Benjamin Ferencz, Nuremberg Prosecutor and Peace Advocate 0786474939, 9780786474936

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Benjamin Ferencz, Nuremberg Prosecutor and Peace Advocate

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Benjamin Ferencz, Nuremberg Prosecutor and Peace Advocate TOM HOFMANN

McFarland & Company, Inc., Publishers Jefferson, North Carolina, and London

All photographs and illustrations are provided by Benjamin Ferencz, unless otherwise noted.

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Hofmann, Tom, 1938– Benjamin Ferencz, Nuremberg prosecutor and peace advocate / Tom Hofmann. p. cm. Includes bibliographical references and index. ISBN 978?0?7864?7493?6 softcover : acid free paper

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1. Ferencz, Benjamin B., 1920– 2. Lawyers—United States—Biography. 3. Public prosecutors—Germany— Nuremberg—Biography. 4. International Military Tribunal. 5. War crimes trials. 6. Nuremberg War Crime Trials, Nuremberg, Germany, 1946–1949. I. Ferencz, Benjamin B., 1920– II. Title. KF373.F395H64 2014 341.6'90268—dc23 BRITISH LIBRARY

2013038179

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© 2014 Tom Hofmann. All rights reserved No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying or recording, or by any information storage and retrieval system, without permission in writing from the publisher. Cover photograph: Benjamin Ferencz speaks at a ceremony opening an exhibition on the Nuremberg war crimes trials, in Nuremberg, Germany, November 21, 2010 (Associated Press Photo) The views or opinions expressed in this book, and the context in which the images are used, do not necessarily reflect the views or policy of, nor imply approval or endorsement by, the United States Holocaust Memorial Museum (USHMM)

Manufactured in the United States of America

McFarland & Company, Inc., Publishers Box 611 , Jefferson, North Carolina 28640 www.mcfarlandpub.com

Table of Contents Acknowledgments Preface Introduction

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PART I 1. Growing Up in Hell’s Kitchen and Becoming a Lawyer (1920 to 1943)

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2. From Army Enlistment to War Crimes Commission (1943 to 1944)

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3. Initiating War Crimes Investigations (1944 to Early 1945)

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4. Major War Crimes: Ohrdruf, Buchenwald, and Flossenbürg Concentration Camp Investigations and Salt Mine Loot Discovery (April 1945)

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5. Major War Crimes: Dachau and Mauthausen-Gusen (Including the Ebensee Sub-Camp) Concentration Camp Investigations (May 1945)

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6. Final War Crimes Investigations and Discharge from Army (Late May 1945 to December 1945)

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7. Collecting Evidence to Support Nuremberg Tribunals (1946 to Mid–1947)

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8. The Einsatzgruppen Tribunal (Mid–1947 to April 1948)

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9. Running a Restitution Organization (Mid–1948 to 1949)

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10. Getting Bulk Settlements from the German Government and Starting Work on Reparations from Industrialists (1950 to 1956)

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PART II 11. Starting Over in New York (1956 to 1968)

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12. Beginning to Work Toward Peace Through Law (1968 to 1990)

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13. Establishing an International Criminal Court (1990 to Present)

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14. The Future

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Appendices A. Additional Ferencz Interviews B. A World of Peace Under the Rule of Law: The View from America C. Benjamin B. Ferencz Collection at the United States Holocaust Memorial Museum Chapter Notes Bibliography Index

235 241 249 258 263 265

Acknowledgments First and foremost, I acknowledge the personal support provided by Mr. Ferencz as I researched and wrote this biography. Fundamental to this is his agreement for me to use whatever he has spoken, written, or has posted on his web site over the years. Most of the biographical material was provided directly from Ferencz through the stories about his experiences that he has shared with me over the years. In addition he has contributed indirectly to this biography through his Benjamin B. Ferencz Collection at the United States Holocaust Memorial Museum in Washington, D.C., from his books, and from a variety of other outside sources that reference him. Thank you, Ben, for being you and for letting me tell the story of your interesting and exciting journey through life. I heartily acknowledge all the help given to me by Ferencz’s extended family. In particular I want to recognize his wife Gertrude’s and his son Don’s assistance. Gertrude Ferencz is a force in her own right, has worked closely with and supported her husband through all his major accomplishments, and has provided me with encouragement and much needed data. Don Ferencz, now his father’s right-hand man, is executive director of Ferencz’s PlanetHood Foundation, picking up some of the same dedication and knowledge that guided his father through the years, and he has provided me with significant help and input in pulling this biography together. In addition, I acknowledge Lou Perlman (my brother-in-law and Ferencz’s best friend throughout his life) for his early encouragement for my pursuing this task, and it is with considerable sadness that we all dedicate this biography to him in memoriam since he passed away in 2009. Then, of course, there is the patience and encouragement of my wife, Shirley (Perlman) Hofmann, and the support of my sister-in-law Alice (Perlman) Kessler. Thank you all. Finally, I would like to thank Marilyn Levine and Ullabritt Horn, who read the draft of this book and provided me with encouragement and excellent review comments. vii

The above comment was sent to the author on September 21, 2013, in honor of the upcoming publication of this book.

Preface Benjamin B. Ferencz, at the age of 93, is the only surviving chief prosecutor of a World War II Nuremberg Tribunal. In 1979, Ferencz’s immediate superior during the Nuremberg Tribunals, General Telford Taylor, chief of counsel for the Subsequent Tribunals at Nuremberg, wrote the following in the foreword to Ferencz’s 1979 book Less Than Slaves: Someday soon an enterprising graduate student in history or sociology should write a doctoral thesis entitled, “What Happened to the Participants in the Nuremberg Trials after the Proceedings Were Finished?” The “participants” included not only those actually present in the courtrooms — the two hundred or so individuals who were on trial, the several hundred lawyers who prosecuted or defended them, the judges and administrative staff, the prison guards, interpreters, researchers, and court reporters, and the many witnesses who testified. Physically absent but deeply involved in every other sense were the millions of victims of the crimes charged against the defendants, comprising not just those who had survived but also the families and friends of those who had not.

In a sense, this book is a small sampling of Taylor’s vision. Since Ferencz was one of the most involved participants, it tells the story of Ferencz’s experiences, the people he has interacted with, and the results of these interactions. Many instances of Ferencz’s overcoming virtually impossible tasks to seize success are threaded throughout the story of his life. He truly lives the claim “Difficult tasks are completed quickly, the impossible take a little longer.” Happily, Ferencz has lived to see his dream of an International Criminal Court come to pass in spite of what seemed at times to be insurmountable odds. His unwavering support in making this happen deserves to be documented for posterity. This biography of his life is an attempt to do that for those who do not have the time to peruse his vast collection of data donated to the United States Holocaust Memorial Museum (USHMM) to see all of what he has accomplished. (Appendix C contains an abbreviated list of the Benjamin B. Ferencz Collection at the USHMM.) 1

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Mr. Ferencz is a unique individual in this world where others’ selfaggrandizement appears to be the rule rather than the exception. He has never set out to seek fame or glory or to take advantage of his achievements to establish a power base or enhance personal wealth — contrary to what seem to be the driving factors in most of our key politicians and world leaders of today. Rather, Mr. Ferencz has worked on his own to establish a knowledge base and fundamental concepts that he has willingly, freely, and extensively shared with anyone he could find who was in a position to help apply his concepts to prevent the atrocities brought upon innocent men, women, and children by acts of war and conflict. He deserves the worldwide recognition as an expert in international criminal law that he has received from world leaders over the last 60 years and still counting. Although Mr. Ferencz has also received many awards and other accolades during his life, that has not been his goal nor does he make any big deal about these recognitions of his efforts. He just keeps trucking toward a goal of world peace through law, not war. And in doing this he has had some interesting, life-altering, life-threatening, disturbing, enlightening, sad, and happy experiences. All in all, it appears that his life to date has been an incredible journey and a positive example for all people who want a better, safer world in which to live. In presenting his life story, this book has been divided into two distinctly separate periods of Ferencz’s life. Part I of this book covers the period of time from his arrival in the United States of America at 10 months of age in 1921 through his experiences in World War II and beyond until 1956. During this time he grew up in New York City, graduated from Harvard Law School and joined the U.S. Army to serve in World War II. It was during World War II that he became involved in war crimes investigations and was involved in liberation of several Nazi concentration camps — learning firsthand about the horrors of war. Immediately after returning home from the war he was requested by the U.S. War Department to return to Germany to participate in collecting evidence in support of the Nuremberg Tribunals. This resulted in his becoming chief prosecutor of the Einsatzgruppen Tribunal — the trial of leaders of Nazi SS killing squads who murdered more that one million Jews, gypsies, and others considered undesirable by the Nazis. After completing his role as a prosecutor in 1948, he stayed in Germany until 1956, conducting restitution efforts for Jewish war crimes victims. Part II of this book then traces Ferencz’s life as he began to build his post-war life at home in America as a practicing general attorney — an occupation in which he had limited interest and at which he had little success. However, his war experiences kept drawing him toward developing means to establish peace through international law rather than through war, and he gradually became recognized as a leading international criminal lawyer. Hav-

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ing — by the early 1970s — developed a solid financial base, Ferencz then dedicated the remainder of his life to the pursuit of his dream of peace through law, not war. He became instrumental in the successful establishment of the International Criminal Court (headquartered in The Hague) and today at the age of 93 continues his pursuit of peace through law. He is continually swamped with requests for his time by world leaders (who share his vision) in working with the United Nations and the International Criminal Court and in supplying his international criminal law expertise where needed through his PlanetHood Foundation. He has many television, group presentation, and documentary interviews to his credit (several of which are highlighted in this book). He has donated more than 200 archive boxes of documents, letters, and photos to the United States Holocaust Memorial Museum in Washington, D.C., detailing his experiences in World War II and the Nuremberg Tribunals, as well as his continuing efforts to achieve peace through law — about which he has written thousands of pages in published books. Minor errors in foreign language phrases have been silently corrected.

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Introduction Benjamin Berrel Ferencz entered the United States as the 10-month-old infant son of Jewish emigrants from Transylvania, Romania, in 1921. He grew up in both the Hell’s Kitchen part of Manhattan and the Bronx. By virtue of his intelligence, skills, and hard work he graduated from Harvard Law School in 1943 and immediately joined the U.S. Army’s 115th AAA Gun Battalion. He was part of the invasion of France via Omaha Beach in June of 1944. As fate would have it, he was transferred to General Patton’s Judge Advocate General ( JAG) organization in December 1944. His knowledge of war crimes from his studies at Harvard were required to help lead war crimes investigations in support of the upcoming International Military Tribunals. These tribunals were ordered jointly by the U.S., the UK, and the USSR to punish the Nazi perpetrators of war crimes atrocities that were in violation of international laws. He was exposed to these atrocities primarily in his role of collecting evidence of these war crimes, through participation in liberation of various concentration camps (such as Buchenwald, Ebensee, and Mauthausen), and in searches for stolen loot in salt mines. In 1945 he returned to the U.S. and was discharged from the army as a sergeant. Again as fate would have it, he was almost immediately (in early 1946) contacted by the War Department and asked to return to Germany to continue his assistance to the army war crimes investigators under the command of General Telford Taylor. He agreed to this with the proviso that he would remain a civilian, which was granted along with the elevation of his status to the equivalent of that of a full colonel. Again as fate would have it, in the process of uncovering evidence of Nazi war crimes, his group of investigators found evidence of mass killings by select groups (Einsatzgruppen A, B, C, and D) of Nazi SS storm troopers who followed the Nazi army’s advance into Russia and who murdered more than one million innocent Jews, Gypsies, and political opponents in what they later claimed was self-defense. Because of the magnitude of this war crime, Ferencz was asked to conduct, as chief 5

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prosecutor, a separate tribunal (above and beyond those already planned) to prosecute the leaders of these Einsatzgruppen killing squads. Thus, Benjamin Ferencz at 27 years old became responsible for what the Associated Press called the “biggest murder trial in history.” He was successful in convicting all 22 SS officers on trial in this tribunal. He then proceeded to lead the effort in Germany to obtain some form of retribution for Jewish victims of the Holocaust — further establishing his credentials as an expert in international criminal law. These events — and the traumatic experiences to which he was exposed — set the stage for the rest of his life. From that time forward (1956 to the present) Ferencz’s primary focus has been on establishing the means to ensure peace through law, not war. Upon return to the U.S., he began in earnest his pursuit of peace through lobbying for the establishment of an International Criminal Court (ICC) with the power to punish individuals who perform war crimes, crimes against humanity, and crimes of aggression. His efforts have been recognized in the establishment of the ICC (headquartered in The Hague in the Netherlands) and he was awarded the Erasmus Peace Prize in 2009 by the Royal Family of the Netherlands. Here are three very significant speeches that he gave during three significant periods of his life that represent what he has dedicated his entire adult life to achieving. These three speeches are fundamental representations of his goal for the establishment of rule by law, not war, through an International Criminal Court to ensure that the crimes of aggression, war crimes, and crimes against humanity not go unpunished. First, Ferencz’s opening remarks as chief prosecutor for the Einsatzgruppen Tribunal, given at the age of 27, at the 1947 Nuremberg Subsequent Tribunals: May it please your Honors: It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action, man’s right to live in peace and dignity, regardless of his race or creed. The case we present is a plea of humanity to law. We shall establish beyond the realm of doubt facts which, before the dark decade of the Third Reich, would have seemed incredible. The defendants were commanders and officers of special SS groups known as Einsatzgruppen — established for the specific purpose of massacring human beings because they were Jews, or because they were for some other reason regarded as inferior peoples. Each of the defendants in the dock held a position of responsibility or command in an extermination unit. Each assumed the right to decide the fate of men, and death was the intended result of his power and contempt. Their own reports will

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show that the slaughter committed by these defendants was dictated, not by military necessity, but by that supreme perversion of thought, the Nazi theory of the master race. We shall show that these deeds of men in uniform were the methodical execution of long-range plans to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories of human beings, was a foremost instrument of the Nazi doctrine. Even before the war the concentration camps within the Third Reich had witnessed many killings inspired by these ideas. During the early months of the war the Nazi regime expanded its plans for genocide and enlarged the means to execute them. Following the German invasion of Poland there arose extermination camps such as Auschwitz and Maidanek. In spring 1941, in contemplation of the coming assault upon the Soviet Union, the Einsatzgruppen were created as military units, but not to fight as soldiers. They were organized for murder. In advance of the attack on Russia, the Einsatzgruppen were ordered to destroy life behind the lines of combat. Not all life to be sure. They were to destroy all those denominated Jew, political official, gypsy, and those other thousands called “asocial” by the self-styled Nazi superman. This was the new German “Kultur.”

Ferencz’s (and his staff ’s) opening statement goes on for another 16 pages covering specifics of the crimes of the defendants. The following explanation of the jurisdiction of the court was given by Ferencz in the closing portion of the prosecution’s opening statement and is more generic to the overall issues raised: International agreements adopted by twenty-three nations and Control Council Law No. 10, a quadripartite enactment made pursuant to these agreements, authorize the creation of this Court. These Military Tribunals, established by the United States as agencies to administer Law No. 10, are in essence and in fact International Courts. The murders in this case were committed in particular cities and towns, but the rights the defendants violated belong to all men everywhere. These rights may be vindicated by any nation, alone or in concert with others. The nationality of the victim and the time and place of crime do not impugn this jurisdiction. We find this law both in opinions of the Permanent Court of International Justice and the practice of states in military offenses. The Permanent Court has held that states have legal power to determine any criminal matter as long as such legal action is not prohibited by international law. Where conduct menaces the universal social order, there can be and has been no prohibition on the right of courts to act. No law has ever prohibited the trial by any court of crimes such as we shall here disclose. Piracy and brigandage were the forerunners of modern international crimes. International jurisprudence soon gave states the right to punish these violators regardless of the victim’s nationality or the location of the crime. This applied in time of war or peace. It has long been accepted that a belligerent may punish members of enemy forces in its custody who have violated the laws and customs of war. The jurisdiction exercised by military courts trying offenses against the

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Introduction laws of war has never been territorial. Sir Hartley Shawcross, the British prosecutor at the International Trial, pointed out that — “The rights, of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, have long been considered to form part of the law of nations.” German law professors too declared this in their writings. The jurisdictional power of every state extends to the punishment of offenses against the law of nations “by whomsoever and wheresoever committed.” It is, therefore, wholly fitting for this Court to hear these charges of international crimes and to adjudge them in the name of civilization.

Ferencz continued on with several more pages of opening statement regarding the nature of the charges that are not pertinent here, and then concluded as follows: The fact that any person acted on the order of his government or of a superior does not free him from responsibility for crime. It may be considered in mitigation. This is the law we follow here, and is no innovation to the men we charge. Even the German Military Code provides that: “If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinates will share the punishment of the participant — (1) If he has exceeded the order given to him, or (2) It was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression.” Was it not within the knowledge of the accused that the mass murder of helpless people constituted crime? Moral teachings have not so decayed that reasonable men could think these wrongs were right. The judgment of the International Military Tribunal declares that 2 million Jews were murdered by the Einsatzgruppen and other units of the Security Police. The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.1

The last three lines of this speech were later quoted by Professor Antonio Cassese, president of the new UN Special Tribunals for crimes in Yugoslavia and Rwanda, in his September 1997 annual report to the United Nations. The second significant speech given by Benjamin Ferencz demonstrates his commitment to establishing peace through law. It was given as the opening speech at the Rome conference on creating a permanent International Criminal Court. Below is the transcript of Mr. Ferencz’s speech, made at the age of 78 on June 16, 1998. His five-minute speech received a standing ovation. I have come to Rome to speak for those who cannot speak — the silent victims of monstrous evil deeds. The only authorization I have comes from my heart. I

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have spent a long life in pursuit of peace and justice and perhaps by sharing a few thoughts I may lighten some difficult burdens. Over fifty years ago, I stood in a courtroom at Nuremberg and accused 22 high-ranking German Storm Troopers of deliberately murdering more than a million men, women and children. The defenseless victims were slaughtered simply because they did not share the race or creed of their executioners. I begged the tribunal to affirm the legal right of every human being to live in peace and dignity. It was a plea of humanity to law. The war crimes trials after World War II came to grips with the past. We have yet to come to grips with the future. When the Nuremberg principles were unanimously affirmed by the United Nations in 1947, it carried an implied promise that “never again” would aggression, war crimes and crimes against humanity go unpunished. The promise awaits fulfillment. I have come to Rome to plead with the distinguished Plenipotentiaries to help make the dream of a more humane world order under law come true. Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly. The Security Council has demonstrated that competent ad hoc criminal courts can be created quickly — when the political will to act is aroused. Now the challenge is in your hands. Independent nations of different traditions can not be expected to have identical views on every point of a complicated legal statute. The time for decisive compromise has come. Outmoded notions of national sovereignty can not be allowed to block agreement. National interests must take account of international needs. In this interdependent global society, linked by new networks of instant communication, no nation and no person can feel secure until all are secure. The people are the true sovereigns of today and deserve to be protected under a mantle of enforceable humanitarian law that clearly serves the interests of persons everywhere. We must not fail them now. Ever since the judgment at Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. Aggression is the soil from which the worst human rights violations invariably grow. States that commit crimes against peace will not punish themselves and excluding aggression from international judicial scrutiny is to grant immunity to malevolent leaders responsible for “the supreme international crime.” Only the Court has authority to determine individual culpability or innocence. No criminal statute need reaffirm existing Security Council rights and no treaty can create new Security Council powers that go beyond Charter authorizations. Careful selection, internal supervision, public scrutiny and budgetary controls provide adequate guarantees that neither Prosecutors nor Judges will betray their trust. They must be given the authority and the tools to do their difficult job. Universal condemnation and the certainty of punishment for major transgressors can be a powerful deterrent. To condemn a crime yet provide no impartial institution to try the offenders is to mock the victims and encourage more criminality. The time has come for human rights to prevail over human wrongs—for international law to prevail over international crime. I do not suggest that an effective, fair and efficient criminal tribunal will solve

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the world’s problems. A great deal more needs to be done before the causes of international crimes are removed. More progress is needed in achieving UN Charter goals for disarmament, an international military force, social justice and an improved and impartial Security Council. But one thing is sure — without clear international laws, courts and effective enforcement there can be no deterrence, no justice and no world peace. Justice, reconciliation and rehabilitation are vital links to the permanent peace that binds humanity together. I have come to Rome to support you in your noble efforts. Hope is the engine that drives human endeavor and without hope humankind cannot summon the energy needed to achieve the difficult goals that lie ahead. Never lose hope. Never lose faith. Never stop trying to make this a more humane universe. The aspirations of today must become the binding law of tomorrow. If we care enough and dare enough, an international criminal court — the missing link in the world legal order — is within our grasp. The place to act is here and the time to act is now!2

And on August 25, 2011, in Ferencz’s 92nd year on this planet, he was asked by the chief prosecutor of the ICC (Luis Moreno Ocampo) to give a speech at the closing of the International Criminal Court prosecution’s case against Mr. Thomas Lubanga Dyilo, who was on trial for crimes against humanity. After the closing of the session, Ferencz received a kiss on both cheeks from Angelina Jolie, who was an observer of the trial because of her interest in abuses against children. This trial and Ferencz’s speech represented a key milestone in Benjamin Ferencz’s drive to ensure peace through law. May it please your Honors, This is a historic moment in the evolution of international criminal law. For the first time a permanent international criminal court will hear the closing statement for the Prosecution as it concludes it first case against its first accused Mr. Thomas Lubanga Dyilo. I witnessed such an evolution. As an American soldier, I survived the indescribable horrors of World War II and served as a liberator of many concentration camps. Shortly thereafter, I was appointed a Prosecutor at the Nuremberg War crimes trials which mapped new rules for the protection of humanity. I was 27 years old then. I am now in my 92nd year, having spent a lifetime striving for a more humane world governed by the rule of law. I am honored to represent the Prosecutor and to share some personal observations regarding the significance of this trial. The most significant advance I have observed in international law has gone almost unnoticed; it is the slow awakening of the human conscience. The 1948 Universal Declaration of Human Rights proclaimed inalienable, fundamental rights of “all members of the human family as a foundation of freedom, peace and justice in the world.” Countless human rights declarations have been made over many years by many dedicated persons and organizations. But legal action to enforce the promises has been slow in coming. In Rome in 1998, when the Statute that binds this Court was overwhelmingly approved, over a hundred sovereign states decided that child recruitment and

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forcing them to participate in hostilities were among “the most serious crimes of concern for the international community as a whole.” Punishing perpetrators was recognized as a legal obligation. 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 impartial International Criminal Court. The law can no longer be silent but must instead be heard and enforced to protect the fundamental rights of people everywhere. The Prosecutor’s Office spoke at length meticulously detailing grim facts establishing the responsibility of the accused for the crimes alleged. The evidence showed that waves of children, recruited under Mr. Lubanga’s command, moved through as many as 20 training camps, some holding between eight and sixteen hundred children under age 15. Words and figures cannot adequately portray the physical and psychological harm inflicted on vulnerable children who were brutalized and who lived in constant fear. The loss and grief to their inconsolable families is immeasurable. Their childhood stolen, deprived of education and all human rights, the suffering of the young victims and their families left permanent scars. We must try to restore the faith of children so that they may join in restoring the shattered world from which they came. Imagine the pain of mothers crying and pleading at the door of the camps still suffering and wondering what happened to their children. Picture the agony of the father who said: “... he is my first son. All of my hopes were laid on him. ... The child was ruined. ... Today he can do nothing in his life. He has abandoned his education. And this is something which affects me greatly.” All of the girls recruited could expect to be sexually violated. All of these events which the Prosecution has carefully presented have been proved beyond reasonable doubt. Once again, “the case we present is a plea of humanity to law.” It was a call for human beings to behave in a humane and lawful way. The hope of humankind is that compassion and compromise may replace the cruel and senseless violence of armed conflicts. That is the law as prescribed by the Rome Statute that binds this Court as well as the UN Charter that binds everyone. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violation grow must be condemned as a crime against humanity. International disputes must be resolved not by armed force but by peaceful means only. Seizing and training young people to hate and kill presumed adversaries undermines the legal and moral firmament of human society. Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.

