The following is a guest post by Tom Blackmore, the grandson of David Maxwell Fyfe, a politician, lawyer and judge who was instrumental in drafting the European Convention on Human Rights, which has just celebrated its 60th anniversary (see our post). For those who argue that human rights are an invention of continental Europe, this article should provide food for thought:
In 1914 Rupert Brooke wrote:
If I should die, think only this of me:
That there’s some corner of a foreign field
That is for ever England. There shall be
In that rich earth a richer dust concealed;
A dust whom England bore, shaped, made aware,
Gave, once, her flowers to love, her ways to roam,
A body of England’s, breathing English air,
Washed by the rivers, blest by suns of home.
And think, this heart, all evil shed away,
A pulse in the eternal mind, no less
Gives somewhere back the thoughts by England given;
Her sights and sounds; dreams happy as her day;
And laughter, learnt of friends; and gentleness,
In hearts at peace, under an English heaven.
In 1946 British Prosecutor David Maxwell Fyfe said at Nuremberg:
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. It is because we believe that there must be clearance before such qualities will flourish in peace that we ask you to condemn these organisations of evil. When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken. It will a step towards the universal recognition that:
‘sights and sounds, dreams happy as her day,
And laughter learnt of friends, and gentleness,
And hearts at peace.’
Are not the prerogative of any one country. They are the inalienable heritage of mankind.’
It was August 1946. David Maxwell Fyfe had spent the past ten months in Nuremberg. He had led the British prosecution against those described as the major Nazi war criminals, had triumphed in his cross- examination of Goering and Ribbentrop, but had not yet had the opportunity to make a speech in court.
The opening and closing speeches for the UK at Nuremberg had been given by Hartley Shawcross, Attorney General in the post war Labour government. Fyfe had held the same role in the short-lived Conservative government that had taken over from the wartime coalition, and had chaired the London Conference that established the trials. But when the Conservatives were beaten he expected that his role in the prosecution would be at an end. Shawcross, however, needed to be at home to manage the Labour Party’s legislative programme, and had asked Fyfe to lead the team.
Shawcross and Fyfe knew one another well despite their opposing political allegiances. Shawcross was Fyfe’s Junior in their Liverpool chambers as they both struck out on the Northern Circuit, the career choice of those with less privilege and less cash. And it was Shawcross who lent Fyfe money so that he could stand as a Member of Parliament.
Shawcross’ adviser in writing his speeches for Nuremberg was Hersch Lauterpacht.
Lauterpacht was a true international lawyer. He was born in a corner of Galicia which is often cited as the well spring of human rights. In 1946 he was Professor of International Law at Cambridge, but as a member of the British War Crimes Executive he spent time in Nuremberg preparing Shawcross speech and talking to many there, including Maxwell Fyfe.
So it wasn’t until August 1946 that Maxwell Fyfe was at last given his chance to speak. Many of the leading players had already left the scene, because the prosecution had moved on from the individual defendants and were seeking to prove the guilt of the Nazi organisations, the SS. (list others) This tricky prosecution would have a great impact on the trials of the members of those organisations in the years ahead.
After 10 months of forensic examination of Nazi atrocities, as Maxwell Fyfe in his speech strove to conjure what might be built on the foundations of the Nazi Armageddon, he was inspired by the Rupert Brooke sonnet, The Soldier.
This was a poem of sacrifice and reverie.
The sacrifice was real, as the multiple massacres between 1914 and 1945 held testimony.
The reverie of ‘an English heaven’ though imagined was equally vivid. A place of peace, gentleness and laughter, touching a communal memory of an England of legend.
There was never such an England, but the idea that England should stand for such qualities was immensely powerful.
Maxwell Fyfe was a Scot. Recently discussing this reflection of England with another Scottish lawyer, a present judge at the Scottish Supreme Court, he assured me that he shared some of Maxwell Fyfe’s passion for Englishness.
It is the passion of a foreigner, for in this respect the Scots are foreign – passionate, idealistic, reforming.
