An Evening with Ben Ferencz in Discussion with Joan Ringelheim

Jerry Fowler: Welcome to the United States Holocaust Memorial Museum. My name is Jerry Fowler. I'm the staff director of the Museum's Committee on Conscience. The Committee on Conscience is sponsoring this evening's program. When the President's Commission on the Holocaust, chaired by Elie Weisel, recommended the creation of a memorial to the victims of the Holocaust, they pointed out in their Report to the President that in their deliberations there was no question more urgent or complex than the question of how to prevent the recurrence of the Holocaust or some partial version thereof. They felt very strongly that a memorial unresponsive to the future would also violate the memory of the past. So they recommended as part of the living memorial to the victims of the Holocaust that they envisioned the creation of a Committee on Conscience that would address contemporary genocide and related crimes against humanity. That committee was created, shortly after the Museum opened. It has the mandate to alert the national conscience, influence policy makers, and stimulate worldwide action to confront and work to halt, acts of genocide and related crimes against humanity. Tonight's program is very special for the Committee on Conscience because we will be hearing from a man who, in his life, in some ways, embodies the mission of this institution. Both because he was present at the end of the Holocaust, worked as a chief prosecutor to prosecute those who were responsible for the Holocaust, and in the years since then has devoted his life, as a lawyer, an educator, and an activist, to combating genocide and crimes against humanity. I think this will be a very important evening to hear about the history of the struggle against genocide and crimes against humanity. Before I ask Joan and Ben to come up, there is one thing that I wanted to note: Ben donated his papers to the Museum, for which we are very grateful. When he did that, we obtained a grant from Save America's Treasures to conserve his papers. Save America's Treasures is a project of the White House Millennium Council and the National Trust for Historic Preservation. It's a program focusing on protecting America's threatened cultural treasures including significant documents, works of art, maps, journals, and historic structures, that document and illuminate the history and culture of the United States. It's a public-private partnership and it's been at the center of the White House Millennium Council's efforts to commemorate the year 2000. In addition to the grant that we received to conserve Ben's papers, grants have been awarded for conservation projects of Frank Lloyd Wright's Taliesin in Wisconsin, the Thomas Jefferson papers in the Massachusetts Historical Society, the Ebenezer Baptist Church, which was Martin Luther King's church in Atlanta, Georgia, and Mesa Verde National Park in Colorado. So, that's how important that Ben's papers were considered to be -- they were included in that company as part of Save America's Treasures. Just for my purposes, if his papers are America's treasures, I think, by transference that means that Ben Ferencz is one of America's treasures. So, we're very happy to welcome him to the Holocaust Memorial Museum tonight.

Joan Ringelheim [JR]: In case you don't know, I'm Joan Ringelheim and this is Ben Ferencz.

Ben Ferencz [BF]: I'm the treasure. Don't forget that. He just said so.

JR: The treasure? Oh, the treasure.

BF: The treasure. The treasure. He said I was a treasure.

JR: Oh, I've known that. You watch who is going to take over this evening. When I first talked with Ben in 1994, he told me something, probably within the first fifteen minutes of our talking together. He said his life was divided into three parts, better than Gaul actually. The three parts were the following. The first part was to get the perpetrators and prosecute them. The second part was to help the victims. The third part was to prevent genocide and such crimes from happening again.

I don't know that I've ever met anybody whose life was put together in quite this way. What we're going to try to do tonight, in the next 55 or 60 minutes, before you get a chance to ask questions, is to try to explore all of these parts of Ben's life and his ideas.

Ben was born in 1920 in the Carpathian Mountains of Transylvania. He came here when he was 10 months old. I have no idea what the influence of that was. He grew up in Hell's Kitchen in New York. You'll correct me, if I'm wrong about anything, right?

BF: I wouldn't dare, go right ahead.

JR: Skipping right along, after he left New York, he went to Harvard Law School. He ended up studying with a number of people, but most particularly Professor Sheldon Glueck is that the right way to pronounce it?

BF: Yes.

JR: Glueck. Who became one of the few experts probably in the world, certainly in the United States, on war crimes, which gave Ben a very particular possibility at the end of the war. He graduated from law school in 1943 and entered the Army. We're not going to talk about his Army career. We're going to go straight to 1944 when you were called up to become part of the War Crimes Branch of the Third Army, right?

BF: Yes.

JR: Tell me what it is they wanted you to do. Did they know?

BF: Well, the Army had immediately recognized my talent when I entered the Army. Having graduated from the Harvard Law School, and been an expert in criminal law, and having helped the professor write a book, I became a private in the artillery in the supply room.

It took awhile before it began to dawn upon them, that perhaps I might be useful for something else. So they promoted me to corporeal. Then I was assigned to the headquarters of the Third Army. That was General Patton.

I was told that the president had directed that there should be a war crimes program. Warnings had come from Churchill, and from Roosevelt, and from Stalin to the Germans that they would be held accountable for the atrocities which were taking place.

So as we approached Germany, the decision was to create a War Crimes Branch in the Army. Since the Army had never heard of anything like that, they turned to this Harvard Professor and he said, oh, yes, yes. You go find this research assistant of mine. He's out there somewhere. He'll tell you all about it. So they tapped me on the shoulder when I was typing out my supply requisitions, and they sent me to General Patton's headquarters where I was greeted by a colonel who said, we've been directed to set up a War Crimes Branch, what's a war crime?

I said, sir, sit down. You're about to get an education. And so, the war crimes program started in the United States Army. In due course, the next man who was assigned to my unit was Private Jack Nowitz of the infantry. He was a Yale graduate, spoke several languages, and they had hauled him off from building a bridge somewhere. He was covered with mud. He reported to me and he said, sir, I've been directed to report to you. I said, don't call me sir, private. I'm a corporeal. Sit down. We've got to run war crimes for the United States Army. And the way we did that, if you want to know how we did that --

JR: Yes, that was my next question.

BF: Well, I am sorry I anticipated your question. Before we ran into the camps, the most frequent reports were that Allied flyers had been shot down. They were invariably seized by the townspeople in Germany and beaten to death. These were orders from Berlin, to treat the Allied flyers as war criminals. So we had received these reports.

I would get a jeep and Jack Nowitz would get a jeep. I'd say, you cover these cases there and I'll cover these cases here and we meet in three days, come back and report what we've got. I'd go out to the town, find the Burgermeister or whoever was in charge of that, tell him, you're under arrest. I want you to arrest everybody within 100 yards of where this event happened. Bring them in, and line them up against the wall.

They'd do that. They'd say, yes, sir, "Jawohl." Trembling.

It was not only that they had vital fear of me, I happened to have General Patton along. He didn't come on the trip, but the tanks were all around. They'd bring in the people. We'd line them up against the wall and say, now look, everybody here sit down and write exactly what happened. I would first catch one who spoke German and English and say, you're the interpreter. At that time I didn't speak German. I had never studied German. So they would write out what had happened. I would tell them, anybody who lies will be shot. That's what they expected. That's was known as the Ferencz-Miranda Rule. After they'd write it out --

JR: How old were you then?

BF: I was then about 26. No, it was before the war ended, I was 24.

JR: Yes.

BF: Then I would have them read me what they said. After I read about 10 of them, I knew exactly what had happened, who had killed whom, and when, and why.

I would then have them write it out, swear to it under penalty of death that it was true, tell them they are under house arrest, they are not to leave their home without my permission. I would take off, back to the headquarters, to write up the report, and describe what had happened, and who had done what, and these are the witnesses and names, and these are their addresses.

I suppose some of them are still waiting there because I never got back. The Germans are very obedient. If you find someone still standing in a home in some German town waiting to be released, my apologies. I mean I had other things to do. That's how we would render reports.