The following lists a few of the key events in the life of Benjamin Ferencz that are later detailed in this book: • 1920— Born in Transylvania, Romania. • 1921— As a member of his family, emigrated to the United States.

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• 1933 — Became a U.S. citizen as a part of his father’s naturalization. • 1943 — Graduated from Harvard Law School and enlisted in the army (115th Anti-Aircraft Artillery Gun Battalion). • 1944 — Participated in invasion of France at Omaha Beach and all battalion battles in France, then was transferred to Army Judge Advocate General War Crimes Section under General Patton and searched for evidence of Nazi war crimes and participated in liberation of Nazi concentration camps. • 1945 — Returned to the U.S. and honorably discharged from the army as a sergeant. • 1946 — Got married and returned to Germany at request of U.S. government to assist in gathering evidence of war crimes in support of the Nuremberg International Military Tribunals. • 1947 — Uncovered massive evidence of killings by special Nazi killing squads and assigned as chief prosecutor for the Einsatzgruppen case by General Telford Taylor as a special addition to the Subsequent Tribunals. • 1948 — Obtained convictions for all 22 defendants and took over executive counsel responsibility for the remaining Subsequent Tribunals at the request of General Telford Taylor. • 1948–1956 — Stayed in Germany and became the director general of the Jewish Restitution Successor Organization and obtained significant restitution awards from various German organizations for Jewish victims. • 1956 — Returned to U.S. and settled in New Rochelle, New York, and began the development of his career in international law. • 1970s — Began to focus on issues related to the establishment of an international court of law for war crimes. • 1996 — Established the PlanetHood Foundation for support to the development of an international criminal court and further definition of the war crime of aggression. • 1998 — Gave welcoming speech to attendees at the Rome Convention for the Establishment of an International Criminal Court (ICC). • 2002 — Celebrated the formal institution of the ICC. • 2009 — Received from the Netherlands the Erasmus Peace Prize in conjunction with Judge Antonio Cassese. • 2011— Gave one of the closing speeches at the conclusion of the chief prosecutor’s case for the ICC’s first war crimes trial against Lubanga. • 2012–present — Continues to support the development of war crimes definitions and support to the ICC as an expert in international criminal law. Benjamin Ferencz is still consumed with his efforts to ensure a strong start to world peace. He has traveled extensively all over the world for more

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than 68 years (he probably has flown over 1 million miles and even now typically flies to Europe at least two times a year), and has visited more than 20 different countries in pursuit of world peace. He is constantly on the go and is so busy that he has little time to talk with anyone outside those he is dealing directly with to further his goal of world peace through law.

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PA RT I Chapter 1

Growing Up in Hell’s Kitchen and Becoming a Lawyer (1920 to 1943) Benjamin Berrel Ferencz was born in March 1920 in Ciolt, Transylvania, Romania, to Josef and Shari (Legman) Ferencz. His family emigrated from Romania because of Romania’s persecution of Jews. On January 29, 1921, he, his 27-year-old father, 24-year-old mother, and 3-year-old sister (Pepi, later called Pearl) entered the United States through Ellis Island.1 The Hebrew Immigrant Aid Society (HIAS) in New York provided shelter for Ferencz’s family until they could find work and their own place to stay. Ferencz’s father was a one-eyed Jewish shoemaker who couldn’t find a job in America in the vocation to which he had been apprenticed. In America, shoes were made by machines his father could not operate. At 26 years of age, his father had a wife and two small children to support. Unable to speak English, barely literate, homeless and penniless, his father was happy when he was offered a job as a janitor tending three apartment houses in the New York district known as Hell’s Kitchen. It had one of the highest crime rates in the nation. That’s where Benjamin Ferencz’s memory of the world begins. The family was housed in a portion of the basement at 346 West 56th Street, New York City. Ferencz’s mother prepared meals for other immigrants for a modest price, and the family took in occasional boarders, including a long-term boarder named Dave Schwartz (who will reappear in a more important role later in this chapter). As a young boy, Benjamin Ferencz learned to make a few pennies doing odd jobs such as delivering papers and assisting in a Chinese laundry, as well as assisting his father with janitorial duties. He never lived in a reasonably nice apartment until he was about seven. He was raised in a Jewish family, and although his parents were not overtly religious, he was exposed to the 15

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Pearl (Ferencz’s sister), Josef (Ferencz’s father) and Benjamin Ferencz in 1925.

1 . Growing Up and Becoming a Lawyer (1 920 to 1 943)

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basic Jewish religious practices. Although he never fully embraced the Jewish religion, he respects the beliefs of those who do. However, his Jewish background served him well as he worked to relieve some of the plight of the Jewish victims of Nazis atrocities in Europe — a major thrust in his life after World War II. When he was six-and-a-half, his mother and father (who were second cousins and did not get along very well) decided to divorce, and he went to live with his mother’s sister, Fani, and her husband, Sam Isaac. In the meantime, his mother married David Schwartz, who had been a long-term tenant in his family home prior to the divorce and who had always been friendly with his parents as well as with Ferencz. Ferencz’s father also was soon remarried, to Rose Fried, whose acquaintance his father had made via an ad in the local Hungarian newspaper. Ferencz lived with his Tanti Fani and Uncle Sam for about one year, until his mother and her new husband were well enough off to afford rent on an apartment. Both newly married couples always got along very well together, and Ferencz often spent time at his father’s home although he lived primarily with his mother and her new husband. Ferencz’s father and new wife Rose lived in a small apartment in a building at 1975 Mapes Avenue in the Bronx. Rose’s sister (Eva Perlman, née Fried) lived in the next-door apartment building (1971 Mapes Avenue), and Eva’s son Lou Perlman became Ferencz’s best and only true friend throughout his life (Lou Perlman died in 2009). This relationship with the Perlmans became more important to Ferencz when he reached the age of 17.2 In addition, the Ferencz and Perlman families always lived close to each other, and he and Lou spent some happy summer weeks together in the Catskill Mountains, where families could rent a room and share a kitchen at very modest cost. The families would occasionally rent a room on a farm in the country where Ferencz and Lou Perlman spent time entertaining themselves and tossing horseshoes. There wasn’t much else to do, and by inclination, as well as necessity, Ferencz became very much a loner. He doesn’t recall ever having been a normal adolescent. After his mother remarried, Ferencz and his sister moved in with his mother and her new husband, whom he now called “Uncle Dave.” Their apartment was on the top floor of a nice, brick, five-story walkup apartment building in a good neighborhood in the Bronx (on Bainbridge Avenue). This apartment home was near the Van Cortland Park, which provided adequate means for some outdoor entertainment. The period between the ages of seven and thirteen, Ferencz felt, were his lost years. He was growing up in the Bronx and shuttling between his father’s home and his mother’s, and from apartment to apartment when they could not afford to pay the rent. In 1929 the crash came, the banks were

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Lou Perlman (left) and Benjamin Ferencz at age seven in 1927.

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Wedding picture of Shari (Ferencz’s mother) and David Schwartz in 1929.

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closed, and no one could find steady work. His mother worked as a dress and hat maker, his Uncle Dave as a toolmaker or watchman, and his father as a house painter where possible. It was a time of deep depression in more ways than one. Ferencz often had to go to the U.S. government “home relief ” station, where surplus food was given away in the form of two-pound loaves of bread and blocks of frozen butter or American cheese. During this period and beyond, he attended various public schools in the Bronx, never staying long enough to make any real friends other than his buddy, Lou Perlman. However, his schooling was a highlight during this difficult time. While his family spoke mostly Hungarian, Romanian, and Yiddish, Ferencz also learned English, French, and Spanish while growing up in New York. Ferencz has a virtually photographic memory as well as being able to remember and repeat exact conversations. His father had tried to enroll Ferencz in a public school in Manhattan when he was six years old, but the principal, noting Ferencz’s unusually small size and the fact that he spoke only Yiddish, would not accept him. His father had more success in Brooklyn. When Ferencz began school in Brooklyn, he still had problems speaking the language, and he couldn’t read English. However, if he heard a story once, he could repeat it verbatim. He was once accused by his teacher of “reading” correctly from the wrong page. His years at P.S. 80 surely altered the course of his life. His eighth grade teacher, Mrs. Connelly, and the school principal approached Ferencz’s mother about sending him to a school for gifted children. The gifted boy terminology came from the official program of a unique educational institution. Townsend Harris Preparatory School, preparatory for the College of the City of New York, was the only school of its kind in the country. It offered an accelerated curriculum that, if passed successfully, would ensure automatic admittance to the College of the City of New York. There would be no tuition charges. No one in Ferencz’s family had ever gone to college. Everyone they knew went to work as soon as they could find a job. To finish high school was regarded as the highest possible academic achievement for immigrants like his family. Now his mother was being told that her son might go to college and it would cost nothing, which was about all they could afford. To attend Townsend Harris High School, his mother and her new husband (Dave) had to move to make it possible for him to commute from home to the downtown location of Townsend High School. So the family moved from the Bronx to East 64th Street in Manhattan. Ferencz recalls that 129 East 64th Street in Manhattan was a good address in a good neighborhood, where he could get to Townsend Harris by a short bus ride down Lexington Avenue. Of course, he wondered how his family could afford to live there. What his determined and creative mother somehow

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managed to do was to lease the small brownstone townhouse and rent the ten furnished rooms within as sublets. Ferencz’s family lived on the ground floor, in what had been a kitchen. They rented out the other rooms, kept the house clean, and in essence carried on the noble traditions of janitoring they had learned in Hell’s Kitchen. Schwartz tended the furnace and did repairs when he came home from his job as an ironworker. Ferencz was assigned the role of assistant janitor (from his early experiences in helping his father in Hell’s Kitchen) and was now on his way to becoming something more. The first thing Ferencz learned at Townsend Harris was that he had to study hard. Townsend Harris students were expected to complete college prep classes in three years instead of the usual four years. He became proficient in multiple languages including French. Ferencz recalls that he only became interested in French when he reached fourteen and fell in love with Danielle Darrieux. She was an Ingrid Bergman– type movie star whose films were shown “in living sound” in a nearby arts theater. While listening to her mellifluous French voice, he kept one eye glued on her and one on the large English subtitles. Although he left the theater looking a bit cockeyed, it was better than hearing his French professor’s incomprehensible explanation of how he had fought the battle of the Marne. (Despite Ferencz’s slow linguistic start, during his own later war years in Normandy, he was a valued interpreter. After the war, he even translated for René Cassin, the French Nobel Prize author of the Universal Declaration of Human Rights, when he visited the United States.) His high school professors deserve some praise for his ability to speak almost like a Parisian, but Ferencz believes that most of the credit belongs to Danielle. He graduated from Townsend Harris High School in 1937. However, he did not receive a diploma, because the dean complained that he did not complete his gym class in accordance with school requirements. Although Ferencz was too busy studying to attend his scheduled gym class, he did attend gym at other hours than those for which he was scheduled. Even at 5' 1' and slightly over 100 pounds, he was a very good athlete, especially at tumbling and swimming (and at his current and very healthy age of 93 he continues to swim almost every day). Fortunately, the City College of New York did not require a diploma and accepted every graduate of Townsend High without question. CCNY was unique in that it only accepted students who met strict academic standards. CCNY also charged no tuition, which was fortunate for him as again his family could not have afforded it. Many CCNY students came from immigrant homes. They were rough and tough and anything but genteel. For them, college was an opportunity to share the American dream; it was not a place for fun and games. CCNY had no football team. Many of its professors were world-renowned. For exam-

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ple, Professor Morris Raphael Cohen was a very distinguished philosopher who challenged conventional wisdom in a Yiddish accent. With the diversity and poverty of its students, City College was known as “the poor man’s Harvard.” To accommodate his enrollment at CCNY, Ferencz’s family had to move again. City College, past Harlem Heights, was practically inaccessible from East 64th Street, so the family moved back to the Bronx, where Ferencz could easily take a streetcar to school. As he prepared to start school at CCNY, he stayed for a while with his father on Mapes Avenue, who as mentioned before lived near the Perlmans (about four blocks away on Fairmont Place at this time). This permitted him to spend some time with his buddy Lou Perlman. However, the Perlmans now had a niece, a young woman named Gertrude Fried living with them. Miss Fried was Mrs. Perlman’s niece (and thus Lou Perlman’s first cousin) and Ferencz’s step-mother’s niece — since Lou Perlman’s mother and Ferencz’s step-mother were sisters. Ferencz’s relationship with the Perlmans became even more significant to him because he started to date Gertrude while he was attending CCNY and later, in 1946 married her — and is still married to her some 67 years later as of this writing.3 Ferencz decided early in his life that he wanted to be a lawyer, and being distressed by the juvenile misbehavior he saw in Hell’s Kitchen, looked forward to a career that would enable him to prevent juvenile delinquency. Accordingly, he selected sociology as his major field of study and was in the top of the class in all of his sociology courses. One of his more useful experiences was his course in criminology. The class tried to find a solution to the problem of truancy by public school students who simply refused to go to school. Intuitively, Ferencz knew the answer. They were bored. He led the way in devising a program of evening activities to attract the kids back to school. All truants were invited to come voluntarily to participate in games and shop activities that were generally popular. The class provided lots of building materials but had a shortage of tools. A job of any size, such as building a rowboat, could only be completed by boys working as a team. While having fun, they learned to cooperate and share the tools. To meet full-fledged juvenile delinquents, Ferencz was recommended for an unpaid summer job — as a counselor at a reform school in Dobbs Ferry, New York. The place of detention was felicitously called the Children’s Village. It offered cottages and “cottage parents” to help the delinquents who had been persistent truants, runaways, thieves or even murderers. Ferencz was only a few years older than some of those entrusted to his care. On his day off, he would hitchhike home to the Bronx and return, always carrying a bag of sweets for his charges. Invariably, the sweets were promptly stolen. After a few warnings, he set a trap. He returned with a sack of sharp peppermints.

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The bait was immediately taken. He then lined up half a dozen of his suspects and asked them each to exhale. No one could doubt who the thief was. He then left it to the perpetrator’s bunk buddies to decide on the appropriate punishment. When he returned, half an hour later, the culprit had been tried by a jury of his peers and some painful justice had been done. This was Ferencz’s first experience in criminal investigation and justice. To earn some money, Ferencz became a ghostwriter. Some enterprising senior in college had devised a service to help his fellow man. If a student at another school, such as Brooklyn College or New York University, was in need of a term paper or a dissertation, the CCNY entrepreneur tried to be helpful. He had a stable of needy City students available for any subject. Ferencz would accept an assignment in any of the social sciences. By collecting a pile of relevant books from the library, and spreading them out on his bedroom floor, he could type out a requested paper of any subject or size for the sum of one hundred dollars — no questions asked. Not only did it provide him with a form of sustenance, he expanded his skill at speed reading and writing, and learned more than he ever absorbed in class. His pre-law education also included work as a volunteer intern in the criminal court system of New York City. His assignment was to arrange court records of interviews by psychologists, psychiatrists, or social workers that gave written opinions about the felons. He was surprised to discover that some citizens who appeared quite respectable were capable of the most atrocious crimes. It became clear to him that some sex offenders were habitual criminals on whom imprisonment seemed to have no deterrent effect; on the contrary, incarceration only increased their aberrant behavior. No one knew what to do about political criminals, such as bomb-tossing terrorists trying to achieve a particular political or nationalistic goal. The professional, habitual criminals were well known to the police and were frequently subjected to coercive techniques deigned to discourage further criminal behavior. It seldom worked, but sometimes it did. It was clear to Ferencz that progress toward a more humane and peaceful world would be slow and difficult. For many intransigent problems, there are no easy answers. This was probably his first glimpse into what would become his life’s work — to attempt to achieve peace through law. In 1940, at the age of 20, he graduated from CCNY with the degree of Bachelor of Social Sciences. At this point he was determined to try to become the best student in the best law school in the world. He sent his application only to Harvard Law School. He never found out how or why he was accepted at the elitist institution, but was admitted as a member of the class of 1943. His basic area of study was criminal law and his performance in the first semester at Harvard earned him a federal scholarship that carried him throughout the remainder of his studies.

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His primary classes of lasting value were in contracts, ethics, jurisprudence, business law, and most importantly for unexpected future events in his life, criminal law. His course in contracts was taught by a very learned and respected scholar, Professor Lon Fuller. Fuller was able to dissect every legal problem and split decision to reach the core thoughts that led reasonable men to reach diverse conclusions. To be able to understand the other fellow’s point of view, no matter how much you might disagree, is an invaluable skill that sometimes helps make life bearable. Lon Fuller honed and sharpened Ferencz’s legal mind. The same could be said of Professor Zechariah Chafee, who taught ethics. He espoused human rights long before human rights was taught. From him, Ferencz learned about tolerance and the need to treat all human beings justly. The most learned scholar of all his teachers was Roscoe Pound, who started his career as a botanist, of all things, in Nebraska. Pound’s ability to categorize all knowledge into legal systems and his prodigious memory were truly phenomenal. Pound taught jurisprudence, which probed the historical origins of different legal schools of thought. He was an old man when Ferencz had him as a teacher, and he could hardly see. Reading his old notes, Ferencz considered him to be a bore, but as a legal savant he was incomparable and inspiring. Fuller, Chafee, and Pound all marked Ferencz as an “A” student, and he was grateful to them as great teachers. They also gave him confidence to believe that, if he put his mind to it, he could match the best of the best. There were also other professors who helped to shape Ferencz’s thinking. The course on business law taught him that corporate directors were employees hired to run businesses with consideration for the legitimate needs of the public, the employees, and the shareholders who owned the company. Any chief executive officer who failed to be guided by those principles might find himself facing criminal charges for “nonfeasance,” not doing his job, “malfeasance,” doing it badly, or “misfeasance,” which was called “corruption.” Ferencz learned that contingent fees paid only upon the success of a case were both immoral and illegal. Encouraging clients to sue could be punishable as the common law crime known as “champerty.” If a lawyer advertised, he would be disbarred. Ferencz still cherishes these teachings that he absorbed at Harvard Law School. Unfortunately, they have become eroded or forgotten with the passage of time, and he believes the legal profession and the public are the worse for it. For Ferencz, life at Harvard was a grind as well as an opportunity. He knew it was his big chance to make something of himself. Many of those who came from military or private schools could be identified by the fact that they always said “Sir.” It would begin and answer every question. It seemed very odd to Ferencz, but he learned that being polite didn’t hurt and might even make a good impression. He could see from his attic window that some of his colleagues drove fancy convertibles. If Ferencz wanted to go home for a

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holiday, he had to hitchhike. However, he was never envious. He considered himself very fortunate. His key to happiness was to be aware of his alternatives. That wisdom has remained with him ever since. His dream of paradise was of being lost in the stacks of the Harvard Law School library. He found such wonderful books to study and so much wisdom in the decisions of admired judges such as Benjamin Nathan Cardozo, Learned Hand, and Oliver Wendell Holmes, that a new world began to open before his eyes. Years later, in his first law office, he hung portraits of those three inspiring legal giants on the wall above his desk. A visitor remarked that the legal greats looked down on him. He replied, “No, I look up to them.” The rough edges of his earlier education began to wear off as he found inspiration in people he admired. One of the habits he got into in his youth was to eat regularly, if possible. On Sundays, the Commander Hotel opposite the law school had a buffet lunch. For fifty cents you could have all you could eat. That sumptuous brunch could fill his stomach for a few days but not enough to last until the next Sunday. He managed to find work as a busboy in the cafeteria of the nearby divinity school. Just for clearing the tables after lunch, he could eat all he wanted — of course only after divinity students had their fill. He was so grateful that, years later, he sent the divinity school money to pay for the food he had consumed as an impoverished law student. One of the things he learned from those studies was that man does not live by bread alone. He had to find some way to raise some real bread — otherwise known as cash. Because of his grades, he had been elected to the Board of Student Advisers, which paid a stipend for coaching students in “briefwriting.” He found a federal program that offered small grants to needy students employed as legal assistants to professors. To further his education in criminal law Ferencz offered his services to Professor Sheldon Glueck, who taught criminology. Professor Glueck and his wife had gained a reputation for their studies of juvenile delinquency. That was Ferencz’s chosen field, and he pointed out to Glueck the fact that he, Benjamin Ferencz, had won a scholarship based on his criminal law exam. He stressed that since the federal program would pay him for being Glueck’s assistant, there would be no cost to Glueck. In short, Ferencz said he could be good for nothing. He got the job. Since Glueck was considering writing a book on German aggression and atrocities, Ferencz’s first assignment from Glueck was to summarize every book in the Harvard library that related to war crimes. That assignment probably changed the course of his life. The truth of this last statement will be more than adequately pointed out in chapters 2 and 3. Being raised by parents who were very poor, uneducated, United States

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Ferencz in the Harvard Law Library in 1942.

immigrants, and growing up in the high-crime region of the Bronx and other boroughs of New York City, one might have expected him to go the way of most of the other immigrant children of that era — limited schooling, possible delinquency or truancy, limited goals, and eventual low paying work — struggling to rise above low beginnings. But because of his gift of well-above-average intelligence and a desire to make something of himself, Ferencz achieved more than even he had expected. In early 1943, Ferencz graduated from Harvard Law School — unheard of for a child of poor immigrants. But this was just the beginning. His inborn desire to make something of himself— and his dedication to improving the world in which he was raised and in which he now had to live — ensured that he would find a way. And though he might have had a different vision of how this might take place, Fate apparently had something specific in mind. Immediately after his graduation from Harvard, Ferencz enlisted in the army in support of the U.S. in World War II.

