With debellatio or Debellation ( lat. : "Complete defeat, ending the war"; bellum , war ', even military defeat ) is defined as the complete destruction by military and defeating a hostile state induced end of a war . The now outdated Debellatio doctrine in customary international law stated that a militarily completely defeated state, whose institutions have been destroyed, is no longer a subject of international law .
According to customary international law, a debellation could (but did not have to) be followed by an annexation . With the elimination of the state power of the debated state, the claiming of the foreign territory or part of it by the victor could go hand in hand. Whether for a debellatio not only the hostile state power had to be completely defeated, but also the enemy territory had to be completely conquered, was a matter of dispute among international lawyers . For this reason, a debellation by France as a justification under international law for the establishment of the General Government of Alsace-Lorraine was controversial; not all of France was occupied in the Franco-Prussian War of 1870/71 and only this part of its national territory subject to the German government was to cede France.
The general prohibition of violence in the Charter of the United Nations of 1945, the subsequent prohibition of annexation and the law of occupation codified in the IV Geneva Convention of 1949 mean a prohibition of debellation and annexation. According to today's view, it is sufficient as a prerequisite for a debellation that one of the three elements constitutive for a state - state people , state territory and executive - is no longer available or no longer functional.
Example: Debellation theory on the legal situation of the German Reich after 1945
The situation of the German Reich at the end of the Second World War was seen by a few scholars as a debellation because the Wehrmacht unconditionally surrendered . A Debellation but usually complete dissolution ( "downfall of the state") into independent states - although the mere fact of debellatio is not in itself a reason for the state downfall - or the integration of the territory of the defeated country in its own territory to Result ( total or full annexion ). In the case of Germany , however, according to the prevailing opinion , this did not happen, since the state territory, state people and state authority continued to exist. This was expressly confirmed not least by the Allies' Berlin declaration of June 5, 1945.
- The national territory continued to exist in its territorial status from December 31, 1937 , the Allies explicitly declared that Germany would not be annexed. The German eastern territories were, however, separated and ultimately annexed on the one hand by decree and on the other in fact.
- The German people continued to exist, not the entire population was exterminated or resettled.
- Finally, German state power was not abolished, but taken over by the Allies in the Berlin Declaration. It is controversial whether they exercised government power as trustees of the German people or whether they were selfish and in the erroneous belief that this takeover was covered by international law. It is also questionable whether state authority in the German Reich was completely replaced from 1945 onwards.
As to whether the German Empire was destroyed as Debellation 1945, which provided federal Constitutional Court of the Federal Republic of Germany in its decision of 31 July 1973 master agreement stated that the Basic Law assume that it continues to exist in legal terms, and still in force in the (1973 ) Rights and responsibilities of the former occupying powers for " Germany as a whole " ( four-power status ) still a remnant of the existence of the German Reich is visible.
- Carolin Söfker: Reorganizations of occupied states shaped by the occupying power: What effects do wars of aggression , forbidden under international law, have on the scope of the powers of occupation? Investigated using the example of the Iraq war , Herbert Utz Verlag, Munich 2015, ISBN 978-3-8316-4389-9 , p. 46.
- Achim Tobler: Conquest . In: Karl Strupp, Hans-Jürgen Schlochauer (Ed.): Dictionary des Völkerrechts , Vol. I, Walter de Gruyter, Berlin 1960, p. 438 .
- Sophie Charlotte Preibusch: Constitutional developments in Alsace-Lorraine from 1871 to 1918. Integration through constitutional law? BWV, Berlin 2006, ISBN 3-8305-1112-4 , p. 34 ff.
- Friedrich Berber : Textbook of international law. Vol. 2: Martial Law . CH Beck, Munich 1969, p. 100.
- Karl Doehring : Völkerrecht , 2nd edition, Heidelberg 2004, § 11 Rn. 648; see. Michael Stolleis : History of Public Law in Germany , Volume 4: Political and Administrative Science in West and East 1945–1990 , Munich 2012, p. 34.
- On the justification of the debellation thesis cf. Hans Kelsen's article: The International Legal Status of Germany to be established immediately upon Termination of the War , in: AJIL 38 (1944), pp. 689-694. See also Georg Meyer, Soldiers Without an Army. Professional soldiers in the fight for honor and care . In: Martin Broszat , Klaus-Dietmar Henke , Hans Woller (eds.): From Stalingrad to currency reform. On the social history of upheaval in Germany , 3rd edition, Oldenbourg, Munich 1990, p. 705. There were also others such as the political scientist Wilhelm Hennis (1974), The role of parliament and party democracy , in: ders. (Ed.) , Governing in the modern state (= political science treatises , vol. I), Mohr Siebeck, Tübingen 1999, pp. 226–273, here p. 233. Critical to this in general Eckart Conze : Herrschaft und Politik. A comment. In: Anselm Doering-Manteuffel (Ed.): Structural features of the German history of the 20th century , 2006, pp. 109–117, here p. 115.
- Hermann Mosler , End of the War . In: Karl Strupp, Hans-Jürgen Schlochauer: Dictionary des Völkerrechts , Vol. II, 2nd edition, Walter de Gruyter, Berlin / New York 1961, p. 336 .
- See Andreas Zimmermann , State succession in international treaties. At the same time a contribution to the possibilities and limits of international law codification , Springer, Berlin / Heidelberg / New York 2000, ISBN 3-540-66140-9 , pp. 71 f., 82 f., 87 f., 92 with further references; Klaus Stern , The State Law of the Federal Republic of Germany , Volume V, CH Beck, Munich 2000, p. 1964 f .; Jochen Abr. Frowein , Die Verfassungslage Deutschlands in the context of international law , in: VVDStRL , Heft 49, 1990, pp. 7–33.
- Also on the following Gilbert Gornig : The status of Germany under international law between 1945 and 1990. Also a contribution to the problems of state succession. Wilhelm Fink, Munich 2007, p. 19 ff.
- Declaration in view of the defeat of Germany and the assumption of supreme governmental power over Germany by the governments of the United Kingdom, the United States of America and the Union of Soviet Socialist Republics and by the Provisional Government of the French Republic on documentArchiv.de, accessed on October 1, 2017.
- After northern East Prussia was officially annexed by the Soviet Union on October 17, 1945 , it was incorporated into the RSFSR by decree of the Council of Ministers of the USSR on April 7, 1946 as the "Königsberg region" . - VS Isupov et al. (Ed.): Samaja Zapadnaja. Sbornik dokumentov i materialov o stanovlenii i razvitii Kaliningradskoj oblasti (vol. 1), document no. 1, Kaliningrad 1980, p. 17.
- See the decree of November 13, 1945 on the administration of the regained territories, the ordinances of the Council of Ministers of May 29, 1946 on the provisional administrative division of the regained territories and the law of January 11, 1949 on the incorporation of the regained territories ( Dziennik Ustaw Rzeczypospolitej Polskiej [Law Gazette of the Republic of Poland], 1945, no. 51, item 295; 1946, no. 28, item 177, 178; 1949, no. 4, item 22).
- Gilbert Gornig: The status of Germany under international law between 1945 and 1990. Also a contribution to the problems of state succession. Wilhelm Fink, Munich 2007, p. 19 ff.
- Werner Frotscher / Bodo Pieroth : Verfassungsgeschichte , 5th edition, CH Beck, Munich 2005, Rn. 648.
- BVerfG, judgment of July 31, 1973