Fool’s Justice

Eighty years ago this year, on 1st April, 1946,  David Maxwell Fyfe cross-examined Hitler’s Foreign Secretary Joachim von Ribbentrop, often regarded as Hitler's ‘fool’, at the Nuremberg War Crimes Trials. As English Cabaret continue to perform Sue Casson's Dreams of Peace & Freedom, the story of David's journey from Nuremberg prosecutor to ECHR champion, for All Fools Day, Tom Blackmore reflects on changing perceptions of foolishness, and ponders who the fools are today.

This is All Fool’s Day, a day often given over to deception and tricks, but which is also the opportunity to reflect on the power and jeopardy of folly. Foolishness is as much as anything about perception and choice. The lyric from the Genesis song summarises this:

One man's saint is another man's fool / One man's hot is another man's cool

Folly is fluid, a badge of shame or honour that can be adopted and removed by the fool or the observer. Anyone can choose to put on the motley, and the viewer will shine their light revealing what they want to highlight, casting who they choose as fools.

Eighty years ago this year, on April 1^st, 1946, David Maxwell Fyfe, Nuremberg prosecutor, and artisan of the ECHR, was cross-examining Hitler’s Foreign Secretary Joachim von Ribbentrop. He unearthed a tissue of lies about the intention to wage aggressive war, knowledge of slave labour and concentration camps, and membership of the SS. In all his diplomatic dealings Ribbentrop protested that he was working reasonably even though the records said otherwise. David concluded:

Tell me this: Every time today when you have been confronted with a document which attributes to you some harsh language or the opposite of what you have said here you say that on that occasion you were telling a diplomatic lie. Is that what it comes to? Thank you very much.

This silenced Ribbentrop and it was reported that:

Ribbentrop wept hysterically in his cell last night after his “grilling” by Sir David Maxwell Fyfe.

The word ‘fool’ is commonly associated with Ribbentrop. A 1984 BBC Radio 4 programme was subtitled ‘The Diplomat as Fool,’ and Ribbentrop was certainly thought to have made a fool of himself at Court of St James with his German salute. Kai Wilson entitled his review of Michel Bloch’s biography of Ribbentrop ‘Hitler’s Visionary Fool’. In his book Bloch describes the response of the other defendants to Ribbentrop under cross-examination.

Von Papen said early on: ‘There’s no use letting that fool talk any more. He’s convicted himself already’.

’What a pitiful spectacle,’ exclaimed Goering, ‘I had tried so hard to prevent him becoming Foreign Minister but believe me it is no pleasure to see how right I was.

But Hans Frank, Hitler’s lawyer, expressed greater sympathy: ‘The poor fish. What do you expect? He is so untutored and so ignorant. It is not that poor simpleton’s fault that he knew nothing about foreign affairs. But it was a crime on Hitler’s part to make him foreign minister of a country of 70 million people’.

And so, Hitler’s fool was cross-examined on April 1st, and seemingly uncontrollably revealed his guilt. There was laughter in Courtroom 600.

There was however no laughter when the sentences were read a little over six months later. Ribbentrop was found to be deeply involved with all the Nazi aggressions, and the criminal activities in countries that were invaded, ‘particularly those involving the extermination of the Jews.’ 

The judges found that ‘There is abundant evidence, moreover, that Ribbentrop was in complete sympathy with all the main tenets of the National Socialist creed…. It was because Hitler's policy and plans coincided with his own ideas that Ribbentrop served him so willingly to the end’.

Like the other defendants Ribbentrop was satisfied with their brutality, criminality and baseness of their regime. Ribbentrop was not a good fool.

Not all fools are good fools, but some are. The powerful have always relied on Fools; to receive the nonsense and chaos they generate and return it to them as acceptable or at least humorous. Sometimes the fools are those who turn on power, to address them with ‘truth.’ It is that truth that sets them apart from the mainstream, who, unsettled see only folly.

King Lear’s Fool stays behind on the heath to deliver a prophecy of the hurly-burly created by Lear’s abdication of his kingdom. When this and that happens, some good, some bad, some expected, some shocking:

Then shall the realm of Albion / Come to great confusion

Amongst the prophesies, ‘when every case in law is right,’ seems the most idealistic and perhaps the least likely.

In the 1980s era defining thriller Edge of Darkness American CIA agent Darius Jedburgh plays the Fool (in a motley of Stetson and southern drawl) to the American establishment and its nuclear leaders, in this case Jerry Grogan

Jedburgh steals British-owned plutonium on behalf of the US government but goes on the run when his own people try to kill him. The action inexorably moves to a show down between two Americans. They confront one another at a conference at the Gleneagles Hotel in Scotland. And Jedburgh speaks from the podium:

Jerry Grogan suggests that in a hundred years from now, the human race will leave the planet and move into space. Jerry is a hell of a salesman. He can make such an unappetising idea sound attractive. Now, the way Jerry tells it, it sounds just like an extension of the old Oregon Trail. It calls for the same American virtues of self-reliance, independence, know-how. But it will not be that way. (This new international nuclear state that Jerry's a part of, they do not cherish such virtues. You got that straight from the horse's mouth, because I used to be a part of it)

Read between the lines of a Jerry Grogan speech, you'll find not the frontiersman but the Teutonic knight. Not democracy but a despotism. This future nuclear state will be an absolute state whose authority will derive not from the people but from the possession of plutonium.

