McCloy Documents: Lot 58 M 27
Policy Directive for the United States High Commissioner for Germany ( McCloy )1
1. Purpose of This Directive
This directive is a statement of the objectives and policies of the United States with respect to Germany, for your guidance in performing the duties of United States High Commissioner for Germany. The directive will supersede the directive of July 11, 1947,3 to the Commander-in-Chief of the United States forces of occupation regarding the Military Government of Germany and will remain in force until circumstances require its amendment. Questions of administration and of your relations with the American Military Commander and with the American representative on the International Authority for the Ruhr are covered in the letter of ____________,4 1949, to you from the Secretary of State.
2. United States Political Objectives in Regard to Germany
The German people should be enabled to develop their political independence along democratic lines in close association with the free peoples of Western Europe. They should be fully integrated into the common structure of a free Europe, to share in due time as equals in its obligations, its economic benefits, and its security.[Page 320]
It is essential that Germany should not again be permitted to develop political conditions or a military potential which might threaten the independence of other nations or the peace of the world. One of the best guarantees of security from a political standpoint is seen in the development of a closely-knit Western European community including Germany; you should, accordingly, foster the closest ties between the German Government and the other states of Western Europe, and encourage the Germans to take an increasingly active part in the political and economic organization of free Europe.
Subject to these considerations, the German people should be accorded the fullest possible freedom to shape their democratic future. The restraints imposed upon German freedom of action by the Occupation Statute5 are considered essential to the further realization of United States purposes in Germany. They represent a minimum of control without which the interests of the European community cannot be adequately safeguarded. They are not designed, however, to hamper the legitimate development of German political, economic and cultural life, nor to authorize the imposition of alien patterns of thought or behavior upon the Germans.
You should observe closely all political trends and developments with a view to taking such action as may be possible and proper under the terms of the Occupation Statute to prevent the resurgence of ultra-nationalistic or anti-democratic groups or ideas. You will give support and encouragement to the democratic political forces of Germany to the end that Germany may play a constructive role in European life. You should seek to facilitate personal contacts and exchange of ideas between German leaders in all fields of public activity and those of other democratic countries.
So long as Germany remains politically divided, your primary concern will be with the development of the Federal Republic of Germany. You will, however, do what may be possible to mitigate the effects of such division and to normalize relationships between Eastern and Western Germany through consultations among representatives of the four occupying powers and German officials. You will join with the other High Commissioners in supporting all constructive [Page 321] efforts toward the unification on a democratic and federal basis of all parts of Germany now under occupation, and in assisting the Federal Republic toward this end. You should pay particular attention to political and economic developments in Eastern Germany and their impact on the Federal Republic of Germany.
It is the special belief of your Government that Berlin, because of the courageous devotion to democratic liberties which its people have displayed, should be permitted to play an important role in the development of the Federal Republic of Germany.
3. Jurisdiction of the Allied High Commission and the High Commissioners
Although the occupying powers have retained supreme authority in Germany, it is their intention to restrict the exercise of this authority in accordance with the terms of the Occupation Statute. The Statute defines the broadest limits within which the Allied High Commission will ordinarily operate. The principle and procedures governing the exercise of the High Commission’s powers and responsibilities will be those agreed upon by the American, British, and French Governments in Washington on April 8, 1949, and embodied in the Charter of the High Commission signed at Paris on June 20, 1949.6
The powers of the individual High Commissioners and the principles governing the exercise of their powers are likewise defined by the Occupation Statute and the agreements mentioned above. Matters for which the High Commissioners are separately responsible to their governments are specified in the Commission’s Charter, but Allied policies should, in general, be carried out as far as possible by tripartite action, rather than by the individual Commissioners.
The zonal boundaries should have no other effect than to delimit the spheres of authority and responsibility of the individual High Commissioners and to define the location of occupation troops. You should make every effort to ensure that the policies and actions of the individual High Commissioners are consistent with those of the Commission [Page 322] and of one another, and you should support those policies in the High Commission which will facilitate the free movement within Western Germany of persons, goods, information, and other traffic, except for such restrictions as may be required for security reasons or for the maintenance, in frontier areas, of effective control of movements across the borders of the Federal state.
