Legal Status of Germany - Surrender of The Wehrmacht

Surrender of The Wehrmacht

After the Machtergreifung of the Nazi Party in 1933, state power had been personified more and more within Reich Chancellor (Reichskanzler) Adolf Hitler, who upon the death of Reich President Paul von Hindenburg on 2 August 1934 simultaneously served as head of government and head of state (styled Führer and Reichskanzler). Following his suicide on April 30, 1945, even the successor regime appointed in his political testament resigned during the cabinet's May 2 session. Grand admiral Karl Dönitz, appointed Reich President in Hitler's testament, gave the task of forming an acting government to Leading Minister Lutz Graf Schwerin von Krosigk, however, his so-called Flensburg Government no longer possessed any de facto governmental authority.

These incidents preceded the unconditional surrender of the German Wehrmacht armed forces, signed by representatives of the Oberkommando High Command on May 7 in Reims and on May 8 in Berlin-Karlshorst (often incorrectly referred to as "Germany's surrender"), from which, due to its nature as a purely military capitulation, no legal consequences for the legal status of the German Reich arose.

On May 23, the Allies dissolved the Flensburg government and arrested its members. This created a legal vacuum that was only resolved on June 5, when the commanders-in-chief of the Allied forces announced, by way of the Berlin Declaration, the assumption of "supreme authority" in Germany, since the Allied forces not only took control of government, but of the state as a whole. However, an annexation, explicitly, did not take place:

"There is no central Government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country and compliance with the requirements of the victorious Powers. "

"The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany."

State authority was from then on carried out by the Allied Control Council until its de facto dissolution in 1948. International legitimation hereto resulted from Allied occupational supremacy. The eastern territories of the German Reich in its boundaries of December 31, 1937, were assigned to Polish and Soviet administration; the remaining area was divided into four occupational zones and the joint occupational zone of the capital Berlin was submitted to the administration of an Allied Command (Alliierte Kommandantur), which in turn was subordinate to the Allied Control Council.

"For occupational purposes, Germany will be divided into three zones, within her borders of December 31st 1937, to each of which one of the three powers will be assigned, as well as a special zone for Berlin, which is governed by the joint occupation of the three powers" (London Protocol of December 12th, 1944; extension to France did not take place until the Yalta Conference in February 1945.)

Meanwhile, grassroots reconstruction of German public administration commenced. While municipal administrations (Gemeinden) had continued operating nearly without any interruption, and by 1946 local elections took place in all occupational zones, Germany's federal states located within the occupational zones of the western allies were once again assigned state governments between May 1945 and July 1947. In addition, state assemblies bearing constitutional authority were elected and from 1946 onward, state constitutions became effective, in most cases following referendums.