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Unconditional Surrender and a Unilateral Declaration of Peace*

Published online by Cambridge University Press:  02 September 2013

Francis C. Balling
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Extract

On January 24, 1943, the last day of the conference at Casablanca, the President of the United States, in a press conference, referred to the sessions as the “Unconditional Surrender” Conference. The official statement on the Crimea Conference of February 11, 1945, reiterated the formula of unconditional surrender as the only one acceptable to the Allies by pointing to “the unconditional surrender terms which we shall impose together on Nazi Germany after German armed resistance has been finally crushed.” This statement gave rise to the objection that the very concept of “unconditional” obviously excludes terms of any kind. The most recent comment on the subject, in President Roosevelt's address to Congress on March 1, 1945, was apparently not intended to give a definition of “unconditional surrender,” but rather an enumeration of the policies to be followed in dealing with Germany, once “the German people, as well as the German soldier,” have given up and surrendered. Thus an official interpretation of the formula is still lacking. The following analysis attempts to clarify the meaning of unconditional surrender, and its factual and juristic-political implications.

Type
International Affairs
Information
American Political Science Review , Volume 39 , Issue 3 , June 1945 , pp. 474 - 480
Copyright
Copyright © American Political Science Association 1945

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References

1 Grotius, , The Rights of War and Peace, translated by Campbell, A. C. (M. Walter Dunne, New York, London, 1901)Google Scholar, Chap. XXII, xi, uses the term “absolute” instead of “unconditional.” In German-language literature, the expression “Uebergabe auf Gnade und Ungnade” is often employed to indicate unconditional surrender; cf. Dr.Bluntschli, J. C., Das moderne Voelkerrecht der civilisierten Staaten als Rechtsbuch dargestellt (C. H. Beck'sche Buchhandlung, Noerdlingen, 1872)Google Scholar, §698.

2 E.g., Grotius, ibid.

3 Oppenheim, L., International Law; A Treatise (6th ed., Longmans, Green and Co., New York), Vol. II, § 226.Google Scholar

4 Grotius, op. cit., Chap. XXII, vii: “As to the causes and consequences of a war, it is not within the province of a general to decide them. For concluding and conducting a war are very different things and rest upon distinct kinds of authority.”

5 The Weimar constitution of Germany, in Article 45, required the form of a federal law for the conclusion of peace.

6 E.g., L. Oppenheim, op. cit., § 261; Lawrence, T. J., The Principles of International Law (2nd ed., D. C. Heath and Co., Boston, 1898), § 238Google Scholar; Wheaton, , Elements of International Law (6th English ed., Stephens and Sons Ltd., London), Vol. II, Chap. VIIGoogle Scholar; Fenwick, Charles G., International Law (The Century Co., New York, 1924)Google Scholar; Dr.Liszt, Franz von, Das Voelkerrecht (11th ed., Verlag Julius Springer, Berlin, 1918), p. 287.Google Scholar

7 Hyde, Charles Cheney, International Law (Little, Brown and Co., Boston, 1922), § 905.Google Scholar

8 L. Oppenheim, op. cit., Vol. II, § 264, makes a distinction between conquest as a temporary occupation of the enemy territory and subjugation as the extermination of the enemy as a sovereign power by permanent annexation of his territory. Conquest consists only in a factual military action which as such cannot be considered as an act terminating a war.

9 Grotius, op. cit., Chapter XX, xlix; Phillimore, Robert, Commentaries upon International Law (T. and J. W. Johnson and Co., Philadelphia, 1857), Vol. III, Pt. XII, Chap. I, 638Google Scholar; Resch, Peter, Das Europaeische Voelkerrecht der Gegenwart (Ulrich Moser's Buchhandlung, Graz and Leipzig), § 183Google Scholar, considers “vollstaendige und unbedingte Unterwerfung des Besiegten unter den Sieger” (i.e., complete and unconditional submission to the victor of the vanquished) as a way of terminating a war; Bluntschli, op. cit., § 701, correctly refers to “Ergebung” (submission) as a means which—or a peace treaty—must follow the merely factual conquest, in order to create the juristic-political situation of peace.

10 E.g. Bluntschli, op. cit., § 702.

11 Cf. Grotius, op. cit., Chapter XX, xlix.

12 Robert Phillimore, op. cit., 642.

13 Cf. Vattel, Emmerich de, The Law of Nations, or the Principles of Natural Law, translation of the edition of 1758 by Fenwick, Charles G. (Carnegie Institution of Washington, Washington, 1916)Google Scholar, Book IV, Chap. I: “But if a sovereign is dealing with a perfidious enemy, it would be imprudent to trust his word or his oath. In such a case the sovereign may with perfect justice act as prudence requires, and take advantage of a successful war and follow up his victory until he has broken the excessive and dangerous power of the enemy, or forced him to give adequate security of proper conduct in the future.” Grotius, op cit., Chapter XX, xlix, recommends avoidance of “any rigor, except the demerits and atrocity of the enemy require it,” and the observation of certain bounds only “as far as security allows.”

14 Soon after the Treaty of Versailles was concluded, it became customary in Germany to refer to it as the “Diktatfrieden” (dictated peace) or “Gewaltfrieden” (peace forced upon Germany) of Versailles.

15 If concluded by competent authorities, preliminaries as well as armistice must be considered as binding pada de contrahendo, and the terms of a subsequent peace treaty must conform to them unless both contracting parties consent to an alteration.

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