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Ending War as Instrument

Fall 2015 Tête À Tête

Ending War as Instrument

Ending War as InstrumentOne of the founding fathers of modern international criminal justice holds court with GB

GB: What was the Einsatzgruppen trial at Nuremberg about?

BF: During the course of WW2, the US army recognized my talent as a Harvard law graduate who had done research for a professor on a book about war crimes. I knew everything about war crimes, so they made me a private in the artillery. It was in that capacity that I landed on the beaches of Normandy. I fought in every battle until the final Battle of the Bulge.

As we approached Germany, we began receiving reports of major crimes. President Roosevelt, together with Stalin and Churchill, announced that there were going to be war crimes trials. Of course, the US army knew nothing about war crimes trials. It knew about conduct unbecoming an officer and a gentleman, and about desertion, but it had never heard about crimes against humanity, or indeed about aggression as a crime.

One day I was told to report to General Patton’s headquarters. I was sent to the judge advocate section, where I met a colonel who told me that my name had been forwarded to him from Washington, and that there had been an order to set up a war crimes branch.

I believe that I was the first man in the US army to deal with war crimes. This was still a long time before the Einsatzgruppen came along.

When the war ended, I went home. I did not want to have any part of Germany at all, as my assignment had involved going into the concentration camps as they were being liberated and collecting evidence before it was destroyed. We got to Buchenwald and then a whole stream of other camps as the army advanced. My job was to get into my jeep, head for the area, and find the tank commander in charge.

I would say to the commander: “I need 10 men immediately. Surround the office. Nobody gets in or out without my permission.” We would go in and seize the documents that were there, including the death registers indicating how many transports had arrived and from where, how many people were killed, the reasons for the deaths, and so on. We assembled page after page of people who had been murdered. We found out, through the documentation, who was the commander of each camp, and who else worked there.

The SS, for their part, were fleeing the camps, and the inmates were chasing after them – that is, those inmates who could still move, including the many Russian and French prisoners.

This was total chaos – disease, rats everywhere, dysentery, diarrhea. Get in, get your evidence, get out of there, and move on to the next camp. That was the atmosphere.

That was the war. I did not know anything about the Einsatzgruppen, and had never heard of them. After the war, I received a telegram from the Pentagon. I went to Washington, where I was interviewed by a colonel by the name of Mickey Marcus, who later became famous because he was promoted to general. He eventually joined the Israeli army and was killed by a sentry because he did not know the password.

Marcus wanted to hire me to go back to Germany. In Washington, I was intercepted by Colonel Telford Taylor (future professor of law at Columbia and also at Yeshiva University in New York). He had been assigned by Justice Robert Jackson and President Truman to head up a number of subsequent trials against a broad spectrum of German society to try to answer the question: why did all of these civilized people get involved in all of these mass murders?

We ended up planning trials for the doctors who performed medical experiments, the industrialists who were working people to death, the lawyers and judges who were perverting the law by sentencing people to death, the diplomats who were lying all around the world about what Germany was doing, the SS – of course – and also for the generals who participated in these mass murders. In total, we planned 12 new trials.

My first assignment – now back in Germany – was to collect evidence for these 12 trials, because if you have the suspects and you have no evidence, then you have nothing. If you have the evidence and you do not have the suspects in custody, then you also have nothing.

The job required me to know who the suspects were, organize about 50 researchers to go into the rarest German archives, the foreign ministry, the SS, the Gestapo, and so on, and to see what evidence we could extract to use in court to convict suspects of specific, known international crimes.

One of my researchers came in and, holding a stack of big loose leaf folders, said: “Look what I found.” Those were the daily ‘Reports from the Eastern Front’ – a very innocuous appellation. The reports were daily chronicles sent from the front, back to Gestapo headquarters in Berlin. These dispatches were assembled and bound at headquarters. Ninety-nine copies were then circulated to various other branches of the German government.

The daily reports detailed how many Jews had been murdered by the Einsatzgruppen – German death squads that went from city to city, and town to town, across the western part of the Soviet Union. The reports never used the word ‘murdered,’ but rather euphemisms like ‘eliminated,’ ‘disposed of,’ ‘evacuated,’ and ‘moved.’ Each daily report specified the name of the officer in charge, the place and time of the killings, the body count, and the names of those who transmitted and also received the report.

I took a few of these reports and flew down from Berlin to Nuremberg. In Nuremberg, I said to Taylor that we had to put on a new trial. Taylor reluctantly agreed – as the Pentagon had already fixed the number of trials, the budgets and lawyers assigned – on the condition that I take responsibility for the conduct of this trial.

