Thoughts on Leave
The ECHR & Post War Reconciliation
by Sebastian St John
Over the course of the last 16 years, teaching History in a selection of secondary schools in Kent and Essex, my job has brought me into contact with the Holocaust Educational Trust. I have never failed to be impressed with the work they do with young people and teachers across the UK. Recently I had the good fortune to work more closely with the trust, firstly in Birmingham and then at Auschwitz-Birkenau.
In Birmingham I had the opportunity to listen to Eva Clarke, who told the story of her birth at the gates of Mauthausen concentration camp two days before the camp was liberated. During both her talk and in conversation afterwards Eva was very scathing of Brexit and what she perceives to be the legitimising of xenophobia and racism. This legitimisation, fuelled by the Leave Campaign has seen a nationwide rise in hate attacks and incidents since June 2016 within the UK.
Unfortunately I had to agree with her view and the journey home from Birmingham was an uncomfortable one as I considered how this has been allowed to creep into politics in the UK.
Later in that same week I visited Auschwitz-Birkenau, a trip which always causes one to reflect. A recent phenomenon I have found myself bewildered by are visitors taking selfies. This visit I was bemused by a visitor blocking a doorway as he carefully made sure the crematorium, next to the original gas chamber at Auschwitz 1 was in shot. As always, education has to be the key to developing more enlightened visitors - would this man still be doing this at the end of his visit? - I don't have the answer, but I hope not.
My reflections continued on the bus back from Oświęcim to Krakow airport. Along the road there were a large number of EU signs which highlighted how the infrastructure of Poland is benefitting directly from their membership within the EU.
My thoughts on the Holocaust often end up turning to the post war trials at Nuremburg and the role the Britain played in attempting to shape a better world post war. In recent visits these are often influenced by my thoughts on how the Leave campaigns depicted the European Convention of Human Rights – often coupled together with the European Court of Human Rights, (ECHR). I tend to think of criticism of the principles of Human Rights as evidence of ‘Peak Brexit’ groupthink. Theresa May has a history of deliberately misleading the public about the ECHR. At the 2011 Conservative Party conference she claimed that;
"We all know the stories about the Human Rights Act... about the illegal immigrant who cannot be deported because, and I am not making this up, he had a pet cat."
This part of her speech went down incredibly well with the Conservative delegates, (Why are sections of the Conservative Party so obsessed with reducing Human Rights?), but what was rather swept under the carpet was that the anecdote was untrue and the case decision had nothing to do with a cat. As Amnesty International said, Mrs May's comments only fuelled "myths and misconceptions" about the Human Rights Act.
"That someone in Theresa May's position can be so misinformed as to parade out a story about someone being allowed to stay in Britain because of a cat is nothing short of alarming," the campaign group said, going on to say, "She urgently needs to get her facts straight." 1
I can’t be the only one who believe this stands as further evidence that Theresa May’s relationship with the truth is somewhat tenuous, at best.
However I digress. My reflections about Nuremburg and Britain’s role in attempting to shape a better world, concerns the British contribution to establishing the ECHR. As the evidence presented at Nuremburg was made public, the catastrophe that had occurred across Europe and in places such as Auschwitz-Birkenau highlighted an uncomfortable truth. That being until 1948, there was almost no system that enabled criticism of – let alone action against – Government mistreatment of people within its borders, provided their own law allowed such abuses. As Professor Klug (2008) notes, “However morally repugnant, Nazi Germany’s racial purity policies were all in accordance with the law.” 2
The road to the gas chambers at Auschwitz-Birkenau were paved with the denial of human rights, over a 10 year period prior to their construction. And here lies the link between the crimes the Nazis perpetrated at places such as Auschwitz-Birkenau, and the creation of the ECHR, with support from Britain. For example, the right to life confronts the use of gas chambers to exterminate Jews. Article 3, if in force before the Holocaust, would have prohibited the torture seen in the Nazi’s human experimentation, including by doctors, as seen in the doctor’s trial. The guarantees of free expression and assembly respond to Hitler’s objection to rebellion after the Reichstag fire. The right to a fair trial protects against the puppet courts presided over by the Nazi judges prosecuted in the judge’s trial. The prohibition on discrimination confronts the terrors of WWII and addresses the Nazi’s ‘master race’ ideology. 3
The British role in establishing the ECHR was led by David Maxwell Fyfe, who was a criminal barrister and Conservative MP who served as Solicitor-General in British Prime Minister Winston Churchill’s government. As the British deputy prosecutor at Nuremburg he oversaw many of the day to day dealings with the court and had first hand witness to the proceedings and evidence presented. As a result he played a role in producing the first draft of the ECHR which he described as.
“A ‘light’ that would be a beacon to those at the moment in totalitarian darkness and will give them a hope of return to freedom”. 4
So why did the ECHR with such noble intentions and tragic beginnings fall out of such favour that leave campaigners felt comfortable enough in using it as a rallying call for their support?
Firstly the ECHR has fallen victim to myth-making in the tabloid media over the years – as clearly highlighted by the example spread by Theresa May in 2011. Her now Foreign Secretary Boris Johnson played a significant part in this myth-making whilst the Telegraph correspondent in Brussels, (hardly surprising considering his earlier dismissal from The Times as a result of falsifying a quotation). A more serious charge of the ECHR is that it challenges the sovereignty of Parliament. As Dominic Grieve, who is fast becoming a Conservative MP I am prepared to agree with, responds to this charge. “This is untrue - instead, it (The ECHR) allows courts to point out that legislation is incompatible with Convention rights and invite parliament to reconsider.” Grieve, who was Attorney-General from 2010-14 and a Barrister understands this was in effect the point of the ECHR and ECtHR’s existence – as a response to the tragic events of the 1930s and 40s.
Grieve in an article in the Jewish Chronicle in 2016 reflected on the short comings of the ECHR as well as the ECtHR and its occasional mistakes. However he was clear that as a human construct, occasional mistakes can be made, but often controversial decisions, on reflection and with hindsight turn out to be humane and forward thinking. One such example would be the 1981 Strasbourg decision in Dudgeon vs the UK, which outlawed the criminalisation of homosexual acts in private in Northern Ireland. 5
As things currently stand, there is a real risk that Britain will no longer recognise the ECHR and continue to head towards being out of the control of the ECtHR. The benefits of this occurring are puzzling and incredibly difficult to pin down. Muttering about sovereignty is not a valid argument for something that has such important roots in a 20th Century catastrophe and could see a rollback of human rights, perhaps not in the UK, but in areas of the world where British justice and integrity is still valued on the international stage. These values were the values we held when we made those important post war contributions to ensure a safer and more tolerant world, from which the ECHR was born.