A Prosecutor's Personal Account - Nuremberg to Rome

Prelude to Nuremberg

When I was born in 1920, in a ramshackle cottage in a tiny village in Transylvania, no one could possibly have imagined the path my life would take. Hungary had ceded the region to Romania after World War I and my parents were eager to escape ethnic persecutions of the Hungarian Jewish minority. Without education, funds or skills, the young couple took their two babies and emigrated to the "Land of Opportunity" - America.

My childhood recollections begin in a basement apartment in Hell's Kitchen, a crime-infested district of New York City. My education was in the public schools and the free College of the City of New York. My main interest lay in crime prevention. [1] I was lucky to gain admission to the Harvard Law School where I won a scholarship based on my exam in criminal law. As a member of the Board of Student Advisers I earned some money coaching students and working as a research assistant to Professor Sheldon Glueck, a leading criminologist who was to have a profound influence on my later career.

When America entered World War II, I applied for an assignment in army intelligence but was disqualified because of my foreign birth. The Air Force turned me down because I was only five foot one-half inch tall. As soon as I received my law degree I became a private in the supply room of an anti-aircraft battalion being trained for the invasion of France. In due course, we landed on the beaches of Normandy, and joined General Patton's Third Army pursuing Germans back across the Rhine and on to the final "Battle of the Bulge". After almost three years of military service, I was honorably discharged as a Sergeant and was awarded five battle stars which, as far as I could make out, was a reward for not having been wounded or killed.

The most formative events of my army career had to do with war crimes. Allied leaders, had warned that Germans would be held to account for their atrocities. Professor Glueck had written a book on the prosecution of war criminals. [2] When Washington turned to him for guidance, he suggested that the army try to locate me, noting that I had just written an article on "Rehabilitation of Army Offenders" which identified me as a corporal with the 115th AAA Gun Battalion. [3] Much to my surprise, in December 1944, I was transferred to a new Judge Advocate section of Third Army Headquarters in Luxembourg that had been ordered to set up a War Crimes branch.

The first persons targeted for trial were Germans who had committed atrocities against American troops, such as killing prisoners or downed allied flyers. Captured Nazi concentration commanders would also be called to account before an American military court. Investigations were carried out by a few enlisted men. After digging up bodies of American flyers murdered by enraged German mobs, I prepared reports identifying the suspects and listing the laws of war that had been violated. Witnesses were ordered to write out a complete description of the criminal event - under penalty of being shot. Confessions from accused were obtained by similar persuasions - even though they were usually rewritten under more sympathetic circumstances before being validated by an officer who would offer it in evidence. It was a grisly assignment. But the worst was yet to come.

I entered several concentration camps, such as Buchenwald and Mauthausen strewn with putrid bodies of the dead and dying. My primary goal was to capture all official camp records, including registries of inmates killed in the camps and the roster of German officers and guards, and have the crimes certified by survivors' affidavits describing their ordeals and naming their torturers. Amid the overwhelming stench of burning skeletons, I was exposed to the filth of dysentery, diarrhea, typhus and other diseases that racked the emaciated bodies of the liberated inmates. I uncovered many mass graves as I followed trails of starving prisoners who had been whipped through the woods by fleeing guards—only to have their brains blown out when they could no longer go on. To keep from going mad, my senses became numbed as my mind built an artificial barrier and refused to be derailed by what my eyes saw. But the trauma was indelible and will remain with me forever.

As a form of symbolic justice, the army decided to try the captured criminals in a former Nazi concentration camp near Munich. I hammered up the sign saying U.S. ARMY WAR CRIMES TRIALS, DACHAU. The proceedings were in the nature of traditional military commissions following rules similar to those of regular army courts martial, where judges, prosecutors and defense counsel were U.S. army officers - many with no legal training. No great new principles of law were established and the trials were abruptly discontinued when Pentagon policy toward Germany was reversed. The less said about the U.S. Army war crimes trials the better. I left Germany as soon as I could after the war and hoped never to return there again.