Then, along came the more serious things. Those people were eventually put on trial in Dachau Concentration Camp. You've probably never heard of that. I hammered up the first sign, United States Third Army War Crimes Trials, Dachau. They were military commissions. Some Army officers would hear the cases. They would bring in the people whom I had indicated as the perpetrators of the crime, and the witnesses, and have a quick trial. It didn't last more than a day or two usually. And sentence them to something, death or a few years in prison. Some of them were actually executed. Some of them were not. The less said about those trials, the better.

That also covered the concentration camp commanders that we captured and some of the guards. Because when we received reports that we were coming upon strange looking people, wandering on the roads, they were dressed in pajamas, they looked -- they were starving, they were completely bedraggled -- we didn't know the words "concentration camp," at that time. We would come upon a camp and that was an out-camp for one of the concentration camps. Buchenwald, for example, was one of the first camps.

I would get a report at headquarters that this had been seen. I would rush out to the scene, because I knew that what was important was to immediately safeguard the evidence of the crime. You can do that by getting the victims to give testimony while they are able to, catching the criminals if you can, or securing the other evidence which may be available. I came, for example, in an actual case, into the Buchenwald Concentration Camp.

The first thing I did, I rushed to the Schreibstube, the office where the records were kept, and seized all the records. I would tell the colonel in charge of that particular military operation, a divisional commander -- I never carried any insignia of any kind, he didn't know whether I was a general, or a private, or what -- and, I would tell him, I must have immediately 10 soldiers to surround that office. Nobody goes in and nobody goes out without my permission, no document is to be removed.

I would go in and check the documents with the help of the inmates who were running that, and take into possession the important things, such as, the Totenregister, the death registries of all the people who had been killed in that camp, the names of the guards who had been in that camp, the names of camp commanders. With that information, I could again go back to headquarters, type up a report, and say, send out arrest orders to apprehend the following as criminals.

That's the way it was done. One soldier. On my jeep I had written "Immer Allein." I think the picture is probably here in the Holocaust Museum -- which means "always alone." Going out, backed, of course, by the might of the American Army which was already occupying the area, no one challenged me. I had only a .45 pistol on my hip. I was able, then, to collect the vital evidence which became the basis for subsequent trials, not only in Dachau, but later at Nuremberg.

JR: If you'll let me do something now. When I interviewed Ben, I discovered that he sent back a series of letters to his wife, Gertrude. But, he wasn't able to read the letters.

I'm not going to read you the letters. I want to read you a portion of the letters because one of the questions I asked Ben, as a 24 year old, he wasn't just -- I mean the men who went in so-called liberating the camps, had very long term -- there were very long term effects from being there for a few hours. Ben went into camp after camp.

So I asked him what that did to him, as a person. He said that he had sort of an emotional cocoon around him that -- almost an ice wall. I wanted to read you a portion of a letter that you wrote in May -- May 15, 1945. Is that all right?

BF: I don't know. It was my wife's letter. She kept them all in a little shoebox for 50 years with the original envelopes. And that became quite a treasure for the Holocaust Museum.

JR: Right. Absolutely.

BF: Now she's going to reveal some of my secrets.

JR: No secret. No.

BF: Leave out the juicy parts.

JR: I'm not going to do the juicy parts. "I walked through the barracks and saw the living dead." I want you to see if you can get back there to tell people what it was.

BF: Okay.

JR: Okay. "There were little girls and little boys too. One 14 year old girl had been torn away from her parents a few years ago and had finally ended on the death block where the arrival of the Americans saved her. Her only crime, as well as that of the dozens and dozens of other children, was that she was Jewish. She started to cry, when I asked her where her parents were. And I did not go into it. I saw little infants, only two and three weeks old, who were wrapped in rags, lying in dirt, without food, and with nothing but their wails. The mothers had little hope. They kept asking, 'When will we be allowed to leave?' And I could not answer. There were so many camps. So many thousands of similar unfortunates, that it takes time. And every day is an eternity for them. There were millions of other things I saw and did. But, I can't describe them now, dear. It's horrible and pathetic. I don't even want to think of what the sight of all these things is doing to me."

Do you still feel that way?

BF: Beg your pardon?

JR: Do you still feel that way?

BF: Oh, yes. I very much feel the same way. I didn't know what you were going to read. There were many I'd just as soon not have you read that were quite horrible. But, that gives you a very slight feeling of what it was really like. I had to move from camp to camp because the danger was there that the evidence would be lost or destroyed. For example, I remember trying at the end of the war to go up to Berchtesgaden to catch Hitler. And the 101st Airborne Division got there before me. They had dropped in by parachute from the top. They had wrecked the whole place. It was chaos. The file cabinets were turned upside down, the windows were smashed, everything.

There was nothing there which could serve as evidence of anything. So the idea was to get into the camp as quickly as possible, before guilty people could run away -- usually they would run away, they retreated out of the camp as we came in -- and grab the evidence, and get affidavits from the inmates who were still capable of preparing some kind of credible testimony, which might be useful in a subsequent trial.

You didn't want to hang around in the camps. There was diarrhea. There was dysentery. There were rumors of typhus in the camps. So, it was not a place to stay. You got in. You did your job, moved on to the next camp. We were moving forward so rapidly -- the troops were advancing so rapidly -- that you couldn't stay more than a day or two in the camp. This was while the war was still on.

I was in one of the concentration camps on May Day, the first day of May. The war ended on the 5th -- I didn't know when the war ended. Martin Gilbert, who lectured here recently wrote a book, The Day the War Ended. The truth is that it was moving so fast that I didn't know that the war was over until I was on the road to Vienna from the Mauthausen Concentration Camp and General Kesselring came up to surrender because he was afraid the Russians would come at him. So, it was a very hectic time. You're quite right, that in order to be able to do the job, you must shut off your mind. You must insulate your mind. Otherwise you'd go mad. I tried to do that.

JR: You can't do it now.

BF: Right. Well, of course the trauma remains with you.

JR: Right. Can you talk about some of the revenge killings? There are people who say that there were no revenge killings, but you --

BF: What killings?

JR: Revenge. But, you saw people kill others.

BF: Yes. First of all, most of the inmates were in no condition to seek revenge. You didn't know if they were dead or alive. They were lying in the dirt, naked, not moving. You would walk past them and you would see they'd move. So, they were alive. They were skin and bones. I could hold up a man, who had been a normal man, and with one hand, hose him down. He couldn't have weighed more than 50 pounds. So, these were in no condition to seek revenge. There were amazed to be alive.

Some of those who were in better shape -- and there were, there were not only Jews in the camps, there were Poles, and there were Ukrainians, and there were Russian soldiers who had been captured -- they were quite eager to go out and kill every German they could lay their hands on, if not to seize their home and burn it down when they got through ransacking it.

So, it was a very perilous situation as well. They'd be chasing the SS guards, catching them, beating them to death, burning them alive, shooting them. I saw all of that. They came out and went running into the countryside, so that they had to be rounded up next, and put back again into the camps because there was chaos. They had to be put back again behind barbed wire, until such time as we could care for those who were dying or ill and arrange some way of transporting them back to where they came from or where they would be willing to go.

JR: There's one -- before we go on to the next piece, the Einsatzgruppen piece, there's one scene in a May Day celebration, at Ebensee, I think, a sub-camp of Mauthausen, that was particularly poignant for you.

BF: Yes. I don't remember which camp it was now, but I remember May Day because it was a celebration, the May Day celebration in Europe is the workers' day.

In this particular camp they had a tribune like this set up of three pictures in front. One of Stalin, one of Roosevelt and one of Churchill. No, I think it was Truman by that time. The inmates were celebrating liberation. They were marching. And the Poles marched. And the French marched. And the Belgians marched. And the Norwegians marched. And they were all marched in formation carrying banners celebrating their liberation.

And there was one group that didn't march with the others. And I asked, why aren't they marching? They said, they're the Jews.

So, that even in the concentration camp, among the inmates, all of whom were in peril of their lives, some were kapos that were abusing the others, there was the same sense of discrimination against the Jews. That surprised me. That is undoubtedly the event that you are recalling for me --

JR: Right.