Chapter 2

From Army Enlistment to War Crimes Commission (1943 to 1944) Benjamin Ferencz was a supply clerk with the army rank of corporal in the 115th Anti-Aircraft Artillery Gun Battalion prior to and during the invasion of France, so his experiences as a combat soldier relate more to his side experiences than to battles fought. Therefore, virtually no battle details are provided, and this chapter is limited to brief descriptions of these side exploits until the time is reached when he is transferred to General Patton’s Judge Advocate Section for War Crimes in late 1944. This is when he began to see and be involved with the investigation of Nazi atrocities in concentration camps, covered in significant detail beginning in Chapter 4 in this section.1 Ferencz’s early study success at law school had resulted in his being awarded a full scholarship. Shortly after the war broke out in 1941, Ferencz went to enlist. However, the dean of Harvard Law School had already sent a letter to Ferencz’s draft board requesting that he be deferred from the draft until after he graduated — which was granted. As soon as Ferencz graduated from Harvard Law School in early 1943, he went to back to his draft board and enlisted in the army. Ferencz wanted to serve in the Intelligence branch because of his fluency in multiple languages, but was told that no one could serve in the intelligence services who had not been a U.S. citizen for at least 15 years. Unfortunately Ferencz’s citizenship was derived from his father’s papers, issued in 1933. Thus, he became an army soldier in March of 1943 with the initial rank of buck private. He spent until September 1943 in basic training with the 115th AntiAircraft Artillery Gun Battalion at Camp Davis in North Carolina. Ferencz’s experiences as a soldier were not pleasant. Not only was he often treated to anti–Semitic remarks and treatment, but being only a 2327

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year-old lawyer, he was constantly at odds with the strict requirement to respond to orders he considered “unconstitutional” or at least not in keeping with the proviso of the Declaration of Independence: “All men are created equal. They are endowed by their Creator with certain inalienable rights, including among these are the rights to life, liberty and the pursuit of happiness.” Ferencz’s reaction to the army’s training doctrine was that this sacred declaration seemed to have escaped the attention of the War Department. American officers paraded under a different banner: “Rank has its privileges!” Ferencz’s exposure to a military career was distinguished primarily by his determined drive to defend the principles enshrined in the U.S. founding documents. In defense of equal rights and the pursuit of happiness, his primary adversary was not the German army, but seemed to be the U.S. Army bureaucracy. Although classified as an infantry soldier, Ferencz was assigned duty as a supply clerk but still had to go through the same rigorous physical combat training as the other soldiers. Feeling that he had more to offer the army than being a clerk, he soon applied for transfer to Officer Candidates School, where he thought he would better fit in. When he was summoned to appear before the OCS Board he was surprised to see that its presiding officer was an old friend who had sat next to him at Harvard. His friend at Harvard was Major Hickman, a West Point graduate who had been sent to law school by the army. In those days they exchanged notes. Hickman was now on his way to becoming the judge advocate general. They expressed mutual joy at finding each other again, and Hickman immediately assured Ferencz that his application would be approved. Ferencz heard nothing further until his battalion was ready to sail off to war. In the meantime, he and his training sergeant came to loggerheads over various complaints Ferencz made about the somewhat bewildering way training was conducted. Ferencz was physically fit (although he was small in stature, being only slightly more than 5 feet tall), so his complaints were not with the physical aspects of training but with the more childish ways discipline was enforced. He was also appalled by the apparent unjust abusive attitude imparted on the trainees, especially one named Prince, who was heavy and clumsy and thus had a very difficult time pleasing the sergeant. Ferencz believed forced marching in formation to be counterproductive and a throwback to ancient times. When his sergeant told him his hair was too long, Ferencz used this to devise a way to get out of the marching. He had all his hair cut off and then had the battalion doctor write an excuse for him to be dismissed from marching because of the chance that his head might become sunburned and cause sickness. His sergeant retaliated by assigning Ferencz to every dirty job he could think off. This included cleaning latrines with a

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toothbrush, potato peeling, and pot washing. Ferencz didn’t mind these duties, as he believed them to be useful to the battalion troops. In addition, Ferencz was always looking for ways to help his fellow comrades adjust to the rigors of training. Fortunately, some relief was at hand. As a supply clerk, one of Ferencz’s more useful army duties, not surprisingly, was to order supplies. One of his first requisition assignments was to obtain the official rubber stamps needed by the commanding officers to authenticate various military actions. He was directed to request one such seal for the battalion commander and one for each company commander. Since it was such a vital instrument, he thought it might be prudent to request an extra one as a reserve. For safekeeping, he kept it in his own pocket. He would sooner have parted with his rifle. The official stamp and an extra book of blank passes became an instrument of justice. When all the officers and the sergeant left the camp for a weekend, a line formed around Ferencz’s bunk. His buddies knew that a pass from “Benny,” validated with the official seal, would get them past the MPs. He was simply demonstrating the equality of all men as guaranteed by the constitution. There was no limit to his patriotism. He also tried to be kind and charitable whenever it appeared that those virtues were being neglected by the U.S. military or justice was being unfairly denied. He kept this seal with him throughout his stint in the Army and was able to use it effectively several times when it became necessary to move about in an unrestricted, and in many instances a necessary, way. Primarily this ensured accomplishing his assigned duties in obtaining necessary supplies for the battalion or doing war crimes investigations. He was stationed at Camp Davis until September 1943. When basic training was completed, his battalion moved up the East Coast toward New York, with continued exercises at Camp Pickett on the Virginia coast. These included transferring from troop ships into, and then disembarking from, landing craft, running obstacle courses, improving proficiency in small-arms fire, and conducting simulated beach landings for later use on a secret foreign shore. (It was during these training exercises that the heavy, clumsy Prince was injured falling from the side of the training ship while trying to descend into one of the landing craft. Prince was later given a medical discharge.) Ferencz was told he might have to go ashore under enemy fire and could expect enemy tanks to descend upon the troops and try to drive them from the beachhead. He was told to defend himself by digging a deep hole in the sand and jumping into it so that he could not be seen by the gunners on the tank. He was reassured that the treads of the wide tanks would pass right over the hole and he would remain safe from harm. He was informed that the underbelly of tanks carried no armor so they could be blown up from below

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with a hand grenade that they all were expected to carry. Ferencz admits that the idea of becoming a suicide bomber on the sands of a Virginia beach was not particularly appealing. Infantrymen carried a small shovel, but Ferencz was expected to dig his hole using only the aluminum plate of his mess kit. He had never learned how to dig a hole in law school and was really no good at it. He had dug only a shallow pit when he could hear the rumbling of the training tanks that were descending upon them. He says he is not a coward but he recalled that retreat is sometimes the better part of valor. Under the circumstances he concluded that it would be prudent to just stick a big branch that he found on the beach into the unfinished hole and run like hell. From a safe distance he observed what happened to his branch. Sure enough, the tanks came rolling, and one ran right over his spot. It stopped as if to look for him and then turned slowly, grinding its treads into the soft sand. His branch was buried forever. If he had stayed there, as instructed, there would have been no more Benny. By November 1943 Ferencz had been promoted to corporal and had an opportunity to visit an army detention center to keep up with his studies on crime prevention. Based on his observations, he wrote an article, “Rehabilitating Army Offenders,” that appeared in the prestigious Journal of Criminal Law and Criminolog y in November 1943. The author was identified as Corporal Benjamin Ferencz, 115th AAA Gun Battalion, U.S. Army. After seeing this article, the commandant of the army detention center sent a request to Ferencz’s battalion commander asking if Ferencz could be transferred to his unit, where expert help was badly needed. Ferencz learned of the request and the answer at the same time as he received news about his application to Officer Candidates School. It was December 1943 when his sadistic first sergeant called him into his office with a happy sneer. “Well,” he said, “we’ve finally received orders to ship overseas. I’ve been holding some papers here that may interest you. I see you want to be an officer. I also see that a request has been made to transfer you to another outfit. All transfers are now prohibited.” He tore up both papers before Ferencz’s eyes and tossed them into the trashcan with a flourish. “The only way you’ll get out of this outfit is in a box!” Finally the battalion reached Camp Shanks in Orangeburg, New York, from where, on December 5, 1943, the battalion boarded the HMS Strathnaver— a former British passenger liner that had been refitted as a troop carrier for World War II — waiting on the Hudson River for the start of the trip to England. Ferencz’s travel on the Strathnaver was not the kind that one would expect on a high-class cruise ship. The ship was jammed with as many troops as it could safely carry. The enlisted men were restricted to the bowels of the ship

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with bunk-type sleeping arrangements. They were only allowed to go on deck for one hour a day. Their food was almost inedible, and the fresh fruit and vegetables for the enlisted men soon ran out — although there seemed to be plenty for the officers. According to Ferencz, the enlisted members of the 101st Airborne Division corrected this situation by raiding the officers’ mess in a near mutiny. Ferencz’s abusive first sergeant was seasick most of the trip, and Ferencz was able to get something back on the hapless sergeant by occasionally offering the sergeant some of the less desirable food items (such as greasy pork chops and green hotdogs) as a “humanitarian” gesture. The HMS Strathnaver arrived at

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Ferencz as a U.S. army corporal, 1943.

The HMS Strathnaver was used as a troop ship during World War II (Wikipedia).

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Liverpool, England, on the night of December 16, 1943. The troops disembarked on the night of the 17th and boarded a train that took them to Manchester. They left the train in the dark and moved into buildings that had previously housed animals as part of a zoological park called Bellevue. After conducting anti-aircraft training exercises for several weeks near Manchester, the battalion moved south towards Salisbury, stopping at Camp Blandford, Dorset, in early March to wait for one of the AAA gun batteries to go off for a real-time exercise near London. During this sojourn, Ferencz wrote one of his many letters to Miss Gertrude Fried, his sweetheart back home. The letter shows Ferencz’s serious philosophical thinking that went hand in hand with his intelligence, education, and attitude towards his situation: 20 April 1944 9 P.M. Dearest: The lights in the barrack will soon be going out. I had hoped to spend a long time talking to you tonight dear, but there were so many distractions that the hours passed by unnoticed. The sun is still out, which will give you some indication of the kind of weather we are having, and a partial explanation for my mistaking the hour. This afternoon’s newspaper tells me that 6000 aircraft have attacked the enemy. This is good news to everyone here, and the air is tense. It is like the few minutes before the big football game, and everyone looks for an excuse to shout. Not long ago a big formation of planes passed overhead. Two weeks ago they would have gone unnoticed. Tonight we all ran into the road, yelling “Come on Team!” The picture we get of the war effort comes largely from the daily press. We are too busy with the important little details to take much notice of the picture being formed. Most of the fellows have only a vague knowledge of what is taking place on the battle-fronts, and it is only when each individual is called upon for an added inconvenience that he is aware of the fact that he is part of the big machine. The current news causes an air of excitement, and there is a slight constriction in the pit of the stomach. As the hour draws near there are many who would prefer to win the war from England. We all know it is impossible. I am anxious now to get into it. Perhaps it is just a desire to hasten the inevitable, but I know that the sooner the big show starts the sooner will it all be over. Then we can go home. It is interesting to notice the reaction of the men as they read of approaching events. There is much kidding. Each one feels excited, but morale is high. A friend asked me, on the chow line the other day: “Why are they laughing?” It is a very serious matter, so forgive me sweetheart if I seem slightly morbid tonight. I am writing this because it is you. An army pamphlet discussed The Nature of a Free Man. It stressed the obligations of freedom, and the fact that wars can only give one side the opportunity to decide its own future. I raised the issue in the barracks and became deeply involved. The prevailing attitude is one of hopeless

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defeatism. Not on the military side of course, but the boys here think they are pawns of politicians, and there is just nothing they can do about it, so why bother with all this silly discussion. The world which made this war is the world to which each one hopes to return. Wars are inevitable they say, and anyway they will be too old for the next one, so why worry. There is no thought of social obligations, of consistent ethics, of purpose, of meaning. “Why are they laughing?” I am struck with the fact that these boys, and I believe they are a fair sampling of perhaps 10 million more, so cheerfully risk their lives, yet will not give one hour of their time to trying to learn what it is all about. Ten million men, armed to the teeth, shrug their shoulders and say: “There’s nothing we can do about it!” Now, perhaps more than ever, I understand how a mad fanatic like Hitler could seize his power. It is easy to risk death. It is difficult to think. What a failure our educational system has been! The public reaction after the last war made “A world safe for Democracy” a joke for cynics. Having been duped once, it became an axiom that we would be duped again. Having the axiom made it a reality. When men do not have faith in their own actions the purpose vanishes. Our schools have failed to instill the desire for understanding, there are no ideals, there is no determination, and each man exists from day to day with the sheepish hope that tomorrow will be better. As millions of men stand ready to brutally slaughter millions of other men what an ironic picture this makes! If I have painted things in a despairing light, dear, such was not my intent. The future is dark and difficult, but the world of tomorrow will be made by the few leaders. Perhaps America is too young, perhaps it is human nature, but I believe that the common man has not yet suffered enough to make the nature of his living one of his primary concerns. It is like the old doctor’s saying that you do not know you have an organ until you have suffered a pain. Man is content with a mediocre living, and only when it becomes painful is he aware that there is a problem. America is still too rich, too far from the war. Miami is booming. The soldiers don’t want to be bothered. It is a sad hope that soon they may learn. I do what I can, where I can, and hope for the best. I am chained by circumstances, however, and the satisfactions are limited. I have become detached from the total picture, and find inner comfort in the facts of my own effort. Effort without achievement, however, is far from an ideal goal. I can only urge each one to attack defeatism, and the appeasement that goes with it. Our generation is too easily led, and there is always the danger of misleading. It is not easy to stir up thought. It is sour medicine to persons not yet aware of an illness. Unless each man is to become a cynic and a sheep himself it is the only way. I cannot be led by the beatings of a hollow drum. If those who can understand will determine to exert united effort for common ideals nothing can stop them. Each can find his mental salvation in the attachment to that principle. The unburdened conscience of doing what I know must be right makes me look forward to the coming months. This in spite of the fact that when my friend asked “Why are they laughing?” I did not answer.

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Now the lights are already out in the barrack, and I have said things I had not planned to write when I sat down. Will you forgive me sweetheart if I postpone the letter I had intended until tomorrow? It’s way past bedtime, so now it’s good night my darling. I love you always, Ben2

In late April, the 115th AAA Battalion bivouacked next to Stonehenge near Salisbury. The flat plain was a good place to assemble the countless tanks and armored vehicles that would be needed for an invasion of Europe. Ferencz’s tent was almost literally pitched against one of the famous prehistoric rocks at Stonehenge. One morning he was awakened to find his tent surrounded by a circle of people chanting in white robes. It looked to him more like the Ku Klux Klan than the German army, but it turned out that they were harmless pilgrims come to celebrate at what they believed was an ancient religious shrine. In his role as a supply clerk, Ferencz had to travel around the English areas where his battalion was bivouacked to find whatever supplies the battalion was in need of at the time (including toilet paper, repair parts, fresh food, and water). This gave him an opportunity to see sights that he otherwise would not have been able to see as an ordinary infantryman. In the distance the magnificent Salisbury Cathedral could be seen. He took the opportunity to visit and study its beautiful architecture. In addition he was able to visit London (including Westminster Abbey), Brighton, and Brighton’s famous beach, while performing his duty as supply sergeant. It was not that Ferencz neglected his official duties as a supply sergeant to go sight-seeing around England — quite the contrary. He was known as a guy who could always get the job done. When, for example, practically all of the battalion field stoves failed to function, Ferencz discovered that it was usually only one part out of many that was defective. All broken stoves had to be shipped back to the U.S. for repairs. It was estimated that it might take six months. Ferencz tracked down the freight cars full of broken field stoves waiting on a siding in England. With the use of a screwdriver, he quickly cannibalized the broken stoves, collected bags full of useable replacement parts, and returned to base in triumph. Without a functioning stove there could have been no hot meals on the battlefield. Ferencz says his most heroic achievement was when he was responsible for “wiping out” a whole battalion. Since they were ready to invade France, and that was on the other side of the English Channel, the army decided that to cross the channel all needed supplies had to be sealed in waterproof containers. That was done. There was no problem until the battalion ran out of

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A portion of a letter by Ferencz dated April 20, 1944.

vital supplies while still on shore. In short, when the invasion was delayed, they desperately needed toilet paper. But it was all safely packed up, sealed, and stored in the bottom of the boats waiting in the harbors. Calls to all the warehouses and supply depots in England were to no avail. No toilet paper was on hand anywhere and there appeared to be no viable substitutes available.

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The envelope for a letter by Ferencz dated April 20, 1944.

The situation called for creative imagination. From Ferencz’s vast army experience as an unskilled typist, he knew that the army would never run out of typing paper. The second sheets, disguised under the name of “manifold,” were used for carbon copies. Their thin and delicate texture was also suitable for other purposes. There were plenty of manifolds around, and Ferencz raced out to get them. He then found a butcher company that had big cleavers and persuaded a few husky butchers to demonstrate their skill. They hacked each pack of manifolds into four squares with two strong whacks of a meat cleaver. With a truckload of improvised toilet tissue, Ferencz returned to base in triumph. His whole battalion was saved from a fate worse than death, but his rank wasn’t high enough to qualify him for any special commendation. The accommodations in the Salisbury Plain had not been improved since the Stone Age. No lights, no heat, no running water — no nothing. The plain was made of solid chalk, as Ferencz was able to attest from the latrines he dug there. He also recalls the resourcefulness of a GI who had an open trailer attached to his Jeep. He had pinched a spigot from a brewery somewhere and he plugged it into a hole he bored in the bottom of his trailer. The GI collected rainwater in the trailer and then lit a fire under it. He had invented a way to have a hot bath where there was no plumbing. Hot water on tap! Since he was a friend of Ferencz’s, he allowed Ferencz to put his helmet under the beer spout and fill it with “slightly used” hot water. The warm water was always

2. Army and War Crimes Commission (1 943 to 1 944)

Stonehenge, England (courtesy Mary Ann Sullivan).

Salisbury Cathedral, England (courtesy Adrian Fletch).

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good for a sponge bath and even for washing socks. But Ferencz claims getting the sequence right was very important. Not far away was an old English nobleman’s castle. Ferencz doesn’t remember the Englishman’s name but noted that he was noble in spirit as well as title. In the basement of the castle he had built a row of about six bathtubs. He would invite the Yanks to come by truck and have a wash. Since heating fuel and water were limited, only a few inches of water were available for each tub. Praise the Lord — whatever his name was — the troops considered him a real English gentleman! The time was now nearing for the invasion of France. Ferencz’s battalion moved to Southampton for final preparations to cross the English Channel and land on Omaha Beach in Normandy, France. The main invasion began on June 6, 1944 (D-Day), but the initial crossing of the 115th AAA Battalion did not commence until June 10. The delay was required because the landing area had to be cleared to allow the heavy equipment to be brought over. In addition, Ferencz was part of the group of supply and administrative personnel that were not allowed to join the main battalion force until later. Several days passed before Ferencz’s group was notified in the holding area that they were to rejoin the main battalion in France. The group zigzagged along the English coastline before starting a dash across the choppy channel heading for France. When they neared the French coast, the boats circled around and around in the turbulent seas. The vessel was navigated by an English sailor. The passengers were a bunch of seasick Americans in full battle gear. When the order to land finally came, their small landing craft raced toward the shore of what they later learned was Omaha Beach. The steel ramp at the bow was dropped into the water’s edge and the men tumbled out. For most, the water came no higher than their knees. For Ferencz, it came to his waist. It so happened that at just about that time, the skies opened up in pouring rain. The beach was fairly cleared by that time. There were plenty of sunken vessels around, but no bodies visible on the sand or in the water. Ferencz learned that the 115th was encamped on top of a ridge overlooking the sea. So he made his way up the slippery hillside and reported for duty. He was immediately welcomed by a friend of his, a sergeant named “Starchy” North who was in a large hole manning a .50-caliber machine gun. “Boy, am I glad to see you,” Starchy said, “I’ve been manning this (expletive) gun all by myself, and I need help.” So Ferencz jumped into the hole next to him, and they peered out together over the surrounding pile of sand that had been dug from the hole. “The Krauts may try a counterattack from the sea,” Starchy said, “Watch out for them. I’m going back into that field to check out the farm houses for snipers.” He left, and Ferencz looked at the gun and looked at the sea.

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Now he admits that he had never in his life fired a .50-caliber machine gun, so he thought it might be prudent to figure out how it worked. The big bullets were already strung into the breech, and he managed to locate what seemed to be the trigger. Pointing the weapon toward the sea, he fired. A fiery arc reached across the ocean and he could see the mark of the tracer bullets hitting the water. He then knew that he could defend the mainland, but only if the Germans attacked in a rowboat. If their guns could outreach his .50cal gun location, he knew he would be a dead duck. Fortunately, he spotted “Starchy” coming back, wobbling a bit, but seemingly cheery. Ferencz saw that in his hand he waved the remains of a bottle of Calvados, a local brew that looked like water and acted like rocket fuel. Suddenly, Starchy snapped to rigid attention, his heels clicking together, and his body toppled like a felled tree, face down into the dirt. Ferencz wondered if Starchy had been hit by a sniper’s bullet and was killed, but when he rolled him over, he found that Starchy was not dead — only dead drunk! This was Ferencz’s first real experience in personal combat action, and fortunately he had little frontline action throughout the rest of his travels through France with the 115th AAA Battalion. His duties as a supply clerk and occasional guard duty kept him back from direct combat. Of course the tasking of the AAA Battalion was also usually behind the front lines so they could set up and fire barrages over the front line without being forced to move quickly with their heavy equipment and ammunition stores. After Ferencz’s part of the battalion (kitchen, supply section, etc.) caught up with the main battalion, they traveled from Omaha Beach through Carentan, Avranches, Alençon, Vitry-le-François, Le Mans, Orléans, Lunéville, and Commercy in France on their way to Luxembourg. Between Le Mans and Orléans, the battalion passed near Blois, France. In one of his excursions around the French countryside gathering supplies, Ferencz was able to visit the chateau at Blois, featured in a French guidebook. While admiring the grandeur of the building, he heard shots being fired in the courtyard. Peering cautiously around a wall, he saw what appeared to be German soldiers firing rifles toward a field. A closer look revealed that beneath German helmets were civilian Frenchmen, wearing FFI brassards identifying themselves as members of the resistance French forces. They had donned helmets taken from Germans and were firing at a distant German artillery encampment. It was obvious, even to Ferencz, that the Germans were outside the range of the rifles held by the resistance fighters. Meanwhile German mortar shells kept exploding in the courtyard where they were hiding and where Ferencz was studying the architecture. Fortunately, he was able to alert some American soldiers, who were patrolling the area in Jeeps, to the situation. They signaled the air corps and it didn’t take long before the problem was solved.