The highly publicized trial against German Field Marshal Hermann Goering et al. before the International Military Tribunal (IMT) was already under way in Nuremberg. Shortly after I arrived in New York I received a telegram from the War Department inviting me to come to Washington. I was urged to return to Germany as a civilian with the simulated rank of full Colonel to continue doing essentially what I had done as an army sergeant. I was also interviewed by Colonel Telford Taylor, a key member of the US prosecution team at the IMT trial. The US had decided to conduct a number of additional trials at Nuremberg after the IMT trial was completed. These "subsequent proceedings" were to portray the broad panorama of Nazi criminality. Taylor was the man in charge and he was looking for help. He was a Harvard lawyer with a distinguished career in government and I agreed to join him. I was married in New York intending to leave for Nuremberg with my bride—also a refugee from Transylvania–for a pleasant European sojourn at army expense. It turned out to be quite an unusual honeymoon.

The Vision of Nuremberg

The Charter of the IMT was signed in London on August 8, 1945. Justice Robert H. Jackson on leave from the US Supreme Court, was its principal architect. It was agreed by the US, UK, France and the USSR that only three categories of crimes would fall within the jurisdiction of the international court: the crime against peace (aggressive war), crimes against humanity and war crimes. Superior orders would be no defense but could be considered in mitigation. The official position of the defendants would not free them from responsibility and leaders who were instigators and accomplices could be held accountable. No one could be convicted unless found guilty after a fair public trial. In their final judgment, the learned IMT jurists confirmed that the London Charter was a valid expression of existing and binding international law. The Nuremberg principles and Judgment were unanimously affirmed by the first General Assembly of the United Nations. [4]

Justice Jackson's opening statement as the Chief American Prosecutor was an inspiring call for universally binding international law:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility...That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.... We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. [5]

The same principles guided Telford Taylor who was promoted to Brigadier General and Chief of Counsel for the twelve subsequent trials. Those accused included German doctors who directed medical experiments on helpless victims; German judges and lawyers who persecuted the innocent, industrialists like Krupp and the I.G. Farben companies that seized enemy properties and worked concentration camp inmates to death; diplomats who aided and abetted German aggressions; high-ranking military leaders who defied and violated established laws of war and Nazi Storm Troopers (SS) who murdered millions of innocent people in cold blood. [6]

My first assignment from Taylor was to head a team of about 50 researchers to scour the German archives in Berlin - including nearly ten million Nazi Party files - in search of incriminating evidence adequate to convict leading Nazi suspects under arrest in Nuremberg. My wife joined me and became a member of the staff. Time and budget was tight and only a tiny sampling of criminals, those against whom overwhelming evidence of crime was available, could be brought to trial. The rest would have to be left to other allied courts or possible prosecution by the Germans themselves. A surprise discovery in the ruins of Berlin brought another unanticipated change to my life.

The Einsatzgruppen Trial

As German troops invaded Poland and the Soviet Union, they were followed by special military units, known as SS Einsatzgruppen (EG), whose task it was to annihilate anyone who might present a current or future threat to Germany. These extermination squads, totaling some 3000 men, were to murder, without pity or remorse, every Jewish man, woman or child and every Gypsy they could lay their hands on. Other perceived opponents of the Hitler regime would suffer the same fate. EG daily reports were consolidated, marked "Top Secret" and then distributed in about 100 mimeographed copies to higher echelons of the Nazi and military hierarchy. The reports often contained the date, time, place and name of the unit commanders responsible for the killings. One of our researchers searching the remains of Gestapo headquarters in Berlin stumbled upon a nearly complete set of the EG reports. They showed beyond doubt that, over a two-year period, the EG had systematically slaughtered over a million helpless men, women and children.

I flew to Nuremberg, showed the discovery to General Taylor and urged that a new trial be prepared against the genocidal killers. Taylor recognized the importance of the evidence but expressed regret that all lawyers were already assigned and it was too late to organize new prosecutions. In exasperation, I offered to handle the prosecution myself - in addition to my other duties. Taylor smiled but agreed. I was promoted to Chief Prosecutor in the Nuremberg trial against the Einsatzgruppen. I scrounged three Associate Counsel from other cases and 30 days before trial made available to the 44 German defense lawyers every bit of evidence to be used at the trial. Relying on the official German documents, and without calling a single witness, the Prosecution rested its case in three days. All 22 defendants, including six SS Generals, were convicted of murdering over a million innocent people. The trial dragged on for about nine months while phony alibis of the defendants were systematically rebutted. The 13 death sentences were hailed as a great victory and the press called it "the biggest murder trial in history." I was then 27 years old. It was my first case.