So I became the chief prosecutor in what was called the Einsatzgruppen case. It was, in fact, the biggest murder trial in human history. I could prove and I charged 22 defendants, selected by me on the basis of their education and rank, with the murder in cold blood of more than a million people. I rested my case without calling a single witness, because witness testimony is fallible and I did not need fallible testimony. Instead, I had the best testimony available – top-secret contemporaneous documents (the daily reports from the eastern front). I convicted all of them. Thirteen of them were sentenced to death.

That was my first case. I was 27 years old.

GB: What was the mentality of the Einsatzgruppen perpetrators?

BF: Everyone said that he was working on the orders of superiors – that is, that if he had not done it, he would have been shot.

Of course, that is absolute nonsense, because no German was required to commit an illegal act. He carried in his soldier’s book instructions to the effect that you obey legal orders and do not obey illegal orders.

Then, of course, there was the alibi excuse: I was not even there; or I had never heard of such a thing; or they kept it a secret from me.

Let me note the defence of Doctor Otto Ohlendorf, SS general, in charge of Einsatzgruppe D. The reports indicated that Einsatzgruppe D had killed a total of 90,000 Jews. When confronted with the question, “Were 90,000 Jews killed under your command in this Einsatzgruppe?” Ohlendorf answered: “I don’t know.”

“What do you mean you don’t know? It’s your report, isn’t it?”

“Oh, yes, that’s my report.” But he also said, “The men sometimes exaggerated the body count.”

What does that tell you? They were bragging about how many they had killed. So did they kill maybe 60,000, 70,000, or perhaps 80,000?

“That could be,” said Ohlendorf.

And why did they kill all these people?

“It was self-defence,” said Ohlendorf.

“Self-defence?” I replied. “Nobody attacked Germany. Germany attacked Poland and France and Belgium and Holland and Sweden and Denmark and the Soviet Union. Nobody attacked Germany. Where do you come off with self-defence?”

“Well,” he said, “Hitler had more information than I had. He was the commander – the Fuehrer – and we were told and believed that we were going to be attacked by the Russians, and that in order to prevent such an attack we were going to be the first to strike. That is why it was self-defence. I couldn’t challenge the Fuehrer. He had all of the information. Who was I to challenge him? If they were going to attack us, we had to defend the fatherland.” “Why did you kill all of the Jews?

“Everybody knows that the Jews supported the Bolsheviks. They were the communists from the First World War, so we had to eliminate them, too.”

“Why did you kill their children?”

“If we eliminated their parents, then they too would be enemies of Germany. For us it was essential to have a long-term peace, so it was necessary to eliminate them, too.”

“And what about the gypsies? Why did you kill all of the gypsies?”

“Nobody trusts the gypsies. Everybody knows that the gypsy will play both sides of the street. So you have to eliminate them, too – in the service of the long-range security of our country. This was all necessary and justifiable and in accordance with the law.”

That defence was analyzed carefully by the three American judges in the case, led by Justice Michael Musmanno of Pittsburgh – a devout Italian Catholic who, after long deliberation, including about a week in a nearby monastery, came down with his decision. Musmanno said, in a very good and analytical lone decision, that the argument of putative self-defence, presumptive self-defence, or peremptory self-defence, is not valid. If Mr. Jones thinks that his neighbour across the street has got a gun and is going to kill him, this does not justify him going across the street to kill Mr. Jones first, and also his wife and his children. The world would be total chaos if the peremptory self-defence argument were accepted as justification for mass murder.

So there we have the mentality of the intellectual Dr. Ohlendorf – father of five children – who also purported to be more humane than his other comrades because, unlike other Einsatzgruppen commandos who simply took infants, threw them up into the air and used them for target practice, or otherwise took the infants and bashed their heads against trees to save ammunition, he never let his men engage in such practices. He would say: “I told them that they should allow the infant to remain with the mother, and then aim for the infant because the mother is hugging the infant to her chest. The bullet will pierce the baby and kill the mother at the same time. You save ammunition. It is quiet and is a better way to do it.”

When asked whether he would do it again, Ohlendorf said yes. There was no remorse whatsoever. The moral of the story is that intelligent, normal people, in a time of war, can become murderers and animals. They can become mass murderers of children. I have seen them. Most of my defendants were educated people. These were not fools, bullies or wild men from the street. Sometimes I believed that they must be crazy maniacs. Not at all. They were people who, at a social event or party, would appear to be like anyone else.

GB: Beyond the Einsatzgruppen trial, what are the lessons of the Nuremberg trials for today’s world?

