The Status of Occupied Germany Under International Law: a Legal Dilemma
| Date | 01 December 1950 |
| DOI | 10.1177/106591295000300404 |
| Published date | 01 December 1950 |
| Subject Matter | Articles |
538
THE
STATUS
OF
OCCUPIED
GERMANY
UNDER
INTERNATIONAL
LAW:
A
LEGAL
DILEMMA
JOSEF L.
KUNZ
University
of
Toledo
1
See
W.
Friedmann,
The
Allied
Military
Government
of
Germany
(London,
1947);
Harold
Zink,
Ameri-
can
Military
Government
in
Germany,
1947;
"Military
Government,"
The
Annals
(January
1950).
2
See
A
Decade
of
American
Foreign
Policy:
Basic
Documents
1941-1949.
(U.
S.
Sen.,
81st
Cong.,
1st
Sess.,
Doc.
No.
123,
p.
1381);
James
E.
Pollock,
James
H.
Meisel,
Henry
L.
Bretton,
Germany
under
Occupation:
Illustrative
Materials
and
Documents
(Ann
Arbor,
Mich.,
1949).
3
Rolf
Stödter,
Deutschland’s
Rechtslage
(Hamburg,
1948
[Bibliography,
pp.
275-86;
Index
of
court
deci-
sions,
pp.
287-90]).
Long
after
having
finished
this
manuscript,
this
writer
saw
a
report
on
non-German
literature
recently
published
by
U.
Meister
in
Zeitschrift
fiir
auslandisches
öffentliches
Recht
und
V
ölkerrecht,
XIII
(February
1950),
pp.
173-85.
I
ERMANY
certainly
presents
the
most
important
political
problem
in
the
present-day
world.
The
ultimate
outcome
of
the
events
of
C
1945,
of
subsequent
developments,
of
the
East-West
struggle
for
Germany,
will
not
only
determine
the
fate
of
the
Germans
but
may
well
decide
also
the
fate
of
Europe
and
of
the
world,
the
question
of
peace
or
a
third
world
war.
In
view
of
the
political
importance
of
the
German
problem,
it
stands
to
reason
that
the
legal
problem
of
the
status
of
occupied
Germany
is
also
of
paramount
importance;’
it
is
of
more
than
academic
interest,
since
it
involves
f ar-reaching
political
issues,
and
at
the
same
time
it is
of
the
highest
theoretical
interest,
since
it
touches
upon
fundamental
problems
of
international
law.
Yet
in
spite
of
the
already
large
literature
on
this
subject,
hardly
any
theory
that
from
a
strictly
legal
point
of
view
might
be
called
really
satis-
factory
and
unobjectionable
has
been
presented
so
far.
It
appears
that
the
problem
of
the
legal
status
of
occupied
Germany
presents
a
legal
dilemma
which
is
hardly
capable
of
such
satisfactory
and
unobjectionable
legal
solution.
To
show
the
reasons
for
the existence
of
this
dilemma
and
to
point
to
the
lines
of
what
seems
to
be
the
correct
legal
approach
to
the
solution
of
this
dilemma
is
the
purpose
of
this
study,
which
is
limited
by
these
objectives.
The
knowledge
of
the
historical
events
and
of
the
documentary
evidence
thereof
is
here
taken
for
granted.2
2
Neither
is
it
the
purpose
of
this
study,
nor
is
it
necessary,
to
give
a
full
survey
and
critique
of
all
the
theories
hitherto
presented.
This
task
has
been
performed
several
times.
This
writer
wants
particularly
to
point
to
Rolf
St6dter’s
book,3
which
presents
a
full
and
mostly
excellent
discussion
of
all
the
manifold
prob-
lems
involved
and
of
all
the
theories
elaborated,
and
which
contains
a
very
comprehensive
bibliography
of
writings
and
an
index
of
relevant
court
decisions
up
to
the
middle
of
1948.
539
II
The
first
reason
for
this
legal
dilemma
pertaining
to
the
status
of
occupied
Germany
certainly
consists
in
the
fact
that
the
defeat
of
Germany
and
the
forms
it
took
in
1945,
as
well
as
the
subsequent
situation,
are
without
precedent
in
modern
history.
