Berkeley Human Rights Q&A #1

Three words from Ben Ferencz:

‘Law. Not War.’

Ferencz and Buxbaum small
Ben Ferencz speaks at Boalt Hall in October as Berkeley Law professor and event moderator Richard Buxbaum looks on.

If Ben Ferencz can be hopeful, so can we. The 95-year-old lawyer fought in the major battles of World War II, witnessed the horrors of Dachau and Buchenwald, and—at age 27—prosecuted Nazis in the Einsatzgruppen case, the ninth of twelve trials at Nuremberg. Twenty-two SS leaders of paramilitary death squads were charged with more than a million murders in what has been called the biggest mass murder trial in history. Among the world’s first war crimes investigators, Ferencz has devoted his life to promoting international justice. His alma mater Harvard Law recently awarded him their medal of freedom—an honor bestowed on the likes of Nelson Mandela. Ferencz recently visited UC Berkeley School of Law, recounting his life’s work and delivering his signature catchphrase: “Law. Not war.” He told students that the law is not static and exhorted them to adapt it to promote human rights. “Don’t tell me it’s impossible,” he said. “Things have changed.”  

Ferencz fielded 10 questions for our inaugural Berkeley Human Rights Q&A

Q. Your family landed in New York in the 1920s after fleeing poverty and the persecution of Jewish people in Transylvania. How did an immigrant kid growing up in New York’s Hell’s Kitchen decide to become a lawyer?

A. I don’t recall having known any lawyers, but I never recall having wanted to do anything else. I went to a special high school for so-called ‘gifted boys.’ I never knew what a gifted boy was because I never got any gifts. It was a school with an accelerated curriculum that guaranteed you would go to the city college free of charge. And from there I was able to get admitted—for reasons I don’t know—to Harvard Law School.

 

“These people in the dark have murdered over a million people. There is no way that we can balance that and call it justice.”

 

Q. You enlisted in the U.S. Army, saw battles at every major theater of the war, and witnessed the liberation of concentration camps. How did you come to investigate war crimes?

A. I believe I was the first man in the United States Army to work on war crimes. My name had been forwarded from Washington, I was told, when I was transferred from the artillery to General Patton’s headquarters and told to set up a War Crimes Branch. My earliest cases involved the ‘downed flyer cases,’ as we called them—allied flyers who were shot down on territory occupied by Germany who were almost invariably beaten to death by the mob on the ground. I would have to rush to the scene, arrange for the arrest of the people in the area, interrogate them, get statements of what they saw and what actually happened, and try to locate the bodies . . . . I would then see that the criminals were arrested and put on trial.

Q. What was it like to witness the liberation of concentration camps?

A. There was a scene [at Buchenwald], which by now I think is pretty generally known but not quite grasped—it’s impossible to grasp. Dead bodies on the floor. People dead and dying. People looking like skeletons. Pleading for help. SS fleeing, being shot at by the soldiers, being grabbed by the inmates. I saw one example, where they caught a guard and they beat him—not to death—and they put him in a tray and roasted him the crematorium oven. They took him out again. Beat him up again. Put him back in again. My role then was as an observer. I made no effort to stop it. I was not pleased by what I saw. On the contrary. . . . Outside the crematorium was stacked with bodies, liked cords of wood, waiting to be burned. If there was a hell, that was it.

Q. Even after witnessing this “hell,” you became a champion of the rule-of-law. At Nuremberg, you opened with “vengeance is not our goal.”

A. I was very much moved by my experiences and seeing the horrors of the camps, but I never let it interfere with my behavior. I absorbed everything as though I had some kind of a screen in my mind that this was not real and treated it as though I had been looking at a movie or something of that kind. When I came to writing the opening statement, I asked myself, ‘what do you ask for?’ These people in the dark have murdered over a million people. There is no way that we can balance that and call it justice . . . . If I could use this case to develop the rule of law to protect all of humanity that would be much more significant than having these murderers cut up into a million parts and fed to the dogs. So I was very careful to compose a statement which reflected my feeling as a student of criminal law and as a human being trying to prevent the repetition of those crimes to which I later gave my entire career, my entire life.

Q. Did the defendants in Einsatzgruppen Trial at Nuremberg seem like ordinary men to you?

A. There is a common opinion that people who engage in that kind of crime—killing thousands of children, bashing their heads against a tree, et cetera—are wild animals. Not so. The defendants were carefully selected by me on the basis of their rank and their education. I had six or eight generals and also an equal number of people who had Ph.D.s. They were completely normal human beings. In a war, normal human beings will become mass murderers and think nothing of it.

