A Mélange of Vignettes
My law practice required me to travel regularly to Germany, Israel, England, and many other countries over a period of at least 30 years. During the course of such trips, the costs of which were equitably apportioned among the many clients served, I had a number of varied experiences and encounters which have remained in my memory, even though the time-frames may be a bit scrambled now that my brain is more than 85 years old. Since the tales do not fit neatly within the rubric of subjects previously described, I call them, for want of a more enticing description, “A Mélange of Vignettes,” which, if you’ll pardon my French, simply means a hodgepodge of short stories.
Vignette One: Vietnam War on Mock Trial
In the midst of the undeclared Vietnam war in the 1960s, many American citizens felt strongly that leaders responsible for what was frequently perceived as illegal aggression and crimes against humanity should be brought to justice in a court of law. It was a time of travail and indecision for many young people. The Nuremberg trials had ended around 1948, and the tribunals had been dissolved.
Unfortunately, there was no new International Criminal Tribunal to take its place. The legal issues revolving around the Vietnam conflict were debated but unresolved. There was an obvious gap in the existing international legal order. Politicians and diplomats seemed unable or unwilling to settle their differences by peaceful means. In England, an unofficial war crimes tribunal was created in the name of Bertrand Russell, a well- known British philosopher and liberal activist. Its declared goal was to reveal the truth. Russell, whose works I admired, was then past 90 years of age, and I was rather skeptical about his personal involvement in such an enterprise. I decided to check it out before responding to their requests for my help.
On my next trip to London, in 1967, I located the small seedy Russell office and asked for more information. Propaganda leaflets, extolling the Soviet Union, were neatly stacked on shelves. On the wall, I noticed a schedule (pronounced shed-yule) of marches that were to erupt spontaneously in various cities to protest against the Vietnam war. Berlin was on the list on a date that I expected to be in that city. Sure enough, on the appointed day, I could see from the balcony of my hotel facing the Kurfurstendam that crowds of young people were gathering, waving anti-war placards. It made me feel right at home. I went down to get a better view. No sooner had they started to march and shout than a number of police and fire trucks appeared and began spraying the protesters with powerful bursts of cold water. I ducked into a doorway to avoid being soaked. It was like a great game with young marchers dashing behind the police vehicles to avoid further immersion. Most of them had only a very vague idea about the issues involved or how the event had been pre-planned. The young people did not realize that they were being manipulated. Soon, the crowd of rioters dispersed, but not before press and media had photographs showing the people of Germany in a “spontaneous uprising” against U.S. aggression. It would have been appropriate to conclude that the rioters were all wet.
The mock trial conducted by the Russell Tribunal remained a mockery. Of course, none of the accused appeared in court. It was a one-sided anti-American show. What a pity that the world community had not yet created an international legal forum that could examine the facts objectively and render respected judgments to uphold the rule of law. I tried to analyze and present the issues objectively in a law review article, “War Crimes Law and the Vietnam War.” (American University, 1968) It appealed for an international tribunal that would have made such mock trials and protest marches unnecessary, and would perhaps have diminished some of the agony that tore America apart.
Following the My Lai massacre by American soldiers in Vietnam, I wrote another article that advocated “Compensating Victims of the Crimes of War” (Virginia Journal of International Law, 1972). Years later, I arranged to meet Hugh Thompson, “The Forgotten Hero of My Lai,” who was the Warrant Officer who rescued Vietnamese civilians in danger of being slaughtered by William Calley, the American Lieutenant subsequently convicted by a U.S. military court for his war crimes. When I first heard the Hugh Thompson story, in a book by Seymour Hersch, I wanted to pin a medal on Thompson for his humanity and heroism in standing up to a higher ranking officer who was violating the rules of war. Unfortunately, Thompson told me, when I met him in New Rochelle years later, that he had never met Seymour Hersch and the book My Lai, written by Hirsch, was full of fabrications and exaggerations. I was pleased to learn, that after much political pressure, Thompson received the Soldier’s Medal for Bravery. It was appropriately awarded at a ceremony at the Vietnam Wall in Washington in March 1998.