BF: -- Of having described it somewhere in an earlier interview. There are some lessons in that too, as to how difficult it is to erase feelings of prejudice and hatred which some people carry with them even in concentration camps.

JR: Could you explain to the audience how it was you got involved in the subsequent Nuremberg trials and, at the same time, briefly explain the difference between the International Military Tribunals that were at Nuremberg and these trials that you were involved in.

BF: I went home after I had been working in the Dachau trials for awhile. The war was over and I was determined to go home. I didn't want to stay in Germany. I had signed up for the war. The war was won. I said goodbye to the Army and I left. They're still looking for me, I think.

But the honorable discharge which they gave me, for some reason I don't know says, soldier discharged on his own affidavit. I smuggled my way across in a ship because my outfit left unexpectedly, while I was on a vacation in Switzerland. The war was over. I never had a pass, other than the one I had made for myself. In any case -- well, that's not a laughing matter. I mean, I was in the supply room I thought it was only fair. And I had an official stamp. I ordered one for the commander, one for the captain, one for me. That seemed to me democratic.

I, of course, used mine to give out passes to all of the other guys when the officers had gone home. In any case, I went home. By sheer coincidence, to show you how these things evolve -- it had nothing to do with my beauty, and my knowledge, and my brains, and my size -- I met a friend of mine on 5th Avenue and 42nd Street in New York, which is probably the most crowded corner in the world. We had been housemates at law school. He was the clerk for Justice Jackson in the U.S. Supreme Court.

He said, well, what are you doing here? I said, oh, I just got back from winning the war, and I said, what are you doing? He said, I'm clerking for Justice Jackson. I said, oh, that must be exciting. He's over there setting up the Nuremberg Trials. He said, yeah, but I'm here. I said, well, I got some experience in that. I've been doing war crimes work too. He said, oh, we need you.

As a result of that chance encounter, one day I got -- shortly thereafter -- a telegram from the Pentagon, saying dear sir -- they had never called me sir in three years in the Army. They said, would you please come to Washington at our expense? We would like to see you. I came to the Pentagon where I was interviewed by Colonel Micky Marcus who had been a West Pointer and he was recruiting people for the Nuremberg Trials.

Well, to make a long story short, I was not going to go back to Nuremberg under any circumstance. However, he made me an offer I couldn't refuse. He said you can go for any period of time you want. You don't have to join the Army. We'll give you the simulated rank of a full colonel. But, we need guys like you. You're experienced. You know the ropes. You know the people. By that time -- you know the language.

I said, okay. I'll take it. I called up my present wife for the last 54 years. I said, how would you like to go to Europe for a honeymoon? She said, oh this is so sudden. She had been waiting ten years. So off we went to Europe intending it to be a honeymoon.

I had no intention of doing anything except getting even with all those lieutenant colonels who had been sticking it to me for three years. However -- it shows you the best laid plans. I was intercepted by another colonel by the name of Telford Taylor. Telford Taylor was on the staff of Justice Jackson.

They were already beginning the trials against Goering and company which most of the public thinks is the only Nuremberg Trial. It was the most prominent and the most important Nuremberg Trial. Justice Jackson was the chief prosecutor for the United States. France, England, and Russia -- the Soviet Union, also had their chief prosecutors. That was the International Military Tribunal where Goering cheated the hangman by committing suicide with a cyanide pill which had been smuggled to him with the help of an American lieutenant who was supposed to be guarding him, from Texas. Anyway.

Taylor said, look, I'm setting up an additional 12 trials. I'd like you to go with me. He said I understand that you are occasionally insubordinate. But, I'd like you to come. I said, I'm not occasionally insubordinate. I'm always insubordinate. I only do what I know is right. I never do what I know is wrong. But, I'll go with you.

So, I went with Taylor and that changed my whole plan. He was an outstanding lawyer. We were law partners after for many years. He was promptly promoted to general. He promoted me to general. So, I had the most meteoric career in the U.S. Army. From sergeant to colonel in a few months, and then to general, and, probably, the shortest general since Napolean Bonaparte. So, there I was with this crackerjack lawyer. He sent me off to Berlin.

He said, look we know approximately whom we want to try, but we need two things. We need the evidence of crime and we need the defendant. If we have one and we don't have the other, we've got nothing. You know how to get the evidence. You've been collecting evidence. Go to Berlin. Set yourself up there. Take whatever staff you need. Bring us the evidence that we need to convict industrialists, doctors for medical experiments, industrialists for running the concentration camps -- for slave labor, the SS generals, the foreign ministers who were involved. Bring us the evidence which will enable us to convict. And off I went to Berlin.

JR: You got to Berlin and you went to -- I'm asking him to tell a story he is slightly reluctant to tell, but it will give you another sense of the way in which Ben is sort of an entrepreneurial person with respect to these issues. When you got there you found a horrible situation.

BF: Berlin was in ruins. We had bombed the hell out of Berlin. And what we didn't bomb the hell out of, the Russians came in and they finished it off. It was very tough fighting all the way to the bunker. I was in the bunker before it was flooded.

Berlin was a mess. There was no housing, everything was destroyed. I was assigned offices in a place called Harnackhaus, which had been at one time a very nice building, but the only thing intact was the basement and I had the basement. The basement had already been bombed out. Some troops had been in there before me. I thought this won't do.

I found on the floor a picture -- I know she wanted me to tell this story because she got it out of me when she interviewed me months ago -- of Harry Truman. It was lying on the floor. One of these, you know, autographed sort of things that you send out when someone makes a five dollar donation to the party, or whatever. I said, well, it wouldn't do, for the President to be lying on the floor. I grabbed one of my aides and I said, Get me a frame for this picture. Another one, I said, I want you go call up the commanding general and tell him I want to see him over here in this office.

So, called up and sure enough the general in charge of Berlin, an artillery or military officer of some kind, I said, I'm over here on a mission for the President of the United States, collecting evidence of war crimes. I'd like you to come over here. There's something important to talk about. He said, yes, sir. Over he came. I had found an old beat up arm chair and I'd put that down and I had an old beat up desk.

I took this nice picture of Harry Truman, which was then framed, before it was framed I wrote on it, to my good friend Benny, from Harry. I put it on the wall. That was my friend Harry Greenberg who would have given me such a picture if he'd had it. I wouldn't forge the President's name. I put that on the wall.

This colonel comes in, or general, I don't remember what he was. I said to him, look, I'm here. We've got to get evidence of war crimes. We've got to send it over to Nuremberg right away. We have big trials coming on. I can't work out of this office. Look at this, everything is destroyed.

He said, yes, sir. Yes, sir. And sure enough, then I got a whole suite of rooms, half a building, in the same place as General Clay. So that was an illustration of what she calls "ingenuity" and the other one called "treasures." You know, if they had court-martialed me, you would have called it something else.

That will give you a feeling of how we got started. Then we began to collect the evidence and some of it turned out to be very important. That's your cue.

JR: First I want you to tell the audience how many months you had to develop evidence for the first trial -- the doctors' trial.

BF: Very little. Very little. I don't remember the precise number of months but we had to get the evidence --

JR: You told me three or four months.

BF: That's about it.

JR: That's very little.

BF: There was public pressure on for additional trials. There were budgetary constraints. We had to get moving.

JR: Right.

BF: So we had this staff in Berlin with about 50 people scouring the archives of the German Foreign Ministry, or the German -- other ministries, the Gestapo, the Health Ministries, to see what there was incriminating among those documents. The staff would come back -- mostly they were themselves persecutees, German refugees who knew German. They'd make a summary in English of what was in the particular document. I would get that, screen that, send it down to Nuremberg to lawyers who should have been working on that case. They would say whether they could use it, whether we would send it down to Nuremberg, whether we would explore other avenues, and so on. It was a highly technical operation.

JR: Right. But, then there was a very big and surprising discovery.