Forty years on Elon Musk plans life in space within decades and despotism has emerged to protect the plutonium and other rich earth materials that fuel the digital world.

Whilst forty years before Edge of Darkness in 1947 Maxwell Fyfe said:

In the world of the atomic bomb 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.

At Nuremberg, ‘humanity’ decided it could no longer tolerate ‘aggressive wars.’ Lord Justice Lawrence, when pronouncing sentence at the end of the Tribunal in Nuremberg said:

To initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

Evil was on display day after day at Nuremberg. But even then, there was resistance. David wrote:

After exhausting wars men tend to suffer a weariness of mind. This lassitude can make them shrink away from facing the limitations of human nature. It can produce a facile scepticism about their evil deeds.

Time erodes the acknowledgement of evil. Strong men (as they almost all are) find ways back into power. And for a while at least people conform, letting the executive dictate, and considering those who question the slide into authoritarianism as fools.

One such ‘fool’ Ian Dunt wrote on Substack recently:

Somewhere in that process, you understand how all the worst events in human history took place. When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes. Our tour guide replied: “This place is not explained by extremism. It is explained by conformity.” I have never in my life seen so much cowardice. I have never seen so many people silence the parts of themselves which demand courage.

Another, David Allen Green explores this further:

One may not be able to have a law or a policy against conformity, but one can certainly be politically opposed to it – to campaign and vote or otherwise mobilise against extremists who want to take control of the state.

And Maxwell Fyfe himself felt that he had lived through a lifetime when many were ready to conform, and considered him foolish for calling out the tyrant:

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.

The ‘facile scepticism’ that prompts many to conform and turn their backs encourages others to rewrite the past.

The 1990s were, according to Marc Bassets in La Pais ‘the golden age of the Nuremberg idea.’ As the fiftieth anniversary of the International Military Tribunal for the prosecution of major war criminals came and went, further tribunals were established at the Hague and the Berlin Wall came tumbling down. Bassets quotes French historian Annette Wieviorka: ‘We were very optimistic’.

Thirty years later that optimism has dried up, corroded by waves of fear and scepticism. The eightieth anniversary is passing through a landscape of aggressive wars, war crimes and crimes against humanity. This is once again a tyrant’s world, in which if ‘might’ is not necessarily ‘right’, it is inevitable.

In this world Nuremberg is now generally considered by academics as a flawed venture. They pick holes in the detail of cases and reflect on the value of victor’s justice and whether the defendants were treated fairly. They describe the proceedings as a suspect and foolish enterprise.

Nuremberg was pulled together in a very short length of time and was of course flawed and rough-hewn. Nevertheless, the evidence presented there was written by the Nazis themselves as they governed, and the defendants were represented by German lawyers.

But above and beyond process Nuremberg stood for something else. George J Martin crystallised Maxwell Fyfe’s thoughts about ‘some things for which humanity stands’ in a recent article:

The verdict at the Nuremberg Trials proved that without natural law, there is no case against the enfranchisement of evil. The natural law tradition not only assumes and assures the dignity of the human person but is often the only counter to injustice and inequity.

There was evil in Nazi Germany, and somehow humanity had to rebuild first justice and then the stature of humanity.  In his speech closing the case against the Nazi organisations Maxwell Fyfe concluded:

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.

Currently, few echo this faith in the universal stature of all humanity. Exceptionalism and otherness are spoken or unspoken. Fear of the consequences of the world shrunk by digital technology, fear of a world with an erratic climate changing the seasons and rhythms of life, and fear of fear itself: this fear breeds greed and anger, and leads to universalism being written off as foolish.

It is David’s story that we tell in Sue Casson’s Dreams of Peace & Freedom, and it provides some hints as to how to face the fear. After all it has been faced before. As David wrote:

The barbarian is not behind us but underneath us ready to rise up

Reflecting on Nuremberg after the trials David found that human rights are the bedrock to building a safe and just society.

Most people approach the subject of War Crimes Trials fundamentally either as cynic or idealist. 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.

It was this faith in human rights that led David to champion and draft the European Convention on Human Rights, which was signed in 1950. By many the ECHR is now considered a foolish document that protects only travellers. This is nonsense: it is a buttress against tyranny, protecting every individual from an authoritarian state.

We, proud to be foolish in our turn, tell a story of the ECHR, how it grew it the wasteland of world war and justice renewed and champion its vital role in protecting us.