Foreign Relations of the United States, 1948, Germany and Austria, Volume II

CFM Files: Lot M–88: Box 121: File—Occupation Statute, Cables

Draft Occupation Statute for Germany, Prepared by the Office of Military Government for Germany (U.S.)¹

secret

[Berlin,] 12 October 1948.

Proclamation

To the people of the British, French and US Zones of Germany:

Whereas, the Military Governors and Commanders in Chief of the British, French, sand US Zones of Occupation, acting on the instructions of their respective governments, are exercising supreme authority, each in his own zone of occupation, and

Whereas, the Military Governors and Commanders in Chief of the British, French and United States zones have agreed, that although a peace treaty has not yet been signed between the United Nations and Germany (TRI), pending quadripartite agreement on the unification of Germany, it is expedient for the better administration of their zones to establish provisionally a constitutional German government (TRI), and

Whereas, acting on instructions of their respective Governments, they have agreed to define on the basis of the present temporary organization of Germany a common policy as to their basic relations and with the German people in their Zones, to provide a unified administration of that policy (W), and

Whereas, the basic purposes of the occupation are to insure a just and lasting peace based on free political institutions, a stable society and a productive economy maximum German contribution to German and European economic recovery (W); to prevent the renaissance resurrection (TRI) of national socialism, militarism or aggressive purposes, the growth of any form of totalitarianism, or the misuse of German resources for any such purposes; and to assist Germany’s integration with the peace-loving democratic forces of Europe and of the world.

We, General Brian Hubert Robertson, Military Governor and Commander-in-Chief of the British Zone of Germany; General Pierre Koenig, Military Governor and Commander-in-Chief of the French Zone of Germany; General Lucius D. Clay, Military Governor and Commander-in-Chief of the United States Zone of Germany, do hereby jointly proclaim as follows:

article i

Powers of the Federal Government and of the Governments of the participating Laender.

1. The federal government and the governments of the participating German Laender shall exercise full legislative, administrative and judicial powers over the territory and persons within their jurisdiction (TRI) in accordance with the provisions of the basic law (provisional constitution) and their respective constitutions, subject only to the limitations imposed by this statute and by legislation of the occupying powers not inconsistent herewith. (TRI). Legislation of the Occupying Authorities remains in force. The legislative texts and regulations pertaining thereto in this category which are considered to be incompatible with this Statute will be expressly abrogated. A list of such texts will be issued from time to time by the Military Governors, acting in accordance with their legislative and administrative powers. (TRI)

2. Except as otherwise provided in this Statute, the laws and regulations of those governments will come into force automatically within 21 days of their official receipt by the appropriate occupation authorities unless, because they are in conflict with the provisions of this Statute or its implemented legislation, they are disapproved by the Military Governors. However, Land Constitutions (W), amendments to Land or federal constitutions and legislation in the fields outlined in Article II, para 4 of this statute which the Military Governors have authorized German governments to enact, will require prior written (W) approval of the Military Governors.

3. German courts shall exercise jurisdiction in all cases except those reserved to courts of the occupying authorities by para 7 hereof. The Military Governors may give German courts jurisdiction in any of the cases enumerated in para 7, except cases referred to in Article II, para 7A(1)a (W).

4. The Military Governors will guarantee that all agencies of the Occupation observe the rights of all persons under their jurisdiction to be protected against unreasonable search, seizure and arrest; to be admitted to bail as circumstances warrant; to communicate with relatives; to be represented by counsel, and to have a prompt and fair trial. (O&W)

article ii

Powers Reserved to the Occupying Authorities

5. In order to insure the fulfillment of the basic purposes of the occupation, the Military Governors reserve to themselves the powers to:

A. Conduct or direct Germany’s foreign relations until such time as she may be permitted unrestricted foreign relations; (London exact)

B. Exercise the minimum control over German foreign trade and foreign exchange (and over internal policies and measures which could adversely affect them), necessary to ensure respect for obligations entered into by the occupying powers in regard to Germany and the proper use of funds made available to Germany;

C. Exercise such controls as have been or may be (L&W) agreed upon by the occupying powers to include, for example, the international authority for the Ruhr, reparations, restitutions, disarmament, decartelization, and certain aspects of scientific research.

D. Protect the prestige and ensure the security and guarantee the immunity from German governmental processes of the Occupying Forces and authorities and the satisfaction of their requirements within defined limits agreed upon between the Military Governors, conduct operations deemed essential to the national security of their respective countries (W&OMGUS/Legal);

E. Ensure the observance of this statute and of the Federal and State constitutions which they have approved. The Military Governors will require German legislation, administration, judicial processes and governmental procedures to conform to the provisions of the basic law (Provisional Constitution). (Reorganized as per Washington’s proposal)

F. Protect, maintain, insure non-discrimination against restitute property belonging to other governments or their nationals; protect and restitute property of victims of Nazi persecution;

G. Supervise the assimilation of expellees and (TRI) exercise control over the return of refugees, and over the protection, maintenance resettlement and repatriation of displaced persons. (Reorganized as per Washington’s suggestions)

H. Ensure the control of all aspects of civil aviation and facilities therefor throughout the combined area (W).

6. The Military Governors will require German legislation, administration, judicial processes and governmental procedures to conform to the provisions of the basic law (provisional constitution). (included in para 5 E as per Washington’s proposal)

7. The Military Governors reserve the right to set aside any decision of a German court which involves a challenge to the validity of or is in violation of any provision of this statute or implementing legislation of the occupying authorities. (deleted and changed as per Washington proposal; now included under para 7C)

6. The Military Governors reserve the right to control the disposition and care of all persons who have been or may be sentenced in occupation courts and tribunals (W & O/Legal).