In the Western sectors of Berlin, and particularly in the United States sector, you will exercise powers corresponding to your powers in the Western zones of occupation, and in the United States zone. You will be guided by the policies expressed in this directive, and by the Statement of Principles Governing the Relationship between the Allied Kommandatura and Greater Berlin.7
4. Relations With the German Authorities
In accordance with the Washington agreements of April 8, 1949,8 and the Commission’s Charter, the High Commission and the individual Commissioners are to act mainly in a supervisory capacity. You will, therefore, encourage the maximum exercise of governmental authority by the Federal Republic and the various Laender, and will seek to limit intervention in German governmental affairs to the minimum deemed essential within the terms of the Occupation Statute. You will, so far as practicable, deal only with the highest Federal or Land authorities and see that instructions from yourself or the Commission are issued only to them.
It is to be expected that some differences of opinion will arise between the German authorities and the High Commission on such fundamental questions as the scope of the Commission’s powers, or the interpretation of the Occupation Statute and the several international agreements relating to Germany. Such problems should be fully considered with the Germans, and there might even be established some formal or systematic method of dealing with these matters. However, as supreme authority is retained by the occupying nations, the ultimate power to decide these questions will remain with them.[Page 323]
5. United States Economic Objectives in Regard to Germany
The United States Government, together with the French and British Governments, has established a basic framework for the development by the German people of a peaceful, self-supporting state, which will provide an adequate and rising standard of living, make its full contribution to the successful accomplishment of the European Recovery Program, and assist in the development of an integrated economy in Europe. This framework is provided by a series of international agreements which give the German people and a government of their choice the opportunity to achieve these objectives, subject to certain controls and obligations which are essential for security or necessary to prevent the improper use of German economic resources. It is your task as United States High Commissioner, individually and by your participation in the High Commission, as well as in your capacity as representative of the Economic Cooperation Administration, to facilitate and encourage responsible policy-making and effective administration by the German Government in the economic field.
The United States is giving substantial support to the European Recovery Program, and as it representative in Germany you will use your best efforts to obtain the fullest coordination of German efforts with those of other countries participating in that Program. It is your Government’s desire that the objectives of German economic recovery be considered in the light of the cooperative efforts being made in Europe. By consultation with the Special Representative of the Economic Cooperation Administrator at Paris, and when necessary by reference to the United States Government, you should endeavor to resolve problems arising from divergent points of view or interests with respect to recovery or aspects of production and trade in a manner which will contribute best to general recovery. Specifically, it is the desire of your Government that the following economic and financial objectives should be achieved and maintained:
(a) German agricultural and industrial production and trade programs for the area as a whole which minimize the need for extraordinary foreign assistance and are designed to eliminate this need by the end of the European Recovery Program.
(b) German production and trade programs which are designed to permit Germany to provide for other countries participating in the [Page 324] European Recovery Program those goods and services which she is best equipped by natural resources or skills to produce, and to import from her neighbors those which she requires and they can best produce.
(c) Policies and practices respecting German foreign trade and foreign exchange which are consistent with the provisions of the General Agreement on Tariffs and Trade, the Charter of the International Trade Organization, and the Articles of Agreement of the International Monetary Fund, and are designed to assist the development of trade and payment schemes of the Organization for European Economic Cooperation.
(d) Policies and practices regarding German production, trade, finance, internal distribution, and investment, including foreign investment, which are designed to maximize production, especially for export, and thus to contribute to the attainment and maintenance of a high level of employment, social stability, and the minimization of the need of foreign assistance.
(e) The adoption of exchange rate arrangements consistent with those of other members of the Organization for European Economic Cooperation with a view to the establishment and maintenance of a valid general rate of exchange for the Deutsche Mark.
(f) The establishment and maintenance of internal financial stability with the help of appropriate policies in public finance, the banking system, and in the employment of counterpart funds derived from aid to Germany, including adequate coordination of the policies of the bank of issue with those of the Federal Government.
(g) Participation by Germany in the expansion of world trade on a multilateral and non-discriminatory basis. The United States Government has taken the lead in seeking such expansion, acting on the conviction that the progressive reduction of trade barriers and the progessive relaxation of discriminatory trade restrictions will contribute to the growth of world trade and to the well being and economic development of the world and the individual trading countries. The adherence by Germany of these policies is an important objective of United States policy respecting Germany.
You should seek full participation by Germany in international programs designed to achieve the foregoing purposes, including the eventual participation by Germany in the General Agreement on Tariffs and Trade and, when established, the International Trade Organization.[Page 325]
On such aspects of these and other matters as bear upon the European Recovery Program, you will, of course, receive instructions from time to time from the Economic Cooperation Administration.