It was clear to me that no punishment against 22 fanatic killers, no matter how severe, could ever compensate for the murder of over a million people slain because they did not share the race or creed of their executioners. If the trial was to have enduring significance it should articulate principles of international law that might prevent the repetition of such enormous crimes against humanity. That was the primary goal as I addressed the tribunal:

It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women and children. 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 outlining the proof to be presented, I concluded:

The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life was their toy. If these men be immune, then law has lost its meaning and man must live in fear.

Little did I dream then, that my last sentence would resonate in the halls of the UN half a century later. In September 1997, in his annual report to the General Assembly and the Security Council, Professor Antonio Cassese, President of the International Tribunal for the Prosecution of Crimes in Former Yugoslavia, concluded his comprehensive presentation by quoting verbatim the warning I had articulated in September 1947. [7]

Compensating Victims of Crimes against Humanity

My life again took another unexpected turn when, in the summer of 1948, I was invited to come to Paris by the American Joint Distribution Committee, the largest Jewish relief organization assisting survivors of Nazi persecution. A new military government law allowed heirless and unclaimed property taken from Nazi victims to be retrieved by a charitable organization that would benefit survivors. [8] Of course, there was no precedent for such an undertaking and there was no money available to carry out the assignment. Although we wanted to return home, my wife and I decided that the chance to help the persecuted was a challenge not to be refused.

I designated myself the Director-General of the Jewish Restitution Successor Organization (JRSO), managed to borrow money from occupation funds, recruited staff and promptly proceeded to file claims for over 163,000 properties in the US Zone of Germany. German possessors adamantly refused to surrender their homes or businesses, arguing that they had paid a fair price or were bona fide purchasers who had improved the properties. Difficult legal issues had to be litigated through German agencies and courts and finally be resolved by an Allied Court of Restitution Appeals that was also set up in the Nuremberg courthouse.

In 1951, I joined a team negotiating a "reparations" agreement between West Germany, Israel and the world's largest Jewish organizations that were consolidated in a "Conference on Jewish material Claims Against Germany" (Claims Conference). After difficult negotiations in the Hague, Germany promised to compensate Nazi victims - Jews and non-Jews alike - for a complicated variety of losses. I set up an office in Bonn to work with legislators to be sure that Germany lived up to its promise. When the restitution and indemnification laws were enacted, every claim had to be verified by a complex administrative apparatus that put a strict burden of proof on every claimant. Jews were unwilling to turn to former Nazi lawyers for assistance. It was necessary to organize a non-profit United Restitution Organization (URO) to assist needy claimants. It was probably the biggest legal aid society in the world with a combined staff exceeding 1200 persons in 19 countries, including 250 screened German lawyers supervised by former Nazi victims.

Considering that there were no precedents for such programs and that Germany was totally impoverished, it is gratifying that so many Nazi victims have received some measure of recompense. To the survivors, of course, no payment will ever be adequate, but the more than 100 billion DM (about 60 billion dollars) already paid by the German government has made a significant difference in the lives of hundreds of thousands of persons, and the end is not yet in sight. (Nazi victims resident in communist countries, with which Germany had no diplomatic relations, received nothing.) In 1948, when I first started work on restitution of heirless property and in the following years when I pleaded for compensation and rehabilitation for survivors of persecution, I felt like a voice in the legal wilderness. I could not foresee that in 1998, in Rome, the overwhelming majority of states would affirm, in the statute of a new International Criminal Court, that victims of crimes against humanity were entitled to restitution, compensation and rehabilitation as a legal right. [9]

The anticipated European sojourn turned out to be a longer- than- expected honeymoon; our four children were born in Nuremberg. In 1956, I resigned my various posts in Germany but agreed to serve on a modest retainer as Advisor to the Claims Conference and URO. Back in New York I soon discovered that experience as a war crimes prosecutor and expert on restitution had little commercial appeal to large law firms, particularly since I would not accept fees from any concentration camp survivor. Telford Taylor had been in practice with James Landis, former Dean of the Harvard Law School, and when Landis died, Taylor invited me to take over the Landis desk. (Taylor and I had become fast friends, particularly after having to parachute out of his falling plane (together with our wives) over the ruins of Berlin in 1948.) Taylor had largely an appellate practice and devoted much of his considerable talents to writing many books that earned him recognition as a courageous champion of human rights. When he accepted a Professorship at Columbia University Law School, I began to reconsider my own future.

