Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
As the foregoing indicates, the Allies instituted various transitional justice options alongside and in addition to the IMT. As well as cooperating with other states to support unilateral prosecution and lustration for particular Germans, the USG provided conditional amnesty to some and even employed others, including Nazis suspected of committing some of the most heinous crimes or otherwise facilitating Nazi aggression and ideology.
This case study, which also examines the reasons the USG supported the IMT after WWII, teaches several lessons about the etiology of the tribunal’s establishment. For example, the IMT might not have been created without Stalin’s early, constant, and forceful lobbying. The IMT experience reveals much about U.S. foreign policy on one of the first and most significant cases of transitional justice in history. Specifically, and of particular relevance to this book, it suggests that almost every major decision regarding the transitional justice methods for addressing the principal Nazi suspects (including which general options the USG supported and the forms those options took) was made from a combination of politics, pragmatics, and normative beliefs—in other words, prudentialism.
The decision to “do something” was motivated by all three factors. USG officials were conscious of the domestic ramifications of such a decision, as the American public demanded that Nazis be held accountable. Domestic political pressure thus helped drive U.S. decision-making to act. As a pragmatic concern, the USG held in custody many of the principal Nazis and thus faced pressing choices about how best to deal with them. Even simply keeping them imprisoned or letting them go would have been decisions to “do something”; the former would have constituted indefinite detention, in itself a violation of due process, and the latter would have represented implicit unconditional amnesty. Finally, many USG officials held strong normative beliefs. Apart from the necessity of addressing the large number of Nazi prisoners of war in U.S. custody, USG officials, such as FDR, Wallace, and certain congressional leaders, also felt it was their duty to do so. They were compelled by a belief, which many of their constituents shared, that individual Nazis should be held accountable for their heinous crimes. Moreover, these officials deemed it appropriate to execute at least some Nazis for their atrocities. (A difference among these USG officials is that those who shared Truman and Stimson’s views believed such capital punishment should occur only after a legal conviction.)
The ultimate decision to prosecute many of the chief Nazis also was motivated by a combination of all three concerns. Several domestic political factors helped to build a consensus around prosecution. A lack of clear early direction from FDR enabled Stimson to assume leadership on this transitional justice issue and to amass support for his favored option: prosecution. FDR was persuaded by his misreading of American public outrage against the Morgenthau Plan to abandon his initial preference for summary execution in favor of prosecution—the option that Stalin, like Stimson, advocated. USG officials also were compelled by another concern rooted in American legal tradition. Jackson noted that the due process guarantees sacrosanct in the United States would be instrumental toward convincing Americans that prosecution was legitimate. The December 1944 Malmedy Massacre of American soldiers inspired USG officials to rally around the most developed proposal to date, the Bernays Plan for prosecution. Finally, FDR’s April 1945 death enabled a former judge,
Truman, to assume the presidency and assert his preference for confronting senior Nazis in a courtroom.
USG officials also favored prosecution because of pragmatic concerns and normative beliefs. Practically, even if USG officials prosecuted some of the Nazis, the USG still could pursue other options as well, such as conditional amnesty and lustration, which it did. The USG also wanted to use the discovery features of a trial to collect evidence and establish a historical account of Nazi atrocities, in part to rebut any future criticisms of American involvement in or conduct during WWII. Many USG officials, such as Marshall, Cramer, and Frankfurther, were driven by strong normative convictions. This faction of the USG—led by Stimson and eventually championed by Truman—felt that it was more just to put Nazis on trial than to subject them to the other option that was being seriously considered: lethal force through extrajudicial execution.
Although at one point during his frustration with the Soviet contingent Jackson suggested that the Allies hold separate trials for prosecuting senior Nazis, the USG ultimately decided to cooperate with its allies on establishing and operating an international military tribunal. The USG’s decision reflected both external diplomatic calculations and internal politics involving the precarious balance of power among the different branches of government. The Soviet Union lobbied strongly for a joint trial. Despite disagreements with the Soviets, which foreshadowed the ideological conflict of the approaching Cold War, the USG ultimately concurred. Failing to reach accord would have strained relations with this powerful ally. Furthermore, if the USG had pursued a unilateral or more narrowly multilateral trial, it would have violated its earlier commitment to hold a joint trial, and it might have been politically risky not to honor that public pledge. The USG also was disinclined to permit domestic trials in Germany itself, which were considered a failure after WWI. Moreover, pursuing an ICT enabled the U.S. president to establish and operate this transitional justice option through executive agreement, thus circumventing the U.S. Senate—with which FDR had disagreed so often on foreign policymaking. Finally, the USG’s decision to support the creation of the ICT as a military instead of civilian court was driven by an additional political desire to facilitate compromises among the participating states.
Pragmatic factors also played a role in the USG’s decision to prosecute suspected Nazi atrocity perpetrators through an ICT. Creating multiple tribunals, rather than concentrating and coordinating efforts among the Allies, would have strained each ally’s resources on an already logistically difficult and draining enterprise. Furthermore, although the USG held in custody and thus could contribute the majority of defendants to what would become the IMT, only by joining forces could the USG have participated in the trial of other senior Nazis. The USG also believed that a unified effort was necessary to illustrate the conspiracy driving Nazi atrocities in the first place. Finally, because the IMT was established to address only a few of the most egregious perpetrators of Nazi atrocities, the
USG would not be precluded from addressing the majority of its Nazi prisoners through the other prosecutorial mechanisms (unilateral trials) and nonprosecutorial methods (lustration and conditional amnesty) described above.
The IMT origin narrative also reveals the explanatory limitations of certain factors. Most significant, it is apparent that normative beliefs alone did not drive the USG’s transitional justice approach to Nazis. That FDR, who favored summary execution, differed so greatly in his initial preference from Truman indicates that USG officials held no consistent normative belief regarding post- WWII transitional justice, and that U.S. decision-makers had seriously considered non-legalistic options for even the principal Nazis. The large number of Nazis the USG not only did not prosecute but either addressed through lustration or conditional amnesty (sometimes even by employing them) demonstrates that the USG was not universally committed to a normative view of prosecuting suspected atrocity perpetrators.
The significance of the IMT is felt not just in its role as the first major ICT, but also that it greatly impacted parallel transitional justice considerations, the most important of which related to atrocities committed by Japanese during WWII. The next chapter discusses the establishment of the IMT’s sister ICT, the IMTFE.
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