Berlin Declaration (1945)

By the Berlin Declaration (German: Berliner Erklärung/Deklaration) of 5 June 1945,[n 1] the four governments of the United States, Soviet Union, United Kingdom and France, acting on behalf of the Allies of World War II, jointly assumed "supreme authority" over German territory and asserted the legitimacy of their joint determination of issues regarding its administration and boundaries, prior to the forthcoming Potsdam Conference.

Background

The German Instrument of Surrender of 8 May 1945 had provided only for the military capitulation of German armed forces, the German signatories being representatives of the German High Command; consequently full civil provisions for the unconditional surrender of the German state remained without explicit formal basis. The Allies had already agreed through the European Advisory Commission a comprehensive text of unconditional surrender, intended to be used in the potential circumstances of Nazi power being overthrown within Germany either by military or civil authorities; a post-Nazi government being set up in Germany and seeking an armistice. In the event, Nazi power remained to the last, Adolf Hitler dying in the ruins of Berlin on 30 April 1945; and the claims of Karl Dönitz, his nominated successor, to have established a civil government at Flensburg being unacceptable to the Allies. So the previously agreed surrender text, redrafted as a declaration and with an extended explanatory preamble, was adopted unilaterally by the four Allied Powers as the 'Declaration regarding the defeat of Germany' on 5 June 1945.[1] This spelled out the Allied position that, following the gross criminal abuses of Nazism, and in the circumstances of complete defeat, Germany now had no government or central administration, and that the vacated civil authority in Germany had consequently been assumed as a condominium[2] of the four Allied Representative Powers on behalf of the Allied Governments overall; an authority subsequently constituted into the Allied Control Council.[3]

The principle that hostilities against Germany should continue until its armed forces laid down their arms on the basis of unconditional surrender had been adopted by the Allies in the Moscow Declarations of October 1943. In the same declarations it was also stated that, following a German surrender, any individuals participating in atrocities within territories under German occupation would be returned to those territories to be judged and punished; while the entire leadership of Nazi Germany - classed as 'criminals' - would be seized and 'punished by the joint decision of the government of the Allies' (a formula then understood as indicating summary execution without trial, which remained British policy until April 1945). The principles of the Moscow Declarations were to be elaborated in the proceedings of the European Advisory Commission to specify that the Allies would undertake that both Nazism and German Militarism would be eradicated from Europe. In this respect the British War Cabinet came to agree with the American proposal that tribunals of justice should be established; with the consequence that all individual Nazi leaders would now be tried as criminals, and that all Nazi institutions, agencies and associations would be declared to be 'criminal organizations', proved membership of which would be grounds for judicial penalties. Since, in practice, by May 1945 such Nazi bodies were the only functioning institutions of German civil administration, the effect of this was to designate the entire civil apparatus of state power in Germany, and all employment within it, as 'criminal' activity in the service of the Nazi party; on the basis that "the Nazi state was structurally, in its genesis and throughout its existence, a vast criminal enterprise". [4]

Nevertheless, although the Nazi state was designated as a criminal enterprise with no valid claim to exercise civil authority in Germany, this 'criminal' designation was not extended by the Allies to the German High Command and the members of the armed forces. Generals in the service of the Nazi state remained generals, soldiers remained soldiers and military orders issued by the German High Command were valid orders with legal effect right up to 8 May 1945, notwithstanding that the counterpart civil state of Germany was considered already extinct. It followed that the representatives of the German High Command had been legally entitled to sign the Instrument of Surrender in Berlin; and that their orders therein to the army, navy and airforce to lay down their arms were valid orders, properly enforceable through the procedures of military discipline.