BF: The lessons that they hold today must be viewed from the vantage point of what things looked like back then, what has remained since, and where we as humanity currently stand. It soon became very clear, as WW2 began, that there were massive crimes being committed. The Hague rules did not apply at all because in times of combat the soldier’s concern is clearly to not be killed by killing the other guy first.

There was a great hue and cry for justice to be done against people who were obviously mass murderers. How do you deal with that outcry for justice? After WW1, we had tried to set up a court to try the Kaiser for the crime of aggression. He attacked little Belgium and then France. Although the Germans had agreed to the Treaty of Versailles, which contained articles on such a trial, they ultimately balked and refused to do it. The Germans were ultimately allowed to try their own criminals. That turned out to be a farce, because they gave these criminals a few light sentences or they immediately escaped.

So the attempt after WW1 – a clear case of aggression against a peaceful country – did not work. There was a resulting determination to do something about this. The logical conclusion was to put alleged war criminals on trial, listen to their defence, and see whether they are guilty of committing atrocious crimes that have been condemned since biblical days; and if so, to hold them to account.

At the same time, there was the idea of creating a UN that would lay down new rules for peaceful coexistence, the settlement of disputes, and the building up of a lawful and more social international order. These two things together – the rule of law, epitomized by the Nuremberg Military Tribunal, and also the UN Charter – were the hope for the future.

Did Nuremberg deliver complete justice? Certainly not. Crimes were committed by millions of people. But this concept of bringing to justice at least the main perpetrators to show the world that certain acts are prohibited is fundamentally important. The biggest step forward from the Nuremberg trials was the condemnation of aggressive war as the supreme international crime – because all of the other crimes are committed during war.

War breeds all of the other crimes, and the Nuremberg court said that because it is a supreme international crime, we will make aggressive war-making a crime. In the past, war-making had been legal even under the statute of the Versailles Treaty and the League of Nations; that is, warfare was legitimate, provided that you gave your opponents 30 days’ notice. We changed that, or tried to change it, saying: no more; from now on, no more. You cannot go to war. The UN Charter therefore begins with: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war…”

GB: Was there a way to have stopped the Holocaust militarily or politically back then?

BF: There was no way to stop it. It had gone too far, and we did not have the mechanisms in place to stop it. The result was that the only way to stop it was to try to kill the people who were doing it – that is, to catch them or kill them. And that, of course, involved killing more people – many of whom had never harmed anybody.

GB: So the only way to stop it was to win the war?

BF: That was the only practical solution to it. Is that a good solution? It is a terrible solution, because we killed many more people than we wanted to kill in the process – people who evidently did not deserve to be killed.

GB: Is there an alternative mechanism to war-making to stop genocides?

BF: You cannot do anything until you have created the instrumentality necessary to avoid the action that you wish to prohibit. And our world does not yet have such instrumentality or equipment.

I am not boasting when I say that I believe that I am the greatest living expert on the crime of aggression. I wrote big books on aggression. I wrote hundreds of articles on aggression. The appeal was – for God’s sake – to stop aggression. That is the supreme international crime. Hold accountable the people who are committing those crimes in order to deter others from committing that crime.

Then along came some of the big powers, led by the US. The US was in favour of all of these ideas during WW2. These big powers – again, led by the US – said that we have to define what we mean by aggression. Of course, Justice Jackson certainly must have defined the crime before he accused anyone of having committing it. We are evidently not talking about jumping on someone by surprise and saying that this was a crime and that the person never knew that it was a crime. Many groups have agreed on definitions of aggression.

So who are they fooling with that kind of argument? They plainly do not want to define aggression. I have a hundred definitions for them to choose from. I am a loyal American patriot. I came to the US as a poor immigrant boy, with parents who had no money, no education, no language, and who lived in a cellar in Hell’s Kitchen in New York. I am very indebted to the US for all of the opportunities that it gave me, from Harvard Law School onward. But my country is not my country, right or wrong. When my country is right, I will support it. And when it is wrong, I will have the courage to speak up. The US has been the leader in opposing any acceptable definition of aggression or any attempt to have any American brought before an international court. This is a very serious problem. Because as long as the US is not doing it, the Russians are not doing it. And the same goes for the Chinese.

Have I fought in vain? I do not think so, because we are moving in the right direction. There has been a gradual awakening of the human conscience. I pointed this out when the International Criminal Court had its first case. I was invited by the Prosecutor to make the closing statement for the prosecution. I pointed out that my first case, at Nuremberg, was at the age of 27, and my second at 92. Today we have a court, and we have crimes against humanity. We are beginning to think of our neighbour and the need to protect everyone so that we can all live as members of one planet – to share the resources on this planet in peace and human dignity. That was the theme of a little book I wrote called Planethood.

