June 05, 2018 ILN Winter 2018

Interview—Benjamin Berell Ferencz, U.S. Chief Prosecutor at Nuremberg Trials

Interview by Renee Dopplick
Benjamin B. Ferencz

Benjamin B. Ferencz

Image: 2001, Benjamin Ferencz; New Rochelle, NY; photo by Der Spiegel

Benjamin B. Ferencz was born in Transylvania in 1920 and moved to America when he was ten months old. After he graduated from Harvard Law School in 1943, he enlisted in the U.S. Army. Under General Patton, Ferencz fought in every major battle of the war. He was later transferred to a newly created War Crimes Branch to gather evidence of Nazi brutality. When the war was over, Ferencz returned to New York and was subsequently recruited for the Nuremberg war crimes trials. At 27 years old, Ferencz was named Chief Prosecutor for the United States in the Nuremberg Einsatzgruppen Case. The Associated Press called it “the biggest murder trial in history.” Twenty-two defendants were charged with murdering over a million people. It was his first case. Since then, Ferencz has devoted his life to studying and writing about world peace and replacing the “rule of force with the rule of law.” He lives with his wife, Gertrude, in New Rochelle, New York, and Delray Beach, Florida.

Your legal career has been one of discovery, risk taking, and thinking about the future. Could you describe what has motivated you to push for rule of law and a more peaceful, humane, and secure world?

Benjamin Ferencz: My parents fled poverty and persecution and came to the United States. We lived in poverty most of the time. Eventually, I won a scholarship at Harvard Law School for my exam in criminal law, and I had decided then, even before the war, to devote myself to trying to prevent crimes, which I had seen all around me living in Hell’s Kitchen in New York.

At the Nuremberg Trials in 1946, the waging of aggressive war was indelibly branded as “the supreme international crime. I didn’t have to go to Nuremberg to learn that. I was a combat soldier who entered the war shortly after the war began. I was then 23 years old. I saw the horrors with my own eyes. My assignment was to go into the concentration camps as they were liberated to collect evidence of the horrors and atrocities so that they could be used in the trial against the perpetrators and that is what I did.

After the war, I was unemployed like 10 million other solders, and I was invited by the Pentagon to return to Germany to help with the subsequent Nuremberg trials. It was there that I became the Chief Prosecutor of this most significant trial. What was most significant about it was it gave us and it gave me an insight into the mentality of mass murderers. They had murdered over a million people, including hundreds of thousands of children in cold blood, and I wanted to understand how it is that educated people – many of them had PhDs or they were generals in the German Army—could not only tolerate but lead and commit such horrible crimes.

The reason I have continued to devote most of my life to preventing war, is my awareness that the next war will make the last one look like child’s play. We have devoted all of our energy and money to building new weapons. We have failed to build the instruments necessary for peaceful settlement of disputes, and the result is that the funds which are needed to care for refugees, for students, and for the aged, are wasted in an arms race for more destructive weapons from cyberspace, which can cut off the electrical grid on any city on this planet, with the result of almost immediate death to most of the population.

We will never succeed in ending wars totally; however, we can be a catalyst for moving in the right direction. That is what I have been doing. I’ve been moving a heavy rock up the hill, but there has been great progress. The progress goes up and then it comes down. It circulates—upward slowly and up and down. We have made fantastic progress over the years, but we still have a very long way to go because it’s interrelated with so many other things; however, if I am going to have any impact at all, it seemed to me that I would be as a catalyst focusing on the rule of law and having that be used as a prime instrument to have people recognize that war itself has got to be abolished.

During the course of your career, you saw the creation and expansion of international criminal law. How would you describe its growth?

Benjamin Ferencz: The main principles of the Nuremberg trials were affirmed by the UN General Assembly and have been accepted as binding principles of international law. Among those principles are the conclusion that crimes are committed by individuals, that the law must apply equally to everyone, that heads of state are liable, that there is no excuse for crimes despite your rank, and fundamentally that crimes which are so offensive as to shock the conscience of humankind should be condemned as crimes against humanity. These principles seem to me to be very sound then, and they continue to be very sound.

Declaring the law is one thing; respecting or enforcing it is another. The legal community, government leaders, scholars, and every segment of society need to advance the vital importance of developing national and international criminal law to help protect the basic human rights of people everywhere.

Why is the rule of law important?