6. Powers and Responsibilities Under the Occupation Statute
A. Powers Expressly Reserved
In the fields reserved by the Occupation Statute, the High Commission may legislate and take direct action itself, but any exercise of direct power, aside from security matters, should be regarded as temporary and self-liquidating in nature. The Commission may also issue instructions to the German authorities, including both Federal and local officials, regarding action to be taken by them in the reserved fields. In addition, the Commission may nullify any action taken by the Germans in the reserved fields, or disapprove any action which they are about to take in those fields. The extent to which the High Commission will exercise its powers in any one of the fields reserved to it will depend on many factors still unknown. Accordingly, the scope of Allied action in the reserved fields will be left to your discretion, subject to the principles expressed in this directive and to any later instructions that may be given you. You should report to your Government when in your opinion any of the powers now reserved in the Occupation Statute should be transferred to the administration of the German authorities.
The comments immediately following are for your guidance in determining what action should be taken in each of the reserved fields.
(1) Disarmament and demilitarization, including related fields of scientific research. The policy of your Government in this field is to keep Germany deprived of the means of waging war, so that the country will not be a threat to the independence of other nations or to the peace of the world. To this end the High Commission must maintain an effective system of disarmament control and inspection to be exercised through the Military Security Board. While the policy of the United States is to prevent the formation of para-military units in any part of Germany, it is not intended to preclude the maintenance of bona fide police forces sufficient to preserve order within the boundaries of the Federal Republic and to enforce observance of the High Commission’s decisions, the Basic Law, the Land constitutions, and other [Page 326] legislation. However, these functions should be performed by the Land and local police, and the Federal police should be kept to the minimum number needed to control the movement of persons and goods across the frontiers of the Federal state; to collect and disseminate police information and statistics; to coordinate the investigation of violations of Federal laws; and to enforce international conventions such as those relating to narcotics and travel.
(2) Prohibitions and restrictions on industry. It is contemplated that the High Commission will enact legislation and take such decisions as are required under the Agreement concerning Prohibited and Limited Industries of April 1949,9 acting, when appropriate, on the advice of the Military Security Board.
(3) Civil Aviation. It is the object of United States policy to prevent the development of German aviation which could become, directly or indirectly, a threat to the peace, without barring the establishment of minimum civil air service for Germany by airlines of other nations. Because of the close connection between civil and military aviation, German nationals should not be allowed to manufacture, import or operate any aircraft, though they may engage in ground or other civil aviation activities under such conditions as the High Commission may authorize. The High Commission should retain for itself the authority to determine the terms and conditions upon which civil aircraft are permitted to enter, depart from, and operate within the German Republic.
It is not contemplated that the German Government will take part in any international activities, agreements, or organizations, even of a technical nature, which have to do with civil aviation.
(4) Controls in regard to the Ruhr, restitution, reparations, decartelization, deconcentration, non-discrimination in trade matters, foreign interests in Germany and claims against Germany. These require in varying degrees the exercise of authority by the High Commission or by the individual High Commissioners. In general, the objectives in these fields should be effected by completing existing programs, as in the case of reparations and restitution, or by enacting, or having the [Page 327] Germans enact, appropriate legislation in these fields subject to definitive action in a peace settlement.
(a) The Commission should facilitate the operation of the International Authority for the Ruhr by enacting legislation as required, and by cooperating to the fullest extent with the Authority in its work.
(b) With respect to external restitution, you should return identifiable looted property, other than gold and rolling stock, to the government of the country from which it was taken, with the exception of property claimed independently by non-nationals or refugee nationals of claimant countries, under the existing operating instructions of your Government. You should also: (1) endeavor to obtain tripartite agreement on a date, preferably not later than September 30, 1950, for the termination of all restitution activities (other than special cases of materials important to the cultural heritage of the claimant country); (2) deliver monetary gold uncovered in Germany to the Tripartite Gold Commission in Brussels pursuant to existing international agreements; (3) effect the disposition of non-German rolling stock found in Germany at the end of the war in accordance with applicable agreements and such instructions as may be issued as the need arises; (4) pursuant to existing agreements, deliver to the appropriate agency valuable personal property looted from Nazi victims which is not restitutable.