Am I pessimistic or optimistic? I am realistic. I evidently see the difficulties, but I also see the progress. I am – truth be told – a little frightened. Not for myself, as I am in my 96th year now. But I know that we now have the capacity to kill with incredible efficiency. We can send drones from outer space and also command cyber space in ways that can kill huge numbers of people and destroy large cities. We can cut off the electrical grids on Earth so that everything is dark: nothing, from water pumps to the hospitals, would work. How long would it take for everyone to die? If we do not develop some effective controls, whereby human kindness becomes our goal, rather than the destruction of perceived enemies, what will become of the world?

GB: Should a genocide be stopped if it begets even more deaths and instability?

BF: Should the genocide be stopped?

You should, in principle, try to stop any genocide. Of course, you do not always know in advance how the intervention will work out, or what scale of intervention will ultimately be required. If you see clearly that your behaviour is going to cause more deaths than lives saved, then you should not intervene. This would be a bad bargain.

You pose the following proposition: country A is mistreating its population or our population or somebody else’s population in a terrible way. The human impulse in countries other than A is to try to stop the maltreatment. But if these countries do this and get involved in combat, they may kill more people than they save. Unfortunately, this bad result is the prevailing practice.

But should we try to intervene in general? Answer: we should always try to stop unlawful killings. The best way to do this is to change the way that people think. You must change the hearts and minds of people. They must learn to accept tolerance and compassion, and develop a willingness to compromise. They must begin to learn all of this in the earliest grades, and indeed in every church and Hebrew school and Muslim school.

We have not reached that stage yet. We are not yet that civilized. We have not built enforcement. We have not honoured the UN Charter. We are not teaching tolerance and compassion. We are teaching glorification of war-making and the military. All of that is counterproductive to the creation of a more humane and peaceful world – which is what I have been working all of my life to advance.

GB: You played a major role in the creation of the International Criminal Court. How is it doing to date?

BF: The International Criminal Court must be seen in its proper historical perspective. If I had to tell you how it is doing thus far, I would say: not so hot. But if you look at it in historical perspective, the first international criminal court, at Nuremberg, was but a temporary court. None of its institutional precursors is really worth mentioning. Now we have a permanent International Criminal Court.

International criminal justice requires laws, courts, and enforcement. I have been working a lifetime on the laws. I have written volumes about aggression, and also about the international criminal court. I have also written volumes on the enforcement of international laws. But that enforcement leg is, at present, still missing.

GB: Where do you see the ICC a decade from now?

BF: The ICC is a prototype. I am reminded of the days when the two Wright brothers were sitting on a bicycle and saying: if we peddle this and put a wing on it, it is going to fly. People would tell them they were crazy – that it would never fly; that it was a bicycle. That is how the airplane began. Today, there are thousands at this minute flying in the air all around the globe. They said that it could not be done. But it is done.

GB: Will Russia, China, the US, Iran, Israel and India join the ICC in the foreseeable future?

BF: Absolutely. I have no doubt whatsoever. They will recognize that their own survival depends on it. Small states already recognize this. I am engaged in a campaign to try to persuade national jurisdictions to change their domestic laws to bring them into line with the Rome Statute, the founding treaty of the International Criminal Court. This is to encourage complementarity. As you know, the ICC is the court of last resort and only complements national judicial systems. In other words, the ICC can only exercise its jurisdiction over the territory or national of its States Parties where the national authorities are either unwilling or unable to genuinely investigate and prosecute atrocity crimes. That responsibility falls in the first instance to the national authorities.

I am encouraging states to say that it is a crime against humanity to do what we used to call aggression. By not calling it aggression, you cut out the Security Council, which no one trusts. So states should proceed along those lines. They should write this into their national statutes. Let it be known that war is no longer glorified – that war is hell.

GB: Which countries are leading the way on international criminal justice?

BF: I would start with Australia, Canada and Germany. Germany gave me their highest civilian award. I was kissed on both cheeks recently by the French minister of defence at a ceremony in New York harbour, where he gave me a beautiful medal. This was very nice. But for me, I say: keep the kisses; keep the medals; just change your laws.

GB: Sam Sasan Shoamanesh, managing editor of GB, has been arguing for some time now that the Middle East should be united in some sort of security framework. What do you think about this as it relates to your goal of stopping aggression?