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Ferencz much admired the ingenuity of the American GIs. After landing on the beaches, the vaunted Sherman tanks were stopped in their tracks when they tried to mount the high hedgerows in Normandy. The unarmed underbelly of the tank was thereby exposed to the Germans concealed and waiting on the other side of the earthen mound. Many a tank crew was roasted before some inventive farm boy who was used to tractors came to the rescue. By welding segments of steel railroad tracks along the sides and front of a tank it was converted into a big pitchfork on wheels. It cut through the massive mounds as easily as picking up a pork chop. Another farm boy attached long steel chains alongside of the front wheels of a tank. As the armored vehicles rolled forward the chains beat the ground ahead of it. Hidden land mines were thereby exploded in front of, rather than under, the tank, and the troops could advance. This is not to suggest that everything done by the U.S. military was a product of pure genius. The opposite was sometimes the case. Ferencz does not know how many, if any, German planes were shot down by the 90-mm cannons of the 115th Gun Battalion, but he does know that when the battalion gunners hit a plane it occasionally was British or American. Of course, the air corps had devised a foolproof system to prevent that from happening. Allied planes were supposedly all equipped with modern techniques to identify friend from foe (IFF). By pressing the daily code into the IFF system, a signal was sent to the ground to show that it was not an enemy plane. As might have been anticipated, the new secret system didn’t always work perfectly. Either someone forgot the code, or entered the wrong numbers, or forgot to activate the defensive gadget, or it was rendered nonfunctional because the plane was limping home from a mission where it was hit, or any of many other similar accidents that might have been anticipated. Ferencz learned that anyone who relies on a “foolproof system” is a fool. When a plane came within reach of the battalion radar, the gun batteries automatically went into remote control mode. The Germans had learned to fool that foolproof system by dropping strips of aluminum foil. The battalion’s radar and guns would pick up the decoys and shoot in all directions — except at the target. An unsuspecting allied plane had no such complicated defenses as a piece of aluminum paper. If their IFF system was not working they were like sitting ducks as the guns fired, as they had been programmed to do. Occasionally, allied aircraft, often returning still carrying bombs or ammunition, were blown to smithereens. Tracer bullets reaching for the planes, and the ensuing fireworks that exploded into the sky left a painful and indelible image on Ferencz’s mind. Those who were not manning the guns fanned out over the terrain desperately and hopelessly searching for survivors. Ferencz carried a cardboard

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carton into which he sadly placed body parts or anything else that might help to identify a human body so the next of kin could be identified. He doesn’t want to be considered unpatriotic, and hopes he will be forgiven, but “the rocket’s red glare, the bombs bursting in air” evokes memories he would rather forget. He never goes to any celebrations where fireworks are featured. As can be expected of a 24-year-old, exceptionally intelligent law-school graduate, most of his experiences as a lowly U.S. Army corporal were unpleasant. During combat, the army did not have much use for lawyers, and vice versa. They didn’t quite know what to do with him. Ferencz was often in some kind of trouble with his superior officers. He recalls three specific examples of how he responded to what he believed was unfair treatment of the enlisted men. One day the battalion was surprised to receive an unusual shipment of Scotch. The commandant declared that each officer was entitled to one bottle. Each enlisted man was rationed to one tablespoon poured into his mess cup. When one of the officers, a friendly chap, Captain Sloop of North Carolina, accidentally shot himself in the toe, all further distribution of liquor to the enlisted men was immediately halted. This failure to provide equal treatment so violated Ferencz’s sense of justice that he promptly sought ways to correct the imbalance. The battalion at the time was encamped not far from a town where Ferencz had noticed an ice cream parlor. Ferencz located the owner, who explained that he couldn’t produce ice cream because he lacked the necessary sugar and vanilla bean extract. Ferencz recalled that the supply room had boxes of genuine “Imitation Vanilla Flavor,” and one tablet could produce a gallon. They also had plenty of sugar. Ferencz borrowed an adequate supply of both and made a deal with the ice cream dealer. He gave him the missing supplies, in exchange for which he could keep half of what he produced. Ferencz wanted enough to feed a battalion of 1,500 men. In due course, he loaded a truck and delivered gallons of delicious, sweet vanilla ice cream to each of the four companies of the 115th. It was a very welcome touch of home. Ferencz’s instruction to the cooks was that every enlisted man would first get a good portion of the treat and the rest could then go to the officers — one tablespoon at a time. At another time the colonel had posted a bulletin that said: “There shall be no more individual cooking in the area!” That mandate had been prompted by the fact that many soldiers had, from time to time, managed to acquire some fresh eggs from local French farmers. Like Ferencz’s ice cream, it was a relief from the canned goods and powdered stuff that passed for army food. It must be admitted that the bivouac area was intermittently strewn with eggshells. But they were at war, were a rapidly advancing outfit, and the shells

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were biodegradable. The colonel may have wanted to impress General Patton with his neatness but he sure didn’t impress Ferencz. So Ferencz again exercised his constitutional rights to “life, liberty and the pursuit of happiness.” He persuaded some French friends to get him a chicken in exchange for more glamorous edibles. He borrowed potatoes and pots from the kitchen, set them up on a field stove in the supply tent and began to cook a chicken supper, to which he invited three of his enlisted-men friends. The meal was almost ready when one of the captains passed through the tent but said nothing. A few minutes later, he came back and said they were all to report immediately to the colonel. No sooner did they appear, salute and line up before the commanding officer than he began his tirade. “Did you men see that sign about individual cooking?” Realizing what had caused them to appear before the colonel, Ferencz promptly said, “Sir, these men were my guests. They had nothing to do with it. The responsibility is all mine.” “Good,” he said, “The rest of you are dismissed.” Then he began to work Ferencz over. “Do you know what it means, soldier, to disobey an order in time of war?” “Yes, sir,” came Ferencz’s meek reply. “I’m going to make an example of you, soldier! You have defied my orders for the last time.” Ferencz began to wonder if the colonel planned to shoot him. “I am going to have you court-martialed to teach you what it means to disobey a commanding officer in time of war!” Ferencz replied softly: “I wouldn’t do that, sir, if I were you.” “Why not?” he bellowed. “Well, sir,” Ferencz replied gently, “I would never disobey your order at any time. The order said: No individual cooking. You could see from my guests, who would be witnesses, that it was group cooking — and that was not prohibited.” There was silence. He seemed to be thinking over what Ferencz said. It finally sank in. He turned red, then white, then blue. A real patriot. Then he screamed at the top of his voice: “Get out of here! Get out! Get out!” Ferencz ran. Ferencz was not a man to be soon forgotten. To maintain the morale of the troops, the bulletin board carried an announcement that Good Conduct medals had been awarded to the men. The list of those so decorated was the complete roster of every man in the battalion. Only one name was crossed out — in bright red ink. It was Ferencz’s! It was his proudest moment. But he was curious to know what he had done to earn such a rare distinction. He called upon his captain and told him that he was flattered to be singled out but would be grateful for an explanation. The captain’s reply was: “The colonel remembered the incident with the cooking.” Ferencz does not really believe that all army officers are ignorant, mean, and rotten. However, a warrant officer named Harvey Bligh, temporarily assigned to Ferencz’s HQ, fully deserved all of those titles. Ferencz’s first encounter was when Bligh mistook Ferencz for his personal valet. He directed

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Ferencz to find a cleaner for his trousers, whose front had been badly stained during his previous night’s festivities. Ferencz told him politely that it was not in his job description. Bligh later ordered Ferencz to dig a foxhole for him, get his bedroll off the truck, and assemble his protective gear. Ferencz replied: “Yes, sir.” What Ferencz was thinking was even more succinct. He found Bligh’s heavy bedroll and unfurled the wide strap that held it together. He gently pulled it off the truck and dropped it in the mud. Could he help it if the ground was soft and covered with grease from the guns and vehicles? He then dragged the heavy load to the hole he had dug. He then upholstered the excavation with a fine layer of soft mud and then pushed the greasecovered pack into the morass. When the warrant officer returned he let out a wild scream and began to curse Ferencz furiously. Ferencz explained quietly that the bag was too heavy for him to carry but he always tried his best to carry out his orders. Mr. Bligh sought his revenge soon enough. One night he was on duty in the HQ barrack and Ferencz was the orderly. “OK, soldier,” he said, “sweep the floor.” Ferencz did. “Do it again!” came the command. Ferencz did. “You’re a Harvard man,” he said, “you can do better than that.” Ferencz did it again. “OK, Jew boy, do it again!” After repeated goading, Ferencz had about reached the limit of his endurance. He was sorely tempted to use the broomstick in ways never intended or desired, but he refrained. In the next letter home to his sweetheart, Ferencz reported in detail about his heroic restraint. He knew that the mail would be censored and he waited to deposit it in the outgoing box until there would be a captain on duty whom he knew to be a decent chap. The captain, named Klatte, copied the address of Ferencz’s “intended” and sent her a letter. When she received an official communication from an unknown Captain Klatte of the 115th, she feared it was the standard notification that Ferencz had been killed in action. She wrote that she nearly fainted. She was relieved that it was not condolences over his demise but only condolence for the abuse he had so bravely taken without striking back. The kind and considerate Captain Klatte was truly an officer and a gentleman. He later left the 115th by volunteering to command a battalion of black soldiers. While Ferencz was clearly unhappy in the army, it was not always bad. He had the opportunity to do some good things for his comrades in arms and to see things that he otherwise would not have seen. He recalls that one of the most gratifying experiences of his life was to feel the thanks and warmth of the French people who were liberated from German occupation by American troops. They cried and cheered when U.S. tanks rolled into town. They raced after every vehicle, handing out flowers and wine to every soldier they could touch. In return, the doughboys tossed packs of cigarettes and candies

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to the welcoming crowds. It was a heartwarming and emotional demonstration of the value of freedom — which Americans as well as others too often take for granted. Ferencz has never forgotten it. An illustration of that spirit can be found in what happened in Lunéville, a small city southeast of Paris. General Patton’s tanks had entered the town and the German army had retreated to the nearby woods. Their panzers had a greater range than the American guns and they continued to fire into the town with impunity. When Ferencz’s battalion reached Lunéville, he was assigned duty guarding one of the bridges in the heart of the town. His task was to stop civilians from trying to cross under enemy fire. When a girl of about 20 appeared on a bicycle, he stopped her and warned her that the bridge was under attack and was not passable. Despite shells falling all around, she ignored the danger and tore away, saying she had to get home. By chance, he met her again the next day. The battalion was billeted in a barrack that had just been evacuated by the German army. Directly across from their barrack was a small building that doubled as a schoolhouse and residence. The girl taught kindergarten there, and lived with her father, who was a professor at the University of Nancy. When she passed by Ferencz’s guard post at the gate of the barrack, he recognized her and scolded her for having run such risks the day before. She apologized and, since he spoke French, she invited him to celebrate Liberation Day with her family. The following evening, Ferencz, as their guest, arrived carrying as many delicacies as he could borrow from the company kitchen. Lunéville Liberation Day was a festive occasion. The proud papa had caught a rabbit and even had two eggs. There were flowers and wine and fruits and Ferencz’s U.S. Army rations for the hosts. They all sang French songs and offered toasts for the Allied armies. As the end of festivities neared, the professor went down to the basement with a shovel and dug up two boxes. One was filled with French coins. The Germans had ordered all metal be turned in and melted down for munitions. The professor had collected as many coins as he could. Instead of turning them in, he had buried them in his cellar. His act of sabotage cost him his money, since French coin was now virtually worthless, and might have cost him his life. The second box contained two bottles of champagne. After going back upstairs, the girl’s father broke open one of the bottles, and they all drank a toast to the Americans and to the liberation of France. The second bottle, he said, would be put back in the box and returned to the cellar. It would only be opened when, and if, “le petit Benjamin” came back after the war. Of course, he returned, and they all shared the last bottle of champagne together. Ferencz said it touched his heart.

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Very shortly after the sojourn in Lunéville, the 115th AAA Battalion moved forward to Commercy in France, where they stayed until the end of November. That is when Ferencz received the orders that changed his life. As the battalion approached the German border, reaching Commercy, reports of German atrocities were widespread. President Roosevelt, Prime Minister Churchill, and Marshal Stalin issued joint declarations promising that the Nazi leaders responsible for these terrible crimes against humanity would have to stand trial before an allied court. One day, much to Ferencz’s surprise, he was called in and handed an order saying that Corporal Ferencz was being transferred out of the 115th AAA Gun Battalion and assigned to the Judge Advocate Section of General Patton’s Third Army HQ. Needless to say, he was very happy to say goodbye to the artillery. What brought about this sudden attack of sanity on the part of the army, he believes, may have been his experiences at Harvard Law School. Regardless, he was very pleased that his old nemesis-sergeant’s claim that he would only leave the battalion in a box had not come true.

Chapter 3

Initiating War Crimes Investigations (1944 to Early 1945) Ferencz suspects that following the Allied leaders’ declaration, the army brass in Washington turned to a Harvard professor for help. Professor Sheldon Glueck was the most eminent criminologist in America. Glueck was writing a book on war crimes, and when Ferencz was Glueck’s research assistant in 1942, Ferencz had summarized every book in the Harvard Law Library that related to war crimes. Having remained in contact with his old professor, Ferencz believes that Glueck gave Ferencz’s name to the U.S. War Department when they turned to Glueck for help. En route to his new assignment, Ferencz spent some days in a town near Luxembourg. He was billeted on Adolf Hitler Strasse, and the army canteen was right across the street. Crowds of hungry-looking kids carrying tin cans would wait outside and beg for food. The American soldiers customarily poured their coffee and uneaten food into a garbage can for burial. Ferencz arranged to have the children come with two clean cans for leftovers. The soldiers readily agreed to pour leftover coffee into one can and leftover food into the other. The hungry children were able to take some food home for parents who had just been freed from Nazi domination and who were too proud to beg. It was an easy way to “win the hearts and minds.” Ferencz reported to the Judge Advocate Section of the Third Army in Luxembourg in early December 1944. He was greeted by a Lt. Colonel Joseph who said that they had received orders to set up a war crimes branch and confirmed that Ferencz’s name had been forwarded by Washington. Lt. Col. Joseph, having never dealt with war crimes, asked Ferencz in all seriousness, “Tell me, corporal, what is a war crime?” Ferencz’s hour had finally come. 46

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Ferencz celebrated Christmas 1944 at General Patton’s HQ in Luxembourg while still busy helping set up the War Crimes Section. Patton’s staff received the mandatory Christmas rations for the boys overseas consisting of cold turkey, cool potatoes, yams, gravy, and nuts or candies. In the meantime, the Germans were not quite as festive. Much to the surprise of the Allied commanders, the Nazis had launched a major counterassault through the Ardennes forest, hoping to cut off all access to allied supply ports in Belgium. German soldiers wearing U.S. uniforms had misdirected U.S. forces, and soon units of the 101st Airborne Division found themselves encircled in a trap at Bastogne in Belgium. When the Germans called upon the U.S. commander, General McAuliffe, to surrender, he instead acquired world fame with his audacious one word retort, “Nuts!” As should have been expected, the somewhat puzzled Germans continued to hammer the beleaguered American troops. Foul weather prevented the air corps from coming to the rescue. So in mid–January 1945, Patton ordered all his men to rush to Bastogne to help General McAuliffe’s 101st Airborne Division troops. Naturally this help included Ferencz. As they raced north to the front, Ferencz was jammed into an open truck crowded with other shivering soldiers preparing for what became known as the Battle of the Bulge. Bits of paper were stuffed into the barrels of their M1 rifles to keep out the snow and pouring rain. They were warned not to leave the vehicles since all roads and adjacent areas had been thoroughly mined by the meticulous Krauts. However, before Patton’s troops could reach their destination, the weather cleared and the air corps went to work. The Allied air forces were able to easily crush the German offensive in what remains the biggest battle in World War II. By the time Patton’s troops arrived, Bastogne had been destroyed. The Belgian inhabitants who survived were dazed and desolate. Their homes were in ruins. German prisoners of war were being transported to the rear. There was chaos in the battered city. After a brief stay to help in the mop-up, Ferencz returned to his war crimes duties in Luxembourg. The Judge Advocate Section of Third Army Headquarters at that time consisted of about five lt. colonels led by Colonel Charles Cheever, who was the only one required to have legal training. These officers’ normal duties consisted of sitting in judgment at courts-martial when U.S. soldiers were accused of violating the military manual proscribing impermissible conduct. The typical charges were desertion, absence without leave (AWOL), attempted rape, robbery, insubordination, and similar offenses. Officers could be charged with “conduct unbecoming an officer,” the exact meaning of which was unspecified, and officers were usually acquitted. Judges, prosecutors, and

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defense counsel were all officers appointed by the commanding officer. Such proceedings frequently lasted no more than a few minutes. When Ferencz returned to HQ in Luxembourg, reports had begun to come in about American soldiers who had been captured and airmen who had to parachute out of their damaged planes into towns and villages, being systematically killed by Germans. Since this was a crime in violation of laws and customs of war, Ferencz insisted it was time for the U.S. to respond to this breach of international law. At Ferencz’s request his superiors were able to provide him with another soldier who had legal experience, Private Jack Nowitz — a Yale Law School graduate. Separately, the two of them started to race to reported scenes of crimes, perform investigations and interrogations to determine the responsible parties, and make arrests for later trials.1 A typical investigation began with an intelligence report that a U.S. flyer or flyers had been captured on the ground and had then been beaten to death by a German mob. Ferencz would proceed by Jeep to the scene of the crime, summon the Bürgermeister, or police chief, if one was around, and order that all civilians within a hundred yards of the scene be assembled. The only authority Ferencz had was the .45-caliber gun at his waist and the fact that the U.S. Army was swarming all over town. Under such circumstances, the Germans were very obedient, and he does not recall ever encountering any resistance. In a typical easy case, the assembled witnesses would be told, with help of a commandeered interpreter, that they were to sit down and write out an exact report of what had happened. The form Ferencz had prepared began with a declaration, in German, that the witness swore to tell the whole truth under penalty of death. After listening to the English translation of a dozen or more of such affidavits, there emerged a clear picture of the event. Ferencz knew exactly by whom, when, and where the crime had been committed and usually where the dead bodies might be found. He would then return to HQ and write a full report. It gave a complete description of the crime, the laws of war that were violated, the name and addresses of the important witnesses (whom he had placed under house arrest), and the name of the criminal suspects, whose names were put on a list of persons wanted for immediate apprehension and trial. The following are excerpts from a letter dated February 28, 1945, from Luxembourg, in which Ferencz wrote to his future wife Gertrude Fried: It’s not that there has been nothing to write about. It’s just a general ennui that means I’ve had just about enough of this sort of living and want to return to reality. It is working and living in a restless haze — but the spell will undoubtedly pass, so please don’t waste a worry on it. Do you remember when I was doing all that work on war crimes? Well, I’m

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back at it again. It’s much more satisfying to be going after German criminals than American violators of military discipline, and there are many phases of the work that are really interesting. Were it not for my knowledge of French I fear I would be consigned to the drudging groundwork of legal papers, but since the officers assigned to investigate the stories of atrocities cannot speak the language they simply come along so there will be a person of sufficient rank present, while I find out what happened. We receive regular reports from military intelligences and counter-intelligence sources giving us the names of victims of German atrocities. Our job is to find those victims who are still alive and get the details and the names of the perpetrators. The stories they have to tell are always interesting, and the tales of brutal bestiality would keep you awake nights. We have the name of a person who was either a witness or a victim, and off we go in a Jeep or a command car to find him. The Luxembourg or French police are always helpful, and I think that for a cigarette we could get the whole police force out searching. Finally we locate our man, and drive into a little picturesque village. The car goes slowly as we look at the house numbers, and as we look at each door a face appears at a window. Soon the whole block is looking out the window, wondering what has brought the soldiers. They have nothing else to do so they wait to satisfy their curiosity. The bolder ones run down and into the street to make sure that they miss nothing. Finally we find our house. The man we are looking for is a member of the local Underground. The Nazis suspected it, and he was taken away. He survived, and is a good man. Things have been seared on his memory and they can help us. The car stops. I get out — so far no face has appeared at a window here. Perhaps he is not home. I ring the doorbell or knock firmly at the door. A few minutes pass and then someone peeks from behind a curtain. I knock again. A frail woman opens the door timidly. “Yes,” she says, and her eyes have a frightened look. I smile, bid her good morning, and ask if her husband is at home. “No, no, he is gone,” she says emphatically, “What do you want him for? What has he done?” A uniform still fills her with terror. I assure her, smiling, that her husband has done nothing; that we would just like to have a few words with him. “Will you take him away?” she asks quickly, “What do you want him for?” Even the baby is hiding behind the door. I see it is hopeless; we will have to tell her. When I explain that we are from the American Army’s Department of Military Justice, and that we want to know what has happened to her husband so that the guilty persons may be punished, she becomes a new person. “Oh, won’t you please come in, sir. My husband just went to see the doctor. I will go and get him. Please come in sir!” I call the officer from the car and we go in. I bring along a typewriter, and the woman looks at the black case suspiciously, hesitates a moment, then smiles and goes out. There are just two small rooms inside. Something is cooking on the stove, and grandma is sitting on a bed and looking at us. We are just some more soldiers to her. She has seen enough of soldiers and is neither moved nor impressed. She says nothing, and her eyes are cold. A two-year-old baby sits on the floor and gives me a big grin. I give him a piece of “Knatch-gum” and he grabs it like a veteran. His sister, who must be about five, sees him take it, but won’t accept the

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piece I offer her. I speak a few words in Luxembourgish, but she moves away to another corner. She is suspicious of soldiers too. In a little while the man of the house comes in. He is small and thin. His hands are gnarled and his eyes are deep set. I tell him that the day of reckoning is coming, and that he may be able to give important testimony against his former oppressors. I offer him a cigarette, and forget the package on the table. “Ah yes, yes,” he says quickly, and his eyes light up. “You are from the American army, and you want to know what happened to me at —— concentration camp! Oh those dirty dogs, how I would like to see them get it! Are you sure you can catch them?” “We will catch them,” I tell him, and he knows I mean it. He then starts his story with the night the Gestapo grabbed him from his bed and took him down to the local headquarters. His wife watches him silently. She has heard it all before, but she listens. The stories are the same. He was kicked, beaten, starved, and then taken to Germany, where it was continued. He would not admit to being a member of the Underground, for he had seen his friends confess and dig their own graves. He remembers their faces, their regiment, who was in command. I type as he spells it out. There is much repetition and cursing in his story, and he is anxious to show me his scars. I assure him it is unnecessary. The officer is getting impatient. Finally we have it all down. I translate the deposition for him, and he signs it with an air of importance. He is glad to do it, but seems disappointed when we tell him that we won’t need him at the trial. “There is one in particular.” he asserts, “Why one night that —,” and then he starts again. We thank them, bid them all farewell, and return to our headquarters. The town is still peering out of their windows as we drive down the street. So you see, dear, the actual investigations are not dull, and I would get a great deal of satisfaction in seeing the cases through. However the air is foul, and whether justice will triumph remains to be seen. The principal offenders will go free I fear, unless there are some radical changes made. The present idea is to have each of the United Nations handle the cases which involve their own nationals. That’s good enough, but no provision is made for cases which involve persons of unknown nationality, of German nationality (such as the millions of Jews murdered), cases against several nationalities (such as the atrocities against all the inmates of the large concentration camps), and the international crimes of the German political chiefs, and international cartels that financed and made the whole thing possible. For these only an international tribunal would be adequate, but the dear U.S. State Department has said “Nay.” Result: We will fool around with a bunch of Nazi sadists, while the real criminals who are responsible will fly away on a kite of legal technicality. The heads of both the British and American section of the United Nations Committee on War Crimes have resigned in protest, and the maze of existing ignorance is shrouded under the cloak of military secrecy. La vie est drôle, n’est-ce pas?

