Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
III. Explaining the United States Role in Transitional Justice for Germany
A. THE EVOLUTION OF THE U.S. GOVERNMENT’S GENERAL TRANSITIONAL JUSTICE PREFERENCES
One of the major issues inviting further reflection is why the USG withdrew its support of lethal force in favor of prosecution as the method of addressing the principal suspected atrocity perpetrators from Nazi Germany. Although during the FDR administration the USG initially considered the use of lethal force through extrajudicial execution, Jackson explained why the government swiftly abandoned that position. Regarding show trials, Jackson argued at a lecture to the American Society of International Law on April 13, 1945, that “the world yields no respect to courts that are merely organized to convict.”120 Regarding summary judgment without even show trials, Jackson argued, “we could execute or otherwise punish them without a hearing. But undiscriminating executions of punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride.”121
Jackson’s arguments about why the USG did not ultimately select lethal force are dubious. His contention is that the USG’s adherence to the rule of law led it to support the prosecution of suspected atrocity perpetrators from Nazi Germany. But Jackson’s conclusion ignores the facts. FDR did not abandon his support for extrajudicial executions until after and because economic aspects of the Morgenthau Plan (those concerning the “pastoralization” of Germany) were leaked to the press. When the American public expressed its outrage at treating Germany so harshly through a form of economic sanctions, FDR extrapolated this sentiment to the perception that his fellow countrymen were unsupportive of severe treatment for the Germans through summary execution. As Bass acknowledges, “[i]t was only after a bruising cabinet fight, and a timely leak that undermined Morgenthau ... that the Roosevelt administration chose a legalistic policy that led to the great trials at Nuremberg.”122
And it was not until after FDR died that the USG fully embraced the general transitional justice option of prosecution. FDR’s death and the consequent ascendancy of the pro-trials Truman to the White House was therefore one of the most significant events that led, first, to the solidification of U.S. policy and then to a unified Allied policy on addressing major Nazi war criminals through prosecution. Almost immediately after assuming the presidency, Truman unambiguously declared his transitional justice preference: he opposed extrajudicial execution and, instead, favored the establishment of a tribunal for legally trying suspected atrocity perpetrators from Nazi Germany. Truman’s preference for the rule of law reflected his considerable experience as a judge. This strong and clear presidential direction, which had been absent under FDR, galvanized the pro-prosecution lobby within the USG (specifically at the War Department), by adding public presidential support for its internal memoranda, such as those authored by McCloy and Cutter in April 1945, and culminating in the appointment of a distinguished jurist, Jackson, to be the USG’s chief negotiator on and prosecutor before the IMT.
Whereas legalism argues that liberal states follow principled commitments to the rule of law in trying suspected war criminals, the USG’s decision to support trials in this case actually resembles a prudentialist narrative. The policy choice depended on two factors: (1) misperceived public outrage over the Morgenthau Plan, and (2) FDR’s death, which permitted Truman’s preferences to assume priority. This point is supported further through a counterfactual illustration. If the Morgenthau Plan had not leaked to the press, or if it had been made clear that the economic proposals were only part of that Plan, then the public might not have responded with such hostility. Referring to polling data collected by Gallup on the American public’s preferences for addressing the principal Nazis suspected of perpetrating atrocities (which demonstrates that the American public overwhelmingly favored summary execution for Hitler, Hermann Wilhelm Goering, and other Nazi leaders), Bass himself acknowledges: “The whole Morgenthau Plan was destroyed by American public opinion, but not because of its summary execution plan. Had Americans evaluated the Morgenthau Plan on war criminals, they would probably have sided with Morgenthau.”123 In that case, FDR would not have felt compelled to abandon his support for summary executions. However, FDR likely would have felt at least some pressure to change his initial position after Churchill made Stalin’s preferences (against summary execution) clear to him. At that point, FDR may have decided to support prosecution. Under all of these assumptions, Jackson’s implicit and Bass’s explicit legalistic theory would not explain why the USG supported trials over summary execution. Rather, a prudentialist account, emphasizing the USG’s desire to accommodate its erstwhile ally (the Soviet Union), indicates that political expediency mattered more. Logistical factors also played a role. If FDR had not died, the USG might have joined with the United Kingdom to pursue Anglo-American extrajudicial execution of the principal Nazis.
Similarly, Jackson seems to have overstated the role American pledges, conscience, and pride played in the USG decision to oppose summary executions. If these factors had been so compelling, presumably they would have motivated related USG policymaking on transitional justice in this case. However, consistency in rhetoric and potential shame for the nation and posterity were implicitly neglected when the USG implemented de facto conditional amnesties for certain Nazis.
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