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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics

: The U.S. Government Reaches Internal Consensus and Agreement with Allies

When FDR died on April 12, 1945, Truman was sworn into office as the 33rd U.S. president. Soon thereafter, Truman (who had served as a judge on Mississippi’s Jackson County Court) declared his opposition to extrajudicial executions and his preference for establishing a court to try major Nazi war criminals.48 Following suit, on April 20, 1945, McCloy’s office in the War Department produced a memorandum arguing for “judicial trial” over “political disposition,” such as summary execution,49 and Cutter drafted a similar memorandum for the Department.50

On May 2, 1945—four days after Benito Mussolini was killed, two days after Adolf Hitler committed suicide, and one day after Nazi propagandist Joseph Goebbels and his family also ended their own lives—Truman took another step toward using judicial trials to prosecute senior Nazi war criminals by naming Jackson to be

the Representative of the United States and its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.51

Jackson would thus serve as the chief U.S. representative in negotiations leading to the IMT’s creation, and then the chief U.S. prosecutor before that tribunal.

The following day, the British War Cabinet officially revised its position on how major Nazi war criminals should be addressed. In a message to Eden, the British War Cabinet stated:

The position as regards the major war criminals has greatly changed since this matter was last considered. Many of these have already been killed, and the same fate may well overtake others before the fighting is over.

The War Cabinet still see objections to having formal state trials for the most notorious war criminals whose crimes have no geographical location. But if our two major allies remain convinced that this is necessary, we are willing to accept their views on principle.52

That same day, during a meeting of the Big Three at the UN conference in San Francisco, Eden declared his government’s willingness to work with the United States and the Soviet Union to prosecute the major criminals through an ICT.53 Over the following months, the British “rapidly adjusted themselves to the American vision” of a thorough, potentially lengthy trial that would draw upon new principles and procedures in international law.54 On June 6, 1945, Jackson submitted a report to Truman describing his progress in the investigation and prosecution of the foremost Axis war criminals. Truman approved the report, which was published throughout the United States and Europe.55

Although the major Allied powers (the United States, the United Kingdom, the Soviet Union, and France) had agreed by mid-1945 to prosecute the principal Nazi war criminals through an ICT, negotiations over this transitional justice option did not cease. On procedural issues, the participating countries’ divided adherence to the common law (the adversarial, Anglo-American system) and civil law systems (the inquisitorial, Continental system, which was followed by France and the Soviet Union) created some tension that ultimately resulted in compromise.56 Furthermore, the Soviet Union and the United States disagreed emphatically and repeatedly about the nature of the trials on three major points. First, the Soviet Union argued that the Nazis’ guilt already had been determined and that the tribunal should be mandated only with adjudicating the degree of culpability and accompanying punishment. The United States, by contrast, argued that the trials should not presume guilt.57 A second point of contention concerned the Soviets’ belief (supported by both the United Kingdom and France) that waging an aggressive war should not be considered illegal per se, probably out of concern for its own actions during WWII, particularly against Poland, Finland, Latvia, Estonia, and Lithuania. The opposing American view held that a political-legal argument condemning aggressive militarism was the cornerstone of the future prosecution case against the major Nazi war crimi- nals.58 A third point of controversy was that the Soviet Union (joined by France) did not favor the trial of organizations, whereas “the concept of a conspiracy or common plan involving not only individuals but organizations was at the heart of the American proposal ... .”59

Throughout these contentious discussions, Jackson occasionally suggested that a lack of coordination might be desirable and pragmatic: “the idea of separate trials for each nation for the trial of its separate groups of prisoners may be the easiest and most satisfactory way of reconciling” these different positions.60 The Soviet Union responded, citing previous agreements, that such separate national prosecutions “would be directly opposed to the Moscow declaration, which laid down that the trial of the war criminals should be a common task of the United Nations.”61 This prompted Jackson to declare:

there are some things worse for me than failing to reach an agreement, and one of them is reaching an agreement that would stultify the position which the United States has taken throughout ... . I think there are four possible courses here: one is to set up the international Four Power trials we have been considering; another is to refer the war crimes matter back to the Potsdam Conference for a political decision as to what they will do with these prisoners; another is for the United States, whose interests and views in the matter do not seem to be in accordance with those of the European

Allies, to turn over its prisoners to those Allies and permit the trial or disposition by such method as you three agree upon; and the fourth course would be for each of us, by separate trials, to proceed to try those we have as criminals.62

Jackson privately proposed yet a fifth option to other senior USG officials: that the United States, the United Kingdom, and France conduct a joint trial without the Soviet Union.63 Comparing the fourth and fifth options, Judge Samuel Rosenman, a U.S. presidential advisor, stated that the former was preferable because the latter “would be quite a slap at the Russians, leading to recriminations, where it would not be quite so bad if it was decided that each nation would try its own war criminal prisoners.”64 Brigadier General Telford Taylor, who, on October 17, 1946, was appointed by Truman to succeed Jackson (who by then had returned to his seat on the U.S. Supreme Court) as the U.S. Chief of Counsel for War Crimes, concurred. As Taylor argued: “Given the history of the relations between Russia and the other three [major Allies], it would have been the height of political folly to proceed with an international trial of war criminals without the participation of the Soviet Union.”65

In part because of skilled British mediation between the United States and the Soviet Union, the latter eventually yielded to the American plan on all three points: the ICT would not presume the defendants’ guilt, and its mandate would include considering both crimes against peace and the common plan or conspiracy. The involvement of the United Kingdom in brokering these negotiations was an ironic development given the British opposition to a tribunal only a couple of months earlier. Yet their about-face was somewhat understandable in light of the U.K. government’s change from Conservative to Labour leadership during the interim election.66 At the same time as the Kremlin caved to the USG preferences, the British also yielded to the American plan on a separate point. Although the United Kingdom originally had preferred a trial that would “last at most two weeks,” the Americans favored a lengthier and thus more thorough proceeding.67

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