Benjamin Ferencz (May 2006)


Benjamin Ferencz studied jurisprudence under Roscoe Pound at Harvard, and after World War II served as Chief Prosecutor in The Einsatzgruppen Case, a war crimes proceeding held at Nuremberg subsequent to the work of the International Military Tribunal (IMT). In this case, the first to recognize crimes against humanity, Mr. Ferencz stated: "Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action, man's right to live in peace and dignity, regardless of his race or creed. The case we present is a plea of humanity to law." After his work at Nuremberg, Mr. Ferencz returned to private practice, but around 1970 turned increasingly to the cause of world peace. He worked intensively for the establishment of the International Criminal Court (ICC) and taught international law at Pace University Law School. He has also written a number of books and articles, and maintains a website, www.benferencz.org, where his motto is "Law is better than war." The Legal History Project interviewed Mr. Ferencz in May 2006.

How did you come to be involved in the Nuremberg trials?

As a student, my career path was focused on crime prevention. At Harvard Law School I won a scholarship for my exam in criminal law and did research for Professor Sheldon Glueck, America's leading criminologist, who was writing a book on war crimes. Upon graduation, I entered the U.S. Army as a private assigned to an artillery battalion being trained for the invasion of France. When U.S. troops reached Germany, I was assigned to the HQ of General Patton, who had been directed to set up a war crimes program in fulfillment of promises by world leaders that Nazi criminals would be held to account. I investigated murders of allied flyers who had been shot down and beaten to death by German mobs. I entered various concentration camps as they were liberated by the U.S. army and secured evidence of criminality. I witnessed scenes of incredible inhumanity and prepared reports for trials by U.S. Military Commissions that took place in the Dachau concentration camps. On the day after Christmas 1945, I was honorably discharged as a Sergeant of Infantry and awarded five battle stars for not having been killed or wounded.

Shortly thereafter, I was urged by the Pentagon to return to Germany with the simulated rank of Colonel, to do essentially what I had done as a Sergeant. I finally agreed to go as a civilian with that simulated rank. The Nuremberg trial by the IMT was then in progress, The decision had been made that there would be another dozen trials at Nuremberg to bring to justice the broad panorama of German society that had supported the Hitler regime that had made the crimes possible. Telford Taylor, one of Justice Jackson's key assistants at the IMT trial, was appointed to head the "Subsequent Proceedings" under U.S. auspices. Taylor persuaded me to join him and assigned me to set up an office in Berlin to find the evidence needed for the planned additional trials.

As Chief Prosecutor in The Einsatzgruppen Case, which involved German officers of death-squads that murdered over a million people during World War II, you obtained convictions for all 22 defendants, plus 13 death sentences. Can you describe your work in preparing and conducting this case?

A Berlin researcher discovered a complete set of top-secret reports by Nazi extermination squads called "Einsatzgruppen" (EG) operating on the Eastern front. They described how more than a million Jews, Gypsies and other perceived enemies of the Reich, including women and children, were systematically exterminated by the EG units. Taylor was convinced that a new trial, that had not been scheduled, was required and named me as the Chief Prosecutor in what was surely the biggest murder trial in human history.

I decided to rely on the official German reports which showed the place and time of the executions, the number of victims, and the SS commander in charge. I did not desire any witness testimony because there were few survivors and because documents were much more reliable. I had 3 assistants and each one was assigned to prepare the case against different defendants. I rested the prosecution's case after 2 days. Each of the 22 defendants was entitled to choose his own German defense counsel plus one assistant. Their denials and alibis took several months and an equal time to be rebutted.

Could you describe the Einsatzgruppen defendants, and what it was like to see them regularly in court? One often reads about the "banality of evil," but how did these men strike you as human beings? Were they all unblinking fanatics, or do you think some had qualms or regrets about their activities?

I never spoke to any defendant outside of the courtroom. I wanted to know them and judge them only on their own records of their deeds. They showed no remorse whatsoever. They were convinced that their deeds were justified. The lead defendant, SS General Dr. Otto Ohlendorf, whose unit killed about 90,000 innocent people, sought to justify the slaughter as self-defense. He argued that Germany knew that the Soviet Union (despite the non-aggression pact) was preparing to attack Germany. A pre-emptive strike was therefore necessary. It was "known" that Jews supported the Bolsheviks and that Gypsies were untrustworthy, hence they had to be eliminated. Since the children of victims might grow up to be enemies of the Reich they too had to be killed. It was all very logical, in the eyes of the murderers. Not in mine, nor in the eyes of General Telford Taylor or the U.S. judges. All of the defendants were convicted, and 13 were sentenced to death.