BF: Right. Now, you see how we got this teamwork worked out. We did that over salmon sandwiches before. One of the researchers came in, and he said, look what I found. These were what the Germans call lietz ordner, loose leaf folders, reporting on what their activities were in the Soviet Union, as they followed behind the German troops. What they reported is well, Einsatzgruppen.

Einsatzgruppen can't be translated. They were special action groups, and they reported what they did every day. We entered this and this town. Within the first 24 hours, we succeeded in eliminating all the Jews. Or, we succeeded in executing 4,327 persons, including 27 Communist officials and 14 Gypsies. And so on in the next town. I had the name of the officer, the unit, the time, the place. Perfect for a prosecutor. Beautiful. Give me this. I took it. I jumped into a plane. I flew down to Nuremberg.

I said, Telford, we've got another trial. I've got evidence here. I had first tabulated on my own little adding machine, over a million people murdered in cold blood, because they were Jews or Gypsies. They didn't share the faith, or the race of their murderers. And so, they were killed. Where it said the town was cleansed of Jews, I put down one. I didn't know how many there were. It could have been a thousand. It was over a million.

I said to Telford, look, I've got here cold-blooded murder of a million men, women and children. I have the names of the people in charge of the operation. I have the time. I have the place. It's a top-secret report. It was distributed in 100 copies. I had the distribution list. We ought to put them on trial. I'll send out arrest orders to have these guys picked up, according to rank, the highest-ranking first, put them on trial.

He said, we don't have staff. We don't have budget. Our program is already planned. I don't see how we can now put on a new trial. I said, you can't let them go. This is absolute genocide in its purest form. He said, can you do it in addition to your other work? I said, of course. He said, you got it.

So it came about that I became the chief prosecutor for the United States in what was undoubtedly the biggest murder trial in history, and also, quite remarkable in some other ways, if I may say that, now that I'm a national treasure. Otherwise, I wouldn't mention it.

JR: Look out.

BF: I had 22 defendants. There were 3000 men engaged in this operation. The reason that there were only 22 was the very logical, if stupid reason, that I only had 22 seats in the dock. That's the truth.

So, I picked the highest ranking men that I could find. Then I sent out an order to all the POW camps to search for the highest ranking members on my Einsatzgruppen list.

What are the highest ranking members of this list? I picked up six SS generals. Pretty good catch. Six generals in one pot. I had other high ranking officers -- colonels, all the way down until I got the 22. I accused them of murdering over a million people in cold-blooded genocide. I convicted them all. 13 were sentenced to death. The most interesting part is, I was 27 years old and it was my first case. Try to match that one for a treasure. Now, your movie.

JR: What we want to show you now is Ben at the age of 27 giving part of the opening statement at the Einsatzgruppen Trial. We have to get up and go over there because -- you'll see --

BF: If I fall asleep in the dark, somebody please wake me.


SPEAKER (Presiding Judge Michael Musmanno): We are now going to hear the presentation by the prosecution.

BF: This was the tragic fulfillment of a program of intolerance and arrogance. 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.

We shall establish beyond the realm of doubt, facts which before the dark decade of the Third Reich, would have seemed incredible. The record will show that the slaughter committed by these defendants was dictated not by military necessity, but by the supreme perversion of thought -- the Nazi theory of the master race.

We shall show that these deeds of men in uniform, were the methodical execution of long range planning to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide -- the extermination of whole categories of human beings, was the foremost instrument of the Nazi doctrine.

Sir Hartley Shawcross, the British prosecutor at the International Trials, pointed out that the right of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the Law of Nations.

German law professors too, declared this in their writings. The jurisdictional power of every state extends to the punishment of offenses against the Law of Nations, "by whomsoever and wheresoever committed." It is, therefore, wholly fitting for this court to hear these charges of international crime and to adjudge them in the name of civilization.


JR: I should speak into the mike -- you can't hear me? He was 27 years old. I think it's --

BF: I haven't changed a bit, you may have noticed.

JR: I think you were a little quieter.

BF: Touché.

JR: There was a line missing -- well, there was a lot of the talk missing, but your last two lines, were: "Death was their tool and life their toy. If these men be immune, then law has lost its meaning, and man must live in fear."

BF: May I comment on that?

JR: Yes.

BF: Because that sentence that she has just read that "life was their tool -- life was their toy and death was their tool, and if these men be immune, then law has lost its meaning, and man must live in fear" -- that was quoted at the United Nations in the first report of the Presiding Justice of the International Criminal Tribunal for Crimes in Yugoslavia set up by the Security Council of the United Nations, in his report, to the General Assembly and the Security Council, about five years ago.

It was by chance that I -- at the United Nations where I spend a great deal time -- picked up this report. I get to the end of the report, and I read the words that I had said over 50 -- just 50 years before. September something 1947, and the report was 50 years after, 1997, September 1997. It was a surprise to me. The Judge who had written that, Judge Cassese of Florence, Italy, hadn't warned me in advance -- and I knew him -- that he was going to use that to finish his report. It was quite touching.

I mention it only because somewhere in the audience here there may be young students who may find some inspiration in that, as I did. That 50 years later, the words that you uttered at a time when there were principles just being developed, that I thought were just on deaf ears. And yet, 50 years later, there they were in an official report and read aloud to all of the nations of the world. I hope that's among your treasured documents.

JR: It is. Ben, you decided to call no witnesses and you closed the prosecution's case in three days --

BF: Yes, I didn't call any witnesses, because witnesses are not very reliable. I could have had thousands of witnesses, the DP camps were full -- the displaced persons camps were full of persons who would have been willing to testify, that any one of those defendants was -- that he saw them murder his mother and his father.

There was a great deal of hatred and a great deal of fear, and they would have believed it. Eli Rosenberg, I believe is here in the audience, at least he was before, he may have run away in desperation. But-- oh, there he is, in the back row. He's hiding. Get close to the exit. That's a good idea Eli.

Those are the problems, that they would come in and testify, and then on cross-examination they would break down. That happened in the Demjanjuk case in Israel. I didn't need it. I had their own reports, their own documents. I broke them down on cross-examination. They denied the authenticity of the reports. But, that didn't hold out. They came in with all kinds of alibis -- that's why the trial lasted much longer than three days -- but I was able to break that down on cross-examinations. So, those were the remarkable features of that trial as well though: not calling any witnesses and finishing in record time -- I mean, the prosecution's case.

JR: I want to ask you to comment on who these men were. And I just wanted to give a sense to the audience of a portion of Ohlendorf who -- I'm forgetting now which unit, was it Einsatzgruppen D --

BF: Einsatzgruppen D, yes.

JR: That he was head of. In cross-examining -- you weren't cross-examining it was attorney Heath who was cross-examining. In answer to Heath, Ohlendorf said, at some point, oh, I didn't shoot anybody. Then he said, there's nothing worse for people than to have to shoot defenseless populations. So Heath then said, if I may be a little facetious, in a grim manner, there is nothing worse than to be shot, either, when you are defenseless. Ohlendorf, You met him --

BF: Yes.

JR: Afterwards. After he was sentenced --

BF: Yes.

JR: Is that right? And I don't know whether you met any of the other 21 who were on trial.

BF: I tried to make it a point not to sit personally with any of the defendants before trial. I didn't want to be influenced by any personal peculiarities, or prejudices, or favoritism, or any sentiments. I wanted them to be judged by their own records of their own deeds. On the basis of those facts, and those facts alone, they were either to be condemned or released. They were condemned. The only time I spoke to Ohlendorf was when he was in the Death House. He was the only defendant with whom I spoke under those circumstances.

I went down -- the courtroom there is built right on top of the jail. The prisoners are brought up in a small elevator, into the courtroom. I was in the courtroom doing a television show for Danish television a few weeks ago. I stood on the same spot that you saw in the film here. I was asked questions as she is asking me now about the trial, and so on. I also recounted how Ohlendorf had come up, out of the basement, with the earphones on, like all of the other defendants, and looked at the tribunal right ahead of him, and he heard, "for the crimes of which you have been convicted, this tribunal sentences you to death by hanging." Bow, then back, and step into the little elevator, and drop down into the basement.

