B. JACKSON’S THREATS TO PURSUE A UNILATERAL TRANSITIONAL JUSTICE INSTITUTION

A second issue worthy of additional exploration relates to why Jackson threatened that the USG might—and that other Allies therefore would have to— pursue either unilateral or less multilateral (i.e., excluding the Soviet Union) transitional justice institutions given the Allies’ earlier joint statements that they would collaborate in whatever transitional justice institution was established. Different theories exist to explain why Jackson publicly and repeatedly suggested that the Allied powers consider establishing separate national tribunals as an alternative to an ICT. One rationale is that Jackson viewed the Americans’ and Soviets’ diametrically opposed positions regarding the nature of multilateral trials as fundamental and insurmountable; thus he either honestly believed that an ICT would be superior or that his threat for supporting a different process would persuade his interlocutors to adopt the U.S. position. An alternative explanation could be that he did not actually want to work with the Russians, after hearing reports of their own atrocities (for example, in the Katyn Forest¹²⁴), and concluding through his own experience that they were difficult, untrustworthy, and unreliable colleagues. Jackson probably also was disturbed by the fact that the Soviet Union was once allied with Nazi Germany, had committed its own aggression during WWII (especially against Finland, Poland, Latvia, Estonia, and Lithuania), and had notoriously conducted show trials against its own people.

Whether Jackson issued his repeated threat merely to persuade his interlocutors to agree with the American position, or because he genuinely wished for the negotiations to fail in order to pursue an alternative transitional justice option without Soviet involvement, has not been definitively determined. According to Taylor, though, it is more likely that Jackson was only using the threat to try to influence the Soviets. Had the negotiations failed, Jackson probably would not have attained his goals of multilaterally prosecuting the principal Nazis suspects, having the trial include the crime of aggression, and locating the trial within the American Zone of Occupation’s city of Nuremberg.¹²⁵

There is yet another factor that helps explain both of the preceding two puzzles. Each of the Allies likely held reservations about contradicting the public commitment offered early in their negotiations, namely, to address suspected Nazi atrocity perpetrators through multilateral prosecution. As Lord Simon reminded Jackson and the Soviet representative, General Iona Nikitchenko (who was then vice president of the Soviet Union’s Supreme Court and who would become the Soviet judge on the IMT), during their negotiations after the Potsdam Conference: “it would be a bad thing before the world, after having declared we should have a joint trial, if we should now declare we are not going to have it.”¹²⁶ Again, as prudentialism would suggest, politics mattered.