Declaration text

The preamble of the declaration asserted both German responsibility for the War and the complete legal extinction of Nazi Germany consequent on the unconditional surrender of all German armed forces and the total absence of any German central government authority;[5][6] although the text of the articles of the Declaration maintained, in several places, the continued existence of a German national people and territory which for the purpose of the Declaration was taken to be as defined on 31 December 1937 (after the 1935 Saar referendum and before the 1938 Anschluss), subject to the four signatory powers also asserting their authority to determine the future boundaries of Germany. This claimed authority to determine the boundaries of Germany would shortly be exercised in the incorporation of eastern territories into Poland and the Soviet Union, and the short-lived creation of the Saar Protectorate in the west. The preamble also confirmed the four nominated representatives of the Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic as the "Allied Representatives" who would from then on exercise supreme civil and military authority within German territory and over former German forces. Otherwise the text of the declaration was that prepared for, but not eventually used in, the German Instrument of Surrender of 8 May 1945, in the form previously agreed by the European Advisory Commission; but not including the 'dismemberment clause' proposed as being added to the agreed surrender instrument at Yalta.[7] The Allies asserted that their assumption of sovereign powers within Germany would not effect its annexation. The Declaration consisted of 15 articles, of which the first eight were concerned with the capitulation of German Armed forces and the surrender to the Allied Powers of military equipment and intelligence assets. By July 1945, these actions had largely been completed. The key articles for the future governance of Germany were therefore Article 11, which provided for the arrest and trial by the Allies of Nazi leaders and other suspected war criminals; and Article 13, which provided almost unrestricted authority to the Allied Powers to direct German civil, economic and legal structures in the zones under their control. This latter article was extensively applied to effect the de-Nazification of public institutions and economic enterprises at all levels of German society, to extract reparations; and also in the Soviet zone to effect a major programme of land reform, redistributing expropriated rural land from large pre-war landed estates to the ownership of surviving tenant occupiers and expellee farmers from former eastern parts of Germany.

At the time, the Allies maintained that with this declaration the former German state was recognised as having ceased to exist, its historic institutions and organisation having been expunged under the criminal assault of Nazi power; such that any continuing sovereign identity for Germany as a whole was now being represented solely by the Allied Control Council.[8] Under the terms of the Potsdam Agreement, the Allies stated their intention that the exercise of full German sovereignty by the Allied Control Council would be one of tutelage and of limited duration; the Council of Foreign Ministers being tasked with preparing the terms for an eventual Peace Treaty and final settlement of the War, and with establishing through the Control Council a wholly new German Government and state adequate for the purpose of accepting that settlement.[9] The Allied contention that the German Reich no longer existed was however, challenged in legal and political debate, with a number of scholars maintaining that the legal extinction of a state could only be achieved through formal annexation of its peoples and territory into another state; and that, this option having been explicitly forsworn in the Berlin Agreement, in some form the German national state must be considered as having survived the collapse of Nazi Germany independently of the Allied Control Council.[10][11] Post-war legal debate also challenged the powers assumed by the Allies in Articles 11 and 13 to effect radical change to the civic, legal and economic structures of Germany, in direct conflict with the provisions of the Hague Conventions of 1899 and 1907 on the powers and responsibilities constraining military occupation in wartime.[12] The Allies maintained that these conventions could not, and did not, apply in the circumstances of the occupation of Germany; as the complete and lasting elimination of Nazism and its crimes against humanity, and German militarism in general, were their major wartime objectives. Indeed, in October 1944 General Eisenhower, in his 'Proclamation number 1' concerning the intended Allied Occupation of Germany, had promised the total obliteration of Nazism and Militarism, the suspension of the German legal system, and the assumption by the Allies of supreme executive, legislative and judicial power.[13] Subsequent to German reunification in 1990 the descendants of expropriated pre-war landowners challenged the legal basis of Allied occupying power in respect of the Soviet-instigated East German land reform; seeking through the German courts to dispossess the descendants of the post-war beneficiaries of the reform programme, or otherwise to be granted compensation at current market value. Following a succession of four cases being brought before the Federal Constitutional Court over a decade, an appeal was eventually made to the European Court of Human Rights in 2005, who found in favour of the legality of the Allied occupation. The postwar occupation of Germany was found to have been 'an occupation sui generis' which had 'conferred powers of sovereignty' on the Allied Powers.[14]

Signatories

The declaration was signed by the Allied commanders-in-chief:

Further developments
Memorial tablet in 2012.