I went down to see him after he was sentenced to death. He had admitted killing 90,000 people -- 90,000 people. That's a lot of people. He challenged whether the 90,000 figure was accurate.

I said, why?

He said, well because some of the men were bragging about the body count, they wanted it to be more. It was not that they objected to what they were doing. They were proud of what they were doing and tried to make the figures even higher. He -- and the same with the other defendants -- showed no remorse whatsoever. They were glad of what they did. They made it clear they would do it again. That mentality which exists in many other places and many other countries. It exists all over the world. That may help explain why I went on to a broader view of what I would have to do with my life if I was going to try to prevent another Holocaust.

JR: I have other questions. But, because of time, let's talk some about another issue that's very contemporary but, at the time when you were doing it, was not something anybody had done -- namely restitution, helping the victims.

BF: There were several phases as you pointed out at the beginning of trying to deal with this type of problem which is really a horrendous problem. Warfare itself is a horrendous problem. First you must stop the killing. Stop the war. Stop the war.

Then you bring to justice those who are responsible for the war, those who committed aggression and crimes against humanity, and genocide, and major war crimes. Then you try to do something for the victims. People always forget the victim. It's not just enough to punish the criminals, that makes good drama. But, what about the victims? You have to do something for the victims.

I was much involved in that. I didn't initiate it. I must say I was still prosecuting when I was called to Paris when I was called to Paris by the American Joint Distribution Committee, the largest Jewish relief agency.

I was talking all this morning with the people here in Washington who are writing our book on that for the President's Commission on Restitution. In Paris, they said the military government, the U.S. Government had just passed a law that the property which had been taken from Jews who were murdered, should not remain in the hands of the German government, which normally happens if there are no heirs, but it should go to a charitable organization and be used for the benefit of the survivors. That law had been passed. The head of the Joint, as this charitable agency is called, felt that I should take on the job of trying to find the heir-less Jewish property and get it back and dispose of it and use the proceeds for the benefit of those survivors who had just come out of the camps.

I was persuaded to do that, although I was eager to go home, and so was my wife. I took it on. Well, to make a long story short, that began to grow. There the question was, first of all, how do you find it? You also had there a three month deadline. General Clay who was the commanding officer of the occupied American zone -- I asked him to extend the law, he said he didn't want to because he wanted to get this program over with as quickly as possible. The United States had other priorities in Germany. This was a thorn in his side, having all the DPs in the camps engaging in all kinds of activities -- hard to control.

I said, all right. I'll try to get it done in that time frame. I borrowed money from the military government using some of my old Army techniques, and --which we shall not go into or I'll lose my treasure status -- the treasurer will get after me -- and, anyway, I borrowed enough money to do the job. Hired immediately a big staff. Worked 24 hours a day. Three eight hour shifts, three guys, to file the claims. We claimed over 167,000 pieces of property in the American zone alone. Then began the process of recovering that property. Very complicated. It's not that you knock on somebody's door and say, you're occupying a Jewish house please get out. You can say that. But, he says, what do you mean? The owner, was Morris Cohen. He was my dearest friend. I gave him 100,000 marks for the house. It wasn't worth more than 50,000, but he used the money to get away. He sent me a postcard when he finally got to Australia.

Where have you got it? Well, I lost it, of course. But you're not going to -- who are you to come and take my house? I put on a new roof. The boiler was leaking. I paid off the mortgage.

It was one very, very tough business. We had to go through all the German courts. We first filed with an agency. If we didn't like that decision you filed with the first court, second court, third court, German Supreme Court, Constitutional Court. These difficult cases -- legal problems of all kinds -- which I won't bore you with, took years and years to accomplish. Eventually, of course, we succeeded in recovering substantial amounts of the unclaimed or heir-less property, and that was the first phase of the program.

But, much more important than that was what do you do for the victims who didn't have property? Those who came out with nothing but the tattoo on their arms, and their health broken, and their family gone. We had a big conference in The Hague in 1951 between representatives of the West Germany government, the state of Israel, and a consortium of Jewish organizations that I represented as counsel. The leading Jewish organizations outside of Israel. We negotiated what became known as the Reparations Treaty.

There were three parts of that treaty. One -- the most important part-- called Protocol Number One, was a whole list of laws which the Germans promised to pass to provide compensation for the surviving individual victims. For example, time spent in a concentration camp. That's unlawful imprisonment. That's a form of injury for which the injured party is entitled to compensation in every civilized society. Damages to his health. People were permanently disabled. Similar losses of that kind had to be compensated. There was a bulk payment to the state of Israel for having received the refugees from Germany and had borne the costs of incorporating them. There were some payments to the Claims Conference for Relief Activities, this consortium of organizations outside of Israel.

So, those were the three facets of that program, which, when I left Germany in 1956 -- I had launched that program; it was a big operation, engaging offices all around the world -- the Germans had paid out over 100 billion marks. That's over 50 billion dollars. There is no Nazi victim in the West who is not a beneficiary of that program. In addition to that, you needed someone to help the survivors themselves. They weren't going to go to German lawyers to do this. They didn't know where to begin. They needed help.

So, we set up the biggest legal aid society in the world, I'm sure, with offices in 19 countries, offices in every major city in Germany, handling hundreds of thousands of claims on a contingent fee basis, which was a modest fee -- just enough to cover our expenses. As a result of that program too, hundreds of thousands of beneficiaries, who don't even know my name, which I'm glad about, and don't know that the organizations exist, were helped.

So, we had all of these facets of the program. Let me add one point, because I'm going to jump back 50 years beyond. Those principles at that time had no precedents. People had been persecuted for ages. No one ever compensated them, although it is a principle of law, which I learned as a student. That is, if you injure someone, you owe him something. You compensate him to try to rehabilitate him, to reinstate him where he would have been had you not injured him. That's an ordinary principle of law I learned at Harvard. I didn't learn it in Germany. It didn't apply only to Germany. That was the principle.

But at that time, individuals had no such rights. An individual could only claim through his government. International law dealt only with law between states, and the individual had nothing to say. We broke that barrier because we should have broken that barrier and gave the individual his own rights, helped by the societies that I set up.

50 years later, that was two years ago, nations signed a statute for the creation of an International Criminal Court, which now occupies most of my time, trying to get that going. They wrote into the law, as a provision of law, that victims of genocide and crimes against humanity, and such crimes, are entitled to restitution, compensation and rehabilitation, as a matter of law. That has been accepted by over a hundred nations now. We are well on the way to having that accepted now, as a firm principle of international law, as well as justice. The point of the story simply is, that you begin by doing something which looks impossible, which is very difficult, for which you have no precedent, and you do it. And it's right. Eventually the world catches up with you, if you live that long. I'm only 80 years old. I'm still working on it.

JR: Let's talk some about the International Criminal Court and your work. But, I want to precede it -- maybe, it's not preceding it, but sort of part of the process. When you think about what happened at the subsequent Nuremberg Trials and the Nuremberg Trial, I'm wondering how you distinguish between finding justice in the world and finding truth in the world. What is the difference between working -- if there is a difference, or should they be done in tandem -- between having an International Criminal Court and having truth and reconciliation commissions?

BF: Now, she's starting with tough questions. But, that's all right. If you're still awake --

JR: I work my way up.

BF: Okay, fine. If you're still awake, you can work your way out. But, I'll try to answer the question. What's the difference between, you know, fighting for truth and justice, and law -- and international law on the one hand, and is there a role for truth and reconciliation commissions where you get peace, rather than going through the legal processes of justice?

Let me back up a little bit and give you the frame of reference. Going back picking up the thread which we left before. Nuremberg laid a foundation of law. Part of it you have quoted in that brief film, or I quoted it. That was, if certain crimes are so terrible that the world has got to stop committing those crimes because it cannot survive those crimes being repeated, as Justice Jackson made clear.

