In Part 7 of our Crime Story series Nuremberg, we examine the U.K. prosecutors’ tightly-focused presentation of Count Two of the indictment, particularly as it played in contrast to the Americans’ unapologetic power-grab.
To commemorate the 75th anniversary of the International Military Tribunal, Crime Story presents a new series, NUREMBERG. Sean Smith examines the many dimensions of the historic judicial proceedings. Drawing on official transcripts of the trial, as well as a vast bibliography of first- and second-hand accounts, NUREMBERG tells the stories behind the legal, political and personal struggles which complicated this revolutionary exercise in international jurisprudence. You can find previous episodes of our Nuremberg series here.
NUREMBERG PART 7
In previous chapters, we have explored the complex tactics and strategy applied by U.S. Chief Counsel Robert Jackson to ensure that he and his American team kept a firm grip on the direction of the prosecution of the International Military Tribunal. However, Jackson was also conscious that the legitimacy and credibility of the Tribunal, as well as its legacy, required that the proceedings appear to be a multinational, collaborative undertaking. Jackson’s concern about these optics are reflected in remarks he made in December of 1946, shortly after the Tribunal concluded.
JACKSON: DESPITE OUR DIVERSITY OF LEGAL TRADITION AND CULTURE AND INTERESTS, I HAVE FOUND FROM MY SOVIET, FRENCH AND BRITISH COLLEAGUES AT NUREMBERG THAT OUR FUNDAMENTAL VIEWS OF WHAT IS RIGHT AND WHAT IS WRONG, WHAT IS FAIR DEALING AND WHAT IS FOUL PLAY, WHAT IS SOCIALLY HARMFUL AND WHAT IS TO BE FOSTERED, ARE NOT SO FAR APART, AND SUCH DIFFERENCES AS DO EXIST ARE VERY APT TO BE EXAGGERATED….
Jackson’s rose-tinted look back on the IMT proceedings, however, stands in sharp contrast to the actual power imbalances among the Allied prosecution teams. One year earlier, as the United States’ dominance of the proceedings is becoming clear, Jackson signals his concerns about international perception of the Tribunal’s legitimacy by attempting to persuade American judge Francis Biddle not to seek the Tribunal Presidency.
JACKSON: ALL OF THE ARRANGEMENTS ARE AMERICAN, ALL OF THE DEFENDANTS EXCEPT THREE ARE PRISONERS TAKEN BY THE AMERICANS. WE HAVE A STAFF THREE TIMES THAT OF ALL THE OTHER NATIONS COMBINED, AND MOST OF THE EVIDENCE COMES FROM OUR SOURCES. IN THE DIVISION OF THE CASE, THE MAJOR PART OF THE TRIAL WORK HAS BEEN ASSIGNED TO US, BECAUSE WE ARE THE PEOPLE BEST PREPARED TO CARRY IT THROUGH. IF WE WERE ALSO TO PROVIDE THE PRESIDING OFFICER, THERE WOULD BE DANGER THAT THESE TRIALS WOULD LOOK LIKE A PURELY AMERICAN ENTERPRISE.
Biddle honors Jackson’s request, ceding the President’s seat to the U.K.’s Sir Geoffrey Lawrence. It is a rare concession to public relations by Jackson in his relentless legal onslaught, but one that does little to contradict practical reality. While equal partners in the grand legal undertaking, the Allied teams are certainly not equal architects of prosecutorial strategy. Despite Jackson’s efforts, this power imbalance is evident to all of the Tribunal participants. Hermann Goering, for one, is fully aware of who his most formidable adversary is. Grousing to prison psychologist Gustave Gilbert, Goering focuses his ire exclusively on Jackson and his team.
GILBERT: GOERING CONTINUED HIS CYNICAL CAMPAIGN BY JIBING AT AMERICAN SOCIAL CUSTOMS. HE COMMENTED ON THE NEGRO OFFICERS HE HAD SEEN ON THE BALCONY AND SPECULATED ON WHETHER NEGRO OFFICERS COULD COMMAND WHITE TROOPS, AND WANTED TO KNOW WHETHER NEGRO OFFICERS WERE ALLOWED TO RIDE IN TROLLEY CARS WITH WHITE CIVILIANS.
Notwithstanding the unintended irony of this former Nazi leader calling out American social injustice, Goering states what everyone knows: Both the IMT and the postwar world order will be unmistakably “American enterprises.”
