Nuremberg prosecutor advocates rule of law

BY MIKE WISER

“Come on in. No charge for admission,” Benjamin Ferencz ’43 told the students streaming into Langdell North before his lecture. “It’s worth every penny,” he added.

Working the crowd for the 20 minutes or so before his talk “Law is always better than war,” Ferencz wandered up and down the aisles with a microphone asking students, “What do you want me to talk about?” Some of the students wanted him to talk about his role as a Nuremberg prosecutor after the Holocaust. Others wanted hear about his half-century-long advocacy for an International Criminal Court. Still others wanted to know if he was serious about the topic of his lecture in light of the events on September 11th.

A 60-Year Project

The story of international criminal law, for Ferencz, overlaps with his own autobiography. It started, he says, over 60 years ago at the law school. As a research assistant, he was told to read everything in the library on international war crimes and write summaries for a professor. He was fascinated by the subject, but World War II pulled the recent graduate away from the books of Langdell, and he soon found himself a private in the Army working in a supply room. Omaha Beach and the Battle of the Bulge followed. “Somehow I managed to survive,” he said.

It was only towards the end of the war that the army realized that it had an enlisted man who knew as much about war crimes as anyone. Working as a war crimes investigator, he began the process of preparing a case against Nazi leaders and also searching for the defendants. He described the process of discovering what happened during the Holocaust as “quite a horrible experience.”

After ending his Army career as a sergeant, Ferencz was called into the Pentagon and asked to go back as a prosecutor. After getting his wife to agree to a “honeymoon” in Germany, he returned to Nuremberg to serve as the chief prosecutor of 22 high ranking S.S. officers responsible for the killing a million people. The death penalty, he said, did not seem like enough of a response to the atrocities of Nazi Germany. Getting a court to affirm the right to live in dignity, he said, might at least change things in the future. “That is what I did and that is what the court affirmed,” he recalled.

After then working for Jewish victims to set up a system of compensation, Ferencz returned to the States with his three children (“There was no television,” he joked). However, he never gave up his work to prevent the crimes of Nazi Germany from being repeated. During the “pretty messy world” of Vietnam, he went to the U.N. to help establish a system of international justice. What he found was a U.N. committee spinning its wheels in what seemed to be just “talk and talk.”

It was the images of 10,000 women being raped in the former Yugoslavia and the atrocities in Rwanda, he said, that changed everything. Suddenly a U.N. legal committee was reading his 1972 two-volume book on an international criminal court and reviewing statutes drawn up in 1938 that Ferencz had read as a student at Harvard. The wheels hit the ground and in only a few weeks the Rwandan Tribunal was established, the first international tribunal since Nuremberg. This, he said, was “a great step forward.” The tribunal for the former Yugoslavia was set up not too long after.

An old lawyer friend of his, who happened to become the prime minister of Trinidad, he said, finally proposed the idea for the permanent International Criminal Court. “Suddenly the wind was changing,” he said. Despite opposition from the U.S., most of the world signed on to the treaty. Sixty years after Ferencz had sat in Langdell reading everything he could find on international criminal law, it looked like his lifelong project was finally coming to fruition.

War Making, Law and Terrorism

The Holocaust, bloodshed and rape in the former Yugoslavia, and the atrocities of Rwanda all changed the world of international criminal law. But the events of September 11th may prove to have an equal or even greater impact. The world and America, he said, should now turn to law, not war, to respond to the “crimes against humanity.”

“First, let us be true to our principles,” he told his audience. Most people, Ferencz said, want to punish only the guilty, and only punish them after a fair trial. “Somehow we have seemed to forget [this],” he said.

Ferencz argued that the U.S. should draw up an indictment of bin Laden, charging him with crimes against humanity. He cautioned against trying to charge them with terrorism, because of decades-long debates at the U.N. on defining terrorism, which seem no closer to reaching a conclusion than they were when they began.

Second, he pressed for the U.S. to use the framework of the Security Council for any of its responses. He said that the response to the Iraqi invasion of Kuwait could serve as an example, although he admitted that the failure to bring Saddam Hussein to justice meant the allies ended up punishing the innocent while allowing the guilty to go free.

“War-making is the supreme crime,” Ferencz said.

In a letter distributed before the lecture, Ferencz wrote: “I have experienced the horrors of war, and I cannot bear to see the destruction and pained eyes of those digging to the ruins or the helpless relatives refusing to accept what they know is inevitable. I have flashbacks of riding over the ruins of St. Lo in Normandy where the sky was black with American bombers and the earth rocked as a French city was reduced to rubble. I smell the smoke of Wurzburg burning when we dropped incendiary bombs that burned every house to the ground, leaving only ghostly walls standing. I recall the emancipated corpses at Buchenwald and Mauthausen and a host of other charnel houses.” He concluded: “All of this may help explain the trauma that drives me to try to prevent war.”

At the speech, Ferencz echoed this sentiment.

“The only victor in war is death,” he told the audience. Law is better than war, because “law is the only answer.”

Still, he admits, in a world not civilized enough to lay down clear rules and follow them, war is sometimes necessary. In responding to an audience question, Ferencz defended the U.S. response in World War II, saying that when fighting an enemy who is waging total war, the other side is justified in responding in kind.

Pushing the Rock

Despite all the death, destruction and international wheel spinning that Ferencz has seen, he is hopeful. “It can be done,” he told the crowd. Fifty years after he delivered his opening statement at Nuremberg, the Rwandan Tribunal quoted Ferencz’s comments as precedent for its own decisions.

It is individuals, he said, who made the difference. Ferencz sees them as individuals who are pushing a rock up a hill. Occasionally, the rock slips down. But, he said, they still managed to make progress.

His message to the students today was ultimately simple. “I’m looking for help,” he said.

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