That was first of all war-making itself. A crime against peace. Aggressive war. War is itself the worst of all crimes. Because in a war, all the other crimes are committed. That spawns all of the other crimes. The crimes against humanity: the rapes, the pillage, the killing of the children and all that. That comes out of war. Nuremberg held that war making was no longer a national right. It was an international crime for which those responsible, the leaders responsible -- I'm not talking about the common soldier who goes out and fights -- I'm talking about those who plan and perpetrate the aggressive war, will be held to account in a court of law. That was the most important lesson which came out of Nuremberg. As you well know, it was ignored after Nuremberg. We've had a hundred wars since then. Another hundred million people killed.

The second point that came out of Nuremberg was that crimes against humanity, crimes which shock the conscience of mankind, like genocide, are so horrendous, that the whole world has a right to stop them. Never again, will we allow such crimes to be committed. They are being committed and they were committed. So I was trying to build on these Nuremberg foundations. I worked at this very hard.

I wrote books and lectures and articles and became a professor of international law, and lobbied at the United Nations. All my books which were very nice books -- my wife read them. I don't know if anybody else read them. But they're over here in the Holocaust Library. If anybody really gets clearly very desperate some day and can't sleep, they've got some books over here. I've got lots of books. The world paid no attention, no attention at all. They went around killing as usual. It's most unfortunate.

Slowly, I began to see an influence. Things began to change. It took even more horrible events to bring about change. We had Saddam Hussein who committed every crime in the book. I would have prosecuted him in one day. One day, I would have rested my case. He had such a clear-cut case: aggression, crimes against humanity, poison gas, killing his own minority, everything in the book.

How do they respond? We punished his people some more and we left him alone. I wrote articles that cried over that one.

Finally, they raped ten thousand women, Muslim women, in Yugoslavia. I don't mean finally that I was waiting for that. It was a bloody shame. But the world had to do something. We weren't ready to send in the troops to stop it from happening because we had just been embarrassed in Somalia.

So, we decided to set up an International Criminal Court. I wrote a two volume book on an International Criminal Court, told them how to do it. They dusted off the books and they came off the shelves and thirty days later, we have now, the International Criminal Tribunal for Crimes Committed in Yugoslavia after 1991. It's very limited jurisdiction, but it's a beginning. And that court is functioning. The first prosecutor there was Judge Goldstone of South Africa, a human rights activist, who was here at the Holocaust Museum very recently.

JR: Um-hum. I believe so.

BF: We're in regular touch. So we're beginning to move on that.

And then another terrible thing happened, a very terrible thing. This government and this world can be ashamed, ashamed. Half a million people to 800,000 people were butchered in Rwanda. Black people killed by black people. The Hutu were killing the Tutsi. They came out with clubs and machetes and they murdered men, women, and children -- everybody they could reach.

The world stood by and let it happen. They knew it was going to happen. It was in the cards. The president, President Clinton, went down to Rwanda and apologized for not having acted. Boutros-Ghali and Kofi Annan apologized for having let that happen. So, the world knew it was going to happen. It's a disgrace to our humanity, a disgrace to our world organization, it's a disgrace to our governments, to our people, to allow such a thing to happen in the twentieth century. But we did set up a court again, based on the precedent we had in Yugoslavia, and some people are being tried there, and convicted of genocide for the first time.

I knew René Cassin who invented the Universal Declaration of Human Rights and Raphael Lemkin who invented the word "genocide." So, I see these steps forward. They are slow. They are inadequate. But they are nevertheless steps forward. It tells me that even if you seem to be idealistic, and a dreamer, and maybe on the wrong side, and most people don't agree with you. Keep pushing. Keep pushing. Eventually it begins to break through. So I come to the International Criminal Court problem.

JR: So, tell me about the creation of the International Criminal Court and what that means.

BF: Well, I was suggesting that to set up special ad hoc tribunals by the Security Council of the United Nations is not good enough. That's not what Nuremberg had in mind. Nuremberg had in mind that we were laying down principles of law which would govern everybody including the United States.

Justice Jackson put it very well. He said, to pass these defendants a poisoned chalice is to put it to our own lips as well. The law we lay down here today is the law by which we will be judged tomorrow. The law was that war-making was a crime. Genocide was a crime. Crimes against humanity were not tolerable. Major war crimes were not tolerable. So, finally, with much pressure, and I wrote a book on the International Criminal Court, as well, the nations at the United Nations began to talk about it seriously.

After we had set up these ad hoc temporary tribunals. They couldn't go around setting up temporary tribunals for Burundi and for Pol Pot, and all around, it was too ridiculous. They began to talk about an International Criminal Court and the idea caught on.

Two years ago in Rome I was there, and I addressed the entire assembly -- it was very unusual they allowed it -- I don't represent anybody. Nobody pays me. Because they knew me, they gave me the privilege of addressing the entire group. I called upon them to honor the principles of Nuremberg and to create a permanent International Criminal Court condemning aggression and crimes against humanity and war crimes. I ended that speech with saying, "the place to act is here and the time to act is now." And lo and behold, they agreed. Over a hundred nations signed the treaty for the creation of a permanent International Criminal Court. We need 60 ratifications before it can go into effect.

The United States has not signed. The reason the United States has not signed is because they want an exclusion. They don't want any American soldiers to be subject to the jurisdiction of that court. The argument they make is that American soldiers have to engage in humanitarian interventions and they don't want to be harassed by foreign governments possibly accusing them of crimes that will interfere with their mission. Therefore the United States is not ready to accept what at Nuremberg we said everybody in the world has to accept. That's where we stand at the moment with that Court. The Court is in the process of formation.

I will be at the United Nations in a few days. I was there the day before yesterday. It's moving forward very rapidly now. We hope to create such a court, with or without the United States. I would like to see the United States part of it. All of the European Community is on board. All of our allies recognize the time has come for the law to take a step forward.

Someone here asked me a question, what can we do to help in that? At the moment, there's a political campaign going on in this country. It's crazy time. You can't do anything. They're going through making all their prepared speeches, whatever they think you want to hear. But, when this campaign is over and we have a new president -- I don't care what his party is -- that's the time to tell the President of the United States, "sign the treaty." You're not bound by signing it, except not to sabotage it. It needs ratification by two-thirds of the Senate. Senator Jesse Helms, who is chairman of the Foreign Relations Committee has indicated, or said, specifically, over his dead body. He says, this will be "dead on arrival."

When I tell some students when I lecture that Senator Helms says it will be over his dead body that this court gets created, the first question I get from the audience is, how old is Senator Helms? I don't know exactly how old he is.

But there are people with that point of view everywhere. The question for you is where do you stand? Where do you stand? Do you stand for a world as we have it, a realist world, with the killing, with the rapes, with the murders? If you do, what are you doing here? Go home. Go listen to the debates, watch the ball game.

If you believe it is possible to have a more humane world, what we were fighting for in Nuremberg, and what I'm still fighting for, then you've got to join the fight. Everybody can do something. Write a letter to the President. Call him up. Talk to your neighbor. Talk to your friends. Talk to your enemies. Talk to an audience at the Holocaust Museum. Do whatever you can. That's what I'm trying to do. I don't know if we'll succeed, but somebody will send me an e-mail. Wherever I go, I leave my e-mail address. And I hope it will be for a more peaceful and humane world.

JR: It seems like the perfect ending. If you remember you were given 3 by 5 cards on which you can put down questions. And someone is going to come down both aisles to collect them. While you're doing that, Ben, you want to talk about McCloy for a second?

BF: Whatever you want. Let them ask me a question, I'll answer.

JR: A lot of people think that McCloy did a horrible thing in not keeping the death sentences of some of the Einsatzgruppen defendants. Yes? You have a somewhat different view of what he did.

BF: Yes. For those of you in the back row who may not have heard the question, the question was whether John McCloy did a horrible thing in not carrying out the execution of some of the 13 defendants in the Einsatzgruppen who were sentenced to death?

