Choosing Justice

 

IMPREGNABLE EVIDENCE OF GUILT

 

From Rupert Brooke’s War Sonnet III  The Dead

 

Blow out you bugles, over the rich dead

Dying has made us rarer gifts than gold

 

These laid the world away

Laid the world away

Gave up the years to be

 

Blow bugles blow! They brought us

Holiness for our dearth

And Love and Pain that Honour,

May come back as king to earth

 

Poured out the wine of youth

The years to be

To those who would have been their sons

They gave their immortality

 

Blow bugles blow – for Honour

Paid with a royal wage

Nobleness walks our ways again

As we come to our heritage

We have come to our heritage

 

 

It is strange that Rupert Brooke was yearning for the restoration of the qualities of Nobleness, Honour and Holiness early in the First World War, and seeking them in the early sacrifices of that war. How much more important was the retrieval of our ‘heritage’ after the immense loss and sacrifice of the two world wars, and the intervening depression. Truly, as Maxwell Fyfe remarks elsewhere, a ‘mad’ century.

 

In the late 1940s the world seemed to be alive to the need for a different way of doing things. This was manifested in the welfare state, and the work of the United Nations, at Bretton Woods and in Human Rights.

 

For Maxwell Fyfe the problem was an immediate one. He was appointed Attorney General in Winston Churchill’s post-war Conservative government. This government was formed simply to free up the political parties for a summer election in 1945.

 

There had been discussion amongst the Allies for two or three years about what to do about the major Nazi figures once the war was won. Churchill had proposed that they should be named  as  ‘quislings’ and shot on sight.

 

The Allies came at it from very different points of view. In Russia political trials were commonplace, the trial acting as an opportunity to shame the guilty party before their punishment. In America, there was a great fascination in seeing the leading figures on trial, and in building a picture of the conspiracy that they saw as the foundation of the Nazi regime.  Being further away, the Americans wanted a record of their victory.

 

The British might well have done without a trial. However Churchill was convinced by Truman and Stalin at their conference at Yalta.

 

Maxwell Fyfe therefore met Robert Jackson, the American judge given the job of marshalling the trial:

 

Within a day or two of my appointment as Attorney-General on May 28th, 1945, I went to Claridges to have my first conversation with Mr Justice Jackson, who had been commissioned by President Truman to deal with the problem of what to do with major war criminals on behalf of the United States.

 

It was no simple problem that faced us in our early talks. There were three choices open to us. The first was to let those who we believed to be major criminals go. In Jackson’s words this would have been to mock the living and insult the dead.

 

The second choice was executive action, under which Napoleon had been sent to Elba and then to St Helena. This had two classes of supporters. First there was the large and vocal ‘stick ‘em up against a wall and shoot’ em’ school. Others who favoured executive action put forward a much subtler argument. They made the point that political trials were always a failure. So they came to the conclusion that the leaders of the victorious powers must kill or imprison those whom they thought guilty and answer for their actions at the bar of history.

 

The third choice was to select the defendants and give them a hearing.  In such event, natural justice demanded that we should inform them clearly what charges were against them, produce to them the evidence in which these charges were based, and give them a full opportunity of answering them.

 

This was the view strongly advocated by Jackson and myself. I held that it would be a deplorable beginning to a world in which everyone was looking for the rule of law if we cast it overboard in our first difficult sea. Moreover, martyrs are easy to make as the years pass, and nothing  but a deployment of impregnable evidence of guilt would prevent this retrospective hagiology.’

 

The respect of the demands of ‘natural justice’ transformed what might have been a ‘show trial,’ into something a great deal more interesting. The defendants were to know what charges they faced, and were to have the chance of replying to them. Although this was victor’s trial, it was fused with an attempt to re-establish the value and meaning of law, and to move forward to a world governed more fruitfully by law.

 

At the London Conference, chaired by Maxwell Fyfe, a Charter was drawn up at the Russians suggestion. This laid out the scope of the Tribunal and detailed the charges to be put to the defendants.

 

The Conservative lost the 1945 election and Maxwell Fyfe expected to return to the House of Commons and to his job as a barrister. However the implementation of the Labour party’s welfare plans placed significant demands on their Attorney General, Hartley Shawcross, and he asked Maxwell Fyfe to attend .

 

Hartley asked me whether I would continue the work as Deputy Chief Prosecutor.  I accepted.  My change of title made no difference to my position as head of the British prosecuting team, since Hartley left almost everything up to me.’

 

There was of course frustration in being a second in command, exaggerated by the dominance of the Unite States in the early stages of the trial. The venue, Nuremberg, was a Jackson suggestion, but since the Americans were keeping and feeding the whole show it was hard to argue.  Defendants were selected, and the case divided between the prosecutors.

 

Jackson’s domination peaked at the time that he gave his opening, historic speech, which coincided with Maxwell Fyfe’s maximum frustration, as he wrote to Sylvia

 

‘I have come to the point where I shall content myself with reading a sentence from the treaty of Versailles if only I can get the totality of the case reasonably presented.  When it is finished I shall either retire and cultivate my garden and my life of Perceval, or else make a come-back to politics like a political atomic bomb releasing the pent up wish to tell people exactly what I think of them. I went for a solitary but pleasant walk around Zirndorf.’

 

However, the trial was to take on a more British hue as it progressed. This was principally due to the appointment of Geoffrey Lawrence as President of the Tribunal. As it was he who therefore chaired the majority of sessions, the interchanges increasingly sounded British.

 

In addition the forensic nature of the British prosecution, and their desire to fulfil the requirements of natural justice meant that their cross-examinations registered with the defendants unlike any other. This was to be the key to Maxwell Fyfe’s success.

Choosing-justice x nurnberg02 Building the courtroom DMF & Jackson2 Jackson at standa

Click above for a short film describing events leading to IMT Nuremberg

Click above for a short film describing early days at IMT Nuremberg