But cases weren’t always that simple. If Ferencz knew where the body was, it would be important to get photos and positive identification. The victim would often be in a shallow grave. Ferencz was never any good at digging, and did not dare to use a pickax lest he would be unable to distinguish it

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from a stab wound or bullet hole. So he devised his own technique. If he could locate the cadaver by digging with his hands, and then tie a rope around at least one ankle, he could attach the other end to the jeep and slowly extract the body with fingerprints intact for positive identification by the Quartermaster Corps that was summoned to remove the dead soldier. Under these very difficult circumstances he tried to treat the deceased with every possible respect. This somber duty has always laid heavy on his mind, and he is always grateful that he was only the investigator, and not the victim. In a letter to his intended dated April 4, 1945, Ferencz describes one of his cases in which he investigates the killing of four American soldiers by the Gestapo “somewhere in Germany”: For the past few days I’ve been working on a case which revealed that four Americans were taken prisoner at a certain place and time, and that a few days later, by some strange coincidence, four dead American bodies were found floating in a nearby river. It looked particularly suspicious since the prisoners had been turned over to a branch of the Gestapo instead of the regular prisoner-ofwar authorities. Sniff, sniff; bloodhound Benny on the trail. This morning I caught up with an ex-big-shot Nazi who had worked for this particular branch of the Gestapo for many months. I got him in a separate room, sat him at a table, and started thumbing through pages of fancy typewritten stuff which had absolutely nothing to do with the case. All I knew about the perpetrators was the name and description of one of the Gestapo men. I handed the witness a pen and sheet of paper, and ordered him to write the names and descriptions of all the Gestapo members of that branch, while I compared them with the list I already had. He started slowly, but his second man was the one whose description I had down. “Oh, yes,” I said nonchalantly, “that’s the one with the shrapnel wound on his left cheek, nit?” (Notice that fancy German “Nit.”) After that he just rattled the rest of them off. The only thing left to establish was that the men who were found dead, and who were buried by the German civilians, were the same as the men taken prisoner. We had discovered a paper listing the names of the prisoners, and a comparison with any identification on the bodies was all that remained to be done. This afternoon I called at a U.S. Graves Registration Co. and asked for help to disinter some bodies. The lt. in charge was extremely reluctant. I told him that if necessary I would phone Headquarters and have Patton give him a direct order. The bluff worked. He said OK and sent the men to do the work. The wily Nazis had removed all identifying marks. No dog tags, and all pockets empty. Marks on the clothing had been cut out. But the darn fools were not up on the army regulations. On the inside of the belt the army requires soldiers to mark their initial and last four numerals of their serial number. The Germans had forgotten to remove the belt, and thereon very clearly, stood the initial and numbers of one of the men who had also been listed by the Germans as a prisoner the day before. Are those murderers going to be surprised! And soon. The soldiers will be given a decent burial in a U.S. military cemetery tomorrow. The German criminals will be buried later.

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Shall I go into gory details of the disinterment? I can see you turning green now, dear, which reminds me that the grass around here is turning green too, and it’s really a pity that I must spend such pleasant weather in Germany. Now that I am safely behind the bounds of the non-fraternization area I have been given a carte-blanche pass to travel in any town or city in France, Luxembourg, Belgium, or Germany, and speak to anyone. When I think of all the fun I could have had if they had only given me that pass before, I break down in deep weeping. I really shouldn’t be so emotional. I will tell you about the German people in another letter. Every one of them is very anxious, once he falls into Allied hands, to make a huge display of his hatred for the Nazis, and to squeal on any other German he can think of. That works out very well, for pretty soon they have all hung themselves in the net of their own treachery. “Mir sind nur kleine Leute,” they sob at the slightest provocation. I wonder if they really expect us to say, “Come home forsaken and misunderstood brethren and all is forgiven.” It just isn’t going to work out that way this time. I hope.

Little did Ferencz know that his war crimes investigations were about to become very serious indeed.2

Chapter 4

Major War Crimes: Ohrdruf, Buchenwald, and Flossenbürg Concentration Camp Investigations and Salt Mine Loot Discovery (April 1945) As Patton’s army pushed on into Germany, intelligence reports started to come in stating that some of the advancing troops were running into large groups of starving people being guarded by the SS (Schutzstaffel, translated to Protection Squadron). A large war map on Ferencz’s office wall tracked the advances of the U.S. Army and the location of known Nazi concentration camps. His assignment was to get into the camps as soon as possible and assemble whatever evidence was needed to prove beyond doubt the nature and extent of the atrocities committed. Ferencz knew that he would have to rely on help from the advancing troops. To aid in this he typed out an official authorization saying that he was entitled to interrogate any suspects, enter any premises, and do all things necessary to carry out a war crimes investigation assignment. All units and commanders were directed to give him every possible assistance. It was signed, “On behalf of the Commanding General,” well known to all as Patton. He then found an officer to sign it (Ferencz says he thinks the officer was sober at the time). To make it even more impressive, Ferencz stamped “Secret” at the top and bottom. Officially classified as a Jeep driver, he now had the means to go anywhere he thought he was needed. About this time Ferencz was promoted to sergeant by his old boss — the recently promoted Colonel Joseph. However, Ferencz declined to wear his new stripes, because he needed to continue working with no identification as 53

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to his rank. If identified as a lowly sergeant, he would not be able to command the respect needed to continue his investigations. Major war crimes were occurring; Ferencz believed he knew how to prove it and felt the stripes would only be a handicap. Colonel Joseph agreed. Ferencz’s only wish now was to get into the concentration camps that the army was liberating, using his “orders” from Patton’s Judge Advocate War Crimes Section as his authority. Nazi camps were identified by the name of their location and the nature of their mission. Official correspondence was filed under a code that identified both the town and function. Some were work camps (Arbeitslager), some were general concentration camps (KZs or Konzentrationslager). To make sure there was no mistaking their function, some were clearly labeled extermination camps (Vernichtungslager). Orders to all camp commanders came from the Reich Security Main Office in Berlin. Ferencz wrote home about some of his experiences with the liberation of concentration camps, but the main letters were delayed due to censorship issues. Instead Ferencz wrote only about noncensored items until the censorship was lifted. Here is part of one of the letters to Miss Fried, written on April 4, 1945, as the liberation of the Ohrdruf concentration camp was just starting and before Ferencz was there: Somewhere in Germany April 4, 1945 Dearest Sweetheart: When I got in last night I started writing to you immediately, and was interrupted by the arrival of a Congressional committee who were here to inquire about war crimes. Since I was fresh from the field I was called upon for a report. The senators and representatives seemed incredulous but impressed and both my colonels threw bouquets at me this morning for the fine delivery. I felt like telling them what they could do with their compliments. Shortly thereafter I told my colonel (recently promoted from lt. col.) that I was no longer interested in working in the office. My outside trips are much more interesting and I can see justice administered efficiently and promptly without a lot of inefficiency and nonsense. I asked to be put to work as an outside man, and my request was conditionally granted. A lt. col. was put in to do the work I had been doing, and I was designated “chief clerk” to keep things rolling until some of the new help arrives. We are scheduled to get 35 enlisted men and about 20 officers to do this work and the inefficiency is so sickening that I would just as soon be out traveling around. C’est la vie. Things seem very dull around here now. After traveling around the land independently, seeing and doing the most interesting things in Europe today I know I won’t be happy with sedate chair borne existence. It looks as though this old war is about to come to its delayed conclusion. It has been so long postponed that I fail to get enthusiastic about the surrender of millions of Germans. I have seen anarchy in action as the former slaves are liberated and take over. Looting and pillaging is rampant. Germans loot from each

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View of a section of the Ohrdruf concentration camp that includes a watchtower, barracks, and barbed wire fencing (USHMM Photograph #85351). other, and of course, the Russians and Poles try to make up for long years of suffering. It’s such a wild incredible scramble that I’m sure no one can imagine it unless he has actually been here. Living here and now is fantastic but I can think of someplace else I’d much rather be. Do I have to tell you where, dear? I think that when I do get home I will be content to just stay at home while I now must have something lively to keep me occupied. It’s just a question of social context, and I’m sure I’ll feel out of place as long as I’m not next to you. I really wonder how long it will be before I can get home again. The whole thing is so much in the air that no one even dares to speculate. There will be war crimes work over here for a long time to come, but I’m not anxious to take part in it. The whole thing is really a joke from the legal point of view. It will be one of our biggest post-war farces. Though we have proof of millions of murderers not one person has been tried yet. I think we don’t want to hurt their feelings. Wow, this letter is just full of griping. Don’t know why I should take it out on you, dear, but you know how it is... Just let the steam pass and forget it. It will all seem funny 10 years from now. I’ll be looking for your letters sweetheart, and, in the meantime here’s all my love from me to you. Always, Ben

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Survivors of the Ohrdruf concentration camp demonstrate torture methods used in the camp to top-ranking American generals. Eisenhower in center with Patton at left foreground and Bradley between them (USHMM Photograph #63511 ).

It was early April 1945 when Third Army HQ War Crimes Section received a report that a tank battalion had stumbled upon a scene of horror. It was in a small town called Ohrdruf.1 Hundreds of dead bodies — naked or clad only in tattered rags that looked like pajamas — had been found in a large area encircled by barbed wire. Many others seemed to be on the verge of starvation or death. Ferencz hopped into his Jeep and raced to the scene. Signal corps photographers were already there. A medical unit was administering first aid. Ferencz collected photographic evidence from the signal corps and continued to search for more proof of what had happened. Very few of the survivors were in condition to report coherently. The SS guards had fled before the advancing American army. While Ferencz was at Ohrdruf, the army found a salt mine at the nearby town of Merkers that was filled with Nazi gold, documents, and other items. Ferencz was there to get the evidence on April 12, 1945, at the same time that

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General Eisenhower looking over Nazi loot at Merkers salt mine. General Omar Bradley is at rear right. April 12, 1945 (USHMM Photograph #74575).

generals Eisenhower, Bradley, and Patton were there to view the camp and the nearby Merkers salt mine. Unknown to the troops at that time, this was the same day that President Roosevelt died. Ferencz then learned that Ohrdruf was only one of many Nazi slavelabor camps in the area under control of Buchenwald, the main camp, near Weimar. Ferencz’s next move, therefore, was to visit Buchenwald. The Buchenwald concentration camp, liberated on April 11, 1945, by the U.S. Army, was a charnel house of indescribable horrors. General Eisenhower showed up to view the incredible scene of death and inhumanity deliberately imposed by the Nazis on helpless civilians and noted that American soldiers could now see why they had to leave home to fight in Germany. There is no doubt that Ferencz was indelibly traumatized by his experiences as a war crimes investigator of Nazi extermination centers. He still tries not to talk or think about the details. However, there were instances of prisoners who performed heroic efforts that helped Ferencz in his search for evidence.

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In one case a camp prisoner who worked in the camp office at Buchenwald approached Ferencz soon after he entered the camp. Ferencz believes he was a French national who had fought in the Spanish civil war. “I’ve been waiting for you,” the inmate said. He then led Ferencz to a spot near the electrified fence that surrounded the KZ. He dug up a small wooden box, which he handed to Ferencz. The SS men in the camp had formed a club where they could come and drink their beer and frolic. Each had a membership folder showing his photo, date of birth, home address, and similar personal particulars. Every attendance at the club was marked by placing a stamp on the back page. When the folder was filled, a replacement had to be issued. The inmate had to prepare the new identity document, but instead of destroying the old ones as directed, he secretly hid each one. He must have known that every time he did so he was risking his life. His gift to Ferencz was priceless evidence in identifying perpetrators and accomplices. This inmate’s outstanding courage marked the faith, shared by many other suffering victims, that there would one day be a day of reckoning when justice would be done. On April 16, 1945, Ferencz wrote the following letter to Miss Fried discussing his exposure to the vast number of displaced persons and some issues at concentration camps, as well as his meeting Marlene Dietrich. This letter was written around the time that Ferencz went to the Ohrdruf and Buchenwald concentration camps, but he could not talk about these camps in detail due to censorship requirements. Somewhere in Germany April 16, 1945 Dearest Trudy: After the first hot shower in over a week I am about ready to tell you all about my recent tour around this part of the world. It is a pity that I can not describe things as I saw them, for to cover over detail which impressed me would take another week, and a lot will have to remain hidden for future years. It was the Sunday before last that we left our headquarters in search of evidence against war criminals. Reports from all sources had been coming into the office so it was easy for me to plan an itinerary and chart a course that would take us through Belgium, Luxembourg, back into France, and through a lot of Germany. Our team consisted of one 2nd lt., who was very satisfied to come along for the ride, one Dutch soldier to serve as German interpreter, the driver, and myself. We were equipped with a command car, our blankets, and a pass from the commanding general requesting all persons to cooperate. The things that are happening here at this time will never again be duplicated and to see them all at first hand is an experience I can not soon forget. The most impressive sight of all is “the displaced person.” As we traveled along the roads we were confronted everywhere with throngs of people just walking. Where could they all be going? Young and old alike, in every garb and uniform, male and female, walking along the dusty roads. Some of them carry

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bundles on their back, a few do not even have that, and very many pull a little wagon holding all of their earthly belongings. It was not an uncommon sight to see two old women and a few small boys and girls pushing a van loaded with mattresses and bureaus, beds and crockery, up a steep hill. The more fortunate ones may have a cow, or an ox, or even a horse to pull the load. I even saw one caravan of about 5 wagons being pulled by a rickety old truck. One of the girls in the group had probably “bought” the gasoline from an American soldier. The truck could not pull the full load up the hills, and at each one the truck would take one wagon at a time, and so they would proceed — somewhere. Many of these people are Germans, who fled when the war came to their doorstep, and now they are returning home. One of the many pathetic sights I saw was an old lady, in mourning black, standing atop a tremendous pile of bombed rubble. A little wagon with a mattress was in the street. The dazed woman was pushing 100 tons of broken brick with her toe, and it was quite obvious that she had just returned and was looking for her home. There are thousands of French soldiers released from German prisoner of war camps who are now wearily plodding the roads. “Where are you going?” I asked one. “I am on my way home, to Paris,” he replied smilingly; even though Paris was 300 miles away. At least the French, Luxembourg, and Belgians can walk toward a home with hope. The millions of Russians and Poles who were prisoners and slave laborers in the Third Reich must wait until the way is clear, and what is happening to them is perhaps the most amazing of all. Displaced persons camps have been established by military government. These places are former barracks, or fortifications, or stables or homes, or whatnot. Here, by the hundreds, the Russians, or Poles, or both, are gathered, and told to wait for the end of the war when they may return to their native land. Some food is provided by the army, and some by the local German government, depending upon the amount available. The persons there must find clothing and bedding for themselves. Well, these Russian boys are not lacking in imagination. After being slaves for the Germans for several years they developed no love for their oppressors, and just as soon as the arm of the Gestapo was removed the Russians took matters into their own hands. I met Sasha, a husky fellow of about 22, who had organized a little party of about 8 comrades and had gone from house to house, and flourishing a Cossack sabre (formerly belonging to some Prussian officer) scared the German inhabitants out of all their food and clothing. He managed to equip half the DP camp that way. The military government authorities would have shut their eyes to that, but Tovarich Sasha burned the houses down after he was through looting them. Since he is a Russian national our authorities do not wish to get into diplomatic hot water by being liberators one minute and jailors the next, so Sasha was soundly scolded and told never to do it again. But had it not been for him there would have been a lot of allied persons without clothing or food. Naturally he was “commander” of the camp, and I gave him a pack of cigarettes as a deterrent. Still all in those camps is not rosy. The places are dirty and without supervision. There are young men and old, children, young girls, and old ladies. They all share their squalor. The close and unstable living has produced a new kind of

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morality. Every bed is seized by a couple who have nothing to do but embrace all day. There is no privacy and there is absolutely no shame. Everything is done openly and without either concern or remorse. These broken lives are hidden behind a façade of laughter and song, but what were these people like before and what will they be like when they return to their communities? One pretty young French girl, who had only been “liberated” for three weeks, two of which had been spent in a DP camp, cried forlornly. “I have nothing but what I am wearing, and I must live here in the dirty hole like this.” I wondered how long it would be before she stopped crying and would laugh like the rest. A person can not live like that very long without a moral collapse. It’s a crying existence, and when I think that it might have happened to you, dear, or someone close to me, I shudder. The physical scene is even more incredible. There are no words to describe the ruins of war. To ride through a city that has been thoroughly bombed is to be awake in a nightmare. Literally miles of nothing but mounds of dirt. That is Coblenz, Cologne, Aachen, Bastogne, Wiesbaden, Mainz, and dozens of others. I spent one night in what must have been one of the most beautiful hotels in Europe. Only part of its magnificence had been destroyed by bombs, and so we moved into the luxurious rooms. Troops had been there before us. The plumbing had been destroyed by the assault, and this fine hotel had its bathtubs, sinks, vases, and Persian rugs covered with defecation. “Chicago 1945” was carved atop a beautiful baby grand piano. The sumptuous drapes lay in rags on the floor, and I walked on gilded crockery to cross the room. Things that must have cost a fortune were wrecked and strewn around the place by the war weary troops who just didn’t give a damn. The wine cellar had twenty thousand broken bottles. Hand carved furniture was used to kindle the fires. All this a part of war. Unseen and probably incredible in America. In Belgium, in France, in Luxembourg, people are hungry and sick. I have seen many girls who volunteered to settle the problem of romance for a can of beans. The things that had meaning before the war no longer have any meaning, and it has become a day-to-day existence where only the birds in the hand are counted. One girl asked me for a GI blanket. She would have dyed it and made a coat for herself, she told me. The soldier who would give her one could be her cavalier. These were only passing observations while working on war crimes. Not only the people of Europe have taken the beating. The casualty lists of American dead speak for themselves, but they did not impress me as much as the things I saw at an American cemetery in Germany. I went there in a vain effort to locate the body of a murdered soldier. The endless rows of neat white crosses there in the German forest would scar many hearts back in the United States. While waiting for the clerk to check the records I picked up a few small green bags. The white label on the front showed they were the “Personal Effects of....” I opened one. There was nothing but a paybook of a boy from Mississippi, and the book had a bullet-burned hole through the center. I opened another bag. There was a souvenir bracelet, a few coins, and American dime, 2 photos of a cute little blonde girl, and another photo of his wife and child together. They would get the picture back. I didn’t open any more.

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One case took me to a prisoner of war enclosure. There the dangerous Nazis were being held, along with suspicious persons, and a motley collection of assorted persons thrown in for a thousand and one reasons. The only officer in charge was a young American lieutenant, who had his feet solidly planted on the desk and was busy reading Famous Fantastic Stories when I came in. “Sir, I am looking for ——. I’d like to question him about a war crime. Do you have him here?” “How the —— do I know!” The lieutenant called a sergeant, who thumbed through a batch of disordered and scattered papers. They finally located one of the men I wanted to interrogate. He was a 64-year-old man who had beaten a fallen flyer over the head with an iron bar. His hands trembled as he spoke. He knew he was guilty and persisted in his lying. I had the proof against him in a little brown envelope. About 6 weeks before, I had sent another Nazi to the same internment camp. I had made out the arrest forms myself and instructed the MP’s to deliver him there. The officer in charge of the camp had no record of him. “I don’t know how many people I’ve got,” he said, “must be about 7 or 8 hundred but I don’t know who the hell they are and it’s a hell’uv a mess but I need help.” In the tremendous cage hundreds of men and women milled around aimlessly. Nothing to do but wait — for allied justice. One of the men I wanted to question is, I am now convinced, innocent. From the last report the man was sent to jail, and now there are no records of his whereabouts. It may be difficult to explain how our justice operates if it continues to remain in the hands of the uninterested incompetents who are now in charge. One of the many persons questioned was a woman of 33 years, mother of two children, her husband had been killed at the front. Her house had been destroyed by bombs, and one day she saw a mob beating two allied flyers. She quickly joined the mob, took off her shoe and struck one of the flyers across the face. She cried softly when I spoke to her and admitted almost everything. She seemed to be a rather intelligent and refined person. What to do with her? I didn’t have the heart to lose her in the disgusting internment camp, and ordered her to remain in the town until further notice. I wonder what will be just? There are other cases, of mass murders, of gruesome and horrible exterminations, which I cannot describe. It is all part of the crazy fantastic thing that is happening over here. I shut my eyes and think that it is unreal, dear. That it is all a mad dream that will disappear when I open my eyes. Then I open my eyes and there it is. The temptation to be blind is great, but the pathos is so deep that I can not tear myself away. I wonder how this will seem in retrospect 10 years from now. But it is getting too late for me to be discussing nightmares. Which reminds me that I met Marlene Dietrich this evening while I was walking around in my underwear. No, I am not nuts, honest! She’s up here with a U.S.O. show and is living in the same building as I am. She is on the first floor, and I am on the third. The showers are on the ground floor. I stripped to the waist and walked down to take a shower after chow. Miss Dietrich came out into the hall. “Don’t look please,” I told her. “I will have to write home about meeting Marlene Dietrich while in my underwear.” She asked me where I was going that way, and I told her we had hot showers

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downstairs. “Is there any time I can take one?” she asked. “Lady,” I said, “YOU can take one anytime!” But she didn’t offer to wash my back so I went my way and she went hers. This war is really rough. People have no manners no more. She didn’t even offer! They can keep Marlene Dietrich; I’ll still take my Bimbo. But this waiting seems so long, sweetheart. Do you think it will ever end? This letter must end too. No sense antagonizing a new censor. Bonne nuit, ma chérie. Je vous aime. Always, Ben

Ferencz went on to investigate many concentration camps, and they were all basically similar. He saw dead bodies strewn across the camp grounds, piles of skin and bones cadavers piled up like cordwood before the burning crematoria, helpless skeletons with diarrhea, dysentery, typhus, TB, pneumonia, and other ailments, retching in their louse-ridden bunks or on the ground with only their pathetic eyes pleading for help. Few had enough strength to muster a smile of gratitude. Ferencz’s mind would not accept what his eyes

Escorted by American soldiers, child survivors of Buchenwald file out of the main gate of the camp (USHMM Photograph #69158).