Pleading for Justice and Peace

By 1968, it seemed to me that the world was moving closer to another Holocaust. Our children had about completed their education and since we had always lived frugally and I had managed to save some money, I decided to devote most of my energies toward helping to create a more humane and peaceful world. I wrote a law review article focusing on the legality of the Vietnam War and warned: "The price for the absence of an accepted international penal court will continue to be paid in human blood." [10] In 1972, I called for "Compensating Victims of the Crimes of War". [11]

I managed to get accreditation with a non-governmental organization (NGO) which gave me access to UN libraries. Special committees had been wrangling about enforcing the Nuremberg principles. But some powerful nations argued that as long as there was no agreed definition of aggression -- there could be no criminal code and as long as there was no code, there was no need for a court to enforce it. To overcome the disingenuous barrier, I began to lobby for a definition of aggression - which the IMT had categorized as "the supreme international crime". I recalled Jackson's admonition that whatever grievances a nation might have, warfare was an illegal means for settling those grievances. I wrote articles, attended UN meetings in New York and Geneva, cornered delegates and proposed compromises. By 1974 the special committee was ready to agree upon a definition by consensus. I invited my wife to join me in the large conference hall to witness the historic event. We were the only people not being paid to be there.

The General Assembly approved the consensus definition on 14 December 1974. I promptly published a two-volume documentary history and analysis, Defining International Aggression- the Search for World Peace. [12] I followed that by another two volumes in 1980: An International Criminal Court - A Step Toward World Peace which included statutes drafted by UN committees and independent legal experts. [13] The criminal court book sold few copies and gathered dust on library shelves. I did not know that it would be much sought a decade later. I wrote another two-volumes, Enforcing International Law - A Way to World Peace. [14] Professor Louis B. Sohn of Harvard Law School, distinguished author of the famous World Peace Through World Law, wrote introductions. The six-volume series was reviewed by a leading scholar of international law, Professor Shabtai Rosenne, who concluded:

When the political atmosphere changes, as sooner or later it must, Ferencz's assiduous compilations will be the quarry out of which the new - or renewed - structure of international law and international relations can be hewed. [15]

In 1979, Harvard published Less Than Slaves which recounted how German industrialists denied liability for having worked concentration camp inmates to death. The award-winning book received rave reviews in the New York Times, was translated into German and Japanese and was made into a television documentary. [16] My Common Sense Guide to World Peace called upon leaders of the United States and the Soviet Union to reconcile their differences. [17] A publisher, Ken Keyes of Coos Bay, Oregon, offered to reproduce it in a million copies - providing there would be no profit to either him or me. What emerged was an outreach paperback, called Planethood, which stressed the need for planetary thinking. The book was not copyrighted and everyone was encouraged to duplicate it without obligation. Ken Keyes died in 1996, full of hope and optimism. It was not generally known that he was quadriplegic and could not move.

From around 1985 to 1996, I served as an Adjunct Professor at Pace Law School in White Plains, New York, teaching "The International Law of Peace". I established the Pace Peace Center with a network of peace groups throughout the world. Its goal was to carry out a vision expressed by Elihu Root and engraved above a portal at the Harvard Law School: "Make us effective for the cause of peace and justice and liberty in the world." My fund-raising efforts produced meager results and I concluded that it was not very productive for me to spend my time as a beggar. The Peace Center had always been located in my home and I remained the unpaid Executive Director assisted only by my unpaid wife.

Although my writings stressed that a rational legal order had to be built on clear laws, courts and enforcement, I realized that many additional components would also have to be put in place. My thoughts were spelled out in New Legal Foundations for Global Survival. [18] The 400-page study, with about 1000 footnotes, was intended as a blueprint that sketched the new institutions needed for a peaceful world: an improved UN, disarmament, an international military force, and enhanced social justice - economic, political and environmental. The book earned high praise, including an encouraging note from UN Secretary-General Kofi Annan. To make it more accessible, I donated 2000 paperback copies to the World Federalist Association in Washington on the understanding that all of the proceeds would be used for peace purposes.

I wrote countless articles, op-ed pieces and letters to editors urging readers to support a more humane and rational world order under law. There were many radio broadcasts, television appearances and lectures across the US and in other countries. To be sure, there were times when my pleas seemed like an exercise in futility. Some mocked me as a dreamer but I could not accept in silence the world of the "realists" in which millions of innocent people were murdered and continued to be killed or driven to despair in Korea, Vietnam, Cambodia, Iran, Iraq, the Middle-East, Africa, Latin America, Afghanistan and elsewhere while the world's leaders let it happen - to their everlasting shame!