Vignette Two: Priests on Trial in Hawaii
When I was a very young man, I loved to listen to the twanging sound of music played on the Hawaiian guitar. I even took some lessons on that instrument which my mother bought for me in a pawnshop. Since I never had the patience to practice, my playing was so bad and the assault on my ears so unbearable, that I soon gave up in self-defense. Nevertheless, I still retained warm images of beautiful native girls, clad in garlands of flowers, dancing the hula-hula while swaying gently on the sunny beaches of Waikiki. Obviously, I had never actually been to Hawaii. In the summer of 1972, I was very pleasantly surprised to receive a telegram inviting me to come to Honolulu to serve as an attorney on a very urgent and important legal matter. I immediately accepted. My wife said she would accompany me.
When our plane touched down at Honolulu airport, I expected to be greeted by music and song. Instead of native girls with flowery leis around their necks, I was greeted by three Jesuit priests in black cassocks and white collars. They explained that they would have to appear in U.S. Federal Court the very next day to answer criminal charges that they had illegally entered U.S. government premises and destroyed and damaged U.S. government property. The accused priests expected me to plead “the Nuremberg Defense” which, they believed, justified their actions. As a protest against the war, they somehow thought that breaking into the U.S. Air Force air base and pouring something resembling blood all over file cabinets, would prevent continuing aggression and war crimes in Vietnam. They could call, as character witnesses, two Fathers who were actually brothers. The well known Berrigan brothers, who were Catholic priests, had spent time in jail for similar protests. My Fathers, who were not my brothers but my clients, apologized that they could only pay for my personal travel expenses, and that I would have their blessings instead of cash. I promised to do my best. After all, I had learned from my Grandpa that blessings can sometimes be converted into money.
Early the next morning, and for about five days thereafter, I sat in the Federal Courthouse listening to the Prosecutors and witnesses describe the dastardly crimes of my gentle clients. When my turn came, I pulled myself up to my full five-foot almost two inches and, in an address worthy of Demosthenes, I compared the defendants to good Samaritans who, on passing a house in flames, must break down the door to rescue the children cowering on the roof. Surely they lacked any criminal intent, and could not be convicted of a federal crime! The crowd cheered. The Judge sneered. The defendants were so moved that they asked me to cool it. They warned that if I carried on that way, they might be acquitted! They made plain that they really wanted to be sent to jail. I didn’t know whether they wanted to be martyrs or to make me one. The Judge heard their prayers. He ignored my arguments. The defendants were all convicted. I didn’t wait for the sentencing but got out of town without seeing anything of Hawaii. I didn’t file an appeal. I’m sure my clients blessed me.
Vignette Three: Cracking a Safe in Frankfurt
No one would suspect that once I had been a safe-cracker. Yet, it came about that one of my wealthier clients, who had managed to get out of Germany with much of his fortune intact, had kept a safe-deposit box in a Frankfurt bank. When my client died, the bank sent notice to the heirs that the annual fee for the box had not been paid. That was the first inclination the heirs had that their father ever possessed such a repository. I promised that, on my next Frankfurt trip, I would look into the matter. When I did, I learned that I could look into the matter but not into the box. The bank officers had a key, but it would only work in conjunction with the key held by the depositor. We knew where the depositor was buried but not where he had buried the key. No one had any idea about what he might have stashed away in the box. To unlock the secret, as well as the box, a professional safe-cracker was needed. He worked by appointment only.