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View of a section of the barbed wire fence and row of watch towers that surrounded the Buchenwald concentration camp (USHMM Photograph #33106A).

saw. It built a protective barrier to enable him to go on with his work in what seemed an incredible nightmare. Ferencz felt that he had peered into hell. Ferencz’s first target on entering a concentration camp was always to secure the records of the camp. The death registry (“Totenbuch”), recording the names of inmates who had perished in the camp, was located in the camp office (“Schreibstube”). After each name, a date and cause of death was given. The reasons stated were obviously fictitious. There would be pages listing the same excuses: typhoid, or the popular “auf den Flucht erschosssen”— shot while trying to escape. Ferencz said that the most accurate English translation of the causes of death would have been just plain “murdered.” Ferencz found correspondence between Berlin and the KZ auxiliary camps showing how many prisoners had arrived on which transports, from which countries, where they had been rerouted for labor, and how many had been returned to Buchenwald or Auschwitz to be “eliminated” when they were no longer fit for work. There was plenty of evidence available to prove beyond a doubt that atrocious war crimes and crimes against humanity had been committed in the camp. Lampshades made of human skin, to please the SS commandant’s wife, Ilse Koch (later tried and convicted as “The Bitch of Buchenwald”), were only a sample. But Ferencz’s job was not yet done; proof

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The bodies of dead prisoners are stacked outside the crematorium in the newly liberated Buchenwald concentration camp (USHMM Photograph #74608).

that crimes had occurred was only the beginning of his task. To prosecute the offenders, one must have laws to define the crime, know the identity of the perpetrators, and have them in custody. Then there must be a court competent to try the accused. Until all of these vital components are in place, you cannot have justice. All you have is endless rage and sorrow. Little did Ferencz know at that time that he would have the opportunity to make justice complete at least for a few of the worst of the hands-on offenders. On April 20, 1945, Ferencz wrote the following letter to Miss Fried in which he mentions Captain Klatte’s letter to Miss Fried (discussed earlier) and the lampshade issue: Somewhere in Germany April 20, 1945 Dearest Trudy: There have been loads of wonderful letters from you in the past few days, dear to keep my morale from sagging. Though Capt. Klatte had warned me that he

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German residents of Mannheim are expelled from their homes to make room for displaced persons, when the existing DP camp proved inadequate to accommodate the thousands of prisoners being liberated by advancing Allied troops. June 10, 1945 (USHMM Photograph #10926). was going to write to you I didn’t take him seriously, and was quite surprised to learn that he was as good as his word. His letter was even more of a surprise. Last night I dropped him a line and told him that I saw a wonderful future for him as a household furniture salesman. He really did pile it on, and I’m sure you won’t believe half of what he says. His predictions about my great future in the army are slightly soggy I’m certain, and the only future I’m interested in is one back home as a poor civilian. Anyway it was nice of him to go to all that trouble, and at least it merits an invitation to the wedding.... Things around the office have really been popping lately. We have been uncovering dozens of Nazi murder camps. By the time you receive this you will probably have read all about them in the newspapers, and they may strike you as being incredible. It is really horrible, and fantastic. Millions of people starved to death, beaten, tortured, and burned. We are now working on a case,— and this is the absolute truth,— in which hundreds of men with tattooed skin were slaughtered and skinned so that the wife of the death camp could have lampshades

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made of the colored human tissues. A story? No. We have the proof. We have the skins, the lampshades, the dead bodies of the unfortunate victims,— and also the names of the perpetrators. We just apprehended a Dr. whose specialty was injecting typhus germs into hundreds of people (death absolutely certain) just to see the results. // Interruption. A hot case has just come in. Another “concentration camp” has been captured, just a short while ago. I have already made all arrangements to go out there in the morning. I managed to talk an ordnance lt. into lending me a brand new Jeep, and I’ll take an officer along to swear in the witnesses. It may be just a wild goose chase, but if things run true to form it may reveal a few hundred thousand murders. In any event tailing along behind the tanks will be fun — I hope. Last night was a busy one in the office too. One of the officers brought in two Germans suspected of murdering an allied aviator. The first time I spoke to one (in German, mind you) he denied everything: said he was next to the flyer to help him. “Lugen! Nazi shwine,” I shouted at him, and ordered him to stand in the corner facing the wall. I then started questioning the other witness. My German was slightly atrocious, but there was no interpreter around and I had no choice. The prisoner got the idea, and started telling almost the truth. I let him continue writing and ordered the “innocent one” to sit down. (No, dear, I have not grown another two feet, the army issued a .45 caliber semi-automatic pistol, which is very persuasive). He sat down. He was 24 years old, weasel face, a former postman and Wehrmacht stooge. He was married and had a child. He told me he was just an innocent bystander. At that I shouted “Haltz mahl!” at him, and explained, as best I could that I wanted the truth, and knew he was lying. I told him that the U.S. Army was only interested in the big shots and not the kleine leute, but that if we saw that a man persisted in lying we had no alternative. He replied: “Go ahead and shoot me.” I told him that I was an American and could not shoot him, but that we had 10 Russian displaced persons downstairs who had just been released from a murder camp, and that if he persisted in his lying I would turn him over to the Russians who could speak German better than I, and would question him according to their own methods. It worked. Before he left for the internment camp I had his signed and sworn confession, that he had beaten an American flyer over the head several times with an iron bar and had thereby killed him. I was particularly happy about it because there had been no interpreter around and the guy spoke nothing but German. Now, unfortunately he must await a long legal trial which may never materialize. At least I got the satisfaction of seeing this superman sweating and trembling so badly that he couldn’t write. I told the MP who took him away that he was a dangerous murderer and was to be killed if he attempted escape. I only hope he tries. Sorry I can’t say all the things I had planned to when I sat down sweetheart, but you can see that things here are really busy. In fact they are too busy to bother giving me a commission. Capt. Klatte was just talking expectation. Since there are the murders of approximately 10 million people on the desk now waiting for attention I personally think it’s more important than bothering about a few extra dollars. I am not too anxious about any appointment, though I know I am being exploited. Maybe the war will end soon and it won’t matter then.

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Anyhow, goodnight, darling, I’ll be on the lookout for the werewolves (or haven’t you heard about the big bad Superman underground that is out to get us) and if I see any Germans I’ll give them a souvenir from you. Don’t be silly and worry about me, for Jerry is on the run, and the direction is toward their Uncle Adolf. Here’s a kiss for you, see you later. All my love, Ben

German resistance was now crumbling. The British were moving down from the north, the Americans from the west, and the Soviets from the east. Patton’s forces swept south to Bavaria and set up headquarters in Munich. Ferencz was running back and forth from the field to deliver his reports to the judge advocate general’s office; and would then rush off toward other concentration camps that were being liberated. From time to time, he would follow a trail of inmates’ bodies in the woods — those who had been hounded out of the camps and killed along the way when they could not keep up with the forced escape march. During this time he wrote the following letter to Miss Fried: Somewhere in Germany April 27, 1945 Dearest Sweetheart: Your letters following the death of the president2 have served to impress me more than anything else around here of the great loss we have suffered. When the news was first received I was in the midst of a war-criminal hunt and had no time to measure its significance. No one around here seemed to think of the news more than a half hour after it was announced, and then the matter was promptly forgotten. That is army efficiency for you. The death of one man, no matter who, does not seem to be very important where death is as common as rain, and the army is so naïve politically that the loss of the president is greeted like a campaign victory for the Republicans. I have been too dazed with work and wranglings myself to let the actuality sink in. No need now to prolong your sadness, dear. Things will work out, and there is nothing we can do about it, so there is certainly no sense in letting it get us down. There were so many times when I would have loved to have you near me, sweetheart — just for consolation; but even that is denied. We are indeed living in a hard world, and these are hard times, but for so many millions it is far more tragic and we can’t complain. When I compare you, or myself, with some poor miserable bewildered wretch who roams the roads of the world, seeking something to which to attach the remnants of his beaten soul, I can not find it in me to moan my own misfortunes. Still there are many things which disgust me; things I know are not right, and about which I am more helpless than the wind. It is very discouraging for example to have my officers lie in my face and expect me to believe it. War crimes work now is booming and there is a crying

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shortage of skilled personnel. Our staff of nothing will soon consist of at least 20 officers and 30 enlisted men. When I asked for a commission I was refused. In addition to serving as an investigator I now handle all of the administrative work. The head of the War Crimes section is an old fool of a lt. col, and the job I do should be done by a major. I was told that there were no openings on several occasions. A few hours after I had received such a refusal a commission was offered to another enlisted man, for another section, who would have made an excellent man for the job. This particular individual is a Czech and has had considerable investigative experience. He had applied for a commission in military gov’t — where men are badly needed, and was on the road to being accepted. Our colonel called him in, and told him that if he would withdraw his application from military gov’t the colonel would give him a commission with us. With such clear assurances the man withdrew for MG. His mistake. As soon as the MG examining board had left, the man was called in by our colonel (the same one praised by Klatte) and told that it was too bad but the offer was withdrawn. The man explains it by the fact that in the interim it was discovered that he was Jewish. I don’t know. Now they have been bringing in a collection of high-ranking drunken bums, some amiable some not, to do war crimes work. If they were at least competent it would not be so bad, but when they can be found in a drunken stupor every night of the week the situation is indeed a sorry one. Yet there is nothing I can do about it. Will you ask me why I didn’t like the army? You can imagine, dear, what a mess is being made of the handling of war crimes in World War II! Even the Germans are amazed. I received one statement today which will illustrate it. A citizen of the city we now happen to be located in (incidentally it has changed several times as we have been chasing the Germans across the Faterland) wrote that the chief surgeon in one of the hospitals had brutally castrated at least dozens of Jews. This fact was well known to everyone, and this arch Nazi was in high favor when Hitler was on the glory road. The surgeon is still chief of the hospital — and our informant wrote that he couldn’t understand it. The answer is simple. If the crimes of the Nazis didn’t involve Allied nationals it is not considered a war crime, and we are not interested. So we tell our well-meaning informant that castrating thousands of Jews is none of our business and no use getting excited about it because we’re not interested. I wonder what these people will think of Allied justice after the war. I am so irked by the idiocies that pass for justice around here that I seek every opportunity to take some jovial officer and get out of the office on a trip. Tomorrow morning I am again scheduled for a tour of some of Hitler’s camps. At least the experiences are interesting — even if nothing ever comes of the things we discover; I can’t write now of all the things I’ve seen. Undoubtedly you will read about it and them in the newspapers for the world is peeping through the door just to take in the ghastly details. I would rather not describe it all now, for it may appear in different light after it has been tempered by time.... Always yours, Ben “Kiss attached hereunder.”

On April 29, 1945, and then on May 1, 1945, Ferencz wrote letters to Miss Fried about the Flossenbürg concentration camp (which was liberated on April

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The interior of a barracks in the Flossenbürg concentration camp that was intended to house 1,500 prisoners (USHMM Photograph #04422).

23, 1945), but he was unable to send the letter to her until after censorship was removed on May 23, 1945. Here is the letter he wrote from Erlanger, Germany, on June 14, 1945, that included as an insert the letters he wrote on April 29 and May 1 but did not send earlier due to the censorship issue: Erlanger, Germany June 14, 1945 Dearest Sweetheart: At long last no censorship! From here on in it is only the base censor who can share my secrets with my darling, and I know that writing will be much easier. As an illustration I am now sending you a letter that I have been holding for a month. The photographs that go with it are in process of development and I will send them along just as soon as I can. There are a million stories I could tell if there were only the time. I have been living the most fascinating life in Europe and the tales of intrigue and treachery, murder, brutality and counter espionage could fill a book. There is so much going on that there is not time to write. The things will trickle out slowly and perhaps my enterprising girl friend can do

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The crematorium in Flossenbürg (USHMM Photograph #85862). something with the junk. In the meanwhile here’s a starter, dear, and now I’ll begin a new letter to you just to make up for lost time. See you in a minute in another envelope. Here’s a kiss goodbye. Love, Ben P.S. Just in case you can’t find that other, more detailed letter, these murdered men were political prisoners of every nationality, and were murdered simply because they appeared to be too tired to continue the march successfully. The SS beasts didn’t even wait for these men to fall — they just marched them into the woods for the slaughter.

The first inserted letter: Somewhere in Germany April 29, 1945 This is the incredible saga of Hitler’s New Order. Had I not seen it with my own eyes I might have been inclined to doubt it. But I have seen it. A call came into the office from G-5 the day before yesterday, notifying us that a German concentration camp had been overrun in the town of Flossenbürg, 6 km. from the Czech border. I had little idea of what was in store, but I

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was anxious to get away from the regimental office routine so I hastily volunteered for the job. A lt. and the driver made up the rest of the party, and we took off for our objective. As we rode along the roads leading to the front we were impressed by the steady flow of trucks bearing disgruntled German prisoners of war. We must have passed at least 10,000 such men, jammed 50 to a truck, and guarded by a small handful of soldiers who followed each prisoner convoy in a Jeep. We realized we were approaching our objective as we came upon small groups of wandering prisoners. These men had been imprisoned by the Nazis because they had not echoed Hitler’s battle cry, or because they happened to be Jews. Some were Poles, Czechs, Hungarian, Romanians, Russians, Dutchmen, Frenchmen, Luxembourgers, Belgians, Norwegians, or nationals of any other nation. Their only crime being that they were not liked by the Third Reich. Their striped uniform, long blue and white strips on trousers and jacket, the numbers over the pocket immediately indicated that these men had been in prison. But the thing that gave them away more than anything was the weary bewildered look with which they greeted each American vehicle. They were too tired to smile, but a sad ray of appreciation managed to appear on each face and no more had to be said. But we found them many miles away from their camp, and we wondered how they had gotten there. We soon learned. When the Nazis realized that the Americans were approaching Flossenbürg they started to “evacuate” their prisoners. There were about 20,000 of these there when the “program” began. In groups of between 3 and 5 thousand men the Nazis herded the victims to their doom. The stated destination was Dachau, another concentration lager about 200 miles to the south. About 100 SS men accompanied each group of prisoners, as they marched toward their new home. There was no food. Most of the prisoners were already suffering from malnutrition and many were on the verge of starvation. Thousands were ill from a multiplicity of diseases. Typhus and the deadly lice accompanied the pilgrimage. The SS men surrounded the herd of victims, and a special group followed behind to take care of those who faltered. As soon as a man fell out of line the SS were at his side. Another prisoner dug the hole, and the victim or victims were thrown in before they received a Nazi death bullet behind the ear. After three days without food the men were still being marched 18 miles per day. Nor did they march along the highways. They moved only at night, and through the woods where the Nazis could conceal their crimes. Through the cold and wet nights these miserables dragged their weary bodies, and as they fell they found their graves. But the Nazis were not content to wait for men to fall. We came to one small village where a French soldier halted us. He told us that he had been a prisoner of war in that town for two years, and that he saw the approaching column of unfortunates. His entire command of about 15 French PWs was called out by the SS and ordered to dig a big hole deep in the nearby forest. The men had no choice and they obeyed. When the hole was dug they hastily departed, for they knew very well what was in store and they dreaded to remain in the vicinity. They saw, as they fled across the fields, a small group of weary men, about 40 or 50 of them, being hurried along towards the hole. I insisted that our informant show us where this hole had been dug, and he very willingly got into our car

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and showed us to the spot. Half of the hole had been covered over, and a few branches were thrown over the freshly tilled sod. “Here is the place,” he said, “and there they lie.” We could see only freshly turned soil, and so a shovel was removed from our car. I handed it to the Frenchman and told him to start digging where he thought the bodies might be. It took only a few strokes of his shovel and he uncovered the head of one of the victims. The glaring dead eye was all I had to see. “Cover him again,” I told him. These dead had suffered enough. We then went to a nearby farmhouse to get further evidence of this particular massacre. The farmhouse was full of “good German people” who were eager to help. Yes, the house frau had seen the column approaching, and suspected what was going to happen so she did not venture forth. Once the band had disappeared in the woods she heard shortly thereafter a series of shots, at about 1 or two minute intervals, as each body received its mortal blow. There was apparently no resistance from the victim. The weary souls had lost all strength for struggle. Many probably welcomed the end. The Germans had not bothered to bury their former prisoners. They had left the uncovered dead lying in the hole, and it was the farmer and his son who had gone forth and finally thrown some dirt over the corpses to prevent the spread of disease. I took their sworn statements. Then they dared to start complaining that some of the Russians, who had been members of the column and who had been liberated when the American troops overtook them, had stolen some clothing from the farm and had taken away their food. The farmer’s wife started crying, but I was in no mood for tears. I told her, in my best broken German, that she could only thank Hitler for anything that happened to her, and that she should be thankful that she wasn’t in the place of those poor political prisoners. She undoubtedly thought I was a verdamter American when I stomped out furiously. We continued along the gory road over which the prisoners had been led to their death. At regular intervals along the way were small mounds, under which lay two or three bodies. There must be between two and three thousand murdered people lying along this road. Some have not been buried, and the emancipated sprawling blue bodies had me crying from my heart. We rode on, and still the convoys of German war prisoners continued to roll by. As we stopped to read a road sign I saw a bloody figure come running frantically toward our car. “Vas wollen Sie,” I asked him before he could catch his breath. I saw that his cheek was bleeding and that he had obviously received several blows to the face. He wore what appeared to be civilian clothing. “Bitte, bitte,” he cried, “ich bin deutsche Soldat.” “Where is your uniform,” I asked him. He snapped to attention. “Here,” he said, “here”— pointing to his trousers. “The Russians have taken away the rest and they are after me. Please, please help me. Please take me with you!” “Show me your papers,” I ordered, and he produced a batch of loose papers. “Where is your Soldbuch?” “I have lost it,” he replied, but here are my papers, you can see I am a soldier.” His voice was frantic so I thumbed through his papers. Only a medical slip could show that he was a soldier. He also had among the papers a picture of an SS man. “Are you an SS man,” I asked him. “No, no, please take me with you,” and he tried to climb on the side of our car. Just then a man in civilian clothes could be seen coming over the hill on a bicycle. A rifle was strapped across his shoulders. “Here they come.

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They will kill me. They were shooting after me. Please, please!” cried the German tearfully as he clasped his hands together and whined. The Russian pulled up alongside the vehicle. “Er ist SS,” snarled the Russian, as he panted and started taking the rifle from his back. The German continued trembling and shouting “Bitte” as he clasped his hands and begged me to save him. I whipped out my pistol and pointed it at the trembling superman. His hands shot up into the air like an arrow. “You do not wear your uniform,” I snapped at the SS, and then to the Russian: “Do what you want!” When the Nazi heard that he started to cry, but by that time the Red has his rifle to his shoulder, and at about a distance of 4 yards he fired a shot directly into the back of the fleeing German. The German continued to run. But he was either crazed with fear or wounded, for a moment later he threw himself beneath the wheels of an oncoming truck. The truck driver was shaken as we came up. “Sir,” he said to the officer with me, “he threw himself beneath my wheels. I couldn’t help it.” “Roll him off to the side of the road, and continue on soldier,” was the order. We proceeded on toward the camp, stopping en route to speak to various persons who had participated in the death march and who could give us information. 10,000 of these people were now living in the houses they found on the way. The German inhabitants who were wise had fled. The rest were completely plundered by the starving men. The Russians were those who were most dreaded. One old woman of about 70 came up and cried that the Reds had stolen her cow and she had no milk; could I please get her cow back and punish the Russians. I told her that the Russians had lost much more than a cow to the Germans and that if she wanted her cow she could now ask Hitler for it. Another woman cried that the Russians had emptied her house and destroyed everything. Still another told me to hurry to a small village where 14 Reds were trying to kill her sister. For their pleas they received a lecture. I was a very unsympathetic listener. We entered several homes and stables which the former prisoners had taken over. They lay around, many too ill to move, and waited for someone or something to come and help them. There was nothing else they could do. Each nationality had some sort of organization. An elected leader was in charge of each group, and he made the distribution of food and clothing as it was brought in. Sure, everyone knew all about the German camps. They had come from Weimar (the notorious camp Buchenwald) to Flossenbürg, and then on their march towards Dachau. Weimar was Paradise compared to Flossenbürg, they all agreed. We finally arrived at Flossenbürg. We could see the camp from afar. A 10th century castle had its attractive ruins on a hill facing the camp. The drab barracks made an interesting contrast. As we drove up to the prison gate we were greeted by two large signs. The bigger one said “QUARANTINE,” and beneath it another sign: “Prisoners Happy End —WELCOME.” Two American medics were stationed at the camp gate, and we inquired about the Quarantine sign. Yes, there was a typhus plague, but we could of course enter for war crimes investigation. There were still about 14 hundred prisoners left in the camp, and in dozens of places there were small fires burning piles of lousy clothing. The prisoners themselves had organized after the Germans had

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fled before the entering American troops. For some unknown reason the prisoners who had remained had not been murdered. They could not explain it. Now the camp was being cleaned up and there was very little to be seen. We headed first for the crematorium. Prisoners were now dying at the rate of 30 per day, and it was not as bad as it had been. The dead victims were taken from the Lazaret or wherever they happened to breathe their least breath and were loaded on a wagon. This wagon was constructed like a big coffin, and was mounted on small gauge railroad wheels. When the box was full it was headed for cremation. A heavy-barred iron cage blocked the way to the crematorium. The latter was at the foot of a long hill behind the camp. The tracks went through a long low tunnel down the hill. We opened the locked cage and walked down between the tracks. As we stooped and walked carefully down that steep incline I wondered how many hundreds of thousands had come down the easier way — in the wagon. The tracks led into a small building which had about 4 rooms. In one room was a large oven. No fire was going, and the ashes and bones were plainly visible. The adjoining room had about 60 dead bodies piled up like cordwood. These emancipated corpses had ceased to breathe within the past few days, and the absence of fuel had prevented their cremation. They were nothing but skin and bones, and yet their taut skin showed the welts and scars of the beating. The buttocks were black and blue, where the rubber hose of the SS had left its mark even unto death. The stench was revolting, but the sight of these beaten and starved bodies, and the realization of the manner in which they met their death, was even more sickening. A short way beyond the crematorium was a huge ash pit. This was full of ashes and the remnants of human bones. As the pit was emptied the ashes were spread over the adjoining field, and a dull gray haze was still visible over the ground. Part of the [missing text] and a firing squad had done the rest. This was at least more open than the third room of that little horror building. The third room was supposed to be a shower room. The victim was told to strip and enter the dark little cell. A step was there to trip him, and as the doomed person fumbled for the step an SS man stepped silently behind him from the adjoining room and shot him through the head. If the victim did not die immediately phenol injectors were available which would bring certain death within 20 seconds. The wily Germans had tried to destroy the evidence of their crimes and had removed incriminating material before their departure. Former Chancellor Shusnig of Austria was hung there the day before the Nazis were beaten back, yet all traces of gallows were gone. [What Ferencz was obviously told was in error.3] There was enough without that and I asked to be shown the rest. The barracks were much like barracks anywhere, but the Germans had a few of their own inventions which made these barracks quite unique. Beds, touching each other and aligned in tiers of three, filled the room. Each wooden bed had a lousy straw sack on it. Though they were of regular size each bed was assigned to 4 or 5 persons. This meant that from floor to ceiling there were between twelve and 15 persons who were expected to sleep there. And they were only allowed inside the barracks for purpose of sleeping. At all other times, regardless of weather, the inmates had to wait outside in the open court. The sick and diseased lay there, piled one on top of another, encouraged to die. And there,

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[illegible] were people whose sole crime was that they failed to see justice in “Deutchland über alles.” After a brief survey of the rest of the camp came the problem of grief, and the work of gathering the evidence. The officer who was with us left me at the camp while he took the vehicle in search of a telephone by which he could contact our headquarters. We needed help, and our call was to go out for photographers and moving picture men as well as stenographic help, to record forever for the world the true meaning of German Kultur. The camp commander was a Russian captain, who had been imprisoned at Flossenbürg for many years. He offered me every assistance, and I took over two large offices for our headquarters. I found a 22-year-old Yugoslavian boy who had been studying medicine at Cambridge but who had been caught by the Nazis while he was at home. I called him Willy and appointed him my chief assistant since, in addition to having a keen head and knowing the camp thoroughly, he had a fluent knowledge of about 7 languages. Tito had made him a lieutenant, and he too was very eager to be of service. Some of the inmates had hidden the books with the statistics of the prisoners, and these were now brought out and I put a crew to work tabulating all the data. I had two longtime French inmates, as well as one Polish journalist start writing a complete history of the camp. To another I assigned the job of compiling the names of all known SS men who were ever in the camp. A Dr. was gathering statements from persons in the hospital, and I went to work furiously gathering statements from others whom I started calling into the office. I had previously selected a few prisoners who could speak either French or English and used them as my interpreters for the many languages. I had not gone very far before the Russian captain came to me and told me he had problems that had to be resolved but he didn’t know how to do it. First, he said, there was the problem of the homosexuals. As least 70 of the prisoners had raped a young boy who was an inmate and homosexuality was rampant. The captain said it was against Russian law, and he wanted to know how the American law punished those things. I explained that it was also against American law, but that punishing those already punished prisoners for things they did while on the verge of death would do no good to anyone. The boy had to be removed from the camp immediately. He was assigned as orderly to the 2 American medics and no one was to be punished. The captain seemed relieved. Another problem please. Many of the inmates were Germans who had been soldiers, and even Gestapo men who had been confined at Flossenbürg for crimes committed while in the army. These Nazis had also been liberated when the Americans came in. I ordered an immediate list to be prepared of their names and their location, and I will arrest them in the morning and have them confined as regular prisoners of war. Just one other problem please. Many of the prisoner guards had been recruited from the prisoners themselves. These “trustees” had been even more brutal than the SS men. What was to be done about them? At first I thought that we would handle them the same as we intended to handle war criminals so I ordered the witnesses in to make their sworn statements against each of the accused. The first one was accused, by several witnesses, of beating a sick Frenchman to death with a rubber hose. I called

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in the perpetrator and confronted him with the facts I had gathered. The man had been a prisoner there for six years. He had sought to curry favor and perhaps a few privileges from the Nazis by his mistreatment of his fellow prisoners. He denied everything but was very obviously lying. What punishment does that man deserve? It was established against another prisoner that, while he was hospital orderly he had killed a few patients by beating them and then putting a rubber hose in their mouths and turning the water on full pressure. Brutal you say? That perpetrator had been in prison there for four years. It was the consensus of opinion among the accusers and the camp commander that these men should not receive more than a few months imprisonment for their crimes. Elsewhere in the world these things would undoubtedly have been charged as murder, but in a context where murder is as common as eating how responsible is a persecuted victim who does only what he sees being done day in and day out? Can we apply the values and standards of a civilized world to people who have been subjected to a murder camp for 4 or 5 years? I could not decide that problem on the spur of the moment so I placed both men in fairly comfortable jail cells in the camp itself, to await further judgment. They will probably stay there a month or two and that will be adequate for their offense.

