I can’t say anything because you’ve brought up… the Holocaust

12 March 2012 by

As a sequel to this morning’s post on Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights, a comment on his Daily Mail article: I escaped the Nazis – so spare me these sneers about tyranny.

Pinto-Duschinsky explains that because he and his family escaped the Nazis, he has a special perspective on human rights:

I know what the abuse of human rights really means. It is certainly not the kind of nonsense we hear so much about today – parents smacking children, the eviction of travellers from illegal encampments or the deportation of foreign criminals in breach of their supposed ‘right to a family life’.

This argument brings to mind an episode of Sex and the City when the Charlotte York character is talking to her partner Harry Goldenblatt about his mother’s insistence that he marry a Jewish woman:

Harry: Keeping tradition alive is very important to her. She lost family in the Holocaust.
Charlotte: [makes a face]
Harry: What?
Charlotte: Well, now I can’t say anything because you’ve brought up… the Holocaust.

As is often said, the Holocaust is relevant (although, as Samuel Moyn has argued, perhaps not as relevant as is commonly assumed) to the European Convention on Human Rights, as the recent rise and fall of fascism was fresh in the minds of its drafters. But Pinto-Duschinsky uses “the Holocaust” as a rhetorical shield rather than a proof of his arguments.

What exactly is his point? That human rights law should only apply to “real humanitarian abuses or instances of true political oppression”? What does he mean by “real” and “true”? In any case, this relies on a selective reading of the history of the Holocaust amongst other atrocities. Hitler and the Nazis spent most of the 1930s not exterminating Jews and Gypsies but eroding civil and political rights which then allowed them to put in place, with impunity, the killing machine which was used in the Holocaust.

At first, it was death by a thousand injudicious cuts and the drafters of the European Convention – which, yes, always included the right to family life – knew that guaranteeing free speech, the right to vote and other civil rights would act as a bulwark against the rise of fascist governments.

Is Pinto-Duschinsky arguing that the ultimate, unchallengable power of Parliament, reflecting “the will” and even the “impulses” of “the people”, will be enough to prevent rights abuses? Going back to the Holocaust, the impotence of the judiciary and the Reichstag to challenge the ultimate power of the executive was another reason why Nazi policies, which are now used as a byword for the worst kind of injustices, were left unchallenged.

The American Constitution enshrines a separation of powers system in which neither the legislature, executive or judiciary has ultimate power. In theory, this prevents political fundamentalism, and arguably the UK has spent the last few decades trying to catch up.

Stripping away the rhetoric, what Pinto-Duschinsky is really saying is that his view should be privileged because he understands what rights abuses really are. Members of my family died in the Holocaust, but I would never suggest that it gives my arguments on rights any magical quality. I expect that other members of the Commission’s families were affected by the Holocaust, and that they may be a little put out by Pinto-Duschinsky’s broadside against them. For example, Professor Philippe Sands’ mother spent seven years fleeing from the Nazis.

Pinto-Duschinsky clearly lost his argument within the Bill of Rights Commission, which is why he resigned. And as I suggested earlier, the Commission’s terms of reference were never going to provide fertile ground for the “democratic override” he – and indeed, perhaps the Prime Minister – are seeking. But that is because it is a creature of Coalition compromise, not of any malign influence by the Ministry of Justice or “members of the fashionable human rights culture”.

I expect I may be accused of insensitivity. But the last thing the UK’s argument over rights needs is more rhetoric, accusation and political manoeuvring. If Pinto-Duschinsky wants to invoke the Holocaust, this should not insulate him from having to explain what his real argument is.

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  1. John D says:

    On the points raised by Adam Wagner and James Wilson above: while it has often been claimed that the benefit of an “unwritten” constitution is that it leaves wide areas of freedom for individuals, this has clearly been overtaken by the fact that every year huge amounts of legislation are passed at the national and European level, all of which constrict and restrict the area of freedom for all individuals. Relying now upon an outdated concept of an “unwritten” constitution is simply no longer viable in today’s world.
    Those apologists of Israeli actions and inactions are overlooking the fact that Israel is in breach of a number of UN resolutions and judgments with regard to its theft of Palestinian land for the purposes of its current version of the Berlin Wall which they use – illegally – to create separate Palestinian “reservations”.
    This has been further compounded by their illegal theft of Palestinian water and the illegal occupation and promotion of “settlements” by heavily armed thuggish “settler” elements, who routinely abuse local Palestinian communities.
    Regrettably, there is no equivalent of an ECHR to protect the human and civil rights of the Palestinian people. There are occasional judgments from the Israeli Supreme Counrt in favour of Palestinian rights but these are largely ignored by the Israeli Military Government. Where are the freedom guarantees for Palestinian people – written or unwritten?
    In a more localised perspective, we may wonder how it is that democratically elected governments in Greece and Italy have become superseded by appointed bureaucrats from Brussels. How does this affect the human and civil rights of our Greek and Italian partners in the EU?