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The Allied prosecution teams respond to the lopsided balance of power in characteristically different fashions. Of the group, the British are the most in sync with Jackson and the Americans. The wartime “special relationship” celebrated by Churchill and FDR continues uninterrupted in the easy collegiality between the British and Americans at the London Conference and later at Nuremberg. There are bonds of language, a shared history and overlapping legal traditions, affinities that intrinsically exclude and at times affirmatively alienate the Soviet and French teams. In fact, Sir Hartley Shawcross, the U.K. Chief Prosecutor, attributes the unspoken barrier between the Americans and British teams on the one hand, and the French and Soviets on the other, to the Tribunal’s reliance on “Anglo-Saxon procedure.”
SHAWCROSS: THIS… WAS EASY FOR THE AMERICAN AND BRITISH LEGAL TEAMS, BUT DID UNDOUBTEDLY MAKE THINGS DIFFICULT FOR THE FRENCH. THEIR REPRESENTATIVES WERE DISTINGUISHED MEN… WHO HAD BEEN BROUGHT UP IN THE TRADITION OF THE CODE NAPOLÉON AND THE INQUISITORIAL SYSTEM OF PROCEDURE AS DISTINCT FROM OUR COMMON LAW AND ADVERSARIAL METHOD. BECAUSE OF THESE AND OTHER PROCEDURAL DIFFICULTIES THEY TENDED TO FLOUNDER ABOUT A BIT DURING THE COURSE OF THE TRIAL IN WHAT WAS VERY MUCH AN ANGLO-SAXON SCRAP…. THE SOVIET REPRESENTATIVES DID NOT REALLY PRETEND TO UNDERSTAND THE PROCEDURE – OR CARE MUCH ABOUT IT. THEY DOUBTED WHETHER PRISONERS UNDER CROSS-EXAMINATION SHOULD BE ALLOWED TO ANSWER AT ALL…. THE PRISONERS WERE THERE MERELY TO BE SENTENCED.
If Jackson confides in anyone, it’s the British. This is, however, a mixed blessing. It often falls to Shawcross’ deputy, Sir David Maxwell-Fyfe, to run interference between Jackson and the French and Soviet teams. Maxwell-Fyfe waffles between accepting this as part of the “special relationship” – the duty of “the poor unadvertising bloody British,” as he puts it – and being frustrated with Jackson’s irritability and sometimes irrational management style. By all accounts, Jackson oversees the Tribunal community with an unpredictable petulance, keeping both his American team and the other Allied prosecutors on edge. In a letter home to his wife, Sylvia, Maxwell-Fyfe resentfully describes Jackson’s refusal to attend a Soviet gathering in honor of the October Revolution.
MAXWELL-FYFE: THE RUSSIANS THREW THE USUAL OCTOBER REVOLUTION PARTY… I PROPOSED THE TOAST OF THE RED ARMY. JACKSON WOULD NOT COME ALTHOUGH GENERAL ALEXANDROPOV TRAVELLED 20 MILES TO FETCH HIM. IT IS SOME CONSOLATION WHEN YOU [SYLVIA] HAVE GIVEN UP SO MUCH IN ORDER THAT I MIGHT KEEP INTERNATIONAL AND NATIONAL OBLIGATIONS TO SEE THE HORROR WHICH JACKSON’S CONDUCT CAUSED. HE IS A FUNNY MAN IF YOU THINK THAT SORT OF THING IS FUNNY – EVEN FUNNY-PECULIAR.
In his memoirs, the usually diplomatic Shawcross would be even less forgiving.
SHAWCROSS: [JACKSON] WAS A BAD ADMINISTRATOR. A BRILLIANT LEGAL STYLIST AND ORATOR, HE WAS IMPATIENT OF THE DETAILS OF ORGANIZATION AND FREQUENTLY WAS UNDULY BELLIGERENT, LACKING THE FINER GIFTS OF TACT AND DIPLOMACY… HE WAS VAIN AND EASILY UPSET; SOMETIMES, IN FITS OF PIQUE, HE WOULD ABSENT HIMSELF FROM THE TRIBUNAL FOR QUITE LONG PERIODS.
In short, Jackson’s mercurial behavior causes rifts not only among his team, but within the larger Nuremberg legal community as well.
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The British prosecution team also suffers from its own internal conflicts. The most critical involves the post of Chief Prosecutor itself. In the early summer of 1945, Prime Minister Winston Churchill offers the job to U.K. Attorney General and fellow Conservative M.P. Maxwell-Fyfe. As acting Chief Prosecutor, Maxwell-Fyfe is intimately engaged in the London Conference negotiations, even though he is also campaigning feverishly to keep his seat representing Liverpool West Derby in the upcoming General Election, slated for July 5. The schedule, he observes, is grinding and relentless.