(c) With respect to internal restitution, it is the policy of your Government that persons and organizations deprived of their property as a result of National Socialist racial, religious, or political discrimination should either have identifiable property returned to them or be compensated therefor, and that heirless and unclaimed property subject to internal restitution should devolve to appropriate successor organizations. To carry out this policy, you should seek agreement from your British and French colleagues to persuade the German Government to enact without delay a Uniform Internal Restitution Law, which should grant to claimants, to the greatest possible extent, all substantive rights now available to them under United States Military Government Law No. 59.10 The German Federal Government or, in its discretion, the Land governments should be responsible for the execution and administration of the Law, subject to review by non-German appellate Tribunals. These Tribunals would be the supreme appellate authority for cases arising under the Law; they should be appointed by the Allied High Commissioners and should act by majority vote. Until the Law becomes effective, the Land governments should continue to execute existing military government restitution laws, subject to minimum necessary policy control and supervision as presently exercised by the occupation authorities.[Page 328]
Closely related to the problem of restitution is the problem of indemnification of persons who suffered personal damage or injury through national Socialist persecution because of racial, religious or ideological reasons. It is the policy of the United States Government that these persons should receive indemnification in German currency for such injury or damage. The Laenderrat of the United States Zone have recently promulgated legislation of this nature. Together with your British and French colleagues you should urge the German Federal Government to enact appropriate legislation in this field.
d. You should complete the dismantling and delivery of industrial equipment scheduled for reparation at the earliest practicable time.
e. With regard to decartelization and deconcentration, it is the policy of your Government that the German economy be liberated from undesirable restraints and restrictions in order to promote economic opportunity for its citizens and the establishment of a peaceful, free and democratic economy and society. This policy envisages the elimination and prohibition of all cartels and cartel-like organizations and arrangements, and of undesirable concentrations of power in German private industry, which represent an actual or potential restraint of trade or may dominate or substantially influence the policies of governmental agencies. This involves the dissolution of excessive concentrations of economic power established through such devices as combines, mergers, holding companies and interlocking directorates, and the prohibition of participation in international cartels and cartel-like organizations and arrangements by private or state-owned enterprises.
It is the view of your Government that responsibility for execution of this policy should be placed on the German Federal Government at the earliest time when, in your judgment, it can exercise such responsibility. Thereafter, Allied intervention should be limited to exceptional cases. The success of the German Federal Government in carrying out this policy depends largely upon the extent to which it is supported by the German people and their leaders.
To promote this policy, you should (1) complete as rapidly as possible the specific programs now in, process and turn over the residual phases to the German authorities; (2) endeavor to develop understanding and support of the policy among the German people and officials through the reeducation and reorientation program; (3) endeavor to obtain adoption by the German Government of appropriate legislation to replace the present Military Government laws on this subject, together with preservation and enforcement of these laws until the legislation has been adopted by the Germans; (4) prepare [Page 329] on a tripartite basis, with German assistance, a list of concerns which the Germans should be encouraged to examine for possible deconcentration; (5) assist the Germans in devising their own financing procedures to insure that deconcentrated firms are established on a sound, independent financial basis.
You should permit the formation and functioning of cooperatives provided that they are voluntary in membership and are organized along democratic lines and do not engage in activities prohibited under the above policy.
This policy should not be interpreted as prohibiting governmental regulation of prices or the existence of monopolies in fields where competition is impracticable, provided they are subject to governmental regulation, nor should it be interpreted as prohibiting state-owned enterprises. The choice for or against the public ownership of any business enterprise or industry is a matter for decision by the German people, and this decision should be made freely through the normal processes of democratic government. Measures of public ownership should not be applied to foreign-owned property unless satisfactory arrangements have been made for the compensation of the foreign owners.
f. It is your Government’s policy to seek non-discrimination in world trade. However, it is recognized that during the period in which Germany’s balance of payments is in substantial disequilibrium Germany will, like other countries in the Organization for European Economic Cooperation, find it necessary to restrict imports from certain sources. Such restrictions should be limited to those which, in accordance with the provisions of the International Trade Organization and the General Agreement on Tariffs and Trade, would least prejudice a return to non-discriminatory trade. It is the view of your Government that the High Commission should exercise its powers in this matter by general advice, unless it appears that only direct intervention will eliminate important and unwarranted discrimination.
g. With respect to foreign interests in Germany, you should act in accordance with the positions taken by your Government on the recommendations of the Intergovernmental Working Group on the Protection of Foreign Interests in Germany, and you should continue to ensure the protection of foreign interests insofar as they may be affected by German administration or new legislation.
h. You should ensure that the German Federal Government and the Laender take no action to settle, or any action which might impair the value of claims of the United States and other governments, and of nationals of those countries, against Germany and German nationals except as may be authorized by the High Commission.[Page 330]
(5) Foreign affairs, including international agreements made by or on behalf of Germany. The Federal Republic of Germany should be granted autonomy in international affairs, as soon as it can be depended upon to follow policies which will not threaten the independence and security of any other nation nor prejudice the peace of the world. You will accordingly favor the progressive transfer of powers in the international field to the Federal Government, subject at all times to the ultimate supervision of the Government’s activities by the Commission. In effect, the degree of authority in foreign affairs which is given to the Germans will depend upon the degree of confidence that can be reposed in them.