Following Iraq's invasion of Kuwait in 1990, American, Soviet, British, French and other leaders warned that those responsible for the aggression, war crimes and crimes against humanity, such as the murder of their own Kurdish minorities, would be brought to justice. But, contrary to the Nuremberg mandate that only the guilty should be punished and only after a fair trial, the leaders of Iraq remained in power while the public was penalized by harsh sanctions imposed by the Security Council. I warned that unless Iraq's dictator Saddam Hussein was brought to trial, he would continue to thumb his nose at the world community. [19] It was not that nations lacked the authority or power to intervene - they lacked the political courage and the political will to conform to their professed principles.

The situation began to change after Yugoslavia split into competing ethnic factions that began to kill each other. Worldwide television broadcasts in 1992 vividly portrayed concentration camps in Bosnia and Serbia that were reminiscent of Buchenwald and Dachau. It was reliably reported that thousands of Muslim women had been systematically raped and then murdered as part of a program euphemistically called "ethnic cleansing". I resented the title—there is nothing clean about the filthy practice of mass rapes. In response to public outcries, especially from women, the Security Council, at long last, decided to use the rule of law as a weapon for peace.

Security Council Creates Criminal Tribunals

In February 1993, the Security Council called upon the Secretary-General to submit statutes for an International Criminal Court - and to have it ready within sixty days. Thanks to assiduous efforts of the Legal Division, it was done! [20] I happened to be visiting with the International Law Commission in Geneva when the statute for the new court was transmitted from New York. A kind staff member, apparently knowing of my 1980 volumes on the subject, handed me a copy, saying: "Here, this is your work." I was very touched. The International Criminal Tribunal for Crimes Committee in Former Yugoslavia (ICTY) came into existence on May 25, 1993. [21] It was the most important step forward in the evolution of international criminal law since the close of the Nuremberg trials.

Once the political will was aroused, it was possible for the Security Council to create an International Criminal Tribunal in very short order. The problems confronting the ICTY were much more difficult than those faced at Nuremberg. Victims will never rest until those primarily responsible for their suffering are brought to trial. Those who seek to trade justice for peace will have neither peace nor justice. I joined ICTY leaders in castigating the failure of the international community to seize persons in high position in the former Yugoslavia who had been publicly indicted for outrageous crimes. Unless the Security Council uses all necessary means to back the tribunal it has created, the Council will foul its own nest, undermine its own credibility and undercut the rule of law.

Under the competent leadership of President Antonio Cassese, who was succeeded as President by Judge Gabrielle Kirk McDonald, and the very able Chief Prosecutors Richard Goldstone and then Louise Arbour, the ICTY has earned the respect of all objective legal observers. They have adopted rules to assure fair trial for all accused - despite different legal systems, they have clarified the law and taken care to meet the special needs of rape victims. Despite its many travails (usual attributes of a new born babe) the tribunal has already created a record of competence and accomplishment for which those involved may well be proud.

In 1994, perhaps half-a-million Tutsi and their supporters were savagely slaughtered in Rwanda by the dominant Hutu government as part of a calculated program of genocide. Pictures of corpses hacked to death appeared on worldwide television. Again, reacting to public outrage, the Security Council acted quickly. A Statute for the International Criminal Tribunal for Rwanda (ICTR) was adopted at the end of 1994. [22] To save money, the ad hoc ICTR was linked to the ad hoc ICTY. Since Rwanda was largely devastated, the ICTR was located in Arusha in Tanzania. The problems faced by the ICTR were even greater than those confronted by the ICTY.

Under a new Tutsi government, local jails were soon jammed with thousands of confessed murderers. There were practically no lawyers and logistical support was non-existent. There was little in the Nuremberg experience that could help and I could offer little assistance to Rwanda's Minister of Justice Faustus Ntezelyayo or ICTR Chief Justice Laity Kama when I met them in Europe. Yet many of the difficulties have been overcome. Several international trials are now in progress in Arusha. 35 defendants, including high-ranking officials, are under indictment and in detention. Witnesses who dare not reveal their identity lest lives be endangered are being heard under special procedures that also protect the rights of the accused. In September 1998, the ICTR announced the first-ever judgment convicting a defendant for the crime of genocide. The landmark decision was hailed by the UN Secretary General as "A defining example of the ability of the United Nations to establish an effective legal order and the rule of law." [23]