In the midst of the next meeting in Frankfurt of the URO Board of Directors, in 1978, I suddenly rose and asked to be excused. I explained, in my usual serious and truthful manner, that I had an appointment to crack open a safe at the nearby bank. They assumed it was one of my usual bad jokes. When I rushed to the bank for the heist, the gang was waiting. Two bank officers stood inside the vault. The locks to hundreds of boxes lined the walls. A short man, armed with a long drill, mounted a tall ladder to reach the top row. As he began to cut away the lock, we all speculated about the possible contents. Balancing himself carefully, he used both hands to slowly withdraw a long metal drawer from the wall. He paused, shook the box, and declared, in German, “It’s not empty!” When the box was opened, the birds began to sing. The box contained nothing but gold coins of various denominations, a heavy gold bracelet and some diamonds. It was not unusual for those who had become refugees to anticipate the possibility of sudden flight. Stashing away some assets that could be easily transported was a form of life insurance. The witnesses certified the contents, and I arranged to have the bank convert the gold into cash and ship the rest to the heirs in the United States. No charge. I wonder if the URO Board ever believed my story.
Vignette Four: Friends Who Have Made a Difference
From personal observation of dreamers I have had the privilege to know, I learned that very often, the dedication and vision of one individual can make a difference in the world. Fortunately, such individuals do not seem discouraged by awareness that full appreciation may not come until after they are dead. Most visionaries fail to gain recognition during their lifetime. If they get any credit thereafter is a question beyond my competence or comprehension. Many dedicated individuals who come together in a common cause form enduring friendships that last as long as they live. So it was with many fine persons I encountered in the search for a world of peace and humanity under law.
The Universal Declaration of Human Rights, adopted by the United Nations in 1948, recognizes the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice, and peace in the world. These aspirations were articulated by Rene Cassin, a Jewish lawyer who had fled from Paris with General DeGaulle before the German armies occupied France. Cassin was awarded a Nobel Peace Prize, even though many of his ideals remained unfulfilled during his lifetime. While on one of my European trips in the 1970s, I stopped at the beautiful old city of Strasbourg to meet with Cassin at a Human Rights Institute created there in his honor. He had the appearance of a patriarch, yet his manner was warm and friendly. His quiet demeanor concealed the fact that he was, to large extent, responsible for the beginning of a revolution. The rights of human beings anywhere became the legitimate concern of people everywhere.
Rafael Lemkin was a poor Polish Jewish lawyer who lost his entire family in the Holocaust. He coined the word “Genocide.” Without any official mandate, he stalked the halls of Nuremberg trying to get the Prosecutors to charge that genocide was an international crime. The word did not appear in either the Charter of the International Military Tribunal or the Charter for the Subsequent trials. But I used the term in my opening statement in the Einsatzgruppen Case. Justice Robert Jackson had done the same at the trial before the International Militarty Tribunal. Lemkin pursued his goal at the United Nations, and played a key role in drafting the Genocide Convention. Today, everyone knows what genocide means and condemns it as a most atrocious crime. The fact that it took the U.S. Senate forty years to ratify the Genocide Convention is a stain on the history of the United States.
Nations that had historically been at each other’s throats for centuries formed a European Union, with a Convention on Human Rights that was accepted by all members. A Court of Human Rights was established in Strasbourg to judge whether the treaty had been violated. Like all new international institutions, it developed slowly and cautiously, and its decisions avoided major political confrontations. The remarkable fact about the Human Rights Court is that it exists. I often met members of the Strasbourg court at the Max Planck Institute for Public International Law located in Heidelberg. Most of them were dedicated visionaries who recognized that they were part of a much larger evolutionary movement toward a more humane world order. They were a living example of the progress that was being made toward fulfillment of the Universal Declaration of Human Rights. Today, universities all over the world teach about humanitarian law and human rights; not too long ago, such courses were unheard of and non-existent.
Soon after I began to seek compensation from German firms for the abuse of their slave laborers, I received a letter from a young man named Thomas Buergenthal, who was born in Slovenia in 1934. He wrote that he had been imprisoned by the Nazis as a child and forced to work under inhumane circumstances for the Heinkel aircraft company in the Sachsenhausen concentration camp near Berlin. He wondered if he would be entitled to compensation. The German Supreme Court had ruled in favor of the German companies and there was little I could do to help him. We remained in contact and, in due course, Tom settled in the U.S., acquired law degrees from New York University and Harvard, and began what was to become an outstanding legal career.