No, I don't think it's a horrible thing. You can't talk of commutation of a death sentence as a horrible thing. People were not turned loose. They were detained, those who were sentenced to death, in prison for a long time. Not long enough, perhaps. But, for a while.

I knew John McCloy. He was the high commissioner for Germany. He was, in my opinion, a very fine man. He was most helpful on the restitution program. I don't recall he ever turned me down on anything and we had many problems. He was also criticized for not bombing the rail lines at Auschwitz. He was then assistant secretary of war and had some position, although he was not the key activist on that question.

He assured me it was Ben Rosenman, the Jewish advisor to President Roosevelt, who was the key player in that decision. And on that one, he noted, correctly I think, that bombing rail lines is not a very serious damage because they can bring up another railroad train with new rails on it and in a few hours trains are rolling again. And there's always a danger in dropping bombs -- as we discovered when we hit a Chinese Embassy recently -- that the bombs won't exactly go where you want them to go. I don't care what kind of "smart bombs" they call them. They have some dumb people who are dropping them. If they hit the concentration camp and killed the inmates there would be quite a number of repercussions. So he decided -- he joined with those who decided it would be not a useful thing to do.

As far as his clemency action -- he did execute some -- or affirmed the execution of some of the prisoners. Which meant that it was not a political decision. Because if he wanted to favor -- curry favor with the Germans, he would have accepted the recommendation of his clemency panel, which had been set up, including Judge Peck of New York, a very respected Judge, who recommended various acts of clemency. McCloy was harsher than his clemency commission and, also did execute some despite the appeals from some "good Germans" or anti-Nazi -- the church groups and so on, who said please, it's an inhumane thing to do, we should not have a death penalty.

In fact we have no death penalty in Europe and the International Criminal Tribunal for Yugoslavia or Rwanda, or the planned International Criminal Court which we're talking about, has no death penalty. It's not considered a humane thing to execute people. I didn't ask for the death penalty in the Einsatzgruppen case, not because I didn't think they deserved it. The deserved it. They deserved it in spades. But I didn't think it was very meaningful to try to balance the lives of a million people butchered in cold blood with the lives of 22 defendants, even if you chopped them up in pieces. That something more significant had to come out of that trial and out of that loss, that those lives would not have been lost in vain. That was a new rule of law, a rule of law which would protect all of the minorities, of whatever persuasion and whatever color, so that all human beings could live in peace and dignity, regardless of their race or creed. That was the plea you heard part of in the opening of that case and it's a plea that I'm still making today.

JR: Okay. Here's the first question from the audience. This is a very contemporary question. Do you think that Milosevic should be granted or guaranteed immunity if he steps down peacefully?

BF: That's your question before. That was the question about truth commissions and we have that situation in various parts of the world. In Haiti for example, we had generals there who had committed war crimes, and so we said, how about leaving town boys? They said, what are we going to live on? And we said, well, you have a little house in Miami you paid $50,000 for, we'll give you a million dollars for the house, get out of town. We got a new man coming in. And he said, okay. Under those conditions he left, without trial.

In South Africa, that was quite effective, in fact, because the country was in turmoil. Revolution taking place. Mandela really alone couldn't do it, he needed help. Judge Goldstone, who was active there at that time, felt that you ought to bargain away, and make some kind of a deal whereby those who might have been subject to war crimes trials, if we had a court, we have none with that jurisdiction, would be eased out of office, in exchange for some benefit, such as not trying them, or threatening to try them. And it worked.

If you're asking my opinion, I'm absolutely against it. You cannot trade justice for law. You cannot destroy the law in the hope you will have a peaceful society after that. If you do that, the victims will always feel no justice has been done. Their feeling of vengeance, of not being recognized, will remain. The hatred will remain. The war will break out again. It will not work.

Besides it's unjust. People should know in advance, if they're going to be deterred at all, that they will be held to account. They are learning that lesson. Mr. Pinochet, even if he walks free today, has learned that lesson. He went to England. Pretty soon he couldn't leave town. Every dictator today is talking to his travel agent, where can I go?

So, the world is getting to be a more difficult place for them. We'll track them down. I believe that we owe it to the victims of the past, to their memory, and to the future, to make it clear that anyone who commits the types of crimes that I've described for you, which are still going on in the world today, will be hunted down, wherever he is, and he will be brought to justice, whatever it takes.

JR: The language that you use which is "more than vengeance," which is very interesting to me, that prosecuting the perpetrators recognizes those who are victimized, it's a kind of --

BF: It's necessary for their rehabilitation. They must know that the world cares. If they know nobody cares, what can you expect of them?

JR: Okay. Next question. Why of all the 22 defendants, did you go down and visit Ohlendorf? Why him?

BF: I visited Ohlendorf because first of all he was my lead defendant. The case was Ohlendorf, et al. Secondly, he was relatively honest. He finally conceded that his unit had -- the unit under his direct command -- had murdered 90,000 people. I had generals, SS generals there, who said, "Was, Juden erschossen? Das höre ich zum ersten mal." What, Jews were shot? I hear that for the first time.

I can assure you, my temptation was to gouge out their eyes. I had to hold myself back in order not to do that. These were not defendants I cared to talk to. They were sentenced to death and I hoped they were executed.

So, Ohlendorf was a peculiar man. He was the father of five children. Like most of my defendants, he was a well-educated man. I tried to pick only those leaders who would be held responsible. I wasn't concerned about the poor Joe who was down there machine gunning people because they told him, that's what you've got to do to save Germany. I wasn't concerned about him. The Germans could handle him on their own later. And so, I picked people who were well educated. Many of them had doctorates in law as well. Let me tell you --

JR: He did.

BF: One about Dr. Rasch. Have I got time for a Dr. Rasch comment?

JR: Sure.

BF: I had one defendant by the name of Dr. Dr. Rasch. I being an ignorant little guy from Transylvania, I never heard of people Dr. Dr. I thought somebody was stuttering. Two doctorates. And Dr. Dr. Rasch was the biggest mass murderer I ever heard of. He did the Babi Yar job. 33,771 Jews killed in two days. Imagine that. Over 50,000 people murdered in a day. What does it take for your machine gunners dropping them into a ditch outside of Kiev and covering up the whole mound. He did that job. And his commander there was Blobel. I remember the name, the beard.

Anyway one day Rasch's lawyer came into see me. He said, my client can't stand trial. And I said, why not? He said, he's sick. I said, what has he got? He said, he's got Parkinson's disease. I said, what's Parkinson's disease? He said, he's shaking. I said, If I killed that many people, I'd be shaking too. I said, is he breathing? He said, Yes, he's breathing. I said, If he's breathing, I'm going to indict the son-of-a- bitch.

I brought him in on a stretcher. I have that picture. It's in your Museum. Of two GI's carrying this German, wrapped up in a GI blanket, bringing him to the judge to plead to the indictment. The judge asked him, Are you able to plead to the indictment? Have you received a copy 30 days in advance?

Yes, we were absolutely fair to the defendants. We were outnumbered by the defense counsel 4-1 or more. And how do you plead? He said, Not Guilty. All right. We'll stand trial. But, I'll tell you, you can't trust some of these guys. Before the trial could start, he died. That's the end of the story.

JR: You didn't tell them what Ohlendorf said to you when you went down there.

BF: I said to Ohlendorf, Herr Ohlendorf, is there anything I can do for you? These will be your last days. He had five children. I thought, he'll say -- Tell my wife I love her, or tell my kids I tried. Tell me to do some human act, you know, that I would be glad to do as a human favor even for a mass murderer like him. Because he was an intelligent man. He was acting according to his belief in what was right. He was an idealist in his own way. I didn't share his ideals. Maybe because I would have been a victim of them, but nevertheless, I didn't share them.

And so I put this question to him. We were sitting in a little cell. He was guarded. There was the plate glass between us with little holes in it. Guards standing next to him ready to wack him on the head if anything happened. He looked at me and he said, the Jews in America will suffer for what you have done to me. I looked at him. I stood up.

