Seventy-five years ago, Nuremberg prosecutor David Maxwell Fyfe – an artisan of the European Convention on Human Rights – spoke in Brussels of his fear that the high ideals of the victors would be forgotten. His grandson explores why his legacy matters now more than ever
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In August 1946, towards the end of the war crimes trials of the leading Nazis, Rebecca West reported from Nuremberg. In her article, ‘Extraordinary Exile’ in the New Yorker, she captured the trials as they drew to a close:
“Something is happening all over the world; one reads of it constantly in the newspapers, but here in Nuremberg one can feel it. A machine is running down, a great machine, the greatest machine that has ever been created – the war machine, by which mankind, in spite of its infirmity of purpose and its frequent desire for death, has defended its life. It was a hard machine to operate; its processes were unlovely. It is the natural desire of all who served it, save those rare creatures, the born soldiers, that it should become scrap. There is another machine, which is warming up – the peace machine, by which mankind means to live its life.”
Throughout the article, she emphasised the humanity of the trials and the condition of the defendants, their prosecutors, and the judges. Unsurprisingly, I am most interested in her assessment of the performance of my grandfather, David Maxwell Fyfe, one of the British prosecutors.
About his impact on the defendants, she wrote: “In the examination and cross-examination of witnesses, Sir David Maxwell Fyfe holds the honours. This gentle and heavily-built man, who never exempts himself from the discipline of fairness, drives witness after witness backward, step by step, till on the edge of some moral abyss they admit the truth… They are ashamed when Sir David proves them liars.”
She observed a transformation in the leaders of the Nazi regime who admitted to shame in their truth. Seeing these men acknowledging something of their guilt, albeit too little and too late, mattered. Caught up in the whirl of the war machine they felt no guilt. As the peace machine started up, so their actions appeared in a different light.
The fuel of the peace machine was justice and its renewal. For there could be no peace without justice – without it the machine would founder. The peace machine had a number of key components, including reforming people’s material comforts and the support provided to them by governments.
Days after West wrote her article in August 1946, Maxwell Fyfe delivered his one speech at Nuremberg – his closing statement against the organisations of the Nazi state. As a lawyer, he was especially harsh on his colleagues in the German courts under the Nazi regime; those who should have maintained justice but did not take a stand.
“Of the murders committed during the 1938 demonstrations by… members of the SA and SS it was pleaded that, I quote, ‘in such cases as when Jews were killed without an order or contrary to orders, ignoble motives could not be determined’,” he said.
“The purpose of those proceedings in the party court were, I quote again, ‘to protect those party comrades who, motivated by decent National Socialist attitude and initiative, had overshot the mark’.”
In those few lines, lies the secret of all the death and suffering, the horror and the tragedy that these defendants had brought upon the world. The Nazi spirit, which fuelled Hitler’s war machine, consisted – at its core – of a perversion of justice.
Concluding his speech, Maxwell Fyfe turned to the peace that could replace that spirit – in this case a very intimate peace, universally shared: “It might be presumptuous of lawyers who did not claim to be more than the cement of society to speculate or even dream of what we wish to see in place of the Nazi spirit, but I give you the faith of a lawyer some things are surely universal: tolerance, decency, kindliness.
“When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken.”
The peace that he invoked relied on what he later called a sound system of justice. And after Nuremberg, the next challenge was to secure a sustained peace throughout Europe.
Maxwell Fyfe returned to his life as a barrister and opposition Conservative MP in Parliament. His party leader, Winston Churchill, asked him to join the Europe Unite movement, which was established by leaders throughout Europe who were frustrated by the lack of progress made by governments in bringing the Continent together after the war.
They looked to Churchill as their leader – he had won the war in Europe and now they needed him to win the peace.
In a speech at the opening of the Congress of Europe in May 1948, in which he allowed himself to dream in the manner of great leaders and visionaries, Churchill said he saw “a happier sunlit age, when all the little children who are now growing up in this tormented world may find themselves not the victors nor the vanquished in the fleeting triumphs of one country over another in the bloody turmoil of destructive war, but the heirs of all the treasures of the past and the masters of all the science, the abundance and the glories of the future.”
To achieve this dream, he saw that Europe needed “a period of rest”, allowing people to be freed from the fear of tyranny and authoritarianism. This would require perseverance.
