Benjamin Ferencz interviewed on radio by Mort Mecklosky

Mecklosky: I believe I have Ben Ferencz on the line. Ben?

Ferencz: Good Morning.

M: How are you?

F: I am fine. Greetings to everybody in Stony Brook. I hope you’re not freezing.

M: (laugh) I’m not. It’s chilly, but it’s not bad. The sun was out the last time I looked. And so it’s not bad, it’s tolerable.

F: Good.

M: Ben, and how are things in Florida? Good?

F: Well, you are holding me up from going swimming this morning. But, we’ll forgive you.

M: OK. I’m glad I found you. You were a prosecutor following WWII at the Nuremberg Trials, yes?

F: That’s correct.

M: OK. Nazi war crimes, okay. And we’re talking international law. I understand that it’s a violation of international law to go to war without approval of the UN Security Council when not under armed attack. Is that true?

F: Well, there are differences of opinion. In my opinion, any violation of the United Nations charter is a violation of international law. Since the charter supercedes all national laws and has been accepted and ratified by all of the member states. The charter says specifically that you are prohibited from the use of armed force except under very restricted circumstances. And those are if you are subjected to a direct attack by someone else and until the Security Council can respond to restore order, you can defend yourself. Those were not the conditions which existed in the case of the United States’ invasion of Iraq. Now, there are some international lawyers who take a different view and they say the charter was written before the nuclear age and you can’t expect any nation to wait to be destroyed before it responds to a nuclear attack. And therefore they invented the excuse that Saddam is creating weapons of mass destruction and has them and is ready to go and we have to, therefore, intercede even though it does not comply with the UN charter. So we do have this division of opinion and since we don’t have any enforcement mechanism on an international scale despite the charter requirement that we set up an international military force we’re stuck with the kind of situation we have today.

M: Now, if Saddam Hussein or any nation has the nuclear weapons and we consider them a threat are these people saying we can go and invade them and go to war against them? Is that their position?

F: Well, that seems to be the administration’s position, that preemptive strikes are permissible. It’s preemptive self-defense. My difficulty with that is that laws have to apply equally to everyone and if we assume that we have that right you must assume that other nations have the same right. And that would certainly pose an immediate threat from such countries as North Korea, which we know has such weapons, and India and Pakistan and Israel and France and England and all the other nations that may have nuclear weapons now or in the near future so this doctrine of preemptive self-defense, to me, is a prescription for self-annihilation in the long run.

M: According to that we can then, in their minds, go to war against North Korea or any of the other nations that have nuclear weapons if someone here feels that they are a threat.

F: That would be the logic of the president’s recently declared policy for the United States.

M: How many lawyers, international lawyers of international law agree with that, or are most of them critical of the US and its invasion?

F: I think most of them are critical, there are a few who d agree with that for example State Department lawyers and Pentagon lawyers but most – not only those, there are some academic lawyers who take the same point of view and it’s a conservative point of view – of those who believe that armed force is more important than the force of law.

M: Alright, so in your view, the US is guilty of violating international law.

F: In my opinion, yes, if we did have a legal test of that I would reach that conclusion.

M: Now what happens if we assume some nation has the nuclear weapons or weapons of mass destruction and following the invasion we find out we don’t have them? What’s the procedure to punish such a nation that’s gone to war?

F: We say, “Ooops, I’m sorry about that, kid.” And to those who were killed, and to their survivors you say, “Well, we meant well, but it didn’t work out as we expected.”

M: Alright so in your words the US repudiated International Criminal Court.

F: Well that they have certainly done. We are in the process now of creating a worldwide international legal criminal system. I’ve been working on that for 60 years. And we only recently, as a matter of fact, on March 11, 2002, I was in The Hague when we swore in the judges and shortly after that the prosecutor for the new international criminal court, which ahs been accepted by all the NATO allies of the US; has been accepted by over 90 nations, and the court is beginning to function. They don’t have a defendant yet, they have just started to work a few months ago. They can only deal with crimes after July 1, 2002. But the US has been violently opposed to that court under this administration. The previous administrations supported the idea of such a court and the fact that he US opposes it and is threatening to kill this infant in its cradle causes great concern to me.

M: If the US opposes the international criminal court and has taken action that you consider a violation of international law, does that make us a rogue nation a nation that violates?

F: At the moment the international criminal court that we’ve set up in The Hague does not have jurisdiction to deal with the crime of aggression, which would be the issue here. And they are waiting till they get another definition of aggression which is acceptable to the Security Council. It may be some time before that happens. So in following the Nuremberg principle, the invasion of Kuwait by Iraq was a clear case of aggression the invasion by the US of Iraq I think would also qualify under the Nuremberg principles as a violation of international law.

M: Now, has the US violated it at earlier times? What about when we went into Yugoslavia as it was having its civil war?