On May 1, 1945, Ferencz wrote the following addendum and sent it along with the above letter when the censorship was removed: Somewhere in Germany May 1, 1945 The head of the nightmare at Flossenbürg was Obersturmbannführer——. It was under his control and direction that thousands of people were brutally murdered. The evidence has been gathered against him and the former strutting chieftain is now a hunted criminal. Last night I slept in the Obersturmbannführer’s bed. The clean sheets were taken from his closet, and I blew my nose in his best handkerchief. While the thousands of prisoners under his charge lived in miserable contaminated shacks, stuffed in like sardines in a can, the prime Nazi of the neighborhood lived in a luxurious home a stone’s throw away. I am wearing his bathrobe and a pair of his new slippers as I write, and the hot bath in his tub (using inferior German bath salts) was most enjoyable. The day at the concentration camp was a busy one. I have been collecting sworn statements from all nationalities. The former prisoners designated today as their official Liberation Day, and decided to have a celebration. The Russians are the majority in the camp, and it is not merely a coincidence that they picked May Day for the event. A huge platform was built in the center of the prison yard. Flags of the United States, Great Britain, and Russia decorated the front, and before them were painted pictures of Stalin, Churchill, and most prominent late President Roosevelt. All the inmates, dressed in clothing which has already been collected from the surrounding villages, paraded around the square. Each national group formed a separate unit, and the leader carried their national flag. Since most of the former prisoners were too weak to participate only a few hundred could take part in the celebration. At the top of the platform was a neat sign: “Thanks to Our Liberators” (yesterday they had asked me to spell it) and

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representatives from each group made long winded speeches thanking the allies, and condemning the capitalistic system. There were cheers and hurrahs at appropriate intervals, and the whole affair was very well conducted. For the prisoners it was quite a difference from conditions a week ago.

There was no closing to this letter since Ferencz never sent it when he wrote it on May 1 and then later sent it on June 14 along with a cover letter.

Chapter 5

Major War Crimes: Dachau and Mauthausen-Gusen (Including the Ebensee Sub-Camp) Concentration Camp Investigations (May 1945) In the beginning of May 1945, Ferencz was advised about another concentration camp being liberated in Austria and was told to go find out what he could. His first stop was a courtesy visit to the concentration camp at nearby Dachau. On April 29, 1945, the concentration camp at Dachau, near Munich, had been liberated. That charnel house had been liberated by the Seventh Army and was outside Ferencz’s jurisdiction. He did not tarry long but did observe the chaos and suffering. On April 30, 1945, Hitler committed suicide in his bunker in Berlin. The first step in the end of the war in Europe occurred on May 1, 1945, when German forces in Italy surrendered unconditionally. Over the next six days almost all other German forces surrendered with the main surrender occuring when, on the morning of May 7, 1945, at the Supreme Headquarters Allied Expeditionary Forces in Reims, France, the chief-of-staff of the German Armed Forces High Command, General Alfred Jodl, signed the unconditional surrender documents for all German forces to the Allies. On May 7, 1945, Ferencz wrote the following letter to Miss Fried: May 7, 1945 Somewhere in Germany Dearest: About 10 minutes ago, as I was passing by our new day-room on the way back from supper I stopped to join a group of fellows who were crowded around the day-room radio. An announcer from New York told us that the war was over. 78

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At one time I thought that I would go wild with joy if I heard that the war had come to an end. At other times I thought I’d cry. Actually I just listened silently and seriously, and it’s still hard for me to believe. The other fellows seemed to feel the same way. There were not wild shouts, no hurrahs, and not tearing of papers and confetti. Some said: “Guess we oughta celebrate,” but to me it seemed as though celebrations would be had because it is considered the right thing to do. There is no added noise around here, and the end of the war is being greeted as just the end of another day. I wonder how it was with you, dear. I’d guess that you were far more moved than the boys who are out here where the Germans are. Perhaps it is that soldiers are not people; they’re just soldiers and that’s something different. Perhaps an official announcement from Washington will bring a different reaction but so far around here the signing of a surrender by Germany is just one step, and not the most important one in our lives. The big question which I’m sure is foremost in everyone’s mind is: When do we get home? The Japanese war will now be regarded with more interest, for now it is a matter of CBK or occupation. I know there is enough work in war crimes to keep a lot of people busy over here for quite some time, but I’m hoping that the army will turn the matter over to more competent hands. I’m pretty sure I’d select a trip to China for a 30 day furlough at home. Anyway there’s little sense speculating about it since the matter is completely out of my hands. I am the victim of circumstances and the draft. I just wait to see what will happen to me.... Last night Starchy North and a few of the other boys from the 115th dropped in to pay a call. They were passing by and went about 30 miles out of the way “to see Benny”! They also found a place to sleep and eat on their way back to the outfit. They were out picking up supplies and had to go quite a way. He sends his regards. Your letters for the past few days have been telling me that mail has not been arriving back there and that it has or had you worried. The incoming flow has not been as regular as usual, and I’m sure the delay has been due to our rapid advance and all the confusion created by the German collapse. Affairs over here are so messed up that it amazes me sometimes that anything ever gets done. Now that you know there can be no danger I’m sure you’ll be more at ease, dear. We are very badly in need of German interpreters, and I would be very anxious to submit your name, sweetheart, as an applicant. I’m certain I’d get absolutely no work done then, but would I worry? Right now I would gladly settle for being home within a year. Years don’t look so long to me anymore. Perhaps I will be home though — in the army you never can tell. Any day now the demobilization plan should be made public, and perhaps I will be able to guess with more accuracy. I’m not counting on anything however. Today I received the unfortunate news that my cousin Tibby was listed as missing in action. My mother writes that he was with the Third Army, though I had no idea of his address. I hope that he was taken prisoner or had been hiding out in the bedroom of some fräulein. We have been releasing hundreds of thousands of Americans who were taken captive by the Germans; and they are getting first priority on the way home.

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11 new men have come in today for war crimes work, so you can see that business is booming. I’ve been chained down to the office job again, though I’d much rather be out traveling around. They have stuck the title of “chief clerk” on me, and expect me to keep the office work rolling. This is the army still, and there’s very little I can do about it. I certainly don’t want to be considered an essential man when the time comes to be taking those tickets back to the Bronx. Time will tell however, time will tell. Now the time tells me it’s time to stop. So I add a kiss for a period and say that’s all for now. Loving you always, Ben

The camp at Mauthausen in Austria, liberated on May 5, 1945, was particularly brutal, with more than 100 sub-camps. In the sub-camp of Ebensee, slave laborers had been worked to death in a large quarry. Those who could no longer carry the heavy stones were simply thrown over the cliff onto the rocks below, where piles of human bones were drying in the sun. Disease was so rampant that it was always dangerous for Ferencz to spend a night in a camp. Instead he settled in an apartment that he confiscated from a Nazi family in nearby Linz, a beautiful city on the Danube. On May 15, 1945, Ferencz — in Linz, Austria — wrote another letter to Miss Fried that provided some insight to the Mauthausen-Gusen concentration camp complex: May 15, 1945 Somewhere in Austria Dearest Trudy: The Danube is neither blue nor beautiful; at least not this time of year. It is a crowded muddy river where dirt and debris wash swiftly by. The barges and the river boats are crowded with people and a few sunken or scuttled hulks protrude obliquely to show that everything is not in order. For the past six days the sun has been shining steadily, but neither the river, the rolling hills nor the constant sun can bring a trace of joy to this turbulent countryside. I’m living in a fine apartment, with clean sheets, running water and a beautiful view. The first troops to oust the Germans from this place completely ransacked it. The contents of the drawers were scattered all over the floors. The cabinets were broken open, mirrors smashed and everything of no value to a GI was left in hopeless disarray. The woman who had lived here for several years came to the apartment yesterday and asked if she could return home. I told her that we had been referred to the apartment by military authorities and that they were being used as our billets. She glanced inside the door and asked if she could come in and pick up a few of her belongings, since she had fled with nothing and was now living in a cellar. I told her that she could come in the following day and clean up the apartment, take whatever she wanted, and probably move back home. The next day she came back with her two daughters, about 20 and 16 years old, to put the place in order. The daughter raced to her closet and

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pulled back the door. She had probably expected to find her coats and dresses there but she was greeted by a bunch of soiled and torn rags which had been thrown back after they had made the floor impassable. The pretty girl started to cry. “Stop your crying!” I told her very sternly, “if you want to cry come with me and I will show you something to cry about. This is nothing.” You must think, dear, that such lack of sympathy is very much unlike me, but after seeing what I have seen during the past week the sight of a well dressed healthy German girl crying because all her clothing was destroyed only infuriated me. About 10 days ago we sent an investigating team out to cover another German concentration camp. As frequently happens we had little advance information, and a major, a driver and an interpreter were dispatched to report on the case. As soon as they arrived at their destination they sent out a call for help. They had uncovered a mass murder camp with dozens of subsidiaries and more men were needed to gather the evidence. There were few men available in the office and I did not expect to be sent, even though I had told my colonel that I was not very much interested in his office job with the fancy title of “chief clerk.” It came as a surprise therefore when he told me, “Ferencz, take a Jeep and a Czech interpreter and head toward Vienna.” I didn’t give him time to change his mind. I borrowed a trailer from the chaplain, loaded my stuff, filled up with gas, and hit the road. It was a long and dusty ride covering a few hundred miles. As has been common for the past month the roads everywhere were filled with people walking. Every nation in Europe was represented, and every conveyance imaginable was being used. Old women pulled loaded carts, Hungarian soldiers rode slowly in stolen horse drawn wagons, Spanish loyalists pushed their dilapidated auto up a hill and Austrian mothers and children just plodded along with a load on their backs. We stopped to rest in a shady knoll. A group of about 3 old women, two young mothers, and about 5 small children approached us. The old women were limping and the children were all crying. The heat alone was terribly exhausting. “Please, please,” said one of the grandmothers, “can’t you give us a lift? We have been walking since early morning and we still have 20 kilometers to go. Only for the children, they are tired and crying and can go no more.” “Sind Sie Deutsch?” I asked her. “Österreicher,” she said sort of apologetically. The non-fraternization policy applies to Austrians as well, and there was not room in the jeep for them all. I explained that we couldn’t carry civilians, and the Austrians could only thank Hitler for their troubles; there were other more worthier cases who would come first. It hurt me to see the children crying and I was very sorry for the old ladies, but I had to refuse. There were 50,000 people on the roads who wanted a lift. In every direction they walked or moved as best they could. All of them going to a place they might call home. Men in every uniform were everywhere. Even some German soldiers had been released when the war ended and they too marched along in formation. There were French and Italian soldiers too, as well as Hungarians, Roumanians, and Russians. Civilians who had been bombed out, or who had fled, or who had been political prisoners were also there. All of them moving somewhere. Very many of them just walking to try out their new found freedom. After a day and a half of travel along the scenic and picturesque countryside I

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finally arrived at the Divisional HQ where I was to report to the major. I found him with no trouble, and set up in this apartment. In the morning I left for the concentration Lager. I had visited other concentration camps but never had I seen one so imposing. The little Jeep churned up the narrow and steep road. Again hundreds of people lined the way. But many of these were not walking. They were lying in the dust, their hollow eyes staring out of their bony faces. At the top of the long ascent was a massive wall of huge stone blocks. Turrets interrupted the wall at regular intervals, and behind this monumental stone fortress were 25,000 dying and dead souls. The other camps I had seen seemed to be built just for a short while. They had been made of wood with wire fencing. But this one was built to last forever. A permanent place for the destruction of “enemies of the Reich.” We drove slowly through the gate and were greeted by throngs of unclad people milling around the court. Many of them wore absolutely nothing. Most of them wore rags, and some still had on the blue and white stripped trousers which had marked them as “prisoners.” A small dark skinned boy ran forward. He was thin as a rail and was barefooted. He held out one long and bony hand as he pleaded “Cigarette, Cigarette, Casablanca, Casablanca.” He had obviously been taken prisoner at Casablanca and had been observing German Kultur since then. The hundreds of others next to him eyed him and us curiously to see the results of his begging. I did not dare to give him a cigarette for fear that I would be immediately mobbed. I shook my head sadly and walked on. In one of the offices of the camp our investigating team had set up their HQ, and the situation was fairly well under control. An international committee had been organized with representatives of each nation, and they were all busy writing sworn testimonials of the things that had happened to them and their countrymen. Many of their statements were very moving. “We beg, in the name of the thousands of freedom loving men who here gave their lives for the cause of justice that the responsible persons be not permitted to escape.” This was their plea: some expressed eloquently and others in a simple infuriating incident. Here the Nazi super-race had devised some of the most incredible means for the elimination of all inferior peoples. Whippings and beating the unfortunate victims to death with clubs was too common to even bear discussion. Right inside the stone wall was a necklace made of iron chains. The prisoner who was to be “disciplined” was collared to the wall and drawn up to his tip toes. Then he was beaten across the head and face with the other end of the heavy chain. Everyone was starved. The food was scarce and what there was abominable. In filthy hovels as many as fifty persons were jammed in a room. Here they lay sharing their diseases until they were removed to the hospital. In the hospital “trained” doctors decided on the most practical cure. Benzene was injected into the veins as a cure and death was almost instantaneous. The camp was built for the purpose of elimination, and it was just a matter of time before an end was put to the suffering. There were two general forms of death: the slow mental and moral decline which finally drove the victims to suicide or complete physical col-

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lapse, and the more violent deaths. In the latter the Nazi beasts really matched each other for the most horrible methods of extermination. The guards were selected sadists, who would delight in placing their victims outside in the middle of the winter and spraying the nude person with alternating hot and cold water until death relieved him. Kugel action was another pleasantry. The selected prisoners were reported as “Shot while trying to escape” and then the Kugel action brought the fatal bullet. Most deaths didn’t even require ruses. The victims were led to the crematorium. Adjoining was a large room which had the appearance of a shower room. Before going in “for the shower” victims with gold teeth were marked with an iodine X across the chest. The stripped persons were pushed into the “shower.” About 200 men, women, and children could be squeezed in at a time. The heavy air-tight doors were bolted, and “shower” turned on. The screams of the helpless victims did not last long, for it only took six minutes for the lethal gas to do its work. Through a small valve the gas poured into the execution chamber, and when all the victims were dead the doors were opened. Those who had been marked with iodine X had their gold teeth pulled out before they were placed on the iron sliding board into the crematorium. The real showers in the room were used only to wash out the gas. The Nazis had tried to destroy the evidence of their horrible crimes, but two of the 4 crematoriums were still there and though they had covered the gas valves with plaster they did not have time to kill all who knew about it, and would-be victims were eager to reveal the methods of their former tormentors. The Nazis had a huge stone quarry from which the prison had been cut. Several of the former inmates pointed to the great walls and solemnly told me, “Every stone has cost a life.” One of the Nazi sports was to order their prisoners to jump off the high cliff. Those who were reluctant were thrown. The smashed bones are still mingled with the smashed rock. The stock holders in the quarry were the SS and the leaders of the Nazi party. The blood of the slaves were their dividends, and the fat grew rich on human misery. I walked through the barracks and saw the living dead. I spoke to several Hungarian women who were delighted to find some one who could speak (or at least understand) their language. There were little girls and little boys too. One 14-year-old girl had been torn away from her parents a few years ago and had finally ended on the death bloc where the arrival of the Americans saved her. Her only crime, as well as that of the dozens and dozens of other children, was that she was Jewish. She started to cry when I asked her where her parents were, and I did not go into it. I asked myself when I saw the shriveled skeleton of one old woman, “What is there that keeps that woman alive?” She was nothing but bones. Her arms were thin sticks and her long gray hair seemed to be wrapped around her eyes. The next day I had the answer to my question. I saw her tiny body being carried toward the crematorium. Now she will be put in a wooden box and buried outside the prison walls. I saw little infants, only two and three weeks old, who were wrapped in rags, living in dirt, without food, and with nothing but their wails. The mothers with little hope keep asking, “When will we be allowed to leave?” And I could not answer, for there are so many camps and so many thousands of similar unfortunates that it takes time, and every day is an eternity for them.

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View of 180 corpses piled outside a barracks in the “Russian camp” section of Mauthausen after liberation (USHMM Photograph #02001).

View of the main gate to the Mauthausen concentration camp (USHMM Photograph #74451).

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There were a million other things I saw and did, but I can’t describe them now, dear. It’s horrible and pathetic. I don’t even want to think of what the sight of all these things is doing to me. How can I ever have the tenderness to worry about your scratched finger, or the other little things which will now seem so insignificant to me? Now it is late and time for this to come to an end. I could write on endlessly but it’s all the same. Tomorrow morning I leave to see another camp. I’m not even thinking of my points. Though I have 3 battle stars (and probably a 4th coming up) I’m still so far away from the set 85 that it has no meaning for me. Perhaps I will get home some how some day. Until then, sweetheart, I’ll be wishing always that I could be with you and trying to find the patience to keep me going. With all my heart, Ben

As Ferencz was finishing his participation and coordination of the investigations at the main Mauthausen camp, he heard about the discovery of the nearby Ebensee camp. He quickly set off to see what was happing there. In the camp at Ebensee (part of the Mauthausen-Gusen complex), slaves were

Prisoners liberated from Mauthausen, many crowded into a wooden bunk, celebrate their liberation by the American 11 th Armored Division (USHMM Photograph #65999).

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View of a cart laden with the bodies of prisoners who perished in the Gusen subcamp of the Mauthausen-Gusen camp complex. May 12, 1945 (USHMM Photograph #41614).

used to dig large chambers out of the granite mountain as underground workshops for the aircraft industry. By this time Ferencz was more than outraged at what the Nazis had done. At Ebensee, he directed a group of passing Germans to help bury the bodies of inmates strewn along the campgrounds. There, some inmates caught one of the SS guards as he was trying to flee; judging by the violence of the assault, he may have been the camp commandant. First he was beaten mercilessly. Then the mob tied him to one of the metal trays used to slide bodies into the crematorium. There he was slowly roasted alive, taking him in and out of the oven several times. Ferencz watched it happen and did nothing. It was not his duty to stop it, even if he could have, and frankly, he says he was not inclined to try. There seemed to be no limit to human brutality in wartime. On May 16, 1945, Ferencz was at the Ebensee concentration camp, but was unable to send information about Ebensee due to censorship requirements at that time. As of May 23, 1945, the censorship requirements were greatly eased, allowing Ferencz to send information about Ebensee to Miss Fried. So

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on May 27, 1945, Ferencz described his visit to the Ebensee sub-camp of the Mauthausen-Gusen concentration camp complex: The last time I was down there I was investigating a series of concentration camps in the area. We moved into a little Austrian hotel on the Traunsee in Gmudnen. The Traunsee is a huge blue lake, made of the numerous streams pouring from the towering Tyrolean Alps which surround it. The water is clean and cold for the snow is still on the mountain tops. That entire part of Austria is used extensively as a summer resort, and was used by the Germans for hospitalizing wounded troops. As a result it has been spared the fury of our bombs and also saved for such visitors as yours truly. The little gasthof was not very much to look at, but the rooms were clean and the view was good so our party of one major (a good Joe) and 3 enlisted men

View of the main gate at the Ebensee concentration camp. The sign just beyond it reads: “The French prisoners salute the Allies” (USHMM Photograph #10357).

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Survivors bathing after liberation, prior to the installation of a portable shower unit by personnel of the 30th U.S. Army Field Hospital. Ebensee, May 6, 1945 (USHMM Photograph #10222). moved in. In the morning the birds would go flying through the hallways. There was a nest over almost every door in the hall, and it was a new experience for me to have birds sailing around my room regularly each morning. The drive around the lake was really beautiful and every time I drove around I thought: if only Gerty were with me. But you were far away and so there was very much missing. The enclosed photo will give you some idea of the background. The most memorable thing around there however was the concentration camp at Ebensee, just a few miles away. The camp was unique in many ways. Here there were no torture devices, no gas chambers, no hanging, and few persons beaten to death. Yet to all the prisoners it was a terror. Practically their sole method of elimination was starvation. There was a huge quarry at Ebensee, similar to the one in many other murder camps. Here the prisoners were forced to

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labor long hours, and the diet provided meant that within six months the victim would be dead. They died by the thousands and the camp crematorium always had plenty of customers. When we took over, the army immediately set up a field hospital inside the camp. I walked through the “wards” and viewed the patients. They were dying all around. Many were still alive and the Americans were trying to preserve the little life that was left. In front of one of the barracks was a big pail of water and in it some of the prisoners were bathing some of the patients. It was a fantastic sight. The patients, nothing but skin and bones, were carried out to the tub. They were carried like babies, and none of them could have weighed more than 80 lbs. They were placed standing in the tub and water run over their bodies. Like lifeless marionettes these former humans fell over the arms of their bather. Their heads flapped loosely and their arms hung limp. Yet these skeletons being held up in a tub were live human beings — men who may have been prominent and influential at one time. Now they were but helpless animal-like puppets who might not die. No one who has not seen it can visualize the scene. It is all a wild nightmare. I have just decided to send you some additional photos. I hope you won’t mind, dear. Since the information about this camp has already been published I can now send them without violating the censorship regulations. I have many other photos, of other camps, but they have not yet been cleared. I was still in the camp when many of the prisoners were being transported home. That was a sight to see! Truckloads of French and Spanish patriots were going home! They were loaded in GI trucks and their flags were waving while the former prisoners cheered themselves hoarse. I took many pictures of the scene, but they have not yet been developed. Perhaps when there is time I can make a little scrapbook of these photos — or would you rather hold on to them for me until I’ve got time on my hands? Let me know, dear, for I have very many of them and I imagine that they may be interesting to the skeptics.

