C. TRANSITIONAL JUSTICE OPTIONS NOT SERIOUSLY CONSIDERED
Four transitional justice options the United States and other Allied powers never seriously considered for addressing the principal Nazis were: (1) inaction (implicit or de facto unconditional amnesty), (2) explicit unconditional amnesty, (3) unilateral prosecution by German courts, and (4) unilateral prosecution by a third-party state, such as one that remained neutral during WWII.
Jackson reported that public opinion within the United States and abroad compelled the USG to bring suspected Nazi atrocity perpetrators to justice proactively: “we might have refused all responsibility for either their safety or their [Nazi war criminals’] punishment and turned them out scot free. But in 1945 what we had to fight against was an insistent and world-wide demand for immediate, unhesitating, and undiscriminating vengeance.”112 Taylor also recounts that Jackson cited the “inescapable responsibility” stemming from the similarly inescapable fact that the United States maintained custody over many of the principal Nazi officials: “What shall we do with them? We could, of course, set them at large without a hearing. But it has cost unmeasured thousands of American lives to beat and bind these men. To free them without a trial would mock the dead and make cynics of the living.”113 Thus, neither implicit nor explicit unconditional amnesty was seriously considered.
Jackson also explained that parties to the negotiations ruled out domestic prosecution within Germany itself, which some critics of the IMT would have preferred as an alternative transitional justice institution.114 These objections followed from the failed efforts at Leipzig to try suspected atrocity perpetrators from WWI and the widespread belief that the post-WWII German domestic judiciary was incapable or highly suspect. As Jackson argued:
To expect the Germans to bring these Germans [(the Nazi war criminals)] to justice was out of the question. That was proved by the farcical experiment after World War I. But after World War II, organized society in Germany was in a state of collapse. There was no authoritative judicial system except remnants of the violently partisan judiciary set up by Hitler. And German law had been perverted to be a mere expression of the Nazi will.
To have turned the men over to the anti-Nazi factions in Germany would have been a doubtful benevolence. Even a year and a half later when [Hjalmar] Schacht, Von Papen, and [Hans] Fritzsche were acquitted by the Tribunal, they begged to remain within the protection of the American jail lest they be mobbed by the angry and disillusioned elements of the German population. They knew the fate of Mussolini.115
Whitney Harris, who served on the U.S. prosecution staff at the IMT, adds that the ruling of a German judge would have introduced thorny sociopolitical questions, such as the public’s concern about whether a particular German judge was biased or treasonous, which might have adversely affected the trial.116 Others suggest that Germans would have been unwilling or unable to prosecute the Nazi leadership, considering (1) that the two Allied doctrines imposed on Germany— unconditional surrender and collective guilt—would act as constraints, (2) that the overwhelming majority of Nazi judges remained in office after the war, and (3) that given the opportunity for trying some of the Nazis after the war, the German judiciary proved to be lenient.117
Jackson further recalls that third-party (i.e., neutral) state prosecution, as suggested by Arendt,118 also was not seriously considered because such states, even if officially neutral during WWII, were no less biased in reality:
Where in the world were neutrals to take up the task of investigation and judging? Does one suggest Spain? Sweden? Switzerland? True, these states as such were not engaged in the war, but powerful elements of their society and most leading individuals were reputed not to be impartial but to be either for or against the Nazi order. Only the naive or those forgetful of conditions in 1945 would contend that we could have induced “neutral” states to assume the duty of doing justice to the Nazis.119