The Making of a Prosecutor

Benjamin B. Ferencz

As tensions between the U.S. and its former ally the USSR mounted, there was increased pressure to find evidence in the official Berlin archives to help convict the important German leaders awaiting or on trial in the Nuremberg courthouse. German doctors accused of barbaric medical experiments and euthanasia were denying all charges. Prosecutors needed overwhelming evidence to prove that industrialists were responsible for the seizure of foreign assets and the inhumanities committed against slave laborers. Ministry of Justice leaders were being charged with abusing their offices by persecuting, executing, or imprisoning political opponents. Generals and high-ranking SS officers faced accusations of responsibility for war crimes and crimes against humanity. Diplomats who paved the way for Hitler’s wars of aggression were called to account. Almost without exception, all defendants responded to the Nuremberg charges with the standard reply: “Not guilty!” There could be no convictions without proof of guilt beyond reasonable doubt. The dozens of researchers methodically combing the ruins of Berlin knew that documentary evidence was vital if justice was to be done.*

It must have been the spring of 1947 when one of our many diligent researchers, Fred Burin, burst excitedly into my office. He had come upon some German files while searching through a Foreign Ministry annex located near the Tempelhof airport. He had found a nearly complete set of secret reports that had been sent by the Gestapo office in Berlin to perhaps a hundred top officials of the Nazi regime. Many Generals were on the distribution list, along with high-ranking leaders of the Third Reich. The recipients were among those very many Germans who always denied any knowledge of Nazi criminality.

The reports described the daily activities of special SS units bearing nondescriptly called “Einsatzgruppen”—roughly translated as “Special Action Groups.” They were organized in four units ranging from about 500 to 800 men each. Their secret reports bore an innocuous title, which translated as “Report of Events in the Soviet Union.” The Einsatzgruppen (EG) Reports covered a period of about two years, starting immediately following the Wehrmacht’s assault against the Soviet Union on June 22, 1941. The EG Commanders reported in meticulous detail how many innocent civilians they had deliberately killed as part of Hitler’s “total war.” All Jews and Gypsies were marked for extermination, together with others who might be perceived as enemies or potential enemies of the Reich. On a little adding machine, I added up the numbers murdered. When I passed the figure of one million, I stopped adding. That was quite enough for me. I grabbed the next plane down to Nuremberg to report the findings to General Telford Taylor.

Taylor, as Chief of Counsel, recognized the importance of the evidence, but he faced an administrative problem. The program for a limited number of prosecutions had been fixed and approved by the Pentagon. Public support for German war crimes trials was on the wane. The prospect of getting additional appropriations for more lawyers or trials was bleak. I countered that we had in our hands clear cut evidence of genocide on a massive scale and a trial of the leading criminals could be completed quickly. It would be unforgivable if we allowed the perpetrators to escape justice. In desperation, I suggested that if no one else was available, I could do the job myself. He asked if I could handle it in addition to my other responsibilities. I assured him that I could. “OK,” he said. “You’ve got it.” And so I became the Chief Prosecutor in what was certain to be the biggest murder trial in human history. I was 27 years old, and it was my first case. I had no idea it would make history.

As soon as General Taylor agreed that Einsatzgruppen commanders should be prosecuted, I began the move from Berlin to Nuremberg. My wife stayed behind to close out the house and await news that new quarters had been found. Lt. Col. Bill Wuest agreed to take charge of administration and call me if he ran into any trouble. In May 1947, we moved to Nuremberg where we found a small house that had been requisitioned by the army. My rank entitled me to a much grander residence, but the home in Fuerth bordered on a large meadow with the River Pegnitz flowing in the background and the little villa had a very neat garden where I learned all I needed to know about gardening. The plot was tended by an old German gardener named Ludwig who spoke with an unintelligible Bavarian dialect. It was only fair that I didn’t understand him since he could not understand me, either. Every evening Ludwig peddled up on his rusty bicycle, fetched a few cans of rainwater from an old bathtub near the potting shed, and sprinkled the little seeds that he had stuck into the ground. To a boy raised on the sidewalks of New York, the end product looked like a miracle.

Under Ludwig’s tender ministrations, there soon appeared neat rows of every conceivable vegetable. Our deal was that we could take whatever we needed and Ludwig could keep the rest. I tried to cut out the middleman by planting some tomato seeds and some lettuce seeds around a tree that Ludwig watered regularly. I’m not crazy about broccoli, spinach, and stuff like that, but I figured that a little lettuce and tomato is a good thing to add to a cheese sandwich. When Ludwig noticed the sprouting of little green sprigs that were the sole product of my labors, he smiled. He somehow made clear that it wasn’t going to work. He was quite right. The most important thing I learned was that, in times of adversity, what Ludwig knew about gardening was more useful than anything I had learned at Harvard. I concluded that I had better stick to the law.

*Ossip Flectheim was one of the scholars in the Berlin Branch. Like many other staffers, he was a refugee from Nazi Germany. He was assigned to a team scouring the files of the German Foreign Ministry. Ossip was studious, diligent, and well-informed, but I noticed that he was falling behind in his work. I suspected that he was also working on something else. I decided to shut my eyes and say nothing. The wisdom of my decision became apparent years later. After the Nuremberg trials were over, Flechtheim remained in Berlin and became a very respected Professor at the Free University. I was a frequent guest at his home in Dahlem. On his bookshelf, I noted a copy of his Ph.D. thesis dealing with the history of political life in Germany. I remarked that I was pleased to see that his work at the Berlin Branch had been so productive. “I didn’t think you knew,” he said, as we both laughed. He inscribed one of his books on world peace to me. I guess he was grateful that I didn’t fire him. So was I. Sometimes looking away in silence is the best policy.