  2. James Wilson says:

    Yes indeed, I had originally mentioned something about Israel being about the only government or entity in the region which actually has legally binding restraints on its executive that its courts uphold (though doubtless not to everyone’s satisfaction). Ironically this is sometimes held _against_ them, on the ground that since others don’t pretend to respect human rights or democracy they can’t be criticised for breaching both, whereas Israel does aspire to it!

    But now I’m in danger of getting bogged down in saying I’m not going to get bogged down …

  3. James Wilson says:

    “James Wilson has to understand that the deliberate flouting of human and civil rights of Palestinians is due to the inapplicability of legally binding conventions like the ECHR.”

    I am not going to get involved in a discussion about the rights and wrongs of the Palestinian situation – virtually every single one I’ve read degenerates very quickly into Godwin’s law and many variations thereon – from all sides of the debate. Even the national press seems incapable of managing anything impartial on the subject (to the extent that it is possible to be impartial on such things). The fact that John D has not mentioned anything about any attack on or threat to Israel is a good example – though as I said I am not getting bogged down on the subject.

    I would say however that I think as much as lawyers might like to think otherwise the world of realpolitik would not be displaced in Israel by something like the ECHR – any more than Turkey bothers to abide by rulings by the ECtHR on Northern Cyprus, for example.

    Conversely the UK’s unwritten constitution historically provided rather more rights and freedoms than many beautifully written constitutions in other nations; due to the culture and traditions of the country rather than what was on a piece of paper. But, true to the theme of the post in a way, we are in serious danger of wandering off topic. The post was supposed to be about the irrelevance of MPD’s childhood to present-day human rights discussions, after all.

    1. Adam Wagner says:

      Not to mention the fact that Israel has its Basic Laws which have many parallels to the ECHR and which are often argued before and enforced by its Supreme Court.

      But I’m not going to get bogged down either!

  4. John D says:

    There are two comments above that require responses: Lloyd Jenkins has to understand that the executive will – as a matter of routine – have any new treaty agreements endorsed by parliament, thus conforming to the constitutional concept of parliamentary sovereignty; James Wilson has to understand that the deliberate flouting of human and civil rights of Palestinians is due to the inapplicability of legally binding conventions like the ECHR. This latter point is why we in this country have to continue supporting such conventions for our own protection from over-mighty executives. Regrettably for the Palestinians, there is no such curb on the Israeli executive. This is a lesson we all ought to be prepared to learn – even James Wilson.

  5. James Wilson says:

    Cheers Adam – sadly there are a couple of examples on this very thread already, which seem to be attempting to discredit MPD’s arguments about the ECHR in Britain on the ground that they disagree with the present-day actions of the Israeli government …

  6. ybawife says:

    Correction about gypsies our prof argues they are not ‘genuine candiates for utalising human rights laws. If his-tory is correct were not gypsies also included in the holocaust. It was not just Jews but many other categories of people were forced into labour and Nazi death camps. Myth making is now a central stem in the state of Israel where it is taboo in all their supporters media to talk or question the blatant human rights violations against Palestinians. To day many civilians have murdered bu Israeli killer planes.Such violations on a daily basis go unreported and unexplained. Human rights is not a matter for those who assert they are st the top of the hierarchy oc pain suffering and injustice. We need a free and objective process that can cut across the retoric and deal with injustice irrespective of who is commiting the human rights violations. In mu example it is Israel snd all who support her killing machine that must be stopped NOW!

  7. Dr Michael Pinto-Duschinsky has jumped before he could be pushed. It is unknown who suggested Dr Michael Pinto-Duschinsky should be selected for the UK Bill of Rights Commission, and why he was selected. He is neither a lawyer nor an expert on human rights, merely a so-called political scientist. From the outset he has shown that he is not fit for purpose. After his dismal performance before the Joint Committee on Human Rights he should not have been placed within a million miles of the subject of human rights.

    The UK Bill of Rights Commission is right to deliberately ignore the wishes of Prime Minister David Cameron, if it is to have any integrity and he is against the ECHR, ECtHR and human rights generally.

    I don’t believe that it is realistic to make human rights consistent with parliamentary sovereignty. The two concepts are at odds with each other.

    The UK surrendered parliamentary sovereignty to whatever extent when we signed up to the Council of Europe. We agreed to abide by the Convention and Court decisions. Therefore human rights, democracy and rule of law trump parliamentary sovereignty. European law does not recognise parliamentary sovereignty, rather it recognises a different concept sovereignty of the people.