A Permanent International Criminal Court

The two special tribunals created by the Security Council, met an important need by responding quickly to strong public demand that mass rapists and perpetrators of genocide be brought to justice. Instant worldwide communications brought an end to the age of impunity in which national, leaders could commit atrocious crimes and still be sure to escape punishment. Consideration was being given to creating another ad hoc tribunal to deal with the crimes against humanity committed during the terror reign of Pol Pot in Cambodia. But a string of temporary tribunals created after the event and with only limited jurisdiction to deal with a few particular crimes in certain areas during a limited time frame is a very primitive and unsatisfactory way to assure that universal justice will prevail. International law must be known in advance and apply equally to everyone. What is needed as a deterrent to international crimes is an impartial, competent and permanent international criminal tribunal.

In 1989, A.N.R. Robinson, Prime Minister of Trinidad and Tobago, unable to cope with drug-traffickers in his country, put the issue of an international criminal court back on the UN agenda. I first met Robinson in 1972 and I knew him to be a highly dedicated and able lawyer. At his suggestion, I discussed the problems with his UN Ambassador who lived near my home in New Rochelle. With the cold war over and the advent of many human rights organizations demanding justice, no nation dared speak out against a permanent criminal court. Addressing the General Assembly on September 22, 1997, US President William Clinton called for the establishment of a permanent international criminal court before the end of the century. Secretary-General Kofi Annan called such a court "the symbol of our highest hopes for this unity of peace and justice" [24]

Building on the work of the International Law Commission UN Preparatory Committees (PrepCom) began to work furiously to try to complete the statute for the new court. I attended PrepCom meetings as an observer, wrote countless articles and bombarded delegates and NGO's with papers to encourage progress. [25] I lectured in Paris and Bonn, did a television show in Holland and made many TV appearances. When the final negotiating session opened in Rome, I was among a handful of NGO's allowed to address the assembly for five minutes. I stressed that aggressive war was not a national right but an international crime. The only authorization I had came from my heart as I appealed to the delegates, in the name of the silent victims, to make the dream of a more humane world order under law come true. [26]

After intensive wrangling, compromises and a dramatic climax, the Rome Statute for an International Criminal Court received a wild ovation when it was adopted on July 17, 1998 by a vote of 120 in favor, seven against and 21 abstentions. Despite threats from US Senate and Pentagon representatives that sanctions would be imposed against any state that supported the court, the entire European community and many other American allies voted for it. Chairman Philippe Kirsch of Canada, called in at the last moment to replace the respected but ailing Dutch Chairman Adriaan Bos, quivered with emotion as he hailed the historical moment as one of great importance for the future of humankind. UN Secretary-General Annan flew to Rome and called the statute "a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law." [27] In a letter I received from A.N.R. Robinson, now President of Trinidad and Tobago, he wrote that he considered the establishment of the ICC to be the major achievement of his life. [28]

The United States, China, and a reluctant Israel were among the 7 states that voted against the Statute - each for different reasons. [29] The US was not willing to subject its military to the risk of trial by a foreign court. China, mired in old traditions, was unwilling to yield sovereign rights. Israel said it would have been honored to sign but reneged when words were inserted making population transfers a possible war crime. [30] US efforts to block the final vote suffered a resounding defeat. It was painful to me to hear the sustained rhythmic applause of defiant delegates who glared at the large US delegation as if to show their resentment against what many perceived as a superpower bully that wanted to be above the law.

Article 1 of the Rome Statute declared: "An International Criminal Court ("the Court") is hereby established." Unfortunately, the declaration that the Court was established on 17 July 1998 was a bit of an exaggeration. The statute could only go into force after it was ratified by at least 60 nations. [31] When that number would ratify was uncertain. Financing and other important transitional and administrative matters had to be left for later consideration. The Court would have jurisdiction over genocide, war crimes and crimes against humanity but could only to deal with the crime of aggression if, at a distant and uncertain future date, it would be possible to reach near-unanimous agreement on its definition. Some powerful states were eager to omit aggression from the courts jurisdiction altogether and it was included upon the insistence of a host of smaller nations.