 

“I never met anybody who should have had remorse who had remorse.”

 

Q. Did you speak with any of the defendants?

A. I knew that my lead defendant would hang. I went down to talk to him in the death house. I asked him what I could do for him. I thought he might ask me to send a letter to his wife. He loved her and his children. Instead, he said that I would see that he was right—that ‘Jews will suffer for what has happened to me.’ He was still unconvinced of anything. That was my biggest disappointment in Germany all together. No remorse. I never met anybody who should have had remorse who had remorse. There were a few Germans who had nothing to do with it who said it was a terrible thing. Those who were involved in the murder, I never had anyone say, ‘I’m sorry.’ I’m sorry about that.

Q. What role did the charge of “crimes against humanity” play in the Nuremberg trials?

A. When we had a big problem getting an acceptable definition of aggression, which could be tried by the court, I said let’s recognize that this is subterfuge. The big powers aren’t ready to let any foreign court determine whether they’ve committed a crime of aggression, and let’s therefore call it a ‘violation of the laws of humanity’ and deal with the illegal use of armed force as a crime against humanity—illegal being not in self defense or not approved by the UN Security Council as required by the United Nations Charter. If it is not in self defense or not approved, then it’s a crime. And it’s a crime against humanity if they know in advance that large numbers of civilians will be killed. And it would be a shame to allow such behavior to go unpunished or untried. So that’s a main focus from here on out for me, to see that these mass murderers don’t evade trial. They should have a day in court—whether they be called terrorists or anything else. Let the public judge whether that’s the kind of world we want.

Q. What’s your advice right now for the International Criminal Court?

A. The ICC must extend its power out to many other nations, particularly to the smaller nations. There will be problems. There are problems. Africa threatened to walk away because most of the defendants were Africans . . . . The chief prosecutor herself is from The Gambia, from Africa, so the idea of the court being anti-African is absurd. As the court expands its jurisdiction, and they’re doing that with local courts and mixed courts, gradually I hope we will have a universal approach to these problems. We will recognize that certain crimes are really so terrible that there’s universal jurisdiction to try them.

The most important human right is the right to life. The biggest threat today comes from wars that continue to ravage the world. Illegal violation of the UN Charter, knowing that large numbers of innocent people will inevitably be killed, is a crime against humanity that should be subject to universal and national criminal and civil jurisdiction wherever the leading perpetrators can be apprehend.

Q. You delivered a hopeful message to Berkeley law students about how far we’ve come. Are you really hopeful?

A. The law is a foundation itself for any change in human behavior. The law regarding crimes against humanity, war crimes, is still in a developmental stage and has got to be expanded to cover contemporary threats, such as threats from new weapons, which were never conceived of before, such as new techniques for acquiring the evidence of the crimes, and sufficient number of trained people to man the courts where these things can be tried. . . . Even in one human life, my life, I’ve seen all of these changes. There is great hope for future generations. It may take a couple of generations, but eventually it will come into being or there will be no planet earth. We will be one of a billion other planets floating through a vast cosmos with no life on it. I hope not. But I don’t think I’ll be around to see it.

Q. What’s next for you?

A. You ask what’s next for me? I’m going into my ninety-sixth year. I will continue doing what I’m doing for as long as I can. I have been happily wed to the same woman for seventy years. She is also my age. But she’s showing her age, and so it requires a little more attention at home than before. I have no thought of retirement. I don’t know what it means. But I am encouraged by the progress that has been made and by a very strong feeling that what I am doing is the right thing.

Postscript:

In 2011, the International Criminal Court’s chief prosecutor asked Ben Ferencz, then 91, to deliver closing remarks in the case against Democratic Republic of Congo warlord Thomas Lubanga Dyilo—who was accused of conscripting child soldiers and other violations of international humanitarian law. “What makes this court so distinctive is its primary goal to deter crimes before they take place by letting wrongdoers know in advance that they will be called to account by an international criminal court,” Ferencz said in his statement. “The law can no longer be silent. It must be heard and enforced to protect the fundamental rights of people everywhere.” Lubanga was the first person to be convicted by the ICC.

For more information about Ben Ferencz, visit www.benferencz.org

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About the Berkeley Human Rights Q&A

The Human Rights Center launched in 2015 a series of interviews to capture the stories of  UC Berkeley alumni, professors, and other visitors who offer insights on protecting and defending human rights globally. For more information or to suggest a Berkeley Human Rights Q&A, email Andrea Lampros at alampros@berkeley.edu.