For the time being, the German Government should not be allowed diplomatic representation abroad; instead, the Commission will itself conduct those affairs which are customarily handled by diplomatic agencies. Foreign diplomatic representatives (or their equivalent) in Germany will be accredited to the High Commission, but may deal directly with the Germans to whatever extent the Commission may authorize. The Germans should, however, be allowed to continue the practice of sending representatives to Washington and Paris to deal with matters concerning the Economic Cooperation Administration and the Organization for European Economic Cooperation. They should be permitted to negotiate and conclude trade and payments agreements with foreign countries, and to have economic missions abroad. They should also be allowed to send abroad representatives of their own to perform all usual consular and trade promotion functions, and such representatives should preferably be designated consuls. These representatives should not take such action, or make such pronouncements of policy, or otherwise undertake to represent the German Government in such a manner as to become the equivalent of diplomatic representatives before the latter may be authorized.
In general, the German Federal Government should be permitted, subject to the approval of the High Commission, to join or become associated with international organizations, negotiate international agreements, accede to international conventions, and participate in international conferences, provided they are of an economic, financial, or technical nature.[Page 331]
The power over foreign affairs includes regulation of the movement of persons across frontiers, and the High Commission will accordingly have authority in such matters as travel control and extradition. Initially, international travel documents should be issued in the name of the High Commission, and policies concerning travel should be formulated by it, but the personnel working in this field should be mostly German nationals, and the entire subject should be handed over to the German Government (and the documents issued in its name) when circumstances permit. The general question of extradition is not covered in this directive, but may be the subject of later instructions to you if the need arises. However, in the American and British zones of occupation, the current policy has been to permit the extradition of persons wanted by other countries for trial as war criminals only in certain exceptional cases, and not to permit at all the extradition of persons wanted for trial as traitors or collaborators, unless the requests for extradition and supporting evidence were received before a certain date. This policy should be continued.
(6) Displaced Persons and the Admission of Refugees
(a) You will be responsible for implementing in Germany United States policies with respect to displaced persons, using that term to include all persons eligible for assistance under the International Refugee Organization (IRO) Constitution whether classified in that Constitution as “Displaced Persons” or “Refugees.” The major policies are: (1) To protect displaced persons within Germany in their freedom of choice to return or not to return to their countries of origin and to assure them freedom from discriminatory treatment while they remain in Germany. This should include immunity from German criminal courts. (2) To permit, to the extent practicable, the admission to Germany of such persons who seek asylum from racial, religious or political persecution. (3) In cooperation with IRO, to effect the earliest possible resettlement in other countries of those unwilling to be repatriated, the return to their country of origin of those choosing repatriation, and the integration into the German economy of those not willing to be repatriated who cannot qualify for resettlement in other countries. (4) To turn over to IRO operational responsibility for functions relating to the identification, determination of IRO eligibility, care and maintenance, repatriation and resettlement of displaced persons, in accordance with the provisions of the existing CINCEUR–IRO Agreement dated July 28, 1948,11 or as they may be [Page 332] subsequently included in agreements to be made by IRO with the German Government or the High Commission. (5) To furnish generous and effective assistance and cooperation to the Displaced Persons Commission in processing displaced persons for emigration to the United States. (6) To assure provision by the German Government without cost to the United States Government or IRO of basic rations and other supplies and services for displaced persons as presently provided in the CINCEUR–IRO Agreement, or in any subsequent agreements. (7) Consistently with security interests, to accord entry to recruitment missions from countries receiving displaced persons in resettlement.
(b) In carrying out the foregoing policies you will take appropriate measures with the German Government and IRO to secure adequate organization and coordination of services to displaced persons.
(c) Under the provisions of the Occupation Statute, responsibility for the problem of German refugees, (i.e. expellees and other ethnic German refugees not under IRO mandate), except as to their admission to Germany, remains with the German Government. However, it is a matter of continuing interest to the United States Government that the German Government take effective steps to assimilate these persons progressively into the German community as German citizens, and you should in your discretion work closely with the German Government to achieve that purpose. You will discourage the further admission of large numbers of German refugees except for individuals seeking genuine political asylum.