As a Jew born in Eastern Europe, you would very likely have been among those killed in the Holocaust if your family had not emigrated to New York City in the early 1920s. Nuremberg was, moreover, the first time that the mass persecution of Jews could be challenged in a criminal court in Europe. You said in your Opening Statement that vengeance was not your goal, and your desire was clearly for the application of an impartial and ecumenical justice. This being said, however, can you describe your thoughts then and since about your almost unique role in modern Jewish history? Would it be accurate to describe it as a sad honor?

I did not consider my appointment or work as a "sad honor." It was a unique opportunity. I had seen the suffering caused by the Nazi doctrines. I had looked into the remorseless eyes of mass murderers. My career goal had always been crime prevention. I was eager, and ready, for the challenge.

Did you encounter any prejudice at Nuremberg or during your earlier investigatory work on account of your being a Jew? If so, how did it express itself and how did you handle it?

The only prejudice I encountered was during my service as an enlisted man in the U.S. army. I was occasionally taunted by such commands as "Sweep the floor again, a Harvard man can do better than that." The expression "Jew boy" was either muttered or implied. I learned that prejudice and hatred was not merely a German phenomenon. I handled it with the contempt it deserved.

It is probably impossible to appreciate an era fully when one hasn't actually lived through it. For example, I find that the 1961 film Judgment at Nuremberg with Spencer Tracy accurately reflects the urbane and even genteel character of modern international lawyers and their practice. Does it, however, reflect the real nature of the work and lifestyle at Nuremberg, assuming some allowance is made for Hollywood's magic factory?

Judgment at Nuremberg was a good film in that it encapsulated the nature of the proceedings at Nuremberg and some of the difficulties. The dramatization was more emphatic and dynamic than the actual trials. The quiet "romance" between an IMT judge (Tracy) and the wife of a Nazi war criminal (Marlene Dietrich) was pure fiction.

Today's young lawyers seldom get a chance to speak in court, let alone take the lead in major cases. You, on the other hand, were Chief Prosecutor in what has been billed as the "biggest murder trial in history" when you were only 27 years old. In one solitary portrait, you could pass for a modern moot court participant, but in a group photo you look utterly confident and fully in charge of your older co-counsel. How did you handle the stresses of taking on such a case at a professionally tender age, and did you experience any prejudice or condescension on account of your youth?

I was not daunted by my position or my age. Except for Horlick-Hochwald, a Czech, the other members of my team were scrounged from other cases whose chiefs were eager to transfer them out. I was very much in charge and even known as a "hatchet man." If I had experienced any condescension or prejudice, the person responsible would have risked being fired on the spot. I worked harder than anyone else and think I was respected for my experience (at Harvard and as a wartime investigator) and dedication – despite my age.

What do you believe to be the enduring lessons and principles of the Nuremberg trials, both legal and moral?

The enduring lessons and principles of the Nuremberg trials were that aggressive war is "the supreme international crime" since it incorporates all of the other crimes. In addition, Nuremberg held that those responsible for crimes against humanity and major war crimes will also have to answer before the bar of justice. A more detailed response to your profound questions can be gleaned from my books and articles that are readily accessible on my website www.benferencz.org

Around 1970, you began to turn to scholarly pursuits and advocacy in the cause of world peace. Perhaps your most successful accomplishment in this area has been your work with the Preparatory Commission of the ICC. How would you assess the ICC's political and legal development as a historical process, using Nuremberg as a benchmark? Also, do you believe that the ICC represents a worthy embodiment of the Nuremberg legacy?

I was never employed as a member of the Preparatory Commission but, as a purely private and independent individual, did attend the meetings and write memos and articles dealing with its problems. I may have had some influence.

The ICC is a great step forward in the evolution of international criminal law and is therefore a great historical achievement based on Nuremberg. But it is still a newborn babe and will have to develop slowly before its real significance will be recognized. Knowing how difficult it is to get nations with different legal conceptions and national interests to reach agreement on anything, the ICC is quite a remarkable achievement despite its shortcomings.