Chapter 6

Final War Crimes Investigations and Discharge from Army (Late May 1945 to December 1945) After investigating Ebensee and before returning to HQ, Ferencz decided that while he was still in Austria he would see if there was any other potential war crime situation to explore. In one of Ferencz’s whimsical moments (those allowed an inventive 25-year-old soldier in a job with few restraints), he decided his next target would be the principle criminal, Adolf Hitler, who was suspected to be hiding in his “Eagle’s Nest” on top of the heavily fortified and unreachable Alps in Berchtesgaden.1 In order to properly embark on his somewhat far-fetched trip from Linz to apprehend the German führer, he thought it prudent to take his trailer along to carry his equipment and provisions. He had a big fish to catch. The war was not quite over and U.S. sentries were posted at various points along the highways. By waving a piece of paper at the guards his Jeep was always allowed to pass without question. He stopped in several small towns where he thought it would be useful to collect some cameras, binoculars, guns, radios, helmets, daggers, and similar paraphernalia that the Germans were required to turn in for security reasons. These he piled carefully into his borrowed trailer and covered them with a tarpaulin. Law enforcement was, after all, his thing. In spite of an adventuresome trip, he eventually made it to Berchtesgaden, which lies a few miles south of Salzburg. It is nestled amid high mountains that seem to reach the sky. The Berchtesgadener Hof was the elegant hotel frequently used by Hitler and his guests. Towering above the town is the Zugspitze, the highest mountain in the region. It was there that the SS built an impregnable fortress for their führer. The Eagle’s Nest, as it 90

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was nicknamed, could be reached by elevator if you were a soldier of high officer rank; for others, like Ferencz, Hitler’s retreat was only reachable via a steep and heavily guarded, winding road. The 101st Airborne didn’t bother using the road. They just pounded the whole mountain and then dropped in by parachute. Unfortunately they beat Ferencz to the top by a few days. Ferencz began his ascent up the long and winding road heavily pockmarked with deep bomb craters, and he often had to back up to maneuver around these roadblocks. When he had borrowed the chaplain’s trailer he had not mentioned that he had no experience whatsoever in driving with a twowheeled carriage being dragged behind his Jeep. En route to pay Hitler a surprise visit, he was surprised to learn that when backing up if he wanted the trailer to go to the left he had to turn the steering wheel to the right, and vice versa. Since he never could quite get the hang of it, he unhooked the trailer and pushed it into the woods adjoining the road. An American sentry standing nearby was alerted by Ferencz to keep an eye on the trailer until he returned from the trip up the hill. With his Jeep liberated, he quickly reached the top of the mountain where Hitler was reported to have his hideout. All he got was a magnificent view. Peering out of the führer’s verandah was like looking down on the world. He could understand why a person standing on the Zugspitze and inhaling could be overcome by a sudden attack of megalomania. Ferencz’s job was to find documents and other evidence of crime. There were many file cabinets around and he began his search. He quickly learned that the creative GIs of the 101st had vandalized the building as well as the SS guardhouses in the woods. There was nothing left for him but to descend the mountain and report his failure to HQ. When he reached the point in the road where he had left his borrowed trailer, it was gone. He inquired of the sentry who explained that some of the boys from the 101st had spotted the unguarded cart and had taken it with them. There is no limit on how sacrilegious some people can be. The chaplain’s trailer had disappeared. All of Ferencz’s equipment and loot was also gone. What next? Ferencz headed back to Munich to write his reports. They would serve as the basis for later war crimes prosecutions. He was grateful that the war was coming to an end. He learned that there never has been, and never will be, a war without atrocities. The only way to prevent such cruel crimes is to prevent war itself. When Ferencz returned to base and sought out the friendly chaplain, he confessed: “Father, I lost your trailer.” He then found out that his chaplain was no longer the forgiving type. Charges were prepared accusing Ferencz of losing or stealing government property. Before the legal proceedings could begin, Ferencz pointed out that he could prove beyond reasonable doubt that

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the property in question had belonged to the U.S. government when he had it, that it belonged to the U.S. government when the 101st took it, and there was no showing that at any time had it left the hands of U.S. government agents or had ceased to be property belonging to and under the control of the U.S. government or its agents. If the sentry was negligent in allowing the trailer to be removed, it was all the fault of the sentry and his superior officers who had command responsibility. In the face of such awesome Harvard logic, the charges were dropped. On May 27, 1945, from Erlangen, Germany, Ferencz wrote the following letter to Miss Fried describing some of what he found at Ebensee earlier in May, plus new information about looking for looted art: May 27, 1945 Erlangen, Germany Dearest Trudy: Have just had a visit from your friend and mine, the people’s choice, none other than — Captain Klatte. He told me that he had been around on several occasions, but no one in the office had the courtesy to bear the messages. Nothing much new in the old outfit and we just swapped stories for an hour or so. He told me that he received a very nice letter from my favorite sweetheart, and I told him that I’d invite him to the wedding. His predictions about the future of Benny in the army were covered in our conversation and I pointed out how he was disillusioned. When I gave him the inside story of the workings inside this office he was shocked. Do I have fun! Now I am in the office, and of all things, doing this. If I should be apprehended they will add it to the list of my crimes, but since I am convinced that any criminals who have anything to do with this office will go scott free I am not in the least worried. If they throw me in jail I’ll plead insanity. Nothing new around here at all. I was in Munich the day before yesterday and dropped in a Hitler’s Famous Beer Hall. It must have been a beautiful place — once. Now nothing but a mass of ruins, where GIs are served beer every afternoon. Couldn’t stay for beer for had already spent too much time seeing the city. It’s really quite a place. Beautiful museums, statues, arches, painted buildings, etc. Now all ruins. Heil Hitler. Tomorrow I think I am scheduled to investigate a cave in which the Nazis have hidden billions of dollars worth of art treasures, so I don’t know whether I should save my stories till after the trip. It sounds as though it might be interesting. I know it’s down in beautiful country. Which reminds me that I probably haven’t told you all about that part of the world before. If you’ve heard it all before please stop me.... There are so many other people I should be writing to, sweetheart, that I hope you’ll pardon this sudden farewell. Too many ghoulish stories running through my mind so I might as well stop here. Don’t tell a soul — but I love you. Always, Ben

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A more interesting assignment for Ferencz concerned Nazi plunder of the leading art treasures of Europe. Ferencz’s War Crimes Section had received a report that a major war crimes suspect had been apprehended and was being held in the German prison at Würzburg. His name had been listed in the Central Registry of War Crimes and Security Suspects (CROWCAS). The CROWCAS list had been assembled by refugee lawyers who had escaped to London but maintained contact with the underground resistance in the countries overrun by the Nazis. The suspect was Karl Haberstock, an art dealer alleged to have been the main culprit in what was probably the biggest planned looting in history. Ferencz’s orders were: “Go get him!” Haberstock was known to live in a little town called Würzburg, where Ferencz found him in jail. He admitted that he had taken the best paintings, but pointed out that they had all been paid for by checks drawn on the Bank of France, which were worthless. Haberstock was very willing to tell Ferencz about who had been a part of the looting and where to find them. They were hiding out, along with Haberstock’s wife, in the castle of the Baron von Pöllnitz, tucked in the woods in Amberg, a little village in Bavaria. Unfortunately Ferencz’s investigations didn’t amount to much since Haberstock was only an accomplice, and the others in the Schloss were even less important. On June 6 and 7, 1945, Ferencz wrote the following letter to Miss Fried regarding his efforts to uncover information about stolen art: Dearest: Things are fantastic. One day I am in the midst of an incredible inferno and the next I am sailing on a cloud. Not long ago I wrote that we had uncovered a cave which had billions of dollars worth of art treasures in it. I thought I would be sent out to cover the case but I was sort of in the doghouse for losing the trailer at Berchtesgaden and they wanted to keep an eye as well as a thumb on me. Instead they sent out a new captain who told me at the outset that there was nothing to the case and that it had nothing to do with war crimes. They had actually gone so far as to prepare an endorsement to higher headquarters transferring the case out — as not pertaining to our department. I insisted that it was a war crime and that we would undoubtedly prove the looting and its implications. The captain took off alone, and I remained behind disgruntled and discouraged. I sensed then that the case had vast potentialities and I feared that the inexperienced uninterested captain would miss the boat. But there was nothing I could do. About a week later we received a report that a famous art dealer had been apprehended in Würzburg. Since my original enthusiasm for the case had been squelched by the higher ups they may have felt a stroke of conscience when they said I could go out and interview the art dealer. The trip was supposed to take a day or two, and a lt. and driver and myself made up the team. We arrived in the ex-city of Würzburg last Sunday. We had taken practically

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no rations with us since there was little room in the Jeep and we were sure that in a big city like Würzburg we would have not trouble finding food and lodging. The city itself is a most interesting sight. At one time it must have been one of the nicest cities in Germany. It reminded me very much of Salzburg. There were archways across the middle of the small and winding roads, there were fancy colorful pictures painted on the buildings, and the towering cathedrals and domes evidenced a city of tradition and culture. But it differed in one remarkable respect from Salzburg. Würzburg was a skeleton. Just about 3 months ago, as American troops were approaching the city an ultimatum was given to the Gauleiter to surrender. He obstinately refused to hoist the white flag. The RAF was then given the go ahead sign and they moved in for the kill. As American tanks came upon the city from all directions the British air force rained thousands of incendiary bombs upon it. I don’t think a house was missed. The attack lasted only 20 minutes, and this beautiful German city was left a roaring inferno. The white flag never went up — and today Würzburg no longer exists. The houses were not leveled but the insides were completely burned out. Now the thousands of empty walls still stand. The roofs are all off and there is nothing but high walls and empty windows left. We rode through the ghost city very much impressed. The military government was not very cooperative. They told us that there were practically no places in town to live in and absolutely no transient mess. They said we could be put up for the night. At this point let me introduce Lt. Dwight McKay a G.F.U. from way back. (That’s army lingo for a bad boy.) He has only been in the section for about a month. The first day he was assigned he was arrested for being drunk and disorderly and waving a gun at a nurse in her quarters at 1 A.M. Since he is an officer nothing much more was done about it. He has been sent out on cases, and I noticed that McKay was O.K. Even when he went out alone he did a creditable job. His father pushed him through law school at Chicago and in the army the Irish McKay, who is about 32, has been fighting hard with the tank corps. He was wounded somewhere after having served through Africa and Normandy and finally wound up in the JA Section. This was my first trip with him — and I hope it won’t be the last. After we had been so discouraged by military government we went up to see the house. It turned out to be a delicious little villa which had formerly belonged to the Ortsgruppenleiter of Würzburg. The good Nazi had thoughtfully fled when the Americans entered and had left his house to be occupied by transient troops. A former head waiter and his wife were serving as caretakers. The imperturbable McKay was not to be daunted. We headed for the nearest ration dump, where our lt.— taking the lead, talked the colored sgt. out of a couple of hams, pounds of butter, bread, big cans of peaches, tomatoes, juices, sugar, coffee, etc. We then headed back to the Ortsgruppenleiter’s home, presented the victuals to the head waiter, designated him head cook and called the place our headquarters. We then headed for the local jail to interview our new war criminal. Herr Haberstock was the man we wanted to see, and all we knew about him was that

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he was a famous Berlin art dealer. He was called from his cell and walked in slowly. White haired and with a curling mustache the aged Haberstock immediately looked very harmless. The portly gentleman bowed and looked at us rather wistfully. After a short interview we knew what we wanted. Haberstock had been thrown in jail about two weeks before and was waiting for someone to do something. We did it. We took him with us to our HQ — in Würzburg. There we got to the story we had come for. We treated the old boy as a guest — and listened. Herr Haberstock was Hitler’s personal art purchaser and appraiser. From fairly humble beginnings he had studied art paintings and had become Germany’s foremost expert on classical art. He had been the power behind the throne as far as appointment and dismissal of museum directors went and had amassed considerable wealth through his buying and selling of paintings. We sat on the rose covered terrace overlooking the ruins of Würzburg as the old gent told us about paying 60,000,000 marks for a Rembrandt for der Führer, and the rivalry between Hitler and Göring over particular pictures. Haberstock had bought and sold for every important man in Germany, and knew more about how paintings were acquired and who they really belonged to than any man in Germany. For three days we took down his story. The Nazis had used 4 methods of acquiring art treasures. First they had just seized them and sent the owners to a concentration camp for disposal. But this method was not very popular, since wealthy art owners are usually influential and it doesn’t look good. So they would “purchase” the invaluable paintings. The payment would be by check drawn on the German ministry and payable to the Bank of France. Then, through a simple process of diplomatic financial negotiation, the price of the painting was subtracted from the war debt the Germans imposed on the French, and everybody was even. The Germans had “bought” a painting, and France had lost one and was not a cent richer.... But even paper money hurt the Nazis. They didn’t even want some of the victims to feel the satisfaction of a false payment. There were very many wealthy Jews who had paintings, and these were declared confiscated and property of the state. Where dealers held paintings they were in danger, and under pressure were forced to sell at ridiculously low prices just to give the transaction the methodical German legality. June 7 Others were visited by the Gestapo and asked if they had any contributions. Never in history were there more successful collectors. The wealthy Jews who had art treasures had to flee for their lives. They tried to sell whatever they could and get out of the country. So the fortune of the Rothschilds, and dozens of prominent citizens fell to the hands of the Third Reich. By 1943 France was completely plundered, and every land in which the Nazis had set foot had made its contribution to the New Order. Herr Haberstock spoke to us frankly, though a bit frightened. Every once in awhile during the questioning the crazy McKay would jump out of his seat and shout at the old man, in unintelligible English, “Don’t lie to me, you son-of-abitch, or I’ll kill you!” The old man would look around rather puzzled and reply meekly “Van augd er?” Then McKay would explain in fumbling French that he

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was trying to decide whether the old man would be hung this week or the next. The old boy never knew when he was being kidded and when we were seriously threatening his life. We had a hard job restraining our laughter at the puzzled expression he wore. The food prepared by our newly appointed chef was excellent, but dry food was not in keeping with the times. We went for a drive through the neighboring countryside and arrived at a little town noted for its fine Franconia wine. We called upon the Burgomeister and told him that we had to requisition some wine for the American authorities stationed in Wurzburg. He snapped to attention and led us to the wine cellar. When the Jeep was well loaded we asked for the bill. He handed us a list, the other fellow in our party signed it “John Jones,” we thanked the burgomeister, he thanked us and we departed. That night old Haberstock really indulged. By 10 o’clock he was shaking everybody’s hand and promising us all fancy paintings. By 11 we were all singing. I went to bed, for that fine Buxbeidl was closing my eyes. It is a fine white wine, clear and heavy. It goes down smoothly enough, but when you try to stand up you realize that your legs have fallen off just below the knees. The next night I had less Buxbeidl. After we had obtained all the general information we could from Mr. Haberstock we decided to go to his home and look over his records. He could tell us all the paintings that had been purchased for Hitler and the other big shots, how much had been paid, from whom, etc. Since that information is vital if we are ever to return the paintings to their rightful owners we knew we had a big job ahead. The records, as well as many of Haberstock’s personal art treasures were stored at his temporary residence at Aschbah. His home in Berlin had been demolished by bombs but he had managed to save most of his art and scattered it throughout Germany. At Aschbach he was staying with an old friend baron in an ancient castle. We decided to move our headquarters. Aschbach is a little farming town not far from Bamberg. Haberstock was most anxious to get back, for he had not seen his wife in over two weeks and she didn’t know if she would ever see him again. He had been taken away and interred without explanation. We drove through the picturesque country and stopped again at the old Burgomeister’s house for some more Buxbeidl. It did not take us long to arrive at our destination and the small jeep climbed into the castle yard. Our “guest” was greeted by smiles from several of the servants: “Guten Tag, Herr Doktor.” After a few minutes his wife came running out. They immediately fell across each others shoulders and started crying. Nothing was said and it was quite a touching scene. His wife then came over to each of us, and took our hands in both of hers. She was too choked up to say anything. She just squeezed our hands and nodded her head. I was glad that we had brought the old boy back. The castle of Baron Von Pöllnitz was full of guests who had been evacuated from other parts of Europe.2 We told the baroness, a very distinguished looking lady, that we would take three rooms and be her guests for awhile. She very graciously consented, since she had no alternative. Just a few days before the Americans had arrested her husband as well — for he had been a member of the Nazi party and had held a former political office. She asked if we could bring her husband home too and we promised to look into the matter.

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My room overlooks a beautiful lawn and garden, and now I am sitting in the garden, under a beautiful tree, in a fine wicker chair, writing to my sweetheart. My room has a magnificent feather bed, thick rugs covering the floor, and dreary paintings covering the walls. The castle itself is sort of an ancient joint. Though electric lights have been installed they have no running water. This makes bathing and latrine facilities very primitive. I think it’s the first castle I’ve ever lived in, and I know I’d rather have a two room bungalow with hot showers. The halls are cold and dreary and there aren’t enough lights, but the grounds are pretty and peaceful. So far the meals have been pretty good. We eat in the main dining room, along with about 10 other guests. The guests are all friendly (there too they have no choice) and intelligent. Most of them speak English, and dinner conversation is almost completely in English. There are a few young folks around, and I am reminded of a summer vacation in the Catskills. McKay and the driver didn’t get to sleep till 6 o’clock this morning, for there was a big celebration going on in the lieutenant’s room. A few of the guests came in at about 2 A.M. to help with the festivities. That was the time I went to bed. Before that Frau Haberstock had dug up some fine old champagne for fêting her hubby’s return, and there was plenty of Rhine wine and Buxbeidl to go around. I did go around, and went to bed again. My maximum capacity is still about three glasses of anything. I’ve put old Haberstock to work compiling his records, and have interrogated another art dealer who is staying at the castle. Yesterday I viewed a magnificent art collection here. I really am sorry that I didn’t study art more thoroughly, for I’m jealous of the enthusiasm of the art connoisseurs. Now I am learning more about the ancient masters than I ever learned in school, but I am still frightfully ignorant on the whole subject. Schändlich. There is still a little work to be done around here, and where we go then is a matter for the office to decide. You can readily understand, dear, why I am not anxious to remain back at a desk at headquarters. Sitting here on this beautiful day, in this beautiful spot is really very pleasant. It’s 4 o’clock, and I am completely free. If all the army were only like this!

After gathering all the pertinent information they could, Ferencz and McKay returned to HQ to make their report. Shortly thereafter, as the war effort was winding down in Germany (mid–June 1945), Ferencz was summoned by his colonel and ordered to proceed to Altaussee in Austria as a follow up to his earlier investigations on stolen art. The U.S. Army had located a salt mine at nearby Bad Aussee filled with art treasures stolen from all the occupied countries of Europe, and he was assigned to check it out. Altaussee is one of those beautiful little Austrian villages, surrounded by lakes, green trees, and snow-covered mountains. It also has an old salt mine that provided employment for many of its citizens. The cold and moisture of a functioning salt mine were ideal for storing paintings — particularly if there was a war in the neighborhood, or they happened to be stolen. Five big caverns in the mine were filled with priceless art stored on rows of wooden shelves.3

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Hitler had given the order that if Allied forces approached the mine, it was to be blown up, paintings and all. It was clear that der führer was a real art lover! Fortunately, the Austrian engineer who ran the mine was not enthusiastic about losing his livelihood and maybe his life. He secretly arranged to defuse the large bombs that had been placed in each of the caverns. When an American tank column approached, he sent word alerting them to the priceless cache hidden in the town. The paintings were saved. The naval officer was supposed to figure out who the owners were so the paintings could be returned. Ferencz was supposed to figure out who the thieves were so they could be tried. On June 23, 1945, Ferencz wrote the following letter to Miss Fried regarding the art treasures located in a salt mine: Gmunden, Austria June 23, 1945 Dearest Trudy: The last time I was at this place I raved to you about its wondrous beauty. I could rave on again, but no words could give you the true picture. I am now working on another angle of the Arts Treasures case. Actually we have set up at Bad Aussee, where the treasure is located. Long ago I told you that they had planned to send me out on it, but at the last moment I was recalled to work on a murder or massacre or similar project. A captain was sent down with an interpreter and he was hanging around the Rembrandts while I was nosing through castles in Würzburg and arresting some of the criminals. After that angle was covered the officer was recalled and told that he had a new assistant — I was happy to receive the assignment since I had been down in this area before (covering the Mauthausen and Ebensee concentration camps) and the subject matter was most interesting — and so I came to Aussee. One of the first things I did here was to go up and see the mine. Hitler & henchmen decided that a good place to cache their stolen loot would be in a bomb proof mine somewhere. Bad Aussee was ideal. Here a tremendous salt mine has been operated for years. On the outside it looks like a little gasthof, but inside are the long low caverns leading under a mountain of salt. A tank outfit has been posted at the mine to guard the priceless works of art against all intruders. I had to present my credentials about 10 times before I got inside. The “By Command of General Patton” at the bottom of my pass worked wonders. The guards eyed me quizzically, stood at attention, and said, “Yes, sir,” when I asked for directions. I walked through a low opening and followed the narrow gauge car tracks. Burrowed into the mountain were miles of passages through which salt had been hauled for generations. I trudged along the dark trails, the moist and cold salt covered stone on all sides, until I reached a large cavern. Here several rooms had been constructed of huge cross beams, and the rooms had been sealed by a series of doors. A guard stood outside each door. Within were parts of the hidden loot. About a dozen Austrians were working inside the

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room. They were making stuffed wrappings for the paintings, and loading them into big wooden crates. The crates were then placed on small trams and driven out of the mine for loading on a U.S. Army truck and transportation elsewhere for safer keeping. To return to the room — it was not as spectacular as I had imagined. From top to bottom this vast room was loaded with paintings, neatly arranged side by side. In one corner stood a dozen Rembrandts, in another a large number of paintings by Van Gogh. Neatly stacked they looked like another bunch of frames; taking the “frames” apart revealed a fabulous fortune. I could kick myself a million times for being such a fool in not appreciating the art for art’s sake. Here is probably one of the finest collections in the world, for a glimpse of which artists would travel across continents and stand dumbfounded in rapt admiration. I just stood dumb in aggravation. The mine goes on for miles, and I walked along the damp ground for about another half mile until I reached another heavy metal door. The numerous side caverns, and tunnels leading still further into the bowels of the earth were ignored, as I only followed the passageway over which electric lights had been placed. I asked the guard at the door what was inside. He said he didn’t know, and had only been posted with orders not to admit anyone. I pulled out the magic paper and said those orders didn’t apply to me — he read — and opened the door. Inside was another huge canyon which had been boarded off into sections. It looked as though it were empty so I jokingly remarked to the guard, “Say, you’re guarding nothing here.” I then walked in and looked around more closely. The first thing that struck me was the panels