(d) Under the provisions of the Occupation Statute non-German refugees not under IRO mandate and not assimilated in the German economy remain the responsibility of the German Republic. You will, in your discretion, cooperate with the German Government for their voluntary repatriation to countries of origin, resettlement in other countries, or establishment in Germany as alien residents.
(7) Protection, prestige, and security of Allied forces, dependents, employees, and representatives, their immunities and satisfaction of occupation costs, and their other requirements. The protection and security of American personnel in Germany are matters for which either you or the American Military Commander are responsible, rather than the High Commission. The persons for whom you are responsible are members of your staff; members of the armed services employed by or detailed to you; civilian representatives and employees of the United States Government who are present in Germany in an official capacity; and relatives and dependents accompanying them.[Page 333]
The prestige of American personnel is not a subject on which you need instructions, or with reference to which you will be expected to take any action, except in some unusual case.
The persons subject to your jurisdiction, as well as those subject to the jurisdiction of the Military Commander, will have substantial immunities from German governmental authority. These immunities will be at least as extensive as the rights and privileges customarily accorded by one country to the diplomatic representatives of another, and may appropriately be more extensive; they must be the same for both military and civilian personnel. According to Article V, paragraph 5 (b) of the Charter of the Allied High Commission, the immunities of occupation personnel are a subject for which the individual Commissioners are responsible to their governments, but it is the American view that nationals of the three occupying powers should have the same immunities, and you should work with the other Commissioners toward this objective.
When British and French occupation personnel are in the American zone, you will be responsible for their protection, security, and immunities from German jurisdiction, and for the satisfaction of their requirements. With regard to nationals of the United States who are present in Germany, but have no official connection with the occupation, you will perform those services and functions which are customary on the part of the American Chief of Mission in a foreign country. You will ensure the satisfaction of the requirements of American military and civilian personnel associated with the occupation for housing, food, and other facilities and services while they are living in Germany.
The payment of occupation costs is a matter for tripartite action, and must be handled by the Commission, with the Federal Government, not with the Laender. The Commission should not concern itself with the apportionment of occupation costs among the Laender nor with the question whether the funds to meet these costs are raised by the Federal or Laender authorities, but leave these problems to be decided by the Germans.[Page 334]
(8) Respect for the Basic Law and the Land Constitutions. The enforcement of their own Basic Law and constitutions is essentially a matter for the Germans, and the Commissioners should take action to ensure observance of the Basic Law and constitutions only if the responsible German authorities fail to do so.
(9) Control over foreign trade and exchange. This control shall be maintained by requiring that appropriate procedures be set up and enforced by German authorities to prevent the dissipation of exports or export proceeds, or the unauthorized movement of capital from Germany, and by such action as may be required to develop German foreign trade in harmony with the economic objectives set forth in Section 5 of this directive. It is the view of your Government that the High Commission should exercise its powers in these matters by general advice to the greatest extent consistent with the reasonable achievement of these objectives. When the Federal Republic of Germany becomes a member of the Organization for European Economic Cooperation and signs a bilateral Economic Cooperation Agreement with the United States, you should work out with the other High Commissioners means of appropriately modifying the functions of the High Commission in accordance with the Charter.
(10) Control over internal action, only to the minimum extent necessary to ensure use of funds, food and other supplies in such manner as to reduce to a minimum the need for external assistance to Germany. In pursuit of the aims of the European Recovery Program, the German authorities should themselves ensure the appropriate use of German resources to obtain the objectives sought in connection with the reservation of this power. The obligation of the German Federal Government to do this should be sufficient to ensure that the necessary action is taken by the Federal and Land authorities. It is contemplated, therefore, that direct action on the part of the High Commission will not be necessary except in unusual circumstances.
(11) Control of the care and treatment in German prisons of persons charged before or sentenced by the courts or tribunals of the occupying powers or occupation authorities; over the carrying out of [Page 335] sentences imposed on them; and over questions of amnesty, pardon or release in relation to them.
Members of the occupation forces, civilian representatives or employees of the occupying powers, and relatives and dependents accompanying them who are under arrest or sentence will be confined in prisons or suitable places of detention under your jurisdiction or that of the Military Commander. They will not be confined in prisons under German management or operation.
War criminals convicted by the International Military Tribunal will continue to be confined in prison under quadripartite control. All other war criminals in the United States zone will continue to be confined in prisons under United States control, except that they should, as soon as practicable, be transferred to German custody under your supervision.
