Evidence as Record




The establishment, administration and politics of the Tribunal at Nuremberg left  David Maxwell Fyfe at times frustrated. Early on he was caught between the passions and conflicting legal  systems  of the Americans,  the Russians, and the French. He was cast in the role of ‘friendly uncle’ to the entire British delegation, where all sorts of problems were brought to him.


And when it came to the opening addresses, although he was responsible for the drafting of the British contribution, he had to give way to Hartley Shawcross, the Labour Attorney General, who delivered the speech.  Shawcross parachuted in his own advisers to work with the British team and this led to further friction.


However in the new year of 1946, his mood changed as the opportunity to cross-examine the Nazi defendants drew closer.


Actually the uplift in his spirits seems to have been triggered by the anticipation of a visit from his wife Sylvia, and the success of the visit when it occurred.


Sylvia Harrison was a glamorous and charming figure who clearly made a wonderful impression on all she met at Nuremberg. She was a sister of Rex Harrison, the actor who was later to charm the world in My Fair Lady. He was already known for performances in Night Train to Munich and The Rakes Progress. Sylvia matched her brother for charm, whilst dedicating her life to the success of her husband. She threw a bright light on him and made people see him differently.


With her beside him, Maxwell Fyfe attended the social whirl at the Grand Hotel in Nuremberg, which he studiously avoided in her absence. By the time she left, he was transformed in the eyes of his team and other delegations. He wrote to her:


‘I cannot begin to say how wonderful it was having you here.  The ten days went like a flash but everyone is saying how much they loved you and your being here which is very right and proper but also pleasant to hear.’


And on her missing a party honouring the Soviet Red Army:


‘Gorshenin (the Soviet AG) Nikitchenko, Volschkov (the judges) Rudenko Smirnoff & Shaynin (prosecution) Dmitrieva Tania & Teethandflatov (or at any rate that's what she looks like) jointly and severally deplored your absence. They had specially invited you and each individually said how sorry they were that you were not there.  Your attention to the Soviet case has had  international repercussions - for once entirely favourable.’


And she left him with a note of encouragement and conviction


‘I know you understand and feel the same about not saying much when one says good bye so I do not usually worry that I should have said more.  If we dislike something very much we have always said as little as possible.  However I can now picture your life and surroundings which make them seem less remote and we are on the last lap.  I hope and pray it will not be too arduous for you but I am now completely satisfied  that you are making history in a real way and without any self seeking.  You will get a reward.'


On her return she maintained her passionate interest:


‘I got your glorious long letter written last Sunday this morning.  I cannot tell you how much it interests and stimulates me to hear about the trial.  I feel so very much a part of it even after 10 days.  I must say I should love to be there to hear you now that you are doing more, but we could not have had so much fun as we did if you had been so busy.’


And her interest stoked the fire of his engagement with the case against the Nazis.


‘I am terribly glad that you still find news of the trial interesting.  It was so wonderful when you were here.  The whole thing appeared so much more worth doing.  I have however had a very interesting week dealing with the applications for witnesses and documents.  Although it has been hard work (especially - though one must either be seen or dine at the Savoy - after the Russian party) it has given me a wonderfully comprehensive view of the case and possible line of defence.’


During this phase of the Tribunal Maxwell Fyfe was researching for his own role as lawyer. His powers of forensic, thorough preparation were fully fed by the mass of evidence available to him.

He attacked the evidence with renewed energy.


‘We have jumped into the preparation of the cross-examination with a bang.  I have been reading transcripts and preparing notes every night. It is rather a good thing because it makes the change from your presence to absence easier when there is work.’


‘You were absolutely right about the tempo of the trial suddenly changing.  We have got three matters which are making us work


1. The preparation of the cross examination

2. The pruning of the defendant's applications for witnesses

3. The organisations


Jackson will do the main cross examination of Goering and I shall do the main one of Ribbentrop, Hess and Keitel. Mervyn will do Streicher, I shall do Doenitz and Raeder, Khaki, Jodl and I von Papen and von Neurath..  I might let Khaki do Keitel if he does two subsidiary witnesses Generals Halder and Walimont all right.  I shall also have to do any subsidiary cross-examinations of other defendants on points with which we are especially concerned.  I have directed the team prepare the cross examinations in 3 stages


(i) a cameo sketch to show what they are driving at

(ii) a full note of the facts

(iii) a short note of what they consider the unanswerable and inescapable points


We started the pruning of the defendant's witnesses and documents, Saturday, in open court  The other delegations have, strangely enough, left this detailed task to me and I spent the day until 4 o'clock bobbing up and down arguing with German counsel.  I thoroughly enjoyed it. ‘


Sometimes of course the evidence was overwhelming:


‘I went to a preview of the Russian film in Auschwitz concentration camp.  When one sees children of Mo's age (Miranda, his younger daughter, was then aged seven) and younger in this horrible place and the clothes of infants who were killed, it is worth a year of our lives to help to register for ever and with practical result the reasoned horror of humanity.


And it added up to a fearsome record:


‘Humanity paid a stiff price for war crimes as well as for war.  In Europe over 10 million people had been killed as a direct result of the fighting, but a further 12 million men women and children had been taken into slavery, where they had been treated as beasts, starved, beaten and murdered.  This is only the bleak factual outline, which is chilling enough.  The details of what was done numbs the imagination with the immensity of its power. ‘


Evidence is normally collected to prove guilt. Whilst the prosecutors were of course collating information to convict the defendants, they were already convinced of that guilt, and its scale was self-evident, so they were astonished when three defendants were acquitted by the tribunal of judges.


The prosecutors, therefore, had a second intention for collating evidence and that was to establish a record of events. As Maxwell Fyfe said later:


‘It is just as well that in respect of Nazi war crimes the apologist of the future will be confronted by the admissions of the accused found guilty, and the mass of incriminating documents produced at the trials, whose authenticity has been established by the very men who wrote them.  Both devil and advocate are faced by an unscalable barrier of truth.’


In 1946 there was a real and understandable fear that Nazis might rise up once more in Germany. A record was needed.


Maxwell Fyfe added:

‘It has been fairly said that there has never been such a wealth of material for cross-examination as at Nuremberg.  What I found of greatest interest, however, was that history constituted at once one’s raw material and the tools of one’s trade. ‘


At the back of their minds, Maxwell Fyfe and his team knew that they were the first to consider the material that told the story of the Nazi evil. They knew history was that material and that they were, as Sylvia had said, ‘making history.’


From Rupert Brooke’s War Sonnet IV The Dead


These hearts were woven of human joys and cares,

Washed with sorrow, swift to mirth

The years have given them kindness.


Dawn was theirs,

And  the sunset, and the colours of the earth.

These had seen movement, heard music;

Till honour lost its worth.


Known slumber and waking; loved;

Had gone proudly friended;

Touched flowers, touched furs, touched cheeks; sat alone.

All this is ended.


Click above to watch video on the preparation for the cross-examination

Click above to see a video outlining the atrocities of World War 2.