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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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C. THE u.s. government’s preference FOR EXECUTIVE AGREEMENT

Why did the USG, given its initial support for a treaty-based creation of the IMT, ultimately choose (along with the other Allies) to sign an executive agreement instead? Recall that the Bernays Plan proposed that the ICT be established through a treaty among the collaborating states, whereas the memorandum signed on January 22, 1945, by Stimson, Stettinius, and Biddle called for the tribunal to be created by executive agreement among the leaders of the participating states, which is what occurred.

The most compelling explanation for the USG’s preference for executive agreement over treaty involves a broader consideration of the politics of the mid-1940s, especially the power struggle between the USG’s executive and legislative branches. The U.S. Congress, reflecting a growing belief that American involvement in WWI may have been a mistake and concerned that FDR might risk starting another major war over Italy’s October 1935 invasion of Abyssinia (now Ethiopia), passed the Neutrality Act of 1935 (which was broadened three times in the late-i93os) to assert its power over U.S. foreign policymaking.127 In response, to circumvent Congress on a number of issues, FDR employed executive agreements—international commitments between himself and other heads of state. Such agreements are as binding as treaties and, through a series of federal court cases, they assumed the same constitutional status. Unlike treaties, however, executive agreements do not require ratification by the U.S. Senate. As such, executive agreements empower the president more broadly with respect to U.S. foreign policymaking, which was FDR’s design. This presidential tool was one means by which FDR expanded the powers and size of the office of the presidency more than perhaps any other president in U.S. history.128 As political scientist James Lindsay notes, “executive agreements became the method of choice for concluding international agreements after the end of World War II.”129 The Charter of the IMT was one such international agreement. Domestic politics, a critical component of prudentialism, thus helps explain the nature of this transitional justice option.

 
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