In 1972, I lectured to Professor Buergenthal’s class at the New York School of Law in Buffalo. The last time I had been in Buffalo was in 1938, when, at the age of 18, I was arrested by the railroad police for arriving there sitting on a pile of gravel on a freight train. I was released with a warning when I persuaded the cops that I only intended to visit the nearby Niagara Falls but couldn’t afford the train fare. I don’t recall if I told the law class about my illegal escapades. We certainly talked about Nuremberg and crimes against humanity, a subject in which Buergenthal became a renowned expert.
The Buergenthal family had been victims of persecution by the Hitler regime, and Tom was particularly sensitive to the need for protecting human rights. In 1979, he became President of the Inter-American Court of Human Rights and the American Society of International Law. He continued teaching at various universities, and wrote numerous books and articles dealing with the subject. He played a leading role on countless Boards, Committees, Associations, and Foundations seeking to create a more humane legal order. In all of them, he was held in the highest regard, and earned many awards.
In 2002, the United Nations elected Tom Burgenthal to its highest judicial office—the International Court of Justice in The Hague. In 2003, we met in his chambers overlooking the gardens of the Palace of Justice, and reminisced about how our paths had intertwined over the years. We both were pleased to attend the formal swearing-in ceremonies of the Judges for the new International Criminal Court. No official of the United States Government was present. The administration in Washington was showing its opposition to any international tribunal that did not guarantee immunity for U.S. citizens. The International Criminal Court was a permanent institution designed to deter and punish major atrocities against humankind. The absence of any U.S. government representative was another stain on the history of the United States.
Vignette Five: Peace Advocates Unite
Around 1971, I was invited to a three-day conference on an estate known as “Wingspread” in Racine, Wisconsin. The house had been designed by the famous architect Frank Lloyd Wright. It had been owned by the philanthropic Johnson family that acquired great wealth by selling wax. I was pleased to realize that every time I shined my shoes with Johnson polish I was contributing to the family fortune. The conference, and several similar gatherings in later years, was organized by Robert Woetzel, who had co-authored a book dealing with the feasibility of an international criminal court. He managed to bring together more than a dozen noted international legal experts. Professor Louis Sohn of Harvard was the Chair. His book, World Peace Through World Law, was a classic. We met often at meetings of the American Society for International Law, where he was elected President. Sohn was an outstanding legal scholar who later wrote introductions to four of my books written between 1975 and 1991. We remained friends until his death in 2006, after a long and terrible bout with Alzheimer's disease that drained his gifted mind.
Another participant in the Wingspread meeting, and similar meetings that followed, was a lawyer from Trinidad and Tobago known as A.N.R. Robinson. Since his initials stood for August Napoleon Raymond, we agreed that I could call him “Ray.” He had studied at Oxford and Harvard, and was a very handsome and articulate man. He later became Prime Minister and then President of Trinidad. While in office, he had been shot in the knees by drug traffickers. He called on the General Assembly of the UN to move forward with creating the International Criminal Court, hoping it could end the prevailing impunity of organized criminal gangs who were stronger than national law enforcement authorities. For his important role in advancing the international court, he was deservedly honored. When he was about to leave office in 1999, it was my privilege to pay homage to this unsung hero at his formal farewell dinner in Trinidad. We remain friends to this day.
Professor Ved Nanda of Denver Law School was another Wingspread pioneer. In 1979, I invited him and Professor Otto Triffterer, then teaching in Germany, to join in a panel discussion in Madrid. Otto failed to show. Fortunately, Ved had brought one of his bright students with him. I asked her to serve as a substitute. Although she was a stand-in, I invited her to sit down. She did such a good job that Ved and Kathy were soon wed. They sent me photos of their colorful nuptial celebration in India. I was delighted to visit them in Denver on several occasions, and to observe the growth of their beautiful daughter, Angeli. In 1984, Nanda, Triffterer, and I were among a large group invited to Siracusa in Sicily for a week-long conference organized by the prolific Professor Cherif Bassiouni of De Paul University. When the El Italia plane touched down, we were informed that, regrettably, all the passengers' luggage had departed for some distant and unknown land. Since I only travel with a carry-on suitcase, I promptly prepared a package of shorts and shirt for my short friend Ved. Years later, when I was invited to Denver to lecture to his class, he introduced me as “a man who would give you the shirt off his back.”