7. Courts of the occupying authorities shall exercise jurisdiction in the following cases:

A. Criminal Cases.

(1) Offenses committed by:

(a) Members of, or non-Germans serving with, accredited to, or in Germany under sponsorship of the occupation forces or authorities, or dependents of such persons;

(b) Nationals of an occupying power or their dependents;

(c) Displaced persons.

(2) Offenses under any law in force in their zones committed against the property or safety of any of the occupying powers or of the persons set forth in 7A (1).

(3) Offenses against legislation of the occupation authorities which the German authorities fail to prosecute.

B. Civil Cases.

(1) Actions in which the persons enumerated in para 7A(1) (a) are parties defendant.

(2) Actions relating to monetary claims against any German, governmental unit, or legal entity existing under public law which arose before 8 May 1945.

C. Civil or criminal cases arising in a German court, which involves a substantial challenge to the validity of the occupation statute or to its effective operation. The Military Governors may direct removal of such cases to occupation courts either before or after judgment in a German court (W).

8. The occupying authorities shall resume their exercise of their full powers in an emergency threatening security, and if necessary to secure compliance with the Constitution, or the Constitutions of the participating Laender (TRI) or with the Occupation Statute.

9. The Military Governors reserve the right to require the dismissal of any German public servant who violates this Statute or takes any action which impairs the prestige or jeopardizes the security of the occupation forces. (deleted per Mr. Panuch’s suggestion and Washington’s proposal)

9. Before repealing former German (W) legislation found to be inconsistent with this Statute, the Military Governors will consult with appropriate German authorities.

10. The Occupying Authorities will have a special responsibility to observe, advise and assist the federal and state governments in regard to the democratization of political life, social relations and education. This shall not imply any restriction of the legislative, executive and judicial competence accorded to such governments in these matters.

11. The Military Governors will reserve the right to take action themselves, to direct such measures as may be required of German governments, to legislate in the fields reserved to the occupation authorities. In all other fields action of the occupation authorities will be limited to observation and advice.

12. All decisions and directives issued in accordance with the powers reserved under this statute will be transmitted to the head of the appropriate and competent level of German government.

article iii

Requirements of the Occupation

13. After consultation with federal and Land governments the Military Governors will establish annually a budget for total occupation costs, which will be provided the federal and Land governments in order to enable them to plan their budgets.

14. Except as qualified in para 8 above, requirements of the occupying forces will be limited by the following principles:

A. No foodstuffs will be taken from the German economy except in exchange for comparable quantities procured from outside Germany.

B. Consumption of coal and electricity and gas will be limited to fixed annual percentages of the total amounts available in the occupied areas.

C. No new requisitions for furniture and other household goods will be issued. Any new requirements will be obtained from new production or from imports and not from individual owners.

D. The total number of Germans working for the occupying forces shall not exceed a figure agreed upon annually after consultation with the German authorities.

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Appeal Procedure

15. Any German government may appeal from any action taken by occupying authorities on the ground that the action is in conflict with the provisions of this statute. Such appeals will be addressed to the appropriate occupying authorities according to such procedure as may be established, with ultimate appeal to a high court. However, no appeal hereunder will have the effect of suspending the action taken.

16. This court will be composed of 6 jurists appointed by the Military Governors and 2 jurists to be appointed by the Federal Government. Its decisions will not be subject to reversal by the Military Governors and will be binding on the occupation authorities and the German governments, Said decisions may, however, be appealed by the Military Governors to their respective governments (W).

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Amendments to this Statute

17. No amendment to this Statute will be made without prior notice to and consultation with the federal and Lamd governments concerned.

1. The source text was accompanied by a memorandum of October 12 from Edward Litchfield, Director of the Civil Administration Division, OMGUS, to General Clay, which read in part as follows:
   • “1. Attached herewith (Tab–A) is a revised draft of the Occupation Statute. It contains all of the provisions of the draft which you forwarded to Washington on 29 September [see footnote 1 to message WX–90479, October 8]. Those provisions which it is now suggested be deleted have been entered and then crossed out. Those provisions which it is now proposed be inserted have been underlined.
   • “2. The underlined insertions include all of the Washington suggestions [see message WX–90479, October 8, to Berlin, p. 606] which seem to us desirable. These additions are parenthetically shown as follows: (W). The additions also include proposals which will make our draft more nearly similar to the draft which the UK and French members of the Tripartite Committee have already tentatively agreed upon. These additions are also underlined but are identified as follows: (TRI); OMGUS proposals shown as (O); return to London text shown as (L).” The “London text” referred to in the Litchfield memorandum presumably is document TRI/17 Final, May 19, p. 260.

   The revised text printed here was transmitted to Washington by General Clay in his message CC–6348, October 16, infra.