Colonel William A. Phillips

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Legal Extinction of Nazi Germany

'The preamble of the declaration confirmed the complete legal extinction of Nazi Germany' - can't seem to find this in the preamble (Wikisource text via link under 'See Also').Clivemacd (talk) 20:16, 23 January 2018 (UTC)[reply]

first two paras:
"The German armed forces on land, at sea and in the air have been completely defeated and have surrendered unconditionally and Germany, which bears responsibility for the war, is no longer capable of resisting the will of the victorious Powers. The unconditional surrender of Germany has thereby been effected, and Germany has become subject to such requirements as may now or hereafter be imposed upon her.
There is no central 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 victorious Powers"
The Allied Powers compelled the German High Command to offer a military surrender; but refused to accept any counterpart surrender of the claimed civil 'government' of Karl Dönitz; on the basis that there was then "no central Government or authority in Germany" that could legally make such an act of surrender. Hence, from the Allied perspective, the justification and need for the Allied Powers to assume the entire sovereign legal personality and identity of the German state - including the power of agreeing the transfer of state territory to another state; the power to sack the civil service and judiciary en masse; and the power to expropriate property owners without compensation. All of which they did; and all of which was contrary to the Hague Conventions of 1899 and 1907 on the international law of military occupation.
The Federal Constitutional Court subsequently accepted the first part of this argument; Nazi Germany had been legally extinguished, and no legal identity still remained of the German government or authority. Civil servants had been validly sacked, and landlords had been validly expropriated. But in German constitutional legal theory, the state has a tripartite character. So, even though the armed forces had surrendered, and the government was extinct, nevertheless the German people remained; and becuse the German people are an organ of the German state; the state could be considered still to 'exist' or maybe 'persist' as an 'overall' personality even without any continuous legal identity. So when the Federal Republic came into being, it could resume, and 're-organise', the suspended personality of the German State. But that was for the future; the Allies did not reason in those terms. TomHennell (talk) 00:59, 24 January 2018 (UTC)[reply]
In the first two paras, I see an unconditional surrender and the lack of a central government, but these things don't seem to be the same as a complete legal extinction. Japan surrendered in 1945, and Belgium operated without a government for 353 days in 2010-11, but both these states still exist. Your analysis of the actions of the Allies and the subsequent Constitutional Court decision is fair enough, but the categoric way the sentence I have highlighted is written doesn't reflect this analysis or nuance. This issue remains a subject which is debated; the lead-in to the article as it currently stands is contradictory ('the declaration confirmed the complete legal extinction of Nazi Germany'/' the contention that the German state ceased to exist has since been challenged in legal and political debate.')Clivemacd (talk) 16:35, 25 January 2018 (UTC)[reply]
I have rephrased the second para (and added a citation). Maybe the first para needs to be rephrased too; please do propose improvements. There is a confusion here (as there was at the time) between the extinction of Nazi Germany, and the extinction of the German State. No one now disputes that Nazi Germany was extinguished on 8th May 1945. The Allied Powers held at the time that this also extinguished the German State as a legal entity; the armed forces had surrendered, and there was (and had not been for a long time) any valid civil government. That is what the opening paras of the Berlin Declaration stated, and the rest of the Declaration followed from that; in the absence of a legal state, the four Allied Powers had both the power and responsibility to step in, and so all legal sovereignty in respect of Germany now rested with the Four Powers. As envisaged, this would imply a new German State coming into being as a creature of the Four Powers; which would be accorded appropriate sovereignty by them, and would agree a Peace Treaty. All straightforward in prospect, but the fly in that particular ointment was that the Four Powers rapidly fell out; and hence created two states, with neither being jointly accorded sovereignty as envisaged. How that dilemma was attempted to be resolved is indeed highly contentious; but not strictly the subject of this article (in my view).
The Berlin Declaration had no legal standing; it simply announced how the Allied Powers understood the effects of the German surrender. Which was that, since the Nazis had long since extinguished the German civil state, and since the Nazi power that had replaced that state had now been totally destroyed, the terms of civil surrender had to be unilaterally declared by the Allies, there being no one with the legal authority otherwise to agree to them. This of course is nothing like the subsequent situations in Japan or Belgium (or indeed Italy in 1943, the closest parallel in May 1945). As the Constitutional Court would subsequently affirm; all institutions and legal structures in Germany had long since been wholly corrupted into 'a power apparatus in the service of the Nazi Party'. Where the Constitutional Court differed from the Declaration was in asserting that the German state could continue to have an 'overall' personality; and hence exclusive legal capacity even when its legal capability remained null. But both the Allies and the subsequent Federal Republic proceeded entirely on the assumption that the German state in 1945 was a constitutional and institutional nullity; and they consequently both acted on the principle that the organisations and legal personality of the German state would have to be rebuilt "from the ground up". TomHennell (talk) 18:08, 25 January 2018 (UTC)[reply]
The first two paras are fine, the problems are in the third and fourth paras. The preamble is only 375 words so it should be easy to establish whether the statements in the third para (which begins 'The preamble of the declaration asserted') are indeed present in the preamble, viz: the complete legal extinction of Nazi Germany (not present in preamble), the continued subsequent existence of a German national people and territory to be as defined on 31 December 1937 (not present), subject to the four signatory powers also asserting their authority to determine the future boundaries of Germany (yes, present in preamble).... the four nominated representatives of the Governments of the U.S.A/USSR/UK/France as the "Allied Representatives" (yes, present) the representatives to exercise supreme civil and military authority within German territory and over former German forces (yes, present).... The Allies declared that their assumption of sovereign powers within Germany would not effect its annexation.(yes, present).