All other persons convicted by Military Government courts or by courts maintained by you, or held for trial before courts maintained by you, may also be held in German custody under your supervision.
You will ensure that all the persons mentioned above are treated without discrimination, under adequate security, with firm but fair discipline, and that they are treated in a humane manner. You will see that sentences are carried out either in accordance with their original terms or as modified, and will encourage the rehabilitation and reformation of offenders. Final decision on matters concerning amnesty, pardon, clemency, parole, or release shall not be delegated to the German authorities.
In collaboration with the American Military Commander, you should undertake a review of sentences imposed in war crimes cases, in order to eliminate any wide disparities that may be found to exist among sentences for comparable crimes; to ensure that the punishment is reasonable for the offense; and to establish uniform standards for amnesty, pardon, clemency, parole, or release. A joint program for these purposes in all three zones is also desirable and should be undertaken to the extent you find practicable. Such a program might, in your discretion, be extended to include all sentences imposed by occupation courts or tribunals, except upon occupation personnel.[Page 336]
The American program for the trial of war criminals has been completed, and it should not be necessary to conduct further trials of this character in the occupation courts of your zone. The extent to which such trials should be held in German courts may become a matter for the discretion of the Commission.
B. Related Powers and Responsibilities
(1) With the devolution of responsibility and power to the Germans, it becomes both more important and more difficult for the occupying powers to keep fully informed of German activities. You should, therefore, ensure that the right given the High Commission in the Occupation Statute “to request and verify information and statistics” will be exercised to require full and prompt disclosure of all facts bearing on the fulfillment of your Government’s objectives.
(2) The High Commission’s powers in the reserved fields include the power to enforce observance by the Federal or Land governments, or by the Germans individually, of any policies, regulations, or instructions of the Commission in these fields. It is preferable that enforcement measures be carried out by the German authorities, but if the German authorities fail to carry out such measures effectively, then the Commission should not hesitate to take whatever action may be necessary in any part of the Federal Republic to enforce its own decisions. To make this power effective, the Commission will be represented in each of the Laender by an Allied Land Commissioner, as provided in Article IV of the Commission’s Charter.
(3) The power to enforce compliance with the policies and decisions of the High Commission includes the power to try Germans and others charged with offenses against Allied or German legislation in the fields reserved by the Occupation Statute. You will maintain courts in your zone for the trial of such cases. The German courts, however, will have concurrent jurisdiction over certain of the same cases, and you will accordingly have to determine, preferably with the other Commissioners, the extent to which the jurisdiction of Allied courts, rather than German courts, should be exercised for the successful enforcement of Allied policies. You also have the power to set aside the decisions of [Page 337] German courts affecting matters in the reserved fields, and to require the transfer of such cases from German to Allied jurisdiction, but this power should be sparingly used, in order to avoid interference with the normal administration of justice by the German courts.
(4) There are certain fields in which no powers of control are reserved to the High Commission by the Occupation Statute, but which are still of continuing interest to the occupying nations. Outstanding examples are the fields of labor and industrial relations; denazification; and reorientation and public information. The High Commission has no power to restrict the legislative, executive, or judicial competence of the German authorities in such matters, except that it may take action in cases which also fall within the scope of paragraph 3 of the Occupation Statute or one of the reserved fields. You should, however, keep informed of all important developments in these matters and work in conjunction with the German authorities by giving them such advice and assistance as may be required.
(5) Labor and industrial relations. In the field of labor and industrial relations, it is important to encourage the development of free, democratic trade unions and the negotiation of agreements and cooperative settlement of problems between them and employer organizations. Your Government is also interested in promoting the re-establishment of relations between such German unions and democratic union movements in other countries.
(6) Denazification. One of the primary purposes of the occupation is to exclude Nazi influence and leadership from German political, economic, and cultural life, and there exists an obligation upon the Federal and Land Governments, under present constitutions and laws, to take adequate measures to ensure against a revival of Nazi influence. You will work with the German authorities to achieve these ends. To the extent that the appearance of Nazi leaders in public life might constitute a threat to security, or to the Basic Law or Land Constitutions, you would take action under your powers in the reserved fields; to the extent that it might constitute an emergency threatening the existence of democratic government, you would take action under Paragraph 3 of the Occupation Statute.[Page 338]
(7) Public Affairs and Cultural Relations. The reorientation of the German people toward democracy and peace is a basic purpose of the occupation; it remains an integral part of your Government’s efforts to help develop and strengthen democratic government in Germany and to prepare the integration of Germany in the European community of nations.
