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Occupation administrations

Problems of occupation and the civil administration of occupied territory demanded new forms of international military co-operation. In Europe, the usual scheme of organization for the administration of occupied territory which was subject to the jurisdiction ofmore than one occupant was the Control Commission or Council. The first of these was that established in Italy in implementation of the Armistice with that country.[1] In composition and function, it showed itself to be an outgrowth of the existing unified command in Italy—in essence, a further staff agency within the established structure of the theatre of operations. The Supreme Allied Commander, Mediterranean, was its President, and its personnel were, in about equal numbers, British and American.[2] A somewhat more representative function was served by the Allied Control Commissions which were established in Bulgaria, Hungary, and Roumania to carry out the provisions of the armistice agreements with those countries.[3] The Armistice with Bulgaria, which is typical of the others, stated that the Commission was to function ‘under the chairmanship of the representative ofthe Allied (Soviet) High Command, and with the participation of representatives of the United States and the United Kingdom’.[4] Since the occupation of these three countries was conducted by one power, the Soviet

Union, considerable difficulty was encountered by the British and American members in maintaining an effective part in the occupation, especially in securing free elections and other democratic freedoms.[5]

The two most significant control agencies in Europe were the outgrowth of the division of the countries concerned into occupation zones, administered respectively by the United Kingdom, the United States, the Soviet Union, and France. The Control Council in Germany was, by quadripartite agreement, charged with ensuring ‘appropriate uniformity of action by the Commanders-in-Chief in their respective zones of occupation’ and with reaching ‘agreed decisions on the chief questions affecting Germany as a whole’.[6] The principle of four-power representation on the Control Council itself was also carried out in the Co-ordinating Committee and in the various divisions of the Control Staff, each of which had four heads.[7] A similar practice was followed in over one hundred committees, subcommittees, and working parties.[8] Prior to the breakdown of the control machinery in 1948, a considerable quantity of legislation affecting Germany as a whole had been enacted,[9] and the three years of international co-operation which it had secured could not be said to be without value. The control machinery in Austria, aside from terminological differences, bore a strong resemblance to that in Germany. The Allied Council consists of four High Commissioners, representing the four occupying powers. Subordinate to the Council is an Executive Committee of representatives of the four High Commissioners and a staff organized by divisions, each headed by four directors. The Allied Commission, as the whole structure was designated, had responsibility in matters affecting Austria as a whole, and in the absence of action by the Allied Council the High Commissioners were authorized to act separately.[10] A parallel form of organization was applied to the cities of Vienna, which was under zonal administration,[11] and Berlin, which was similarly divided.[12] An Allied Kommandatura, consisting of four military commandants, was the principal control agency in each case.

The distinctive characteristic of the Control Commissions or Councils was that they operated on the unanimity principle both in the Commission itself and in its subordinate bodies. Disagreements which could not be resolved would either lead to differing policies in the zones of occupation or would have to be referred to the powers concerned for negotiation by their political agencies. Although these collegiate military bodies did not exercise command over the occupying troops, they were nevertheless supervising functions which were initially the responsibility of the military.[13] Especially in the cases of Germany and Austria, they served the purpose of bringing about uniformity of administration in countries which had been arbitrarily carved into occupation zones. When the powers ultimately reached complete disagreement on their policies toward an occupied territory, the lines marking out occupation zones sometimes tended to become international borders.

A more complex structure of occupation administration was applied to Japan. At its summit was the Far Eastern Commission, sitting in Washington and composed of the representatives of eleven states concerned with the occupation of Japan.[14] The occupation was actually carried out in Japan by the Supreme Commander for the Allied Powers. He was assisted by the Allied Council for Japan, consisting of representatives of the British Commonwealth, the Soviet Union, China, and the United States, the function of which was to consult with and advise the Supreme Commander.[15] Although the Allied Council for Japan had the right to refer certain subjects of disagreement to the Far Eastern Commission, it was itself little more than a debating society.

The Far Eastern Commission formulated policy decisions, which were transmitted to the United States Government, which in turn prepared directives to the Supreme Commander in conformity with the policy decisions. Voting in the Commission was by a simple majority, provided the representatives of the four principal powers were included therein. The United States Government was authorized to issue ‘interim directives’ to the Supreme Commander if the matter was urgent and no existing policy decision of the Far Eastern Commission dealt with the matter.[16] Communication between the Commission and the Supreme Commander was thus always conducted through the United States Government. These relationships raised significant questions concerning the status of the Supreme Commander. His immediate subordination to the United States and not to the Far Eastern Commission is, on its surface, somewhat difficult to reconcile with assertions by him and by others that he was an ‘international officer’.[17] In some respects, such as command of the occupation forces of several states and in the establishment by his own order of the International Military Tribunal for the Far East,[18] his functions appeared clearly international. The significance of this unusual pattern of organization for the development of international institutions probably lies in the fact that a single state, and with it its subordinate officers, should have been endowed with responsibilities of an international and, in a sense, representative character, going beyond purely national functions. It should be added that the status of the Supreme Commander for the Allied Powers was further complicated by the fact that he was also Commander in Chief, United States Army Forces, Pacific, and Commander in Chief, United Nations Command, in the Korean hostilities.[19] This threefold status inevitably occasioned complicated jurisdictional questions and problems of possible conflict of interest.[20]