MAXWELL-FYFE: [IT] MEANT THAT I HAD TO SIT IN THE CHAIR OF THE WAR CRIMINALS CONFERENCE IN LONDON DURING THE DAY, FLY TO LIVERPOOL, BE MET BY [MY WIFE] AT SPEKE AIRPORT, HAVE SOME COLD MEAT, DO MY THREE [CAMPAIGN] MEETINGS, THEN CATCH THE MIDNIGHT TRAIN TO LONDON. THIS LIFE ON WHEELS AND WINGS CAME TO AN END ON JULY 6TH.
That is the day the British electorate wakes to learn that they have turned out war-leader Winston Churchill and his Conservatives, overwhelmingly choosing Labour in a landslide victory revolving around the post-war economy and social welfare reform measures. Incoming Prime Minister Clement Atlee replaces Maxwell-Fyfe as Attorney General with Sir Hartley Shawcross. Acutely aware of the impending IMT proceedings, Shawcross asks Maxwell-Fyfe to continue on as his Deputy Chief Prosecutor and he agrees.
MAXWELL-FYFE: MY CHANGE OF TITLE MADE NO DIFFERENCE TO MY POSITION AS HEAD OF THE BRITISH PROSECUTING TEAM, SINCE HARTLEY LEFT ALMOST EVERYTHING TO ME, AND ONLY CAME TO NUREMBERG TO DELIVER THE OPENING AND CLOSING SPEECHES FOR THE BRITISH PROSECUTION. THEY WERE MAGNIFICENT SPEECHES ON WHICH THE WHOLE TEAM HAD SPENT A LOT OF TIME AND WHICH HAD A GREAT IMPACT UPON THE COURT AND WORLD OPINION, BUT THEY REPRESENTED HIS ONLY INTERVENTION IN THE TEN-MONTH TRIAL. IT WAS AN ACT OF CHARACTERISTIC GENEROSITY AND KINDNESS ON HIS PART TO INVITE ME TO CONTINUE THE WORK UPON WHICH I HAD BEEN ENGAGED FOR SO LONG AND THEN TO LEAVE ME TO CONDUCT THE CASE WITHOUT ANY INTERFERENCE.
This working arrangement is a sort of shotgun marriage, one which neither man relishes. In fact, the two are old antagonists. Shawcross, two years younger than Maxwell-Fyfe, had made it a point to tease him publicly when they were both junior members of the Honourable Society of Gray’s Inn, one of London’s four professional organizations of barristers and judges. Later, Shawcross joined Maxwell-Fyfe’s practice and even shared a desk with him. In his memoirs, Shawcross clearly resents his former mentor and intimate, calling him “the most intensely ambitious man I ever knew.”
SHAWCROSS: NOBODY, I THINK, WOULD HAVE CONSIDERED DAVID FYFE A GREAT LAWYER. WHEN IN LATER YEARS, I WAS SOMETIMES ASKED TO PROPOSE HIS HEALTH AT PUBLIC FUNCTIONS, AND WISHED TO TEASE HIM, I USED TO SAY THAT ALL THE LAW HE KNEW WAS WHAT I HAD TAUGHT HIM WHEN WE SHARED A ROOM…. THIS TOAST COULD THEN BE TAKEN ONE OF TWO WAYS. EITHER THAT I WAS MYSELF A BRILLIANT LAWYER AND FYFE WAS IN THE SAME TRADITION, OR THAT I KNEW NO LAW AND SO HE COULD KNOW NONE. THE LATTER WAS THE BETTER VIEW.
Along with their obvious political differences, the two top U.K. prosecutors are further divided by mutual competitiveness and sniping – which Jackson’s behavior only exacerbates.
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A case in point is the British reaction to Jackson’s triumphant November 21 opening statement. Its soaring rhetoric reportedly drives the U.K. team into a frenzy of uncertainty – how could they match, let alone improve on it? Writing to his wife, Sylvia, Maxwell-Fyfe describes their quandary.
MAXWELL-FYFE: JACKSON MADE A REALLY SUPERB SPEECH, AND THE AMERICAN CASE IS BEGINNING WELL WITH ONE OR TWO DULL PATCHES. MY TROUBLE IS HEADING THEM OFF ANYTHING WHICH WILL INTERFERE WITH HARTLEY’S SPEECH…. THE REAL TROUBLE IS THAT HARTLEY IS AFRAID THAT HE WILL NOT BE ABLE TO SURPASS JACKSON BUT ALSO WANTS TO GET ANY PUBLICITY THAT IS GOING – A COMBINATION WHICH MAKES IT VERY DIFFICULT FOR HIS SECOND-IN-COMMAND.