Much of Churchill’s dream was realised. There has been a European miracle in the 75 years since he spoke and the instrument that has been the fuel of renewed justice was the Charter of Human Rights that he introduced.
Maxwell Fyfe was in the audience for Churchill’s speech. A year later he was in Strasbourg, at the newly founded Parliamentary Assembly of the Council of Europe, chairing the legal and administrative committee to which the matter of a charter – or now a convention on human rights – was referred.
In his autobiography, A Gleam in Alsace, Maxwell Fyfe says: “I made a speech in the main meeting in which I asked my colleagues to accept a system of collective security against tyranny and oppression. It was, I said, a simple and safe insurance policy.”
He supported the establishment of a court, recognising the role of courts in developing and defending freedoms that all democracies enjoy.
“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,” he wrote.
And, as a lawyer, he described his understanding of the role a court would have in building this additional legal system: “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.”
In 1950, Maxwell Fyfe spoke of his own history in conducting war crimes trials and championing human rights.
“Most people approach the subject of war crimes trials fundamentally either as cynic or idealist,” he observed. “This is, I think, because in essence the case for or against trying war criminals depends on that controversial subject which has become succinctly known as human rights.
“Your cynic says ‘human rights? There are none’. Your idealist, however, takes the view that there are certain rights and freedoms, not created by lawyers, but to which mankind as such is heir and which cannot be alienated. It is a conception akin to the idea of the Law of Nature which had such a wide influence on relationship in past centuries, although now somewhat outmoded… The idea of fundamental human rights is one in which I firmly believe.”
Of course, the cynics remain – and are perhaps in the ascendency. Equally worryingly, there are those who have, as Maxwell Fyfe described, “lost confidence in the free legal and political systems which are the heritage and pride… of the Western World” and are taking “comfort in doctrines that exalt authority”.
His warning remains that “the barbarian is not behind us, but always underneath us, waiting to rise up”.
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For the past decade, Britain has not been at peace with itself. The Union has been disrupted by populism, communities unsettled by property-fuelled economic inequality, and individuals disturbed by the battle for identity, the tsunami of digital technology, illness and poverty.
As always is the case, some take advantage of this disruption. And part of this cynical move are those who wish to remove us from the European Convention on Human Rights – which my grandfather’s work helped to bring about in the wake of the horrors of the Second World War.
The Convention – guaranteeing individuals fundamental human rights – is incorporated into UK law by the Human Rights Act, which some in the Government are hoping to repeal and replace. The European Court of Human Rights, which interprets the Convention’s application, is reportedly being lined up as the backdrop for a new campaign of populism fearmongering.
If the buttress against tyranny is removed, there is a clear and present danger of the return of the barbarian and a slide towards authoritarianism. If the fuel runs dry, the peace machine will founder.
The idea of human rights has spread and grown in the past eight decades to become an important pillar of the legal framework of Britain and Europe. Although the Convention has only been subject to a couple of additional protocols, many new-found freedoms hang from its branches. So many in fact that the management of conflict between them, which is perfectly healthy, is now in urgent need of harmonising.
In addition, the pandemic and war in Ukraine has put immense strain on people’s fundamental rights and their enforcement.
That is why it is excellent that the Council of Europe has called a summit in Reykjavik in May, only a weekend away from the 75thanniversary of the Congress of Europe. This will be only the fourth summit in the history of the organisation and has been called to refocus its mission, in the light of new threats to democracy and human rights, and to support Ukraine.
This is a huge task. It will require all countries, in Churchill’s words, “to persevere”.
Rather than trying to sidestep its articles and diminish international human rights protections, the UK Government must engage with the Council of Europe to forge stronger freedoms for all on European soil, live harmoniously with the global community and in response to its needs.
The contribution of the organisation I lead – The Human’s in the Telling – to the #roadtoreykjavik is a performance of Dreams of Peace and Freedom, a song cycle telling the story of David Maxwell Fyfe’s journey from Nuremberg to Strasbourg in his own words and words that inspired him, set to music by Sue Casson.
To renew, we must look back and walk again the uncertain track of justice restored, freedom renewed, and peace reborn in the heart and conscience of Europe.
Tom Blackmore is the artistic director of The Human’s in the Telling – a TSLR project in partnership with English Cabaret
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