In a number of instances military commanders administering occupied territory and commanding troops of international composition entered into agreements of an international character with the state in whose army they served or with a state whose interests they represented.[21] Even more frequently, zonal commanders concluded agreements with the governments of the areas they occupied.[22] [23] The freedom with which such agreements were concluded suggest that the capacity to enter into international agreements is not as indicative of international personality as the Advisory Opinion of the International Court of Justice on Reparation for Injuries Suffered in the Service of the United Nations37 might indicate.

Only on relatively rare occasions has the status of military commanders of this character been examined by the courts. In Hirota v. MacArthur,[24] the Supreme Court of the United States denied that it had jurisdiction to grant a writ of habeas corpus to a war criminal convicted by the International Military Tribunal for the Far East on the basis that the tribunal was an international one established by General MacArthur as ‘agent of the Allied Powers’. Habeas corpus was similarly denied by a United States court to the war criminal Flick,[25] who had been tried by a United States military tribunal,[26] convened under United States military government legislation as authorized by Control Council Law No. 10. The Court considered the United States Military Tribunal to be an ‘international court’ because its power and jurisdiction stemmed from the Control Council in Germany. The facts that the Tribunal was exclusively a United States one, that the indictment was in the name of the United States, and that the proceedings were entirely within the control of the United States would appear, however, to outweigh the consideration that trials of this nature were authorized by Control Council legislation. The propriety of the opinion is resultingly open to considerable question.