I would like to ask you a few questions about the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and get the benefits of your experience and insight on different aspects of their work and operations. To begin with the question of efficiency, Milosevic recently died in prison during his multi-year trial, and the ICTY has indicted only 161 people and convicted 45 since 1993. In Rwanda, meanwhile, local gacaca courts have taken up genocide cases in part because the ICTR has handled only 81 cases since 1995, after a genocide that mobilized large groups of killers. In contrast to this, you prosecuted 24 defendants in The Einsatzgruppen Case alone. This represents fully a quarter of the ICTR's total caseload. Can you compare the philosophical and practical approaches to justice and case-handling taken at Nuremberg with those of the ICTY and ICTR?

The ICTY was a precursor to the ICC and the first international tribunal after Nuremberg. The judges and others involved have tried to build a very carefully constructed system of justice which guarantees fair trial and is thorough in its treatment of the offenders and the offenses. Of course, it has moved too slowly for my personal taste. I would have given the accused and the prosecution fixed deadlines to make their presentations – as I did at Nuremberg. But it's a different world now and the ICTY, even with limited jurisdiction, has had to move slowly to make sure that its legal foundations were firm and clear and acceptable. Its decisions on law and procedure have set important precedents for the further development of international humanitarian law.

Rwanda is completely different. First, it is an everlasting disgrace to our civilization that world leaders should have known that it was going to happen and nevertheless let the genocide take place. With about 200,000 killers in primitive "jails," like rats in a box, in a country without courts or lawyers or funds, finding justice was a "mission impossible." In Germany, the denazification system disposed of millions of minor suspects and it was better than nothing – but not much. One cannot possibly bring all wrongdoers to trial under such circumstances. At best, as in Nuremberg, it was symbolic and aimed to present the historical facts and give the victims some sense that their pain has been recognized and that an effort has been made to hold accountable some of the responsible leaders in the hope that it will have some deterrent effect in future.

Which approach, though, do you find to be the better for achieving justice in the end – that of Nuremberg or that of the ICTY and ICTR?

The situations are not really comparable. You can only achieve relative justice under any system. Changing human behavior to stop glorifying wars and crimes that continue to deface the human landscape will require many generations and new institutions of justice in many areas that are not yet in existence. We are slowly crawling toward civilization. Better laws, courts and enforcement methods are slowly being developed. There can be no painless revolution or instant evolution.

Looking at the question of institutional development, it bears noting that the ICTY and ICTR have a combined recommended budget of nearly $600 million for 2006-07, and in 2005 had staffs numbering 999 and 886, respectively. Since their founding over a decade ago, however, the two tribunals have dealt with a total of only 242 cases, some of which consist merely of indictments. By contrast, in 2003 (the last year for which I could find full statistics), the U.S. federal courts concluded 85,106 criminal cases, including the post-trial conviction of 3,216 criminal defendants. This is on top of their massive civil dockets, and all of it was done on a budget of just under $4.9 billion, about eight times the tribunals' present budget. I wonder if the two systems can be meaningfully compared, however. What do you think? Also, considering the resources which the Nuremberg courts had on hand, do you believe that the ICTY and ICTR have over time represented good value for money in combating international crimes?

We cannot fairly compare the costs of handling ordinary criminal cases by national courts that have been long established with the efforts to punish international crimes by new international tribunals. If the new ICC and similar courts succeed in establishing binding legal precedents that will diminish aggression, genocide and other crimes against humanity they will be seen by history as one of the best buys compared to the cost of waging war and the loss of human lives and dignity. Imagine if we had a functioning ICC when Saddam Hussein invaded Iraq and committed every crime in the book. Would we not have saved all that it is now costing us in war? Our failure to build needed new institutions to enforce the law will cost us more dearly than the current prototypes.

Neither the ICTY nor the ICTR (nor, for that matter, the ICC) impose the death penalty, and their sentences have at times seemed shockingly light given the crimes. One example is the Tadić case, in which the ICTY imposed a sentence of 10 to 25 years on a man found guilty of personally committing multiple murders and taking lead roles in ethnic cleansing and the brutal running of internment camps. By comparison, at Nuremberg you obtained death sentences against men who were together responsible for over a million murders. Looking back, do you still feel that the death sentences you obtained were just?