In 1945, Justice Jackson, after analyzing emerging law, reported to President Truman: "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal." [32] The "Crime against Peace" was enshrined as the primary target of the IMT Charter. Telford Taylor agreed that the most important crime was war-making itself. [33] I had appealed to US President Clinton and many officials of many nations and written a host of articles arguing that aggressive war must be curtailed by law. Failure to include aggression within the ICC's jurisdiction would have been a repudiation of Nuremberg's main achievement. Its omission might imply that aggressive war was not considered a punishable crime, the glorified "war-ethic" would be enhanced and the advocates of a world without war would be disabled.

Until the final session in Rome, it was uncertain whether aggression would be subject to the Court's jurisdiction at all. States that had power were unwilling to give it up and those without power seemed helpless. Since I had fought harder and longer than anyone I know to have aggression subject to punishment in an international court, I welcomed its inclusion on any basis. The fact that it was listed as one of the four core crimes was a demonstration of unrelenting human determination to move toward a more peaceful world. Its inclusion opened the possibility that upon further refection, nations will overcome their fears and understand that building on the cornerstone of the Nuremberg Charter - and not discarding it - remains the best way to protect human rights and the peace of people everywhere.

What I Have Learned

The world is filled with human suffering but it is also blessed by very many people who are determined to make it a better place for all and whose individual efforts made a difference. It was my privilege to know many such dedicated human beings. Only a few can be mentioned here. Raphael Lemkin, a Polish lawyer whose family was annihilated in the Holocaust invented the word "Genocide" that finally received condemnation as a universal crime. His contemporary, Rene Cassin, who fled with General de Gaulle when Hitler invaded Paris, composed the Universal Declaration of Human Rights - for which he earned a Nobel Prize. The world now celebrates the fiftieth centennial of his vision - even though many states that pay lip-service to the principles still ignore them in practice. Robert Muller, unpaid Chancellor of the first University for Peace, who served the UN from its beginning and who saw his birthplace in Alsace occupied by different conquerors, continues to this day to campaign vigorously for a planetary home for the whole human family. His spirituality, poetry, and flood of imaginative proposals for a global society are an inspiration. The numbers of such selfless human beings are countless.

My own efforts to curb crimes against humanity, to secure restitution for its victims and to prevent another Holocaust are part of a much broader panorama filled with individuals and organizations whose efforts and accomplishments move us toward a more humane planet. I think of Abdul Koroma of Sierra Leone, who as member of the International Law Commission pressed effectively for an International Criminal Court. When he became a Judge on the International Court of Justice in The Hague he struggled to outlaw nuclear weapons - a goal not yet achieved. I think of all the religious groups, NGO's and human rights activists and student organizations that have dared to challenge the existing inequities and to make sacrifices for the common cause of universal peace. They are in the forefront of an emerging world democracy where the human rights of all human beings will increasingly be respected.

Emma Bonino, European Commissioner for Human Rights, has been a catalyst and a dynamo in the search for a more humane world. Professor Cherif Bassiouni of de Paul University has published more and organized more conferences than anyone in his persistent efforts to create an International Criminal Court. As Chair of the drafting committee in Rome, he played a vital role. Unfortunately not all such unsung heroes and heroines can be named here but their friendship and impact is engraved in my heart. I rejoiced when, upon acceptance of the Statute in Rome, so many friends and delegates embraced each other in tearful celebration. I was rewarded to be among them.

The effort to carry the vision of Nuremberg to Rome and beyond reflects ancient divisions that still exist in human society today. There are well-intentioned persons who still believe that the only safe and realistic course to protect national interests is the law of force rather than the force of law. Such isolationist views kept the US out of the League of Nations, hobbled the UN Charter with unfair veto rights and causes the world community to waste its needed resources on an ever- spiraling and dangerous arms race. The medieval notion of absolute state sovereignty - the Divine right of kings and their male heirs to be above the law - is absolutely obsolete. Political concepts born in the 19th century cost hundreds of millions of lives and indescribable suffering in the 20th century. They are totally inadequate for the 21st century. In the nuclear, high-technology age, it is possible to destroy all life on this planet. The burden of the future is to prevent human annihilation by developing new ways of thinking and new institutions that are needed for a more lawful and humane international society.

