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Multilateral Prosecution Through an Ad Hoc International Military Tribunal

In the end, the quadripartite Allied powers chose to prosecute the principal suspected atrocity perpetrators multilaterally through an ad hoc international military tribunal. Because Jackson led diplomatic negotiations about the IMT on behalf of the USG, his explanations for the USG’s positions on transitional justice can be considered representative and well informed. Jackson explained that this decision ultimately strengthened the USG’s position, stating that the best course of action “is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we deal with will permit, and upon a record that will leave our reasons and motives clear.”79 According to Taylor, Jackson also stated that the purpose of prosecution would be to provide

a well-documented history of what we are convinced was a grand, concerted pattern to incite and coerce the aggressions and barbarities which have shocked the world ... . Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence.80

Jackson further contended on June 30, 1945, that the USG, in particular, favored prosecutions to establish Nazi atrocities because it afforded the due process familiar to most Americans, lest U.S. citizens become as suspicious of these offenses’ accuracy as Americans had been of alleged German atrocities from WWI.81 Jackson further explained why the USG favored a single, prominent international trial of the principal suspected atrocity perpetrators from Nazi Germany. Jackson advocated this method on the basis that, even though the USG intended to participate in holding other alleged Nazi atrocity perpetrators accountable, principal and representative suspected Nazi atrocity perpetrators should be tried jointly and prominently to demonstrate the conspiracy underpinning their heinous crimes.82 Jackson also noted that such prosecutions would occur through a military commission rather than a civilian court, to accommodate the necessary compromises reached among the legal systems of the participating states and also because of the special circumstances of the case.83

The specific method of prosecution on which the Allies settled would be a newly established ad hoc ICT that would exist outside the UN,84 created through an executive agreement among the four states. The tribunal would be a military commission with limited subject-matter (crimes against peace, war crimes, and crimes against humanity), temporal (crimes committed during WWII), and personal (major war criminals of the European Axis) jurisdiction.

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