Benjamin Ferencz: Nuremberg concluded that aggression was no longer a permissible heroic act. It was an international crime, and it should be punished as a supreme international crime. I believe that. I was a combat soldier in World War II. I am always guided by my supreme commander. General Dwight D. Eisenhower, when he became President of the United States, declared “The World can no longer rely on force. It must rely on the rule of law, if civilization is to survive.”

If you could adopt new laws or mechanisms tomorrow to curb international crimes and hold perpetrators of those crimes accountable, what would those be?

Benjamin Ferencz: The crime of aggression still hangs in legal limbo. There is a dangerous gap in the law. If no court is competent to try aggressors, the crime is more likely to be encouraged than deterred.

War should be punishable universally as a crime against humanity, as genocide is condemned. The illegal killing—that is the killing of large numbers of innocent people without it being in self-defense or without it being approved by the Security Council of the United Nations—is a crime. It is a supreme international crime of aggression. Since aggression seems to be stalled, in that nations hesitate to give the International Criminal Court the jurisdiction to act on it, it should be condemned as a crime against humanity, which is punishable under many domestic statutes. We should study those national jurisdictions, which accept responsibility for holding accountable those leaders who are committing genocide whatever it’s called, whether it be a crime against humanity or terrorism or anything else. These are improvements we have to make in the law, and, hopefully, we will be able to move in that direction as well. Putting it into more national laws will take us a big step forward.

Another step is to sue the individuals who are responsible in a civil court and hold them personally accountable for whatever crimes have occurred. It may be that they don’t have any money, in which case you are stalemated, but they may also have hidden it someplace else. The fact that they know in advance that they may be held to account will certainly have some deterrent effect.

Let us not forget that certain crimes are so horrendous that they have been prohibited on the principles of universal jurisdiction and that should also apply to the illegal use of armed force.

Also, we live in a cyberspace age. The way you kill people today has been vastly increasing than what it was before. You cannot go with the old standards and the old laws. The laws must be modified to meet the needs of today. I hope I won’t have to live another 97 years to see that it happens.

You recently established the Ben Ferencz International Justice Initiative at the Holocaust Museum. Could you tell us more about the initiative and what you hope it will achieve?

Benjamin Ferencz: I’ve been trying all my life to create a more peaceful world grounded in the rule of law and justice. The International Justice Initiative seeks to strengthen the rule of law for atrocity prevention and response, promote justice and accountability in countries where mass atrocity crimes have been committed, and foster research and policy aimed at using international justice to deter, prevent, and respond to mass atrocities.

We cannot kill an ideology with a gun. We must teach people to have more respect, to be ready to compromise, to be willing to see the other’s point of view, and to find peaceful resolution of the differences. You cannot continue to have the parties to the dispute be the only ones who determine for themselves when what they are doing is legal or moral. It’s impossible. You’ll never get a settlement that way.

We must go now to the public through every education means that we have to change hearts and minds in favor of not glorifying war but of glorifying peace and justice.

What are the next big challenges for rule of law?

Benjamin Ferencz: The most significant challenge facing the rule of law today is the feeling that, since wars cannot be totally prevented, nothing needs to be done. Leave it to somebody else to do the job. That is a guarantee of failure. Wars can be changed and ended. We have to build the institutions necessary for that. Holland has been the center of the world for the creation of international courts. All of them are inadequate. Nevertheless, they represent the progress which we have been making in the last century.

For generations, war has been glorified as a road to peace and glory and pride of country. It can’t be that way anymore. It is much too dangerous. We have to change our way of thinking. The court of last resort is the people themselves. They have to be educated. They have to be advised. They must recognize that war is a supreme international crime. There is no glory. There is no reason for mass killings of innocent people.

We have to create international courts, competent to enforce their judgments against those who defy the laws necessary for the peace and security of mankind. That is a challenge.

What excites you about the future of international law for the next generation of legal practitioners, scholars, and jurists? What advice would you give them?

Benjamin Ferencz: I am confident that the progress we have made so far in my lifetime has been rather enormous and very impressive, and it encourages me to believe that we will continue to make progress. Please visit my website, www.benferencz.org. Everything on the website is free. You are encouraged to use the resources for the purpose of creating a more humane and peaceful world.

Law, not war” remains my slogan and my hope.

Consider the proposition that law, not war, should be your guide. If you could do that, those three words—law, not war—will save billions of dollars every day, not to say how many millions of lives will be saved. How can you do that? I will give you three more words and three sentences:

Never give up.

Never give up.

Never give up.