Forgotten Ideals

Amongst the personal papers of David Maxwell Fyfe unearthed in the vaults of Allen & Overy 25 years ago was a transcript of a speech that he made in Brussels in December 1947. Its uncanny understanding of the consequences of tyranny, both mundane and inhumane, has provided a guide over the past decade, as authoritarianism has crept into the government of our country. Tom Blackmore returns to its wisdom in light of recent events.

The JCHR’s analysis strikes me as measured and convincing. Contrary to the Prime Minister’s view that if the Bill ‘went further’ it would breach international law, the Committee’s analysis suggests that the Bill as drafted is ‘already’ incompatible with international law.

Professor Mark Elliott on the Joint Committee Human Rights scrutiny of the Safety of Rwanda Bill

One of the advantages of our uncodified constitution is the unfettered power of our sovereign parliament to create law

Robert Jenrick MP on his resignation as Immigration Minister

We tell the story of the birth of modern human rights through the eyes of one its artisans, David Maxwell Fyfe. David was first a prosecutor at the Nuremberg War Crimes Trials and then a member of the Parliamentary Assembly of the Council of Europe.  The first role gave him a unique insight into the Nazi mind which bred barbarity and terror, and the second a platform to champion the protection of human rights and fundamental freedoms in Europe

We perform Dreams of Peace & Freedom to tell that story of David Maxwell Fyfe’s journey from Nuremberg to Strasbourg in his own words and the words that inspired him set to music by Sue Casson, and to protest.

On 23^rd December 1947 David said in a speech :

Mankind is at the crossroads that leads either to sanity or destruction.

In one sense Nuremberg did express a triumph of the human spirit – to the extent that it stated what humanity could not tolerate and more gropingly some things for which humanity stands.

 Yet I am haunted by some words from a song to which we used to listen in more carefree days : On fait des serments, et simplement, on les oublie’ 

Having propounded high ideals in defeated Germany I feel the responsibility for doing my part to see that they are not forgotten by the victors.

David Maxwell Fyfe, speech in 1947, at Union Belge Britanique, Brussels

Those ‘high ideals’ forged in Nuremberg formed the foundation of the European Convention on Human Rights. In 1947 the United Nations were preparing to publish their Universal Declaration of Human Rights, a groundbreaking assertion of the rights and freedoms of the people of the world. The UDHR spawned both further global Conventions protecting vulnerable groups including refugees, and regional instruments of which the ECHR was a prominent example, uniquely establishing a court at which nations could be held to account.

In the ECHR the ‘high ideals’ are shaken into a simple list of rights and freedoms: the right to life and liberty, freedom from torture, slavery, inhuman treatment, and forced labour; the freedom from punishment without the law and the right to a fair trial; freedom of thought, conscience, religion, expression, and assembly; freedom to marry and the right to a private family life; and freedom from discrimination before the law. The right to education and the holding of property were added in later protocols. This short list sketches ‘some of the things for which humanity stands.’

The foundation of the Convention is that these rights are universal and inalienable. As Maxwell Fyfe later wrote:

Your idealist… takes the view that there are certain rights and freedoms not created by lawyers but to which mankind as such are heir and which cannot be alienated.

David Maxwell Fyfe 1950 Speech at the Athenaeum

Before the Universal Declaration and the Convention, freedom and rights were protected distinctively in different domains. In each state the freedoms were ancient and took shape through a blend of judicial and parliamentary agency. They were not  the product of the unfettered power of a sovereign parliament. As Maxwell Fyfe wrote as the Convention was being drafted:

It should moreover be remembered that substantial part of the liberties enjoyed in countries with long established judicial systems are derived as much from the accumulated precedents of court decisions over a period of years, as from precise laws passed by parliaments.

David Maxwell Fyfe, working papers of the Parliamentary Assembly of the Council of Europe

And he believed that in the same way it would take time for the European Court to mature:

The legal interpretation of a new code, however well-defined would present many difficulties. In fact, it is more than possible that the system would not work with full efficacy until a body of European Case Law had been built up and that might take a considerable time.

Those ideals are now under concerted attack, as is the Convention itself. Each piece of recent migration legislation has corroded the freedoms and rights of all while stripping humanity from refugees and migrants seeking sanctuary.

As Mark Elliott says above, the Safety of Rwanda Bill puts the government in clear breach of international law and applies ‘looking glass’ measures to curb our own judiciary. Robert Jenrick’s suggestion that parliament is ‘unfettered’ is simply wrong. No agency of government in Britain is unfettered. There are checks and balances which are vital to protect democracy. This legislation is being described as ‘emergency’ but it has rather created an emergency and we must make an urgent response.