To achieve this purpose, it will be your special responsibility to advise and assist the German people with respect to the democratization of social relations and institutions, education, public information, and civic life, including the provision of equal opportunities for men and women in the political, economic, and educational fields. You will conduct, sponsor, and encourage in all important phases of public life, affirmative programs which are designed to demonstrate the value of democratic institutions and practices, to strengthen democratic forces in Germany, to promote a better understanding of the United States, and to increase friendly relations between the people of Germany and other nations. It will also be your responsibility to observe closely and continuously the activities of undemocratic elements in the information and cultural fields. You will, whenever necessary, take such measures as may be appropriate, to expose and-counter their intentions and actions.
In making available positive assistance and advice, you will have to concentrate increasingly on those groups, organizations and institutions which have demonstrated their devotion to democratic ideals and practices, on individuals who are in a position of leadership or are likely to take a responsible part in the reconstruction of German community life, and on individuals and groups which have been exposed to anti-democratic influence or which are in need of guidance and assistance to withstand such influence. It is important that advice and assistance not be restricted to contacts with the public leaders in urban centers, but that particular attention be given to local communities, especially in rural areas.
In extending assistance to groups and individuals and in order to give effective advice, you will, when necessary, provide such material aid, services and contacts as will protect and support democratic organizations, further the growth of democratic institutions, and attitudes, [Page 339] and strengthen the ties between democratic groups in Germany and corresponding groups with similar political, professional or civic interests in the United States and in other democratic countries.
While programs and services aiming at mass audiences should be continued, there should be increased emphasis on developing new programs and services which appeal to groups of special importance. You will continue to make use of overt programs, and services, in order to present the intentions and policies of the United States directly and effectively, to supplement corresponding German activities and to counteract undemocratic influences.
In promoting and maintaining programs and services under direct United States auspices, you should avoid the use of such competitive practices as may impede the development of German operations in this field. You may arrange for the use of appropriate German facilities, when necessary, for the effective presentation of the United States position to the German public.
With the development of Germany towards a status of self-government, it is desirable that you encourage and facilitate the active and responsible participation of Germans in the formulation of programs conducted so far exclusively under American public or private auspices, including establishment of projects under joint auspices.
You will stimulate and facilitate direct contact between civic or professional groups in Germany and corresponding groups abroad, notably in the United States, and you will make use of such private resources, in the United States or elsewhere, as your Government may enlist for the purpose of actively supporting the reorientation program. You will develop a broad and effective program of cultural exchange, aiming especially at the participation of those groups which are likely to provide the future democratic leadership in Germany.
While activities designed to promote understanding of American ways and United States policy must continue to be conducted under United States auspices, you will seek to determine, together with your British and French colleagues, the nature of projects which may be [Page 340] undertaken in cooperation with them. You will seek to obtain agreement with your British and French colleagues which will permit coordination of existing programs and services, as far as desirable, and will allow each power to conduct certain programs in the other occupation zones.
- The policy directive, sent to McCloy as an enclosure to instruction No. 82, not printed (740.00119 Control (Germany)/11–1749), had-been approved by the Secretary of Defense and the Economic Cooperation Administrator and had been transmitted to President Truman and the National Security Council for information. The source text also included a two-page table of contents which is not printed. Documentation relating to the drafting of the directive is in file 740.00119 Control (Germany).↩
- These numbers appear in boxes in the source text.↩
- For the text of JCS 1779, July 11, 1949, see Germany 1947–1949, pp. 33–41.↩
- Omission in the source text. No record has been found in the Department of State files that such a letter was ever sent.↩
- Ante, p. 179.↩
- Regarding the Charter of the High Commission, see editorial note, p. 267.↩
- For the text of the statement of principles governing the relationship between the Allied Kommandatura and Greater Berlin, see Germany 1947–1949, pp. 324–326.↩
- Ante, pp. 178 ff.↩
- For the text of this agreement, see Germany 1947–1949, pp. 366 ff.↩
- Extracts from Law No. 59 are printed in Germany 1947–1949, pp. 434–438.↩
- For the text of the agreement between the IRO and the Commander in Chief, European Command, as to IRO’s operation in the United States area of control in Germany, July 28, 1948, see Louise W. Holborn, The International Refugee Organization: a Specialized Agency of the United Nations, Its History and Work, 1946–1952 (London, Oxford University Press, 1956), pp. 661–670.↩