Only the outsider can embrace the myth. The English themselves cannot see it – it is part of their reserved Englishness that for them the faults cloud the dream. Brooke himself was exceptional in being able to cast himself as an outsider in order to evoke and proclaim the English dream. Perhaps he had a foreboding of the 30 years to come, and the solace that would needed.
At the other end of the 30 years of upheaval, in his Nuremberg speech, Maxwell Fyfe wanted to offer the world a vision of what could be, and so he stated that the heaven was’ not the prerogative of any one country.’ It was, he said ‘the inalienable heritage of mankind.’ It was a heaven for all. Brooke, in his sonnet Peace, from the same sonnet cycle was concerned that the whole of ‘mankind should come into his heritage.’
Maxwell Fyfe’s ambition was not, I think, simply a statement of British greatness, though he had a healthy conceit of British capabilities and leadership – for he was in many respects a post –imperial politician unlike many of his colleagues. He yearned for the dream.
On his return to London Winston Churchill asked Maxwell Fyfe to join the European Movement. At the first meeting in The Hague he joined the cultural committee that was discussing Human Rights. After this the Movement established a judicial committee, to which Maxwell Fyfe acted as rapporteur. It was in this role he prepared a draft Convention on Human Rights, working closely once more with Lauterpacht.
He was nominated as a delegate to the Parliamentary Assembly in Strasbourg, which was established as a consultative body alongside the Council of Ministers, which met for the first time in 1949. Once there he was elected chairman of the legal committee, to which human rights was referred.
The committee championed the convention and the establishment of the court and won unanimous support in the Assembly. The Assembly harried the Council of Ministers, who were reticent to accept this bottom-up legislation, but who, after significant consultation, finally signed a convention on this day in 1950 at the Palazzo Barbarini in Rome.
Back home Maxwell Fyfe’s activity was not favourably received. The then Lord Chancellor Lord Jowitt said of the Convention:
Of course I realise that for political reasons we must – in some form or other – accept this draft Convention. At the same time I feel bound to state that from the point of view of the administration of the law I regard this necessity as an unqualified misfortune. Our unhappy legal experts – (two distinguished Home Office officials) – who would have expressed their complete inability to draft a Bill (for example) to prevent the docking and nicking of horses – have had to do their best to draw up a code compared to which the Code Napolean – or indeed the 10 commandments – are comparatively insignificant.
The idea of law outside national boundaries was one that many found hard to embrace.
However, Labour Foreign Secretary Bevan pointed out to his colleagues that there was nothing in the Convention that they did not believe, and it was Hartley Shawcross who saw the Convention through cabinet, and assured government support.
Clearly the European Convention was hatched in the shadows of the Universal Declaration, and in many ways there it stays. It is a regional manifestation of a global movement.
However, it did have strengths. As Maxwell Fyfe wrote later ‘I was very anxious that we should get some international sanction in Europe behind the basic decencies of life.’
The Convention was a legally enforceable treaty that created an international court to police the maintenance of basic human rights. For, as Nuremberg proved and recorded these rights were fragile and vulnerable.
Of course the rights listed in the Convention were crudely hewn. It would take, and will take years of cases at the court to define and refine the interaction between human rights and the state.
As Maxwell Fyfe recognised:
The difficulty of course is that human lawyers are not the creators but only the interpreters or codifiers of these fundamental human rights. Opinions differ widely as to their precise definitions.
The Convention has fed 60 years of public debate about conflicting and emergent rights, many of which would have astonished the authors. And that is what they had intended.
It can be argued that the Convention was made in Gray’s Inn as Shawcross, Lauterpacht and Maxwell Fyfe were all barristers there. The Human Rights Lawyers association is holding a celebration of the signing of the Convention later this month.
For Maxwell Fyfe, the Convention was a small practical step towards the realisation of the ideals he espoused in his speech in Nuremberg. As he put it. in his autobiography
I do not want to be a boring ‘proud father’, but I think that I am entitled to be glad that I have done something positive as well as negative in regard to tyranny, which so many of my generation in the twentieth century have accepted without a murmur.
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