I said, goodbye, Mr. Ohlendorf. And that was the end of that conversation. And I never saw him again. He is dead.

JR: What happened, insofar as you know, to the other Einsatzgruppen men who were shooting Jews?

BF: Four of them were executed. Many of the others got life sentences and after, oh, another five or six years, they were released. It was not a repudiation of the Nuremberg Trials, as is commonly understood. It was not on appeal. It was an act of clemency, supposedly, because they had served whatever time was reasonable. They were treated well in prison. Some of them came out, like the industrialists, to champagne parties, and went back, and became important German leaders again. Perhaps, the richest in Germany. Mr. Flick, for example. And the lessons we tried to teach at Nuremberg were forgotten. That's what happened.

JR: Didn't Germany try some of the other Einsatzgruppen killers?

BF: Germany had their own trials, at Ludwigsberg, the Zentralstelle, the central office for German crimes, in which they went through the rosters of the criminals. Most of them were not charged at all because the statute of limitations had expired, except for those who were directly involved in murder. There were some trials.

I appeared as a witness in one of the trials -- not in Ludwigsberg but in one of the other cities nearby. Some of them were sentenced mildly to prison terms. Most of them were not tried at all or released. One of my Einsatzgruppen defendants I heard, years later, was practicing law somewhere in Germany.

JR: What standards did you apply in deciding not to prosecute a person who had committed a war crime? Did you ever do that?

BF: That was an easy question. The question was what standards did I apply not to prosecute? I didn't -- we didn't decide not to prosecute. We had a limited goal. We had only a sampling. We never set out to try all the German war criminals. We had 8 million Nazi Party files to give you some idea of the magnitude.

There were thousands of SS files. I think that Mr. Marlowe is here and he was later in charge of the Berlin Document Center which I was working on during the war, where we had these 8 or 9 million Nazi Party files. So, the decision was never to try more than a sampling. We were trying to demonstrate that you couldn't run that kind of a killing machine without the assistance of all of these phases of society: the industrialists, the lawyers, the judges, the military, the SS, Foreign Office -- they all had to conspire together to commit these types of crimes.

It would have been quite impossible, physically and financially, for the United States to do anything else. So my own choice was to take the highest ranking people -- 22 defendants was the limit. We had only 22 seats. That's it. Number 23 was goodbye, Charlie. You're saved. Let the Germans try you or not try you. It wasn't comprehensive justice. It was a beginning.

We were trying to set standards, and lay a foundation, and establish the truth, which is very important. Because there are still deniers. That's why this Museum is so important. The deniers can't come here and deny because the evidence is here in spades. If they will come here, they will see it. They will be ashamed, I hope, to pretend that it didn't happen. They don't say that in my presence.

JR: What do they -- what do you do?

BF: They don't dare. I don't have to do.

JR: Was there any political pressure to let war criminals trade information for their freedom in the cases that you were dealing with?

BF: No. There was no pressure at all to have them trade anything for their freedom. When one day Ohlendorf's counselor came to see me and he said, I want to tell you something. I said, what is it? He said, you know Ohlendorf was at one time head of their security service. I said, Yes, I know that. And he said, well, he has information that Martin Bormann -- who had been sentenced in absentia and who had disappeared, and was number two man to Hitler -- was a Russian agent. I said, so? He said, well, well, what do you think about that? I said, So what? And that was the end of the conversation. He wanted to sucker me into making a deal with Ohlendorf and we'll tell you where Bormann may be hiding. I wasn't open to any discussions. That was the end of the discussion. So.

JR: Can you prosecute war criminals or war crimes without defeating the perpetrators in war?

BF: I hope so. I hope the time will come when new governments will come into office who will try, or turn over, the perpetrators to an international court. It would be better to have an international court than the national court try them because the national court has usually seized power, after somebody else has been in office.

It's inclined to be even rougher in their sense of justice than we were in the early days. It would be better to have an international court. But, you've got to have the courage to seize the perpetrators. It's quite outrageous that we create a court to deal with the crimes in Yugoslavia, and, then we indict the responsible people, and NATO is afraid to arrest them because somebody might get hurt. I mean, I like the notion, invented, I think, by Colin Powell, who lived in the Bronx where I came from -- that you don't send a soldier in harm's way. I wish they had invented it before when I was in the Army.

But, how are you going to catch criminals that way? A police department that says, we're not going to go out and make arrests because the criminals might shoot at us, wouldn't be a very useful police department. That's what we've got. We've got NATO troops, in the whole country -- thousands of them. We have bombs, smart bombs, intelligent bombs, zip bombs, laser bombs, everything. And these guys are walking around, enjoying high office. Nobody does anything.

Saddam Hussein is thumbing his nose at the world community. Year, after year, after year. The only response is we make his people suffer in the ridiculous hope that they're going to overthrow him. They haven't got the strength to overthrow him. He'll kill them all before he budges. We haven't recognized that.

So, we still are an emerging international society which lacks the fundamental components of clear laws, and courts with authority to deal with the question, and a system of effective enforcement. Those are the three components of every civilized society. In international law, all three of those components are like a Swiss cheese. They're full of holes. But don't worry, I'm working on it.

JR: Is the United Nations, as it is structured today, incapable of ending genocide, or capable of ending genocide?

BF: The United Nations today is not capable of doing anything other than what its members decide they want to do. The United Nations is on mission impossible, and deliberately created that way under the leadership of the United States which was the principal moving party, here at Dumbarton Oaks where they drew up the charter for the United Nations which was only slightly modified. If you set up an organization which has no budget, you're dependent upon contributions, which you cannot enforce as we know.

The United States is the biggest debtor. It doesn't pay its debts. It has no legislative capacity. It has no army, although it was called for by the Charter of the United Nations. How is it going to function or do anything seriously without the will of its member states? So, don't blame the United Nations. You blame the member states, who are the United Nations. You blame particularly those nations which are powerful enough to do something, and don't do it. I'm ashamed to say that our government is in the lead among those nations in many respects.

JR: What is the International Criminal Court's position on addressing past genocide with regard to retribution? Or, maybe that means --

BF: I wish there were an International Criminal Court but there is none. So, there's no problem in that --

JR: If there were one?

BF: If there were one. The present statute of the International Criminal Tribunal, which is being negotiated now at the United Nations -- which more than 100 nations have already signed -- does not have any retroactivity at all.

So, the arguments being made, they are going to try us for Vietnam, they're going us for that, or they're going to try this. Nonsense. They cannot try them. It's outside the jurisdiction of the court. There are many arguments made against this court by people who don't know what the court is all about, or never looked at the statute, and don't care. The statute is not unconstitutional.

There was recently a study made by the American Academy of Arts and Sciences -- one of our oldest and most established institutions in the United States and in the world, it was founded in 1780 -- and they brought together the leading experts in this country from academia and from the Army as well. They had one major general, they had the Chief Judge of the Court of Military Appeals. They had experts from Yale, from Harvard, from the leading universities, asking the question: Is it in the interests of the United States to support this Tribunal. The conclusion was written by two Harvard professors - Anne Marie Slaughter of Harvard, as well as Abram Chayes who died a few months ago -- and their conclusion, which I have with me in my bag for those who are interested, was unequivocally clear.

It's in the long-term security interest of the United States to support this Tribunal, and to create it as quickly as possible. Because our reputation in the world is part of what we are losing by the stance we are now taking, by raising arguments which are not persuasive: about its constitutionality, and its threatening us for past deeds, and its hindrance of our humanitarian activities, and that our soldiers are threatened by this Tribunal. All those arguments are false arguments. Absolutely false. Here all these scholars have responded to each of those arguments in a book which just came out, sponsored by the Academy of Arts and Sciences. This is something which we should take up with the President as soon as the presidential elections are over and hope that at least he will sign the treaty for an international court.

(Whereupon, the PROCEEDINGS were adjourned.)