Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Volume II

Staff Committee Files

No. 1254
Department of State Memorandum¹

[Undated.]

Comparison of the Proclamation of July 26, 1945 With the Policy of the Department of State

I. Question—To what extent is the proclamation of July 26, 1945² consistent with the policy of the Department of State?

II. Discussion—

1. The proclamation is a statement of terms addressed to Japan (par. 1) and to the Japanese government (par. 13) which if accepted would constitute an international agreement subject to interpretation by the usual canons of international law. Under international law ambiguous terms in an international agreement have been interpreted favorably to the state which accepted them. The state which proposed them should express its intention clearly. (See Harvard Research, Draft Convention on Treaties, American Journal of International Law, Supp., 1935, vol. 29, p. 941, citing several arbitral awards.)

The Department’s policy has interpreted unconditional surrender as contemplating a unilateral surrender with no contractual elements whatever.

2. The contractual character of the surrender contemplated by the proclamation together with the allusion to “good faith” in paragraph 13, suggests that to some extent the execution of the terms is to be left to the good faith of the Japanese Government.

The Department’s policy has assumed that all requirements would during the first stage be carried out by allied forces without any reliance upon the good faith of any Japanese authorities.

3. The proclamation interprets unconditional surrender as applying only to “all Japanese armed forces”.

The Department’s policy has interpreted unconditional surrender as applying to Japan, thus covering not only the armed forces, but also the emperor, the government and the people. All are to acquiesce in any acts which the allies consider appropriate in carrying out their policy.

4. The considerations referred to in paragraphs 2 and 3 above as well as the reference to “the Japanese government” in paragraphs 10 and 13 of the proclamation suggest that continuance of the Japanese government which accepts the terms is contemplated so long as that government observes the terms in good faith. This interpretation is, however, not certain because of the suggestion that the “Self-willed militaristic advisers” (par. 4) and the “irresponsible militarism” of Japan (par. 5 [6]) are to be eliminated. These terms may refer to the existing government of Japan. Furthermore paragraph 13 of the proclamation requires that occupation of certain points in Japan shall continue until “there has been established in accordance with the freely expressed will of the Japanese people a peacefully inclined and responsible government.” This statement could be interpreted to mean that the government which accepts the terms shall immediately retire and leave the occupying forces to govern Japan until the objectives stated have been achieved and a “peacefully inclined and responsible government” has been established by an election. That statement might also mean that the emperor will accept the terms proposed in the proclamation and will continue to function, but will at once dismiss all his militaristic advisers, democratize the constitution of Japan, arrange an election, appoint a government in accordance with its results, and direct that government to carry out the terms of the proclamation.

The Department’s policy has assumed that the allied governments would have full powers of government in Japan until their objectives were carried out.

5. The limitation of unconditional surrender to Japanese armed forces (par. 13) and the apparent assumption that a Japanese government will continue and will be responsible for carrying out the terms (pars. 10 and 13) suggests that the occupation of points in Japanese territory to be designated by the allies, (par. 7) is for the purpose of bringing pressure upon the Japanese government and does not contemplate military government of any large part of Japan. This interpretation, however, is not certain. The proclamation as noted in paragraph 4 above may mean a temporary elimination of the Japanese government until a new and reliable government can be established. No limits are stated in the number of points which may be occupied. If sufficiently numerous such occupations could effectively control the whole of Japan and, therefore, permit military government of the whole of Japan. Furthermore, many of the terms stated in the proclamation, such as the complete disarmament of Japanese military forces (par. 9), the apprehension of war criminals (par. 10), the strengthening of democratic tendencies and government (pars. 10 and 12) the establishment of freedom of speech, religion and thought, and of respect for human rights (par. 10) the exaction of just reparations in kind (par. 11) the industrial disarmament of Japan (par. 11), and the prevention of Japanese control of raw materials (par. 11) are of a character which could hardly be achieved without direct control in all parts of Japan by the allied military authorities.

The Department’s policy has contemplated such direct control, not mere influencing of a Japanese government.

6. The terms referred to in paragraph 5 above suggest that the military occupation contemplated by the proclamation whether of a limited number of points or of the whole of Japan, would be an occupation in the sense of the law of war. This interpretation, however, is not certain. Such an occupation can only have the limited objectives of maintaining order, assuring security of the occupying forces, and influencing the political action of the enemy government within the framework of the existing laws of the territory occupied. The objectives of the proclamation, stated in paragraph 5 above, go much beyond this. Consequently one has to assume either that the occupation is intended to bring pressure upon a Japanese government which will carry out the objectives, or that the occupation itself will have far more authority than an ordinary military occupation.

