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Two Armistices and a Surrender
Published online by Cambridge University Press: 20 April 2017
Extract
The publication, on November 6,1945, of a series of documents embodying the terms of the armistice arrangements successively entered into between the Italian Government and the American and British Commanders in the Mediterranean area makes possible an accurate, if necessarily belated, evaluation of their form, content, and import. The text serve as an interesting and accurate record of the degree and intensity of cohesion of the coalition which Italy then faced in the field, and afford an insight into the variform problems which an armistice with a naval power inevitably raises. Because the laying down of Italian arms constituted the first concrete implementation of the concept of unconditional surrender the two armistices in which it was embodied offer an illuminating indication of the juridical form and content of “unconditional surrender” in 1943 with which the surrender instruments and orders of 1945 can be compared.
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References
1 For the texts of the documents involved see below, Supplement, pp. 1–21; also Congressional Record, 79th Congress, First Session, Vol. 91, No. 195, pp. A5081–A5086.
2 In the document made public on November 6, 1945, it is stated, without any indication in the text itself, that these are reproduced “as modified by the protocol signed November 9, 1943.” For the latter document see Great Britain, Parliamentary Papere, Italy [Series], No. 1 (1945), Cm. 6693, p. 11 (Document No. 4).
3 ”These terms,” concludes the preamble of the Malta Convention, “have been presented by General Dwight D. Eisenhower, Commander in Chief, Allied Forces, duly authorized to that effect;
“And have been accepted unconditionally by Marshal Pietro Badoglio, head of the Italian Government, representing the Supreme Command of Italian land, sea and air forces, and duly authorized to that effect by the Italian Government.”
4 See “Armistices—1944 Style” by the present writer, in this Journal, Vol. 39, No. 2 (April, 1945), pp. 286–295, at p. 287.
5 This is believed to be the first international legal instrument in which radar, or radiolocation apparatus, is mentioned. No such mention occurs in the armistices with Rumania, Finland, Bulgaria or Hungary.
6 This is likewise believed to be the first reference in an international instrument to meteorological installations. A year later, in the armistices with Rumania (Art. 3, Annex) and Hungary (Art. III, Annex) specific provision was made for placing at the disposal of the occupying Power, in complete good order and with the personnel required for their maintenance, all meteorological stations which might be required for military needs. No such stipulation occurs in the armistice with Bulgaria, but it is believed that Article 19 of the Armistice with Finland, binding her to “make available such materials and products as may be required by the United Nations for purposes connected with the war” would cover the case.
7 The elaborate enumeration of facilities to be turned over in occupied areas and made available in non-occupied areas was probably a precaution against potential recalcitrance on the part of the Italian armed forces or administration at a time when the margin of military advantage of the United Nations was not large. In the armistices of 1944 the generic categories were fewer and better thought out, the redundancies being largely eliminated. Cf. Graham, as cited, p. 290 and n. 16.
8 By Art. 38 (A) “the term ‘United Nations’ in the present instrument includes the Allied Commander in Chief, the Control Commission and any other authority which the United Nations may designate.”
9 Graham, p. 289.
10 This article appears to have been the prototype for the amnesty and liberation provisions of the armistices of 1944: Graham, p. 291. Religious or racial grounds for incarceration are not, however, covered by the Malta Convention.
11 In amazing contrast, the aide-memoire of the President of the Allied Commission relaxing the Armistice, on February 25,1945, completely filters out all reference to the United Nations save in Article 9, where two vestigial references to the United Nations seem to have crept in adventitiously. Otherwise the document invariably refers to the “Allied Governments,” “Allied Powers,” “Allied Military Government” or “Allied Commission.” Perhaps the kindliest, although not the only interpretation to put on this sharp regression of mention of the United Nations is that, seeing that the Yalta Agreement called for a definitely constituted United Nations Organization, it appeared desirable not to employ the term further in instruments of a military character falling outside the framework of the Dumbarton Oaks proposals.
12 Department of State Bulletin, Vol. XIII, No. 318 (July 29, 1945), p. 137, not reproduced in this Journal.
13 Department of State Bulletin, No. 320 (August 12, 1945), pp. 205–206 and No. 321 (August 19,1945), pp. 255–256. Essentially the pre-surrender negotiations comprised two exchanges of notes, the first declaring the readiness of the Japanese Government to accept the Potsdam Declaration “with the understanding that the said declaration does not comprise any demand which prejudices the prerogatives of His Majesty as a Sovereign Ruler” and the reply of Secretary of State Byrnes declaring that “From the moment of surrender the authority of the Emperor and the Japanese Government to rule the state shall be subject to the Supreme Commander of the Allied Powers;” There followed, in four terse paragraphs, a thumbnail sketch of what the surrender terms would involve—a preview of the shape of things to come. In the second exchange of notes, the Japanese Government communicated a paraphrastic acceptance of the terms laid down in the first Byrnes note. To this Secretary Bymes replied that he regarded the Japanese note “as full acceptance of the Potsdam Declaration and of [his] statement of August 11,1945.” Forthwith General Mac-Arthur radioed the Japanese Emperor, the Japanese Imperial Government, and the Japanese General Headquarters that he had been designated as “the Supreme Commander for the Allied Powers, the United States, the Republic of China, the United Kingdom and the Union of Soviet Socialist Republics, and empowered to arrange directly with the Japanese authorities for the cessation of hostilities at the earliest practicable date.” It is to be noted that the diplomatic exchanges put on record the bases of agreement, whereas General Mac-Arthur undertook only to execute them by appropriate arrangements, not negotiations.
14 Same, No. 324 (September 9, 1945), pp. 362–365; this Journal,Vol. 39 (1945), Supplement, p. 264.
15 A number of these are found in the collection published by the Chinese News Service in China at War, Vol. XV, Nos. 3–4 (Sept.-Oct. 1945), pp. 1–25, noteworthily the Nanking Surrender Document of September 9, 1945, and Order No. 1 of Generalissimo Chiang Kai-Shek, at pp. 17–23. Because of the inaccessibility of documents regarding the surrender arrangements in the Southwest Pacific area, no endeavor has been made to analyse the briefly reported proceedings and terms at Hong Kong, Singapore, Rangoon, and other places.
16 Nanking Surrender Document, paragraphs 1–3, and Chinese Order No. 1, Arts. I, II, A, B, C, which basically conform to these stipulations; see also the Malta Convention, Arts. 1–2.
17 Nanking Surrender Document, par. 3, Chinese Order No. 1, Art. II, D, and H, 1–5 and Art. III, A–F. See the Malta Convention, Arts. 3, 4, 7–11.
18 Chinese Order No. 1, Art. II, H, 4–5. Compare the Malta Convention, Arts. 12, 13, 35.
19 Nanking Surrender Document, par. 4; Chinese Order No. 1, Art. II, F, 1–4. Compare the Malta Convention Art. 32 (A).
20 Nanking Surrender Document, pars. 5–7; Chinese Order No. 1, Art. IV; see also Malta Convention Arts. 34, 44.
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