Nuremberg was only the beginning of a process that sought to apply the rule of law to protect fundamental human rights of people everywhere. I witnessed incredible inhumanity. I peered into the eyes of remorseless murderers - many of them men of education and intelligence. How does one cope with the complete absence of shame or regret on the part of mass killers who remain convinced that they were pat of a master race and that what they did was necessary and right? Teaching tolerance, understanding and compassion in a world filled with nationalism, arrogance, hatred and fear is not a quick or easy task. Economic, social and religious disparities are still so great that rooting out causes of violent discontent remains our greatest challenge. My conclusion is that, despite all the difficulties, saving the world is a task worth pursuing and it is attainable. What is needed is knowledge, persistence, hope and the determination never to give up. Never! The lesson of my life is that progress is surely possible and the goal of a humane world under law can be reached - even if it takes awhile.

Benjamin B. Ferencz
Sept.23, 1998

+ Show Endnotes


[1] See Benjamin Ferencz, "On Criminal Responsibility", CCNY, Journal of Social Studies Spring 1940, p.20.

[2] S. Glueck, War Criminals, Their Prosecution and Punishment, 1944.

[3] Journal of Criminal Law and Criminology, Nov.-Dec. 1943, p.245.

[4] G/A Res. 95 (1), 11 Dec. 1946.

[5] 21 November 1945, Trial of the Major War Criminals before the IMT, 42 vols., 1947-1949; T. Taylor, The Anatomy of the Nuremberg Trials, Knopf, 1992.

[6] Trial of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No. 10, 15 vols. "The Green Series."; Volumes, T. Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No.10, Washington DC 1949; B. Ferencz "Nuremberg Trial Procedure and the Rights of the Accused" Jour. of Criminal Law and Criminology, July-Aug. 1948 p.144.

[7] A/52/375, S/1997/729, 19 Sept. 1997 p.46.

[8] US Military Government Law No. 59, MG Law 59, Nov. 10, 1947.

[9] Rome Statute of the International Criminal Court, 17 July 1998, Art. 75.

[10] "War Crimes Law and the Vietnam War", American University Law Review, 17, No.3 (June 1968) p.403.at 423.

[11] Virginia Journal of International Law, 12, No.3, April, 1972, p. 343.

[12] Oceana Publications, Dobbs Ferry NY, 1975; See also Ferencz "The United Nations Consensus Definition of Aggression: Sieve or Substance" 10 Jour. of Int. Law and Economics, Aug-Dec.1975 p. 701.

[13] Oceana Publications, NY, 1980.

[14] Oceana, 1983.

[15] Shabtai Rosenne, "Enforcing International Law - a Review Article" Israel Yearbook on Human Rights, 14 (1984) p.274 at 282 . See also 78 AJIL 253 (1984).

[16] Less Than Slaves, Harvard University Press, 1979, Introduction by Telford Taylor.

[17] Oceana, Dobbs Ferry, NY, 1985, Introduction by Prof. Louis B. Sohn.

[18] Oceana, Dobbs Ferry, NY, 1994, Introduction by Prof. Louis B. Sohn.

[19] B. Ferencz "The Nuremberg Principles and the Gulf War" St. John's Law Review, 66, Fall 1992, p.711 at 727.

[20] Feb.22, 1993, S/RES/808.

[21] S/RES/827.

[22] S/RES/955.

[23] UN Press Release SG/SM/6687, L/2896, 2 Sept. 1998.

[24] Address to Int. Bar Assn, 12 June 1997.

[25] B. Ferencz, "International Criminal Courts: The Legacy of Nuremberg," Pace Int'l L. Rev., 10, Feb. 1998, p.201; "From Nuremberg to Rome", Development and Peace Foundation, Bonn Germany, Policy paper 8, 1998; "Make Law Not War", The World Today, London June 1998 p. 152.

[26] Press Release General Assembly L/2876, 16 June, 1998

[27] Press Release, 18 July 1998, L/ROM/23.

[28] Letter dated Sept.3, 1998

[29] Since the vote was not recorded, the identity of the other 4 negative voters is uncertain. It has been reported that they were Iraq, Libya, Qatar and Yemen. See John Washburn, "Tyrants Beware: The International Criminal Court is Born," The UNA/USA InterDependent, 24, Summer 1998, p.5.

[30] Statement by Eli Nathan, Head of the Israel Delegation, 17 July 1998

[31] Rome Statute, Art. 126

[32] Report to the President, June 6, 1945, International Conference on Military Trials (London 1945) p.52; reproduced in B. Ferencz, Defining International Aggression at p.370.

[33] Report, p. 64.