The Department’s policy has assumed that unconditional surrender would mean a temporary exercise by the allies of all the powers of the Japanese government, thus permitting the occupying authorities to exercise much more authority than a military occupant under the law of war.

7. The proclamation states that Japan’s sovereignty shall be limited to the four main islands of Japan “and such minor islands as we determine.” (par. 8). This statement does not indicate an intention to eliminate Japan’s sovereignty over the Liu Chiu [Ryukyu] and Kurile islands as they are “minor islands.” There is more grounds for supposing that it intends to eliminate Japan’s sovereignty over Southern Sakhalin which is hardly a “minor island.”

The Department’s policy has not favored the elimination of Japan’s sovereignty in any of these three areas.

8. The proclamation declares that “stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners”. The illustration suggests a limitation of “war criminals” to violators of the laws of war, but this suggestion is hardly supportable in view of the common use at the present time of the word “war criminals” in a wider sense and the use of the word “all”. Furthermore, the illustration is not introduced by a word suggesting that it is intended to indicate the kind of war criminals meant but by a word suggesting that it is intended to assure the American public that a class of war criminals in which they have manifested a particular interest will be included.

The Department’s policy has assumed a broad definition of war criminals to include those responsible for the initiation of aggression.

9. The provisions of the proclamation seem consistent with the Department’s policy concerning demilitarization, reeducation, reparations, and economic policy. These policies can be adhered to, whether they are to be initiated and carried out in Japan by allied forces or by the Japanese government, though minor changes would doubtless be necessary.

III. Conclusion—

1. The proclamation offers terms which, if accepted by Japan, would require a modification of several of the Department’s policies, particularly those concerning the interpretation and application of unconditional surrender.

2. Several of the terms are not clearly stated and, if accepted by Japan, may give rise to future controversy.

[Attachment]

Comparison

Proclamation to Japan, July 26, 1945 and Department Policy

	Proclamation	Department Policy
1.Unconditional Surrender	“Unconditional Surrender of all Japanese armed forces”.	Unconditional Surrender of Japan—Government and armed forces.
2.Terms	Japan is given an opportunity to end this war on the basis of stated terms.	Japan must obey all directives which may be given by the Allied powers. The powers, however, should announce in advance their basic policies in regard to Japan.
3.Legal Powers of Allies in Japan	Designated points in Japan to be occupied. Authority outside of these points is left uncertain.	The Allies to take over the government of Japan and to possess supreme authority.
4.The Japanese Government	The status of the Japanese Government is left uncertain. It apparently is to continue and to exercise certain functions. (Article 10).	All authority of the Japanese Government is transferred to the Allies. Administrative machinery and most agencies to function under direction of Allies.
5.The Emperor	No mention. Since his removal is not stipulated, it may be assumed that he may remain.	The Emperor is to sign and announce the unconditional surrender of Japan. His powers pass to the Allies. He is to be held in protective custody.
6.Objectives	Irresponsible militarism and Japan’s war-making power to be destroyed. Freedom of speech, of religion, and of thought, and respect for fundamental rights. Establishment of a peacefully inclined and responsible government.	No important differences.
7.Enforcement of Objectives	Not clear. The Japanese Government has the responsibility of carrying out some and possibly all the demands of the Allies. Some of the “terms” would seem to necessitate direct action by Allied authorities.	The Allies’ Government in Japan will, itself, enforce its demands.
8.Economic Provisions	Japan to maintain industries necessary to sustain her economy and pay reparations. Industries to be demilitarized.	No important differences.
9.Loss of Territories	Cairo Declaration. Japanese sovereignty to be limited to four main islands “and such minor islands as we determine”.	No Department Policy beyond the Cairo Declaration.
10.Withdrawal of Occupation Forces	As soon as stated objectives of Allies have been accomplished and a peacefully inclined and responsible government is established.	No definite provisions.

1. This memorandum, prepared in the Office of Far Eastern Affairs, was considered at the 152d Meeting of the Secretary’s Staff Committee, July 30. It is attached to the minutes of the 151st Meeting of that Committee.
2. Document No. 1382.