any proclamations, orders, ordinances or instructions issued thereunder.

Article 11

The Allied Representatives will station forces and civil agencies in any or all parts of Germany as they may determine.

Article 12

(a) The Allied Representatives will take such steps, including the complete disarmament and demilitarisation of Germany, as they deem requisite for future peace and security.

(b) The Allied Representatives will impose additional political, administrative, economic, financial, military and other requirements arising from the defeat of Germany. The Allied Representatives, or persons or agencies duly designated to act on their authority, will issue proclamations, orders, ordinances and instructions for the purpose of laying down such additional requirements, and of giving effect to the other provisions of this Declaration. All German authorities and the German people shall carry out unconditionally the requirements of the Allied Representatives, and shall fully comply with all such proclamations, orders, ordinances and instructions.

Article 13

This Declaration enters into force and effect immediately. In the event of failure on the part of the German authorities or people promptly and completely to fulfil their obligations hereby or hereafter imposed, the Allied Representatives will take whatever action may be deemed by them to be appropriate under the circumstances.

(Date and year.)

(Place.)

(Hours—Central European Time.)

Signed by the Allied Representatives:

(Name)	(Title)
(Name)	(Title)
(Name)	(Title)
(Name)	(Title)

13. Transmitted to the Department in despatch 22112, April 2, from London; received April 7. In the course of a telephone conversation with Philip Mosely on March 29, Strang noted that in preparing this draft declaration, he had based it on the text of the Surrender Instrument of July 25, 1944, omitting the word “dismemberment” which had been added in article 12 at the Yalta Conference (Mosely File)
14. Foreign Relations, 1944, vol. i, p. 404
15. Annex B not printed
16. Schutzstaffel, elite corps of the Nationalsozialistische Deutsche Arbeiter-partei (National Socialist German Workers Party), used for military and police purposes
17. Sturmabteilung, Storm Troops of the Nationalsozialistische Deutsche Arbei-terpartei
18. Geheime Staatspolizei, German Secret State Police