The military forces of the Western Allies had pulled back westwards from the original "Line of contact", transferring the administration of the vacated territories into the Soviet occupation zone;[15] at the same time taking over administrative responsibilities from Soviet forces for their respective sectors of Berlin. Subsequently, the Potsdam Agreement of 2 August 1945 confirmed the establishment of British, American and French zones of occupation, and set the boundary between Poland and Germany at the Oder-Neisse line; the former German territories east of this line now coming under Polish and Soviet (Kaliningrad Oblast) administrations, pending the final apportionment of territories in a future Final German Peace Treaty. This treaty was delayed due to ideological and political differences between the Allied Powers, and was only finally ratified in 1991 as the Treaty on the Final Settlement With Respect to Germany entered into force, formally ending the Occupation of Germany.

An Allied Control Council was established on 30 August 1945 to execute supreme governmental power over Allied-occupied Germany, which now did not include the German eastern territories. In its initial proceedings, the Allied Control Council assumed itself to be the sole repository of German state sovereignty especially in respect of external relations, but largely left each of the Allied Powers to administer their own occupation zones as they saw fit. The functioning of the Allied Control Council proved however, to be severely compromised by obstruction from one or another of the Allied Powers represented on it; initially France (who had not been invited to the Potsdam Conference and refused to be bound by the Potsdam Agreement), and latterly by the Soviet Union – who in 1948 walked out of the Control Council, preventing it from meeting again until 1991.

Commemoration

A monument was erected at the site in the Wendenschloss district of Berlin-Köpenick on Niebergall Street which reads in German:

On 5 June 1945 in the former headquarters of Marshal G. K. Zhukov here, the representatives of the high commands of the Anti-Hitler Coalition signed the Declaration of the defeat of Nazi Germany and the assumption of governmental authority through the four allied states.

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See also

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

References
  1. Hansen, Reimar (1995). "Germany's Unconditional Surrender". History Today. 45 (5 May).
  2. Heller, Kevin Jon (2011). The Nuremberg Military Tribunals. OUP. p. 116.
  3. Ziemke, Earl Frederick (1990). The US Army and the Occupation of Germany 1944-1946. Center of Military History, United States Army. p. 114.
  4. Fraser, David (2017). "(De)Constructing the Nazi State: Criminal Organizations and the Constitutional Theory of the International Military Tribunal". Loyola of Los Angeles International and Comparative Law Review. 39 (1/8): 133.
  5. Kelsen, Hans (1945). "The legal status of Germany according to the Berlin Declaration". American Journal of International Law. 39 (3): 518–526. doi:10.2307/2193527.
  6. MacDonagh, Giles (2007). After the Reich. John Murray. p. 475.
  7. Mosely, Philip E (1950). "Dismemberment of Germany, the Allied Negotiations from Yalta to Potsdam". Foreign Affairs. 28 (3): 487. doi:10.2307/20030265.
  8. Kelsen, Hans (1947). "Is a peace treaty with Germany legally Possible and Politically Desirable?". American Political Science Review. 41 (6): 1188–1193. doi:10.1017/s0003055400261108.
  9. Chen, Ti-Chiang (1951). The International Law of Recognition. Praegar. pp. 70-74.
  10. Eckert, Astrid. M. (2012). The Struggle for the Files. Translated by Dona Geyer. CUP. p. 222.
  11. Takahashi, Yutaka-Arai (2009). The Law of Occupation. Brill. pp. 32–35.
  12. Benvenisti, Eyal (2012). The International Law of Occupation. OUP. pp. 161–164.
  13. Benvenisti, Eyal (2012). The International Law of Occupation. OUP. p. 161.
  14. Benvenisti, Eyal (2012). The International Law of Occupation. OUP. p. 162.
  15. What Is to Be Done? Time, July 9, 1945
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