F: We did it in Panama, we did it in Latin America, we’ve done it in other places as well and nobody’s made much of a fuss because the international legal order was still in the process of being built. And we have to encourage it to be built properly. Which means with sound judges, clearer laws, courts with clear enforcement power, and we’re getting there slowly. But it’s a very slow process because we all were born into a world of sovereign states where it was felt that the king could do no wrong. He was above the law, he was the sovereign. And we thought that with the Declaration of Independence and the Magna Carta we put an end to that, but obviously we have not yet.

M: What’s a response that a people or country can do to a dictator who is abusing his own citizens? Is there any recourse?

F: These are crimes against humanity. If that tyrant can be arrested and brought before a court, the court in The Hague now, the international criminal court newly established, has a whole list of crimes against humanity and war crimes which are punishable offenses by that court and if they – this came up in the case of Pinochet who was arrested in England as you know for crimes committed while he was the dictator – and so we are again moving in that direction. And there are the beginnings if such courts, we’ve got to encourage the strengthening of such courts rather than the sabotaging of those courts, which is happening now.

M: Ok, so you can arrest this, but you go into a nation like Chile – they caught Pinochet in England – but suppose you have a dictator that doesn’t leave his country and yet brutalizes his people to the degree that the world is aware of that. Can the UN Marshall put pressure on him or even bring in an international group to do something if he doesn’t leave his country?

F: The UN does not have its own military force, it is dependant upon contributions from member states. But they did pass a resolution after the Iraqi invasion of Kuwait calling upon all nations to use all necessary means to expel the aggressor from Kuwait and to restore peace in the area. In my opinion as a lawyer, I would say that phrase was sufficiently broad to authorize the invading forces to proceed to Baghdad and arrest the man who was disturbing the peace in the area. And that’s what they should have done 12 years ago. Unfortunately, they didn’t do that. The then President Bush, father of this president, felt that his authorization was not that specific from the Security Council and why should he continue to kill people and proceed. I wrote a long article at that time, a law review article, saying that there was a mistake that Saddam Hussein would continue to thumb his nose at the world community until he was arrested. So the justification for proceeding into Iraq again should have been not to declare war on Iraq – because that’s illegal – we have no basis for that. But, to say you are going in to arrest a criminal and those who block the arrest become accomplices and accessories to the crime – that would have given us a legal justification which unfortunately we didn’t do because the feeling of some of the people in the Pentagon was who needs law, we’ll go ahead and grab him. And now we got him and they don’t know what to do with him.

M: Now, there was a justification because he had violated the sovereignty of another nation – Kuwait – but suppose he didn’t do that?

F: Well of course he’d done everything else, crimes against humanity, against his own population, he was using poison gas against the Kurds, war crimes, when they entered Kuwait, rape, pillage everywhere. This guy has committed every crime in the book. If I had him in Nuremberg, it would take me two days to nail him on the evidence that I saw presented in the UN at that time, about the poison gas etc.

M: Ok, but if his crimes are just directed against his own people, what is the world allowed to do?

F: The world has changed, my friend. There was a time you could do that and get away with it. Not after Nuremberg, you couldn’t. Genocide is an international crime. No nation, no person has a sovereign right to commit genocide and crimes against humanity against anybody and that’s what we developed in the subsequent Nuremberg trials after the trial against Goering, and that is generally accepted today so that the man saying, “Well, I’m killing my own people, it’s none of your business,” that’s what Adolf Hitler might have gotten away with before we went to war – they can’t get away with it anymore today, I hope.

M: Ok, because there is some concern that people say that – no problem with the invasion, but the violation is within one’s own border and you think, that doesn’t hold anymore because people remember that Hitler was brought to justice, not for what he did to the Jews in Germany, but what he did to the Jews in Poland.

F: That’s correct. But that also changed. It became clear in the subsequent Nuremberg Trials that even crimes committed without a war, crimes against humanity, are punishable. The right of a sovereign to abuse his own citizens disappeared and it began with the Declaration of Independence in the US. It was a big step forward at that point.

M: Is going to war without the approval of the Security Council, as the US did in Yugoslavia and also in Iraq, is that a crime?

F: Yes, it is a crime. It’s a crime of aggression, a crime against peace. Now unfortunately, we don’t have a court competent to deal with that crime today and the result is that those who have the power exercise that power and defy the law. In the long run, I think that’s very dangerous because the law must apply equally to everyone and we say, “No it doesn’t apply to us.” This is an untenable position which even our friends don’t agree with, and we are antagonizing all of our friends, our allies by telling them that if you dare to send an American national to The Hague for any reason we will declare war on you, and we will cut off our aid to you and we will put economic sanctions against you and they say “Do you want the law to apply to everybody except you?” And we say, “Yes, because we have special responsibilities and therefore we have title to do that.” And that doesn’t sell – that doesn’t fly.