If it is to be argued that the statements which are not present in the preamble are nevertheless implied, I think citations will be necessary as this represents analysis and comment rather than a direct reference to the text of the Declaration itself. If this is the way forward, it might be better to separate the analysis from the directly referenced text for the sake of clarity.
Regarding the fourth para, I can't at the moment see a reference to the Allies maintaining that the former institutional German state was recognised as having ceased to exist, or legal and political debate about this, on page 222 of Eckert.Clivemacd (talk) 23:37, 27 January 2018 (UTC)[reply]
Apolgies; I no longer have access to Eckert; although my notes state that her discussion runs from page 219 to 222. No matter though. A more notable - and more explicit discussion is in the classic account of Hans Kelsen - in the American Political Science Review (1947); 41: page 1188; By its complete defeat, the surrender of its armed force, and the abolishment of its national government, Germany has ceased to exist as a sovereign state and subject of international law. By the Declaration of Berlin, June 5, 1945, the four Powers occupying the country—the United States of America, the United Kingdom, the Soviet Union, and the French Republic—assumed “supreme authority with respect to Germany including all powers possessed by the German Government, the High Command, and any state, municipal, or local government or authority.” This meant that the four occupant Powers have assumed sovereignty over the former German territory and its population, though the term “sovereignty” was not used in the text of the Declaration. The four occupant Powers exercise their joint sovereignty through the Control Council, established at Berlin as the legitimate successor of the last national government of Germany. All this is in complete conformity with general international law, which authorizes a victorious state, after so-called debellatio of its opponent, to establish its own sovereignty over the territory and population of the subjugated state. Debellatio implies automatic termination of the state of war. Hence, a peace treaty with Germany is legally not possible. For a peace treaty presupposes the continued existence of the opponent belligerents as subjects of international law and a legal state of war in their mutual relations..
on the general issue; see the discussion in Eyal Benvenisti 'The International Law of Occupation' (2012) pages 159-164.
The official British and American view - at the time - concurred broadly with that of Kelsen; Nazi Germany was extinct; and consequently, by May 1945, the rump German High Command had represented the sole legal element of Germany as a sovereign state. With the High Command's surrender and dissolution, Germany had 'ceased to exist as a sovereign state and subject of international law'. Where the Allies position differed from that of Kelsen was over his two final sentences. The Allies (as the sole sovereign power of Germany) could indeed maintain that a state of war continued in legal existence (though not of course a state of hostilities) against themselves (as the leadership of the 'United Nations'). And indeed they did just that; greatly complicating the provision of post-war humanitarian aid to the German civilian population. But that is another story. The key point to note is that Kelsen takes the Berlin Declaration as directly asserting - not simply implying - the legal extinction of Nazi Germany. TomHennell (talk) 15:30, 29 January 2018 (UTC)[reply]
It's certainly looking a lot better, with the section headed 'Declaration Text' focusing on what is explicitly in the declaration, and section 'Legal Status in International Law' containing analysis of the implications. The one outstanding issue is that the perceived extinction of the Nazi state is duplicated, being present at the beginning of both sections. As this is not explicit in the text, but is the result of (properly sourced) analysis, I think this belongs in the 'Legal Status' section.Clivemacd (talk) 19:43, 3 February 2018 (UTC)[reply]
Maybe needs some rewording Clivemacd; but the assertion that 'supreme authority' and power within Germany now belonged to the Allied Control Council (and the ACC alone), was understood as arising from the absolute extinction of Nazi power on 8th May 1945. You may feel that the extinction of Nazi power is not explicitly asserted in the text; but the authors of the text felt that it was; as did notable authorities in constitutional law at the time - and historians/journalists since (see the cited authorities). If Nazi power had not been legally extinguished such that the Allied Control Council was now the sole legal sovereign for Germany, alleigance to whose laws was binding on all German nationals; there could have been no legal basis for ACC Law number 10, the consequent Nuremberg Military Tribunal Trials, and for denazification generally. The issue discussed in the second para is the entirely distinct one of the possible continuation in some form of the German state. Essentially the Allies would maintain (on this see the ACC proclamation no 2: section III) that all 'German State' functions now continued only within the Allied Control Council itself. This claim was to be challenged both in academic discourse and (over a long period) within and between the courts of the Federal Republic; and few would now defend it - not least as the ACC proved incapable of either being a 'state' or of transferring 'statehood' to a new German government (or at least not until 1990).
I think our difference over this point may arise from a confusion on your part over how the Allies understood the legal status of the Third Reich - as shown in your reference to the 'Nazi state'. Maybe careless wording on your part; but it was an absolute principle agreed between the Allies that the Nazi power had only ever been that of a 'criminal organisation'; and consequently the Nazi regime was not - and never had been - a 'state'. It could be no defence against war crimes charges that a state servant had been obeying orders or obeying the law; as those giving the orders were criminals with no valid state authority to exercise, and their 'laws' (since 30 January 1933) were no laws at all. Hence the Allies insistence on accepting capitulation from the German High Command (which they considered legitimate authority for the German military) , but not accepting surrender from the 'Flensburg government'. For the Allies, Dönitz was legitimately Commander in Chief of the German Armed Forces; he was not legitimately President of a valid German state. Later German constitutional debate fleshed out (and to a degree modified) the Allied position. Nazi power in Germany had functioned as a 'Criminal State' (Verbrechensstaat), maintaining many of the institutions of a proper state, such that it might validly be mistaken for one; but actually wholly corrupted into a power apparatus at the service of the Nazi Party. But for the Constitutional Court, it did not necessarily follow (as it had for the Allies) that the overwhelming majority of the German people could be considered individually as criminal accomplices. TomHennell (talk) 01:32, 5 February 2018 (UTC)[reply]
source: https://en.wikipedia.org/wiki/Talk:Berlin_Declaration_(1945)