According to Maxwell-Fyfe, Shawcross is so anxious about being outclassed by Jackson that he even considers not making an opening speech at all.
The U.K. prosecutors also face difficulties in constructing a case that has not already been swallowed up by the exhaustive purview of the American’s Count One conspiracy charge. The British fight valiantly to protect their work from the black hole that is Count One. Maxwell-Fyfe asserts a certain pragmatism in this regard.
MAXWELL-FYFE: I HAVE HAD TO FIGHT TO GET THE AMERICANS TO DROP ENOUGH OF THEIR CASE TO GIVE HARTLEY SUFFICIENT MATERIAL AND TO GIVE THE BRITISH COUNSEL ENOUGH TO DO. 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.
On the morning of Tuesday, December 4, Shawcross presents Count Two of the Indictment, concerning “the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances.” The British Chief Prosecutor walked the Court through a long list of Nazi diplomatic betrayals, promises made and broken, treaties agreed to and then violated. He placed responsibility for these betrayals squarely upon the defendants.
SHAWCROSS: THESE MEN WERE NO MERE WILLING TOOLS, ALTHOUGH THEY WOULD BE GUILTY ENOUGH IF THAT HAD BEEN THEIR ROLE. THEY ARE THE MEN WHOSE SUPPORT HAD BUILT HITLER UP INTO THE POSITION OF POWER HE OCCUPIED; THESE ARE THE MEN WHOSE INITIATIVE AND PLANNING OFTEN CONCEIVED AND CERTAINLY MADE POSSIBLE THE ACTS OF AGGRESSION DONE IN HITLER’S NAME; AND THESE ARE THE MEN WHO ENABLED HITLER TO BUILD UP THE ARMY, THE NAVY, THE AIR FORCE, THE WAR ECONOMY, THE POLITICAL PHILOSOPHY, BY WHICH THESE TREACHEROUS ATTACKS WERE CARRIED OUT, AND BY WHICH HE WAS ABLE TO LEAD HIS FANATICAL FOLLOWERS INTO PEACEFUL COUNTRIES TO MURDER, TO LOOT, AND TO DESTROY. THEY ARE THE MEN WHOSE COOPERATION AND SUPPORT MADE THE NAZI GOVERNMENT OF GERMANY POSSIBLE.
In spite of his anxieties, Shawcross’s opening is impressive and impactful. His effectiveness may, in part, be attributable to his quietly borrowing some language from the American’s Count One – the concept of conspiracy is also a part of British common law, after all. Shawcross essentially articulates the elements of conspiracy as he wraps up his presentation.
SHAWCROSS: IN THE CRIMINAL COURTS OF OUR COUNTRIES, WHEN MEN ARE PUT ON THEIR TRIAL FOR BREACHES OF THE MUNICIPAL LAWS, IT NOT INFREQUENTLY HAPPENS THAT OF A GANG INDICTED TOGETHER IN THE DOCK, ONE HAS THE MASTERMIND, THE LEADING PERSONALITY. BUT IT IS NO EXCUSE FOR THE COMMON THIEF TO SAY, “I STOLE BECAUSE I WAS TOLD TO STEAL,” FOR THE MURDERER TO PLEAD, “I KILLED BECAUSE I WAS ASKED TO KILL.” AND THESE MEN ARE IN NO DIFFERENT POSITION, FOR ALL THAT IT WAS NATIONS THEY SOUGHT TO ROB, AND WHOLE PEOPLES WHICH THEY TRIED TO KILL…. THEY WERE THE MEN WHOSE SKILL AND CUNNING, WHOSE LABOR AND ACTIVITY MADE IT POSSIBLE FOR THE GERMAN REICH TO TEAR UP EXISTING TREATIES, TO ENTER INTO NEW ONES AND TO FLOUT THEM, TO REDUCE INTERNATIONAL NEGOTIATIONS AND DIPLOMACY TO A HOLLOW MOCKERY, TO DESTROY ALL RESPECT FOR AND EFFECT IN INTERNATIONAL LAW AND, FINALLY, TO MARCH AGAINST THE PEOPLES OF THE WORLD TO SECURE THAT DOMINATION IN WHICH, AS ARROGANT MEMBERS OF THEIR SELF-STYLED MASTER RACE, THEY PROFESSED TO BELIEVE. IF THESE CRIMES WERE IN ONE SENSE THE CRIMES OF NAZI GERMANY, THEY ALSO ARE GUILTY AS THE INDIVIDUALS WHO AIDED, ABETTED, COUNSELLED, PROCURED, AND MADE POSSIBLE THE COMMISSION OF WHAT WAS DONE.