M: Alright. During the Viet Nam War and earlier times in history there were things called civilian tribunals. Would you suggest that is a way of attempting for the citizens of this country or the world to address the violations of international law of the Bush Administration?

F: The Bush Administration is not on trial at the moment. And I doubt if they will be. But if you’re going to have that kind of a factual situation as we have in Iraq, I think the first trial should be a trial which is absolutely fair and should include all the principle perpetrators and planners if the crimes which occurred. There may be other trials of a lesser nature as there was in Germany, the denazification proceedings as there are now in Rwanda, but they have 100,000 people and they can’t possibly try them within the next 20 years unless they have an accelerated process and so we would have to do that. In Country A – I don’t like to characterize a specific country because then the emotions get involved – but if the leaders of Country A decide they want to attack Country B, illegally, they should be put on trial. If they are supported by a massive crime by thousands of people you can’t possibly have international trial - for that you may have to look to local trials.

M: Let me hear that again. If one breaks international law by invading another country those leaders that do that should be put on trial. Does George Bush satisfy that?

F: I don’t want to answer that because everybody’s presumed to be innocent until found guilty, including Saddam Hussein, including Hermann Goering. They are entitled to a fair trial, state their defenses and be judged by a fair jury or judges.

M: I’m speaking with Benjamin F., a prosecutor at the Nuremberg Trials for Nazi was crimes after WWII. What is your suggestion for the people of this country who are in opposition to what the government is…

F: We had a very good formula from the president himself – regime change – but the regime change should be in Washington. I don’t think there is any possibility of persuading those who hold the reins of power on Washington that what they are doing is wrong or illegal. They believe that force will prevail and anybody who believes to the contrary is naïve, is idealistic, and I don’t think there is anything we could say to change their way of thinking. Therefore, this being a great democracy, we should vote for other people who believe in the rule of law and are ready to be bound by it. Then I hope it will move forward to a more peaceful and humane world than the one we have today.

M: Is anybody in the mainstream media picking up this story or are they all going on to congratulate the president because the capture of Saddam Hussein made the whole thing worth while?

F: Mostly they are going on to applaud the president. This is a very patriotic and loyal country. They respect the commander-in-chief and they will rally to his cause no matter what it is. So we are now going through that but I hope that when this enthusiasm dies down a bit and people begin to look at the facts and ask themselves was all this really necessary, wasn’t there a better way of doing this? And if there isn’t a better way, can’t we build a better way, can’t we start working at a more peaceful way of settling our differences rather than a more violent way, and when they reach that conclusion, then perhaps they’ll vote other people into power who have different policies.

M: There are some in this country who are attempting to impeach the president for high crimes and misdemeanors. What’s your response to that? Are there grounds for impeachment?

F: Anybody can accuse anybody of anything in this country and you can usually find a lawyer who’ll represent any cause even on a contingent fee, but the fact that there is an accusation doesn’t mean that he’s guilty and the people have a right to defend themselves. And you know we indict and try to impeach presidents for all kinds of causes as Mr. Clinton will tell you.

M: Right, but the situation now is a little different, we’re not talking about an individual’s personal behavior, we’re talking about someone bringing us to war, causing casualties, both to our own troops and to the rest of the world and if he has done this in violation, are these not grounds for bringing charges against the president? Are they grounds for it, I’m not saying he’s guilty, but are there grounds for developing an attempt to impeach him?

F: Well, as I’ve told you, there are international lawyers who hold a different point of view, and an impeachment proceeding would be an opportunity to test the law on this subject and to see what should apply in a fair way under these circumstances.

M: Ok, Now what about Saddam Hussein and the trials that await him. Is that something that the US should be the main participant in or should that be an international court...?

F: I think the US should lay low on that as much as possible. They already hate is enough in that country, we don’t have to give them grounds for more. Should the US be the moving party, the visible moving party on this, I think we will generate more opposition and more determination on the part of the Muslim world as well as the Iraqi defendants and their supporters in the country. I think at the present circumstances, the Iraqi provisional government has already drafted the statutes for a local Iraqi court to try was criminals. The statute is not bad, it provides for all Iraqi judges and is very vague about the prosecutors, staff and the rest of the staff which indicates to me that they would be amenable – and they should be because I don’t know whether they can really run such a trial – it’s a complicated business – to accept assistance from international legal experts to assist the prosecutors and the defense and the administration of such a tribunal. If they’re able to do that, then they would be in a position of a country able and willing to try the perpetrator of their own nationality and even under the principles for the new international criminal court they would be given priority to try their own defendants.

M: I’ve been speaking with Benjamin Ferencz, prosecutor at the Nuremberg Trials for Nazi war crimes after WWII. We’re talking about a war in Iraq and international law. I want to thank you for being available, Ben.

F: I hope this will lead to a more peaceful and humane world.

M: Me too, have a nice swim. Take care.