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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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A. TRANSITIONAL JUSTICE OPTIONS SERIOUSLY CONSIDERED

Transitional Justice Options the Allied Powers Seriously Considered

Throughout the negotiations leading to the IMT’s establishment, the quadripartite Allied powers seriously considered two general transitional justice options for handling Nazis suspected of committing the most egregious atrocities: lethal force and prosecution. Within the general transitional justice option of prosecution, the Allied powers weighed both unilateral and multilateral approaches. Under the unilateral prosecution plan, some or all of the Allied powers would separately prosecute suspected atrocity perpetrators from Nazi Germany. The multilateral prosecution option combined some or all of the Allied powers in collaborative prosecution of alleged atrocity perpetrators.

In fact, the development of the negotiations reveals just how close some or all of the Allies came to pursuing a transitional justice option other than the establishment of the IMT. Before FDR died, the United Kingdom, the United States, and perhaps the Soviet Union nearly agreed on lethal force through extrajudicial executions. Moreover, negotiations, especially between the American and Soviet delegations, demonstrate how close the Allies came to pursuing a prosecutorial transitional justice option either unilaterally or among a smaller number of countries rather than through a broader multilateral scheme, as ultimately chosen.

Transitional Justice Options the U.S. Government Seriously Considered

The USG seriously considered at least five transitional justice options in addressing the principal suspected Nazi war criminals: (1) lethal force through extrajudicial execution, (2) prosecution in an ICT established through a treaty, (3) prosecution in an ICT established through an executive agreement, (4) unilateral prosecution, and, as discussed below, (5) de facto conditional amnesty. For addressing other suspected Nazi war criminals, the USG also considered at least five transitional justice options: (1) prosecution in occupation courts, (2) prosecution in civil courts established by third-party states, (3) prosecution in military courts established by third-party states, (4) prosecution in an international military tribunal, and, as discussed below, (5) lustration.

 
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