All
the
writers
on
the
subject,
however
different
their
views
may
be,
stress
the
point
of
the
unique
historical
situation.
Precedents
of
military
occupations
abound.
World
War
II
was
over-
rich
in
the
most
diverse
types
of
occupations.
But
no
one
of
these
well-
recognized
types
exactly
fits
the
case.
It
certainly
is
not
an
occupatio
paci fica.4
4
It
is
not
a
belligerent
occupation
in
the
sense
of
the
Fourth
Hague
Convention.
It
has
nothing
to
do
with
the
many
belligerent
occupations
during
World
War
II
by
Germany5
or
by
the
Allies,
nor
with
the
occupation
of
neutral
countries.
It
is
different
from
the
many
types
of
occupations
by
Great
Britain
in
Africas
which
include
particular
and
highly
interesting
cases.
It
is
different
from
the
legal
status
of
German-
occupied
Denmark.7
7
It
certainly
is
not
a
so-called
occupatio
mixta,
a
military
occupation
on
the
basis
of
an
armistice
or
a
peace
treaty,
like
the
Rhineland
occupation
after
World
War
1.11
It
is
entirely
different
from
the
post-surrender
occupations
of
Italy,
Hungary,
Romania,
Bulgaria,
which
all
had
their
legal
basis
in
an
armistice.
It
is,
further,
very
different
from
the
present
occupation
of
Japan;
for
Japan
accepted
the
Potsdam
ultima-
tum
and
made,
prior
to
her
unconditional
surrender,
certain
conditions
concerning
the
position
of
the
Emperor,
conditions
which
the
Allies
accepted,
so
that
Japan’s
occupation
has
its
legal
basis
in
an
international
agreement.
Finally,
the
status
of
Germany
cannot
be
compared
with
the
equally
unusual
situation
of
the
military
occupation
of
&dquo;liberated&dquo;
Austria.
Germany’s
unique
situation,
therfore,
explains
why
the
literature
has
produced
many
ad
hoc
solutions,
such
as
an
&dquo;occupation
of
intervention&dquo;
9
4
See
Robin,
Des
occupations
militaires
en
dehors
des
occupations
de
guerre
(Paris,
1913).
5
See
Serra,
L’occupazione
bellica
germanica
negli
anni
1939-1940
(Milan,
1941);
Raph.
Lemkin,
Axis
Rule
in
Occupied
Europe
Washington,
1944);
Van
Nispen
tot
Sevenaar,
L’occupation
allemande
pendant
la
derniére
guerre
(The
Hague,
1946).
6
See
Lord
Rennell
of
Rodd,
British
Military
Administration
of
Occupied
Territories
in
Africa
during
the
Years
1941-1947
(London,
1948).
7
See Alf
Ross,
"Denmark’s
legal
status
during
the
occupation."
Jus
Gentium:
Nordisk
Tidskrift
for
Folkeret
og
International
Privatret
(Copenhagen,
1949),
Vol.
I,
pp.
3-21.
8
See
Heyland,
Die
Rechtsstellung
der
besetzten
Rheinlande
(Stuttgart,
1923);
E.
Fraenkel,
Military
Occu-
pation
and
the
Rule
of
Law
(New
York,
1944).
9
The
creator
of
this
theory
is
Georg
A.
Zinn,
in
1
Neue
Juristische
Wochenschrift
(1947-48),
8,
and
in
2
Siiddeutsche
Juristenzeitung
(1947),
4.
This
theory
has
been
adopted
by
Ad.
Arndt,
in
Die
Wandlung,
Vol.
II
(1947),
pp.
107-16;
see
also
his
article,
"Status
and
development
of
constitu-
tional
law
in
Germany,"
The
Annals
(November,
1948),
pp.
1-9;
see
also
Karl
Geiler,
Die
gegen-
wärtige
völkerrechtliche
Lage
Deutschlands
(Bremen,
1947).
Karl
Schmid
and
Alfons
Steiniger,
in
1
Neue
Justiz
(1947),
146,
205,
give
a
juridicial
construction
by
holding
that
this
type
of
occupation
constitutes
a
third
way
open
under
international
law,
apart
from
the
alternative
of
subjugation
by
annexation
or
mere
belligerent
occupation.
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