BF: The EU is a good example of such architecture. Of course, it is a good idea. Anything that expands the scope of people who are interested in having a peaceful world is good. There are always a few crazies who say no, no, no – that is, that it has got to be their way or death. You cannot help that. But anything that consolidates our feeling of identification with the idea of one human family is fundamentally good.

Anything that militates against the idea of a single human family – that says that one group is essentially better or unique, or that another group is the wrong colour or adheres to the wrong religion, is bad.

The present global system, whereby leaders who cannot agree among themselves take young people and they send them out to kill other young people whom they do not even know and who never harmed them, is absurd.

We are crawling ever so slowly toward civilization. I hope that we get there, but this all depends on the young people. They should not be discouraged, and need to recognize that in order to get to the mountain top, they will have to keep pushing all the way up.

GB: You have argued that the illegal use of force should be incorporated into the legal definition of crimes against humanity. Can you elaborate?

BF: Yes, the problem arises because the big powers – led by the US, and followed by countries like Russia, China, India and others – have taken the position that aggression is not adequately defined. On this logic, we cannot try somebody for a crime that has yet to be properly defined.

I have been working to try to bypass this fraudulent logic. I gave the baby a new name. Crimes against humanity are already prohibited in the Rome Statute of the ICC and also in the criminal codes in many countries. We therefore do not have to go back to the problem of the definition of aggression – particularly since under the UN Charter, the Security Council is charged with responsibility for determining whether an act of aggression by a state has occurred.

Unfortunately, the Security Council has become a political instrument, rather than an effective instrument for maintaining peace. It evidently has to be revised or modernized, but this cannot be done unless the permanent members are willing to do so.

So I am finding another way. Call it a crime against humanity. This bypasses any need for the Security Council. It is currently already prohibited in the ICC statute. It is not specifically defined either, but is instead defined by “other inhumane acts” – prohibited acts like rape, murder, pillage, slavery, genocide and isolation. These are all crimes against humanity. The statute also refers to “other inhumane acts.” What about killing innocent people? Murder is also another inhumane act. But mass murder is not? That is the current status of the law. That is crazy.

If murder can be a crime against humanity, then surely mass murder can also be a crime against humanity. So that is the concept. It is new in international law, which is why I am trying to get professors all around the world to build on this – to write articles about it. I have neither the time nor the capacity to do this anymore. In addition, I want to get the national legislatures to recognize that there are things like universal jurisdiction. Piracy was our original crime of universal jurisdiction. Piracy interfered with commerce, and there would be no derogation for any reason.

But if the taking of property was a universal crime, what about the taking of human life? Is that not also a crime? So you have to push the concept of universal jurisdiction.

Where are we now, then? We have got national jurisdictions, and also the growing recognition of universal jurisdiction. We must hold accountable those individuals who are most responsible for such grave crimes. He who does the harm should try to make good for the harm. Hit them in the pocket nerve – at the level of head of state. This means that if heads of state decide to go to war or to use force illegally – that is, not in self-defence, and not with the approval of the Security Council – then this is a violation of the UN Charter. There must therefore be accountability.

What I am suggesting is that we broaden the legal base by recognizing the scope of crimes against humanity. Again, I am working on this through the universities and also through publicity. This is why I am sitting here at the age of 96 and talking to as many people as I can on this topic. I see the light at the end of the tunnel and am trying to pass this mission on to future generations while I can. There is no glory in war – only misery. It is a crime, and those who wage it illegally must be held accountable.

GB: What about constitutional changes in different states in order to implement some of these definitions?

BF: We can put it in the constitution, too. Constitutions can be changed – and they are changed all the time – if there is a public demand for such change. But the public has to be told the truth. I have faith in the public. I have faith in young people. If they do not understand, they will ask. If they do not ask, then send them to another school – let them ask.

GB: What is your message to future legal and political leaders around the world?

BF: I would say never give up. You need laws, courts and enforcement. Those are the basic ingredients. It is not complicated. You simply cannot use violence or armed force in order to protect your interests. But we have moved a long way in my lifetime. I was told that it was not possible to build an international criminal court. And yet this has been accomplished, and we have saved people 20 years of labour.

Man has landed on the moon. That was said to be impossible. We are now reaching for Mars and Jupiter. So it is very possible to do the impossible. Do not let anyone tell you otherwise. It can be done. If there is a will, there will be a way. You find the way. I have pointed the way, and I wish you good luck.


Benjamin Ferencz was the chief prosecutor of the Einsatzgruppen trial at Nuremberg. He is a lifetime advocate for the international rule of law and the establishment of an International Criminal Court.