Despite the fact that there were 13 death sentences in the Einsatzgruppen trial at Nuremberg, I never asked for the death penalty. It was not because the perpetrators didn't deserve such punishment but because I felt I could not balance a million murders with the lives of a handful of mass killers. Their victims were murdered because they did not share the race, religion or ideology of their executioners. I thought then, and think now, that it was a terrible thing to commit such inhumanities and what was more important than snuffing out a few lives in revenge was to establish a rule of law that would prevent such crimes in future. It was, as I said in my Opening Statement, "a plea of humanity to law." I have been trying to move the world in that direction for the past 60 years. The existence of new international criminal courts in various parts of the world is proof that we are slowly moving in the right direction.

Do you believe that today's lighter approach to sentencing represents a more enlightened state of justice, or is it instead perhaps a retreat from seriousness?

Abolishing the death penalty is not a "retreat from seriousness." It is part of a growing movement toward a more humanitarian view of relations among people of different ideologies. Killing your adversary is really quite barbaric and we should find a better way to deter crimes. Many mass murderers are willing or eager to die and kill for their particular cause. For them, the death penalty is no threat. We cannot kill an idea with a gun or a hangman's noose, but only with a better idea. That requires teaching understanding, tolerance, a willingness to compromise and infinite patience. It cannot be rushed but requires constant effort and determination.

Turning to a completely different topic that takes us further back even than Nuremberg, I was very interested to learn that you studied jurisprudence with Roscoe Pound while at Harvard, at a time when jurisprudence was beginning to move firmly away from a history-based approach. Pound was a legal modernist, but he had a deep knowledge and appreciation of legal history. Were you exposed to legal history in his courses and, if so, how did he present it to you? Also, what was he like as a professor and a person?

I was a great admirer of Roscoe Pound (even before he gave me the top grade in his class). As a classroom professor he was rather dull since he read his notes, which had been carefully honed for years. But he was a man of prodigious memory and fantastic capacity to amalgamate information for a world view of legal evolution. I think I acquired my sociological view of jurisprudence from him, although I had a college degree in social sciences. As a person he was gentle and kind, and I still retain a warm spot in my heart for him.

Did your jurisprudential training under Pound inform your approach at Nuremberg?

Pound's influence on my thinking probably appears in my Opening Statement to the Nuremberg court and in my closing briefs, which looked beyond the immediate events to a more secure future under the rule of universally binding international law.

In closing, what projects are you working on at the moment?

Although I am in my 87th year, I am still determined to do my best, for as long as I can. I receive about 100 e-mails per day. I lecture, write, appear on TV and radio, and teach wherever I can. My main focus now is on only two "projects." I am trying to tell the American public the truth about the ICC. The current administration, following the insistence of former Senator Jesse Helms and his protegés who are still in office, are trying to undermine the ICC or kill the baby in its cradle. The public has been frightened primarily by declarations that the court poses a threat to our service-members because the public is misled into believing that there are no controls over the independent prosecutor. Such pretensions, as well as all the other objections, are absolutely false and misleading. (Please see my website law review article "Misguided Fears About the ICC.") I believe that the American public, if told the truth, will support the ICC.

I also am convinced that the American public, if told the truth, will repudiate the immunity agreements that a hundred nations have been coerced into signing under threat that we will sever all their economic and military aid from the U.S. It is absurd to insist that no Americans, or their employees, can ever be sent to the ICC for trial. That is not merely "shooting ourselves in the foot," to borrow a phrase mentioned by Secretary of State Condoleezza Rice, but more like "shooting ourselves in the head" since the aid we give enables recipients to help us in our "war" against terrorists and narcotic traffickers. It was a fundamental principle of law, articulated by Jackson, Taylor and others at Nuremberg, that "law must apply equally to everyone."

My final goal is to keep alive the main achievement at Nuremberg by Justice Robert Jackson and unanimously affirmed by the General Assembly of the U.N., that aggressive war is not a national right but an international crime. The ICC lists it as a crime but the court cannot exercise its jurisdiction until very onerous conditions are met. There will never be a war without atrocities since war is the biggest atrocity of all, and illegal war-making is the greatest crime of all. Although I am optimistic about the long-range future, I do not expect to see this goal achieved during my lifetime. I hope that others will pick up the torch when it has dropped from my hands. It can illuminate a more peaceful and humane world.

Mr. Ferencz was interviewed by Peter C. Hansen.



© Peter C. Hansen, The Legal History Project.