We are back at the crossroads where we can choose sanity or destruction. Our story tells of when the nations of Europe chose sanity. The past demands to be heard.

For better or worse we as a people have a present sense of history. I believe that it is of the utmost value because you cannot understand the present except in the light of the past.

David Maxwell Fyfe, Speech to the Walter Scott Society 1956

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Watch the song inspired by Maxwell Fyfe’s Forgotten speech here.

Read further excerpts from the Forgotten speech here.

Caning the Migrants

For International Human Rights Day, as the government prepares for the second reading of the Safety of Rwanda Bill, Tom Blackmore, grandson of Nuremberg prosecutor and ECHR artisan David Maxwell Fyfe, takes a close look at recent events through his grandfather’s eyes, noting alarming echoes in those which led to the war crimes of World War II, and explains the flaw with deterrent and why this is a bad policy.

Now we cannot yet name, or even number, many of the burial places where millions of innocent people were vilely murdered. But on the damp walls of the gas chambers, in the places of the shootings, in the forts of death, on the stones and casemates of the prisons, we can still read brief messages of the doomed, full of agony, caning for retribution.

Introduction to Russian film of Auschwitz Concentration Camp by Colonel Smirnov

In February 1946 Colonel Lev Smirnov, a Russian prosecutor at the Nuremberg War Crimes Trials used these words to introduce the Russian film shot as they liberated Auschwitz concentration camp. This is as translated for the Blue Set, a verbatim comprehensive record of the Trials. The final phrase may well have been mistranslated, ‘calling for retribution’ might have been more expected, but there is something haunting about ‘caning,’ a thrashing, wailing and unsettled demand for justice from the dead. 

The Russian film of Auschwitz, as well as the American film from Buchenwald, introduced a stunning new media to the evidence presented at Nuremberg. The millions of pieces of paper forensically studied by the prosecutors revealed time and again the barbaric policies and processes of the Nazi state. But the films brought the human despair of the Holocaust into the courtroom. Not just the corpses stripped of rings, fillings, and all dignity, but also the living, the Mengele twins emerging from the shadows of genetic experimentation. 

British prosecutor at Nuremberg David Maxwell Fyfe had first seen the film a month earlier, and wrote then to his wife Sylvia: 

Yesterday I went to a pre-view of the Russian film in Auschwitz concentration camp.  When one sees children of Mo’s age 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. 

Personal letter home, January 1946

His daughter Miranda (Mo) was then seven years old. 

It is important that Maxwell Fyfe did not see senseless and mindless brutality but a reasoned act of horror towards humanity.  After the Trials, he said: 

To some extent Nuremberg did express the triumph of the human spirit – to the extent that it  stated what humanity could not tolerate and more gropingly some things for which humanity stands. 

Speech to the Union Belge Britannique, December 1957

In the same speech he said that humanity stands at 

The crossroads that leads either to sanity or destruction

Ibid

After Nuremberg he played his role in choosing sanity, working in the Parliamentary Assembly of the newly constituted Council of Europe to champion and draft the European Convention on Human Rights. 

Now we are again at that crossroads. 

It is heartbreaking that Smirnov’s words ring hollow as his fellow countrymen carry out war crimes and desperate crimes against humanity in Ukraine, which they invaded as a wilful act of aggression. It is unsurprising that the Ukrainians demand their own ‘Nuremberg,’ to exact justice without which there can be no peace. They demand that Putin’s guilt be held up before the world, and Nuremberg shows that it is a reasonable demand.

And here in Britain, we have taken a further fatal step to create our own class of those who we deem less than human. The concerted demonisation of the alien has been swelling over the past decade and continues with the passing of the Illegal Migration Act and the introduction of the Safety of Rwanda Bill.

In seeking to deter migrants, it has stripped them of their rights under international and common law. The British government has ripped away the humanity of already desperate refugees and stripped them of their right to natural justice and their freedoms under the Convention. 

And this has been, we are told, a reasonable act. To quote a senior Conservative speaking in the House of Commons, this is to make their system ‘more reasonable and more just.’ This is demanded he tells us by the ‘popular will’, in the ‘interests of hard-working, law-abiding, decent, patriotic Britons.’ 

