Benjamin Ferencz has a lot of fight in him for a 98-year-old. But that’s to be expected. Ferencz, after all, hasn’t lived an ordinary life by any stretch of the imagination. He was an investigator of Nazi war crimes after World War II and is the last living Nuremberg trial prosecutor. Ferencz, with mixed results, has made it his life’s work to end war-making by championing the establishment of an international rule of law and of an International Criminal Court (ICC). Never give up! Law not war! is Ferencz’s exhortation for making a better world.
But Ferencz knows his time is almost up.
“I may be moral but I am not immortal,” he jokes.
He was in The Hague this week for the unveiling of a special bench set up in his honour, inscribed with the words ‘Law. Not war’ – his mantra.
Ferencz wants to make sure he sounds a warning on the world’s failure to learn the lessons of war. He was there in the middle of World War II:
“What comes to my mind on Memorial Day is the sight of soldiers in American [military] uniform floating face-down on the beaches of Normandy when we landed there. They were still floating face-down when they got us to move out and the tanks were mired in the mud. That is war! That’s what should be memorialised in the sense of not letting it happen again. It is happening again all around the world and it pains me enormously,” says Ferencz.
As part of our popular #MyJustice series, here now is Ben Ferencz, in his own words, talking about America’s complex relationship with international law, being the first person to use the term ‘genocide’ in a criminal trial, what he wants young people to learn from him and his views on justice:
Justice Hub: Were you surprised towards the end of World War II when the US said that it wanted to get involved in war crimes trials as opposed to just shooting those considered responsible for the Holocaust?
No there was no surprise whatsoever. I would have been shocked had they come up with the other conclusion, which Mr [Winston] Churchill seemed to favour.
Justice Hub: Because you thought that the US had an automatic willingness to be involved in war crimes trials?
Well, I was familiar with the attempts to set up war crimes trials against the Germans after the first World War. There had been a lot of writing about how it was unfortunate that we did not have those trials and instead allowed Germans to try their own prisoners which turned out to be a farce.
In order to avoid that farce, the options were either to shoot them all, which was not an option as far as the United States was concerned, or to give them fair trials and see if they have been violating the treaties which had tried to make the war more humane. So it did not surprise me at all because I was familiar with the background on both sides and anything else would have been out of line.
Justice Hub: At that point, the crime of “genocide” had not yet been accepted so you were prosecuting people for crimes against the peace?
The crime of genocide had not been accepted anywhere but certainly, Raphael Lemkin, who coined the idea, had the crime in his mind. He had been looking for a name to describe what it was because his whole family had been murdered for being Jews. He thought that it deserved a special name rather than just being called calculated murder. I was familiar with the fact that there was this gentleman out there talking about giving this crime a new name.
Justice Hub: Were you able to use that term in the trial?
I used it for the first time, and I believe it was the first time ever used in a criminal trial, during the opening statement because there was no statute which had made that a statutory crime and I was perfectly aware of that. Nevertheless, because I knew Lemkin and I sympathised with him and with his goal, I made it a point to refer to what the Einsatzgruppen [SS murder squads] were doing as genocide because it was, in fact, a classical genocide to destroy and murder an entire people. You couldn’t get any clearer or better words than genocide for that. It appears in the second paragraph of my opening statement in the Einsatzgruppen trial in which I used the word genocide as a crime.
Ben Ferencz makes the opening statement at the Einsatzgruppen trial in 1947. He defines genocide at minute 2:13
Justice Hub: Later the United States signed up to the genocide convention?
Ha ha ha. (Ferencz laughs heartily)
Pardon me for laughing. It took the US 40 years and a pleading Senator who wouldn’t go away before they finally said: “okay, okay, so genocide is a crime”. They went on then to define to make sure that no American would ever be tried or convicted on this statute.
Justice Hub: Is that a way of interpreting how America has worked with international justice over the years? Always trying to define it in a way that no Americans will ever be convicted?