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Shawcross’s speech is immediately followed not by further presentations by his deputies, but by even more Sidney Alderman, the American associate trial counsel now notorious for his monotonous “kitchen sink” slog through the factual record. Alderman’s reappearance no doubt takes some of the wind out of the UK prosecutors’ sails, and Shawcross himself expresses modesty at the impact of his statement.
SHAWCROSS: I DO NOT THINK THAT THIS DETRACTED FROM THE PURPOSE OF MY SPEECH, WHICH WAS LARGELY TO DISCUSS THE LEGAL BACKGROUND OF THE WHOLE PROCEEDING, BUT IT MAY HAVE DEPRIVED IT OF SOME OF ITS IMPACT. CERTAINLY BY CONTRAST WITH JACKSON’S, MY OWN ADDRESS WAS FOR THE MOST PART SEVERELY PROSAIC AND LEGALISTIC, LACKING ANY PRETENCE AT ORATORY OR PURPLE PASSAGES.
However Airey Neave, who’d famously read the indictments to the accused and serves as an adjutant to the UK prosecution team, expresses a deep appreciation for the statement’s understated power.
NEAVE: SHAWCROSS’S SPEECH WAS IN ITS OWN WAY BRILLIANT. IF JACKSON HAD BEEN RHETORICAL, HE WAS PERSUASIVE AND DEADLY…. THE LETHAL MODERATION OF SHAWCROSS’S DELIVERY DISMAYED THE DEFENDANTS AND THEIR LAWYERS. THOUGH THE DEFENCE WERE TO REGAIN THEIR CONFIDENCE, THIS WAS THE HIGH POINT OF THE PROSECUTION’S CASE.
Sidney Alderman concludes his presentation on Czechoslovakia the next morning, December 5; he will return to command the lectern one more time still. But first, it belongs to Maxwell-Fyfe and U.K. Counsel G.D. Roberts, together with Junior Counsels Griffith-Jones, Phillimore, Elwyn Jones and Harcourt Barrington. Each an experienced barrister, the U.K. prosecutors are “select, smart and small in number,” Neave notes proudly.
Also watching closely is Alternate U.K Tribunal Judge Sir Norman Birkett. Birkett’s diary entries track his sense of the changing rhythms of the British presentation.
BIRKETT: 5 DECEMBER. DAVID MAXWELL-FYFE PRESENTED THE BRITISH CASE RE BROKEN TREATIES AND CONVENTIONS. HE PRESENTED A DULL SECTION WITH LUCIDITY.
7 DECEMBER…. G.D. ROBERTS DID NOT SHINE. GRIFFITH-JONES AND ELWYN JONES WERE GOOD: PHILLIMORE I THOUGHT GOOD… ELWYN JONES WAS ALWAYS RELEVANT AND LUCID, AND WAS OF GREAT ASSISTANCE TO THE TRIBUNAL…. IT WAS THE BEST PRESENTATION WE HAD YET HEARD.
Birkett’s tenure as U.K. Alternate Judge offers its own unique window into the “Old Boy” politics of the British legal community. By all accounts, Birkett was meant for grander things. According to Maxwell-Fyfe, Birkett, a highly-respected barrister, had “been on almost every cause celebre from 1925… until the war.” In August, the Lord Chancellor, Lord Jowitt, offered Birkett the position of lead U.K. Tribunal Judge, which Birkett proudly accepted. It was some long-awaited recognition for the painfully insecure Birkett, who noted in his diary that the promised appointment “restores my confidence in myself.” Birkett’s hopes were cruelly dashed three days later, however, when Jowitt informed him that the Foreign Office had intervened, insisting on a Law Lord — a Member of the House of Lords with legal expertise — for the position. Humiliated, Birkett reluctantly accepted the consolation prize of Alternate Judge. “I cannot record the secret anguish this has been to me,” he confided in his diary. The elitism and incestuousness of the British legal system followed the delegation to Nuremberg.
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After the brief British interlude, the Americans retake the podium for the nine days that remain before the Tribunal recesses for Christmas. In the next episode of Nuremberg, Crime Story will explore U.S. Executive Trial Counsel Thomas J. Dodd’s presentation on the Nazi’s brutal use of forced labor and its archipelago of concentration camps.