  • [1] Italian Military Armistice, 3 September 1943, T.I.A.S. 1604.
  • [2] ‘Allied Control Commission for Italy’, in D.S.B. 11 (1944), p. 137. For the most part, thepractice later followed in Germany and Austria of having an incumbent from each occupying powerfilling each of the principal offices was not followed. However, the Political Section was headed by twovice-presidents, one English and one American. Important posts were filled by the United States bypresidential appointment (D.S.B. 9 (1943), p. 379; ibid. 10 (1944), p. 573). See generally UnitedStatesand Italy, 1936—1946: DocumentaryRecord (Department ofState Publication 2669, 1946), and Fisher,‘Allied Military Government in Italy’, in Annals of the American Society of Political and Social Science,267 (1950), p. 114.
  • [3] Armistice Agreement between the United States of America, the Union of Soviet SocialistRepublics andthe United Kingdom, and Bulgaria, 28 October 1944, E.A.S. 437; Armistice Agreementbetween the United States of America, the Union of Soviet Socialist Republics and the UnitedKingdom of Great Britain and Northern Ireland, and Hungary, 20 January 1945, E.A.S. 456;Armistice Agreement between the United States of America, the Union of Soviet Socialist Republicsand the United Kingdom, and Roumania, 12 September 1944, E.A.S. 490. Section XI of the Protocolof the Proceedings of the Tripartite Conference of Berlin (Potsdam), 1 August 1945, announcedagreement on a revision of the control procedures for the three countries (D.S.B. 13 (1945), p. 160).
  • [4] Paragraph 18.
  • [5] See ‘U.S. Efforts to Secure Free Elections in Bulgaria’, in D.S.B. 15 (1946), pp. 820—1,containing correspondence between the United States and Soviet members of the Commission. Theactivities of the three Control Commissions are summarized in International Organization, 1 (1947), pp. 163-5, 166-7.
  • [6] Statement by the Governments of the United States of America, Union of Soviet SocialistRepublics, United Kingdom, and the Provisional Government of the French Republic on ControlMachinery in Germany, 5 June 1945, in D.S.B. 12 (1945), p. 1054. See Jennings, ‘Government inCommission’, in this Year Book, 23 (1946), p. 112; Nobleman, ‘Quadripartite Military GovernmentOrganization and Operations in Germany’, in A.J.I.L. 41 (1947), p. 650.
  • [7] Paragraph 7, Statement on Control Machinery.
  • [8] Even the Allied Secretariat had four national elements (see Nobleman, loc. cit., p. 652).
  • [9] See Enactments and Approved Papers of the Control Council and Coordinating Committee (1945-8,9 vols.).
  • [10] Agreement between the Governments of the United Kingdom, the United States of America, theUnion of Soviet Socialist Republics, and the Government of the French Republic on the Machinery ofControl in Austria, 28 June 1946, T.S. No. 49 (1946), T.I.A.S. 2097. The zones of occupation hadbeen agreed upon at a meeting of the European Advisory Commission on 9 July 1945 (Agreementbetween the Governments ofthe United States ofAmerica, the Union ofSoviet Socialist Republics andthe United Kingdom, and the Provisional Government of the French Republic on Zones of Occupation in Austria and the Administration of the City of Vienna, T.S. No. 49 (1946), T.I.A.S. 1600).
  • [11] Article 13, Agreement on Control Machinery in Austria, 28 June 1946.
  • [12] See United Nations, Official Records of the Security Council, Third Year, 363rd Meeting, pp. 7-14.
  • [13] In time, the membership of the principal control organs and their subordinate agencies becamevery largely civilian rather than military. Specific provisions in this regard were made in Article 9 of theAgreement on Control Machinery in Austria.
  • [14] Terms of Reference of the Far Eastern Commission, in Activities of the Far Eastern Commission(Report by the Secretary General, 26 February 1946—10 July 1947; Department of State Publication2888, 1947), p. 36. See also Second Report by the Secretary General (Department of State Publication3420, 1949) and Third Report by the Secretary General (Department of State Publication 3945, 1950);Blakeslee, ‘The Establishment of the Far Eastern Commission’, in International Organization, 5(1951), p. 499; Stratton, ‘The Far Eastern Commission’, ibid. 2 (1948), p. 1.
  • [15] Agreement of Foreign Ministers at Moscow on Establishing the Allied Commission for Japan, 27December 1945, in Occupation ofJapan; Policy and Progress (Department of State Publication 267,undated), p. 72.
  • [16] Terms of Reference, Sections III and V.
  • [17] See General MacArthur’s statement in Hearings on the Military Situation in the Far East before theCommittee on Armed Services and the Committee on Foreign Relations, United States Senate, 82ndCongress, 1st Session (1951), part 1, p. 36; In re Bush (D.C. 1949), 84 F. Supp. 873. In the Termsof Reference of the Allied Council for Japan, he was referred to as the ‘sole executive authority for theAllied Powers in Japan’.
  • [18] T.I.A.S. 1589. By contrast, the International Military Tribunal at Nuremberg was established byinternational agreement.
  • [19] See Hearings cited supra, n. 31.
  • [20] For example, a special Occupation Civil Court with Admiralty and Maritime Jurisdiction wasestablished by General Orders No. 3 of the Supreme Commander, 1 February 1950, to deal with nineChinese Nationalist vessels in Japanese ports on which mortgage payments to the United States werealleged to be in default (The New York Times newspaper, 12 February 1950, p. 8, col. 2).
  • [21] Agreement between the U.S.S.R. and the Supreme Commander for the Allied Powers in Japan(concerning repatriation of Japanese prisoners of war), 19 December 1946, in D.S.B. 23 (1950),p. 431; Economic Co-operation Agreement between the United States of America and the British/United States Zone, Free Territory of Trieste, 15 October 1948, T.I.A.S. 1845, signed on behalf ofthe British/United States Zone by ‘the Commander, British/United States Forces’; Economic Cooperation Agreement between the United States of America and the United States and UnitedKingdom Occupied Areas in Germany, 14 July 1948, T.I.A.S. 1785, signed by the two zonal militarygovernors on behalfoftheir respective zones and by the United States Political Adviser in Germany forthe United States.
  • [22] E.g. Agreement between United States Forces in Austria and the Federal Government ofAustriaregarding Occupation Costs, 21 June 1947, T.I.A.S. 1921.
  • [23] International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1949, p. 173 atp. 179.
  • [24] (1948), 338 U.S. 197. In a number of cases, United States military commissions convened by theCommanding General, Eighth United States Army, in Japan were considered to be ‘internationaltribunals’ (see, e.g., In re Adachi, Habeas Corpus No. 3562, U.S. District Court, D.C., 21 October 1949; In re Norita, Habeas Corpus No. 3558, U.S. District Court, D.C., 21 October 1949).
  • [25] Flick v. Johnson et al. (App. D.C. 1949), 174 F. 2d 983, cert. denied (1949) 338 U.S. 879.
  • [26] United States v. Flick et al. (1948), Trials of War Criminals before the Nuernberg MilitaryTribunals, vol. vi (1952).
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