Professor Triffterer became my friend for another reason. As relaxation in Siracusa, Cherif organized a game of volley ball. Coming from De Paul University in Chicago, the astute Bassiouni had invited the burly Chicago Chief of Police to the crime conference. He also picked the Chief for the Bassiouni team. I was an expert on the criminal court not the volleyball court, so I stayed out of the game—much to everyone’s relief. Otto should have followed my example. No sooner had he hit the field than he was hit by the Police Chief. Otto hit the ground. I am not sure whether his leg or only his ankle was broken, but I remember pushing his wheelchair when we traveled back to Germany together. When Triffterer became Dean of the Law School in Salzburg, Austria, he arranged summer seminars on international criminal law. I was pleased to be a regular lecturer for my old friend.
A more unusual friendship grew out of correspondence with Dr. Alfred Bauer, a pediatrician and obstetrician from Seattle, Washington. Bauer wrote to me that he required all his patients to read my book Planethood if they were interested in the future health of their babies. He sent me a number of his own publications calling for a more rational world order. When I was lecturing at the University of Arizona at Tempe, we arranged to meet. At breakfast, he explained that he had served in the German army during World War II and he felt so guilty and distressed about what had happened to his country under Hitler that he married a Dutch girl, and they emigrated to the United States.
One of the classes I was to address that morning was a class in psychology. I persuaded the reluctant Alfred to join me. I suggested we explore why we would have killed each other on sight during the war, and what had caused our changes of mind and heart so that now we shared the same goals. The students were spellbound. Bauer compared German Field Marshal von Moltke’s faith in the law of force with the opposite reasoning of Professor Johann Kaspar Bluntschli of Heidelberg, who believed that humankind could only be saved by the force of law. Alfred was quite impressed that I was familiar with those contrasting views, particularly since his support of the Bluntschli position had gotten him into trouble with his Prussian teachers.
Dr. Bauer informed me that he had just retired from his practice of medicine. He objected to the governmental bureaucracy that made it difficult for doctors to give patients the treatment and time they deserved. He considered it the duty of a citizen to protest against misguided governmental actions. He was convinced that advancing the law of peace was the best way to save human life.
Not long thereafter, I was lecturing in Seattle and Dr. Bauer invited my wife and I to join him and his wife at his home for dinner. He showed us a beautiful family album that he had assembled. As he slowly turned the pages, I spotted the photo of a soldier in SS uniform. He noticed my raised eyebrow. He explained that it was his brother, who had died on the Russian front. He went on to elaborate. Their father was a loyal German, veteran of the First World War, who accepted the Nazi doctrine. He was disappointed when his sons failed to respond when the Nazi recruiting officer visited their town. The boys didn’t want to make their father unhappy so, the following day, they ran to the next town to sign on. Alfred landed in the Medical corps, his brother in the SS. Alfred seemed ashamed and apologetic.
As a Prosecutor of leading Nazi criminals, my biggest disappointment was the total absence of any remorse on the part of mass murderers. The only Germans I ever met who expressed any regret were those who had done nothing to be ashamed of. Alfred died shortly after our visit. He had sent me a roll of a thousand stick-on labels saying, “International Law, International Courts, International Enforcement, for the Planethood Age.” I pasted one on each of my outgoing letters for years, and have only a few left as a memento. His wife sent me tapes of the very dignified funeral service. She also told me that her late husband had been very touched when I gave him one of my books, inscribed, “From your friend Ben.” She said he cherished the inscription as though it were an absolution. I was proud to call him my friend.