This hauntingly echoes Maxwell Fyfe’s speech at Nuremberg in which he pictured the Kristallnacht demonstrations of November 1938 and the brutal destruction of the Jewish fabric of society.  Those guilty of the murder of men, women, and children during those demonstrations were subsequently tried, but the purpose of the trials he explained was:

“to protect those Party comrades who, motivated by decent National Socialist attitude and initiative, had overshot the mark”

And that Court concluded: 

“in such cases as when Jews were killed without an order or contrary to orders, ignoble motives could not be determined”

Maxwell Fyfe concluded: 

In those few lines you have the secret of all the death and suffering, the horror and the tragedy, that these defendants and the members of these organisation have brought upon the world. You see to what evil depths they corrupted the human conscience.  

Closing Nuremberg Trials 1946

 You can call any act reasonable, fair, decent, noble and patriotic but that does not make it so. 

You can legislate that a country is safe when the Supreme Court has studied the evidence and found that it is not so. It will not make the country safe.

The government rests its case and justification of these acts on deterrence. And this too must be challenged. Generally during the past 75 years as rights and freedoms have become established, deterrence has loosened its grip throughout society. 

The ultimate deterrent, capital punishment has been abandoned in Europe in the face of a newly discovered understanding of the sanctity of human life, matched by an increasing certainty that the law is not flawless and can at times be an ass. 

Allowing people the freedom to live and love as they choose, and providing them with equality before the law has meant that it is no longer necessary to deter them from certain choices. 

Maxwell Fyfe would not have approved of or understood these changes. In these matters he marched in step with his generation. He believed in the deterrent of capital punishment, but his older daughter Pamela, who dined with him at the House of Commons on the night of the decision on Bentley, never did. And her son, the author, has never countenanced it. The way thinking changed through generations and over time can be described as progress. 

Although he commissioned the Woolfenden Commission, Maxwell Fyfe never supported the legalisation of same-sex relationships. He disappointed many in his failure to take that step.  

He would be astonished by our world today but he would not be surprised at the capacity of the law to accommodate the change. As Lord Chancellor addressing the visiting American Bar Association he reiterated his view that: 

Our laws are not static any more than our society or human nature are static. Their roots, well grounded in history and watered by wisdom are constantly putting out fresh branches and leaves for the comfort of all people. 

Westminster Hall address to the American Bar Association 1957

Although the deterrents that he held necessary to protect society could be swept away, he believed that the law of nature, described today as human rights and fundamental freedoms, would grow a sturdier stronger tree to replace that which had been felled. 

Of course, if the law is cut off from history and the water of wisdom dries up then the result will be a withering of the tree. Lessons already learned are forgotten and bad habits of government will resurface’

On a very personal level this is illustrated by a distinction between myself and the Prime Minister. Strangely we went to the same school, Winchester College, one of the more established public schools. From the passing of the Public Schools Act in 1866 right up to the 1970s boys at Winchester were given a Victorian education.

One characteristic of this education was the use of caning as a deterrent from rule-breaking and unruly behaviour. Of course, in Victorian Britain corporal punishment was widespread. It was less widely practiced in the 1970s but it was still in persistent use at Winchester when I arrived in 1973. 

By the time I left in 1978 it had begun to fade and it was quite properly abolished by the mid-1980s. The Prime Minister arrived in 1993, by which time no boy in school would remember. It was recognised that the deterrent was a wholly inappropriate way to manage and nurture young people.

Perhaps had the Prime Minister lived through the dying days of a deterrent culture, he would have learnt the end, in this case the instillation of order and discipline, did not justify the means of physical cruelty and fear. Even more, he would have enjoyed that small world waking up to the recognition that there were better ideas, better ways than deterrent and fear. 

Perhaps he would not have been so keen to cane the migrants, who in turn, when contemptibly abused may in the end ‘cane for retribution’ for the cruelty to which they and their families have been subjected in the place they sought sanctuary. 

The flight of the first plane to Rwanda will make all of us complicit in ‘the reasoned horror of humanity.’ We will comfort ourselves that the end justifies the means, but there must be better ideas, better ways. 

We must again consider what humanity can tolerate and what we, as humans, stand for. 

Maxwell Fyfe wrote of the Scots: 

For better or worse we as a people have a present sense of history. I believe it is of utmost value because you cannot understand the present except in the light of the past. 

Speech to the Walter Scott Society 1956

The better ideas are embedded in our not too distant past, in the long period of reform and progress through which we have been lucky enough to live. Standing at the crossroads we must turn our back on destruction and return to sanity.

Featured Image – Colonel Lev Smirnov speaking at the Nuremberg Trials held by USHMM – https://collections.ushmm.org/search/catalog/pa7378

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