DESPITE THESE OBSTACLES, Lemkin’s efforts did have some success. Within four days of the second meeting with Jackson, the word “genocide” made its way back into the proceedings. It happened on June 25, and Lemkin’s unexpected white knight was Sir David Maxwell Fyfe, the Scottish cross-examiner of the elegant, distinguished, and white-haired diplomat Konstantin von Neurath, Hitler’s first foreign minister. A young German diplomat in Constantinople during the massacre of the Armenians, Neurath later became Reichsprotektor for occupied Bohemia and Moravia, and it was on a note written in that capacity that Maxwell Fyfe focused. In August 1940, Neurath had written about the treatment of the Czech population in the occupied area. One option he aired—described as the “most radical and theoretically complete solution”—would be to evacuate all Czechs from the territory and simply replace them with Germans, assuming enough Germans could be found. The alternative was to achieve “Germanization by individual selective breeding” of some Czechs and the expulsion of others. With either approach, the aim was to destroy the Czech intelligentsia.
Maxwell Fyfe read out extracts from Neurath’s memorandum. “Now, Defendant,” he said, speaking in a clipped tone, did he recognize that he was being charged “with genocide, which we say is the extermination of racial and national groups”? Lemkin’s satisfaction must have been great, and even greater a few moments later when Maxwell Fyfe referred to “the well-known book of Professor Lemkin” and then read into the record Lemkin’s definition of “genocide.” “What you wanted to do,” Maxwell Fyfe told Neurath, “was to get rid of the teachers and writers and singers of Czechoslovakia, whom you call the intelligentsia, the people who would hand down the history and traditions of the Czech people to other generations.” That was genocide. Neurath offered no response. Lemkin’s trip to Nuremberg had made an immediate difference.
Lemkin later wrote to Maxwell Fyfe, with an elated tone, to express his “very warm appreciation” for the British prosecutor’s support for the charge of genocide. Maxwell Fyfe’s response, if there was one, has been lost. After the trial, the prosecutor did write a foreword to the Times journalist R. W. Cooper’s fine account of the proceedings, invoking genocide and Lemkin’s book. The crime of genocide was “essential” to the Nazi plan, he wrote, and led to “terrible” actions. Cooper devoted a full chapter to the “new crime” of “genocide,” a term whose “apostle” was Lemkin, a man with “a voice crying in the wilderness.” Cooper noted that the opponents of the term “genocide” knew it could be applied to “the extinction of the Red Indians in North America,” recognition that Lemkin’s ideas offered “an imperative warning to the white race.”
The journalist mentioned Haushofer, “barbarity,” “vandalism,” and the Madrid conference from which Lemkin “was recalled to Poland” (which suggested that Lemkin continued to embellish, as he had done at Duke four years earlier). It was clear that the Polish lawyer used Cooper to obtain access to Maxwell Fyfe, and this was the likely path by which the word “genocide” returned to the courtroom.
Because Shawcross and Lauterpacht weren’t in Nuremberg at the time, Maxwell Fyfe was free to act alone in running with the genocide argument. The consequence was potentially significant: unlike the concept of crimes against humanity, which was concerned with responsibility for acts connected to war, the charge of genocide opened the door to all acts, including those that occurred before the war began.