It’s not fair to say that’s “America’s” stance. America is a great democracy, and it is inevitable and desirable that in a great democracy there will be different points of view and so it is with genocide and other crimes. Those who may want to commit the crime in future or who may have a possibility of being accused of the crime in future are not eager to see themselves before a court and therefore they will oppose it. So it was with genocide and similar crimes where the United States has, as a political compromise, made it possible for those who plan to commit the crime to avoid the Justice.
Justice Hub: Do you see that there is ever a possibility that the United States will sign up to the Rome statute?
Again you say “the United States”. That assumes we going to have a majority in the Senate, by two-thirds, agreeing to a change in the statute. I don’t see that in the near future. As a matter of fact, in the near future, taking into consideration the current administration in Washington, it is more likely that there will be no Americans left to sign anything.
Justice Hub: Do you think that there is ever a just war?
There is no such thing, it’s a contradiction in terms. War itself is an abomination. It is not something to be glorified as it has been for centuries. I was a combat soldier, I know of wars. I have seen and can’t even talk about it, the horrors of war itself. If you wanted to take a word that has caused more pain and suffering in the world more than any other, the word “war” would probably be that word. We should abolish war. The idea of settling disputes by going out and killing a lot people who had nothing to do with it and didn’t even know about it, that is so outrageous to my simple mind and we should stop glorifying it.
You are interviewing me on Memorial Day.
(Ferencz’s voice cracks up with raw emotion)
I remember the soldiers. I don’t want to see the soldiers dying. What comes to my mind on Memorial Day is the sight of soldiers in American [military] uniform floating face-down on the beaches of Normandy when we landed there. They were still floating face-down when they got us to move out and the tanks were mired in the mud. That is war! That’s what should be memorialised in the sense of not letting it happen again. It is happening again all around the world and it pains me enormously.
Justice Hub: What’s your definition of justice?
You will never find complete justice. People think that justice means everything is going to be just. Justice to one is often injustice to someone else. The idea of doing what is right and ethical is a very noble idea and should not be abandoned but you can’t just give it a label and call it justice. There is no peace without justice and no justice without peace. So you are using a term which only blinds the eye and confuses the mind.
Let’s use another term for it: Ethical behaviour. Treat others as you would have them treat you. Be prepared to recognise that another point of view may also have value. Be prepared to compromise. It is not a sign of weakness to willing to compromise and to find a middle ground. You have to have courage not to be discouraged, you must courage to be willing to compromise. That’s the way I see the search for justice. You will never please everybody no matter what you do. If you think justice is universal and covers everybody, it’s an idle dream. It can be a dream. We need dreams to have the courage and the hope to keep going forward but let’s not expect perfection, there’s never perfection. There’ll always be problems. Question is the extent and the degree.
War making is a horrible thing and getting worse, more dangerous and costlier. I am trying to use this interview as a means of alerting and alarming the public because it’s ridiculous, absolutely criminally ridiculous what we do now. We take billions of dollars, and by “we” I mean the United States, the Russians, and the Chinese, to invent and use weapons from cyberspace and a nuclear arsenal that we already have to kill more people instead of using the money to help the people who are so desperate that they commit acts which others consider terrorism. They are desperate to find work and places where their children can be raised in peace.
That is the world in which I live and I have lived now for 98 years. I’m trying to change it but I don’t have enough time left.
I may be moral but I am not immortal. I hope that some young readers will recognise that what I am saying is true, pick up the banner and run with it. If they can’t run, let them walk. If they can’t walk, let them crawl, but never give up. That’s my slogan. Never give up! Law. Not war!
I can tell you from my own life, there has been significant progress, we are doing well. We have recognised that there is a need for universal principles of humanity. We have recognised the rights of women, who before couldn’t even vote or own property. We have recognised the rights of mixed marriages, which were inconceivable some few years ago. And other enormous changes in the way people think. The time has come to recognise that war-making is an obscene and absolutely horrendous way of settling differences among people. It’s so savage we couldn’t call it human. I often wonder if human beings are really human. Maybe I’ll come back someday, (but I doubt it unless I get a pass from the devil) and say “hey what are you people doing, haven’t you learned anything in all these years?”.
That’s my view, good luck to you all.