    It would appear that Dr Michael Pinto-Duschinsky has misunderstood the remit of the UK Bill of Rights Commission. Particularly “incorporating and building on the European Convention on Human Rights”. Labour did not incorporate Articles 1 and 13 of the ECHR when it supposedly brought rights home:

    Article 1 – Obligation to respect human rights

    The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

    Article 13 – Right to an effective remedy

    Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

    Decisions are made by Parliament but if they impinge upon the ECHR then the ECtHR has jurisdiction to decide if they breach human rights.

    Dr Michael Pinto-Duschinsky favours ignoring human rights in favour of parliamentary sovereignty, and seeks to justify this abuse by claiming that Parliament should have a democratic override. This is dangerous ground. For example, it is a human right to vote. If Parliament overrode this it would not be democratic.

    When the ECtHR instructed the UK to give prisoners the right to vote, this sent a signal that the UK is a failing State in relation to human rights, democracy and rule of law.

    1. Lloyd Jenkins says:

      “The UK surrendered parliamentary sovereignty to whatever extent when we signed up to the Council of Europe. We agreed to abide by the Convention and Court decisions. Therefore human rights, democracy and rule of law trump parliamentary sovereignty.”

      I don’t think that’s true. The executive isn’t a source of law (let alone constitutional law), so its decision to sign a treaty couldn’t have had an affect on parliamentary sovereignty.

    2. Mark Apsted says:

      Re the failure to include Article 13 Right to an Effective Remedy – very apposite to the predicament of almshouse licensees in the UK contingent upon Gray v Taylor 1998. We expound at some length on our website about this deplorable lacuna.

  8. James Wilson says:

    It is indeed the converse of Godwin’s law. Sadly many an internet thread ends up with the law applying, eg last week an article in the Observer criticising Ken Livingstone’s tax-avoiding hypocrisy prompted various posters to say (bizarrely) that since the author had supported the Iraq war his argument on anything else could be immediately discarded.

    Indeed as Jamie Whyte pointed out, it is not even as though Hitler was wrong about everything. He thought Berlin was in Germany, for example, and I can’t imagine most geographers would disagree with that statement just because Hitler held it. Apparently he also disagreed with fox hunting on the ground that it was cruel – that may be apocryphal, but either way it adds nothing to the argument about whether fox hunting is or is not immoral.

    Still, one would hope that at least a discussion might not begin that way – especially as the Daily Mail itself is often said to be the paper that supported Hitler in the 1930s (and therefore somehow disallowed from saying anything about anything else eighty years later). To be fair to Pinto-Duschinsky, he wasn’t quite as pointless as that – he was trying to say that he was well aware of what ‘real’ human rights were about and that the ECHR is often used for what he thinks are spurious causes. But arguments have to be assessed independently of those who hold them, so whatever Mr Pinto-Duschinsky’s background might be does not give his actual arguments any more – or less – validity.

    1. Adam Wagner says:

      James – and others – thanks for the comments.

      I agree that MPD’s arguments are not pointless. He makes a similar point about openness and public consultation that I made in a post last week. His points about democratic override are interesting and not off the charts in terms of acceptability, although I personally think in practice they are another way of saying that the human rights system should be shut down. I also thought that MPD’s Policy Exchange paper was thoughtful and interesting.

      But none of this takes away from the rhetorical grenades which he launches in his piece – and which make it very difficult to address without having to start by diffusing them!

      And you are right to point out the media trope (particularly common on Twitter and comment threads) of attacking the man/woman not the ball, as it were. “You said this so you would say that”. It’s not very attractive and – more importantly – not very enlightening either.

  9. members of my family were killed by the coal mining industry. you are hereby banned from challenging my points on trade unionism.
    or geology.

  10. Excellent post, I’m glad you see right through Pinto-Duschinsky’s emotional manipulation. It’s similar to the ‘no true Scotsman’ fallacy, when an arrogant individual holds himself out as being a superior arbiter of what’s what.

  11. John D says:

    Perhaps Pinto-Duschinsky would like to carry out a study of the way in which the Israeli Military Government has fatally undermined the human and civil rights of Palestinians living in the militarily occupied West Bank to see why a bulwark such as the ECHR is so necessary to a civilised society? What about the Palestinians’ democratic rights? What about their right to have a sovereign state and parliament? Or do the Palestinians simply not count in his estimations?

  12. D-Notice says:

    It’s basically an attempt to have an opposite to Godwin’s Law http://en.wikipedia.org/wiki/Godwin's_law

    1. it’s basically a subset of godwin’s law isn’t it? perhaps the godwin’s law (amendment) regulations 2012.

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