A Tribute Paid to Reason

Ferencz finishes with the television crew and leans against a wooden bench in the audience gallery. He is a diminutive man, sharply dressed in a dark suit with a crimson handkerchief and a tie dotted with tiny black frogs. Although he was born in Transylvania, Ferencz grew up in the notoriously rough Hell’s Kitchen neighbourhood in New York. His parents were poor, uneducated immigrants, but he attended college and then Harvard Law School on a series of scholarships. Four years after he graduated, a boyish-looking twenty-seven-year-old, he stood in this courtroom and confronted twenty-two mass murderers.

Ferencz is quiet for the briefest of moments as he peers through thick glasses at the prisoners’ dock where his former adversaries sat. “You know why I had twenty-two defendants when there were 3,000 men who for two years had done nothing but go out and murder Jews and gypsies? ” he asks. “Because that’s how many chairs would fit in the dock! That’s an absurd way to do justice, but that’s how things happened back then.”

The Nuremberg trials were an imperfect but crucial development in the evolution of international law, he says. He has spent most of his life since then trying to educate, coax, and berate a world that has often seemed reluctant to build on that legacy. Three years ago, he attended an event that should have been the high point of his six-decade campaign. On April 11, 2002, delegates at a special United Nations ceremony erupted in applause to celebrate the birth of the International Criminal Court, fifty-four years after the idea was first proposed by the UN General Assembly as the logical conclusion of the Nuremberg process.

But for Ferencz it was a bittersweet moment. At the celebration, the seat reserved for the American ambassador to the United Nations was conspicuously empty. Even before his election, George W. Bush had expressed a certain disdain toward international mechanisms such as the Comprehensive Nuclear-Test-Ban Treaty and the icc, which he believed might constrain US power. His foreign policy in office was being guided by men such as Dick Cheney, Donald Rumsfeld, and John Bolton, all proponents of the unfettered use of American might. That philosophy became more strident after the 9/11 terrorist attacks, and the model of law enforcement through international cooperation became an afterthought to America’s pursuit of security through its global military presence. In keeping with this, the Bush administration had declared that the United States would neither join nor support the icc.

So at the UN celebration, Ferencz made a symbolic protest against his government. He planted himself proudly in the vacant US seat and, calling himself the “unofficial representative of the American people,” he flashed the audience the V sign, for victory.

Ferencz is convinced that all people, including Americans, will be best safeguarded by an international system that tightly and effectively regulates the use of military force. The icc, he argues, is a key step toward that goal, and he plans to devote the rest of his life to convincing Americans that the Bush administration is making an “outrageous” mistake when it casts aside the icc and other international legal norms. “The United States,” he says, “seems to have forgotten what we tried to teach the world at Nuremberg.”

Back when the battles of World War II were still raging, the United States and its allies didn’t look as though they would be teaching the world any great lessons in jurisprudence. Winston Churchill repeatedly argued that leading Nazis should be shot as soon as they were identified. And when Joseph Stalin, at what has been described as “a very boozy evening” in Tehran in November 1943, half-jokingly proposed that Allied armies should “liquidate” 50,000 officers of the German General Staff, Franklin Roosevelt replied playfully that 49,000 would do.

Roosevelt didn’t mean it, of course, but the impulse for swift vengeance was certainly there. Public opinion polls showed that Americans wanted executions, not trials. One of Roosevelt’s most powerful cabinet ministers, Henry Morgenthau, Jr., the secretary of the treasury, was calling for the decimation of Germany’s heavy industry and the execution of hundreds of “arch-criminals” by military firing squads. But the secretary of war, Henry L. Stimson, appealed to the president’s better angels. He argued that it would have a “greater effect on posterity” if Germany’s leaders were tried and punished “in a dignified manner consistent with the advance of civilization.” Shortly after Harry Truman became president, US policy started to shift in favour of fair trials for Nazi leaders.

By that time, Ben Ferencz had become disillusioned with American post-war justice. As the US Army swept across Germany in the spring of 1945, Ferencz—then a lowly infantry sergeant—had received orders from General George Patton’s office to collect war-crimes evidence in the newly conquered territory. When American forces liberated concentration camps, Ferencz would jump in a jeep, drive like hell, find the camp office, and seize the death registries and other damning records. “The objective was to get in and get out as fast as possible,” he says, “because that was no place for a human being to be. I don’t know all the diseases they had. Diarrhea. Dysentery. Lice. Typhus!

“The bodies were lying all over the ground. Bones wrapped in skin and rags. And then, when you thought they were all dead, sometimes they would move,” he says, his voice starting to thicken. “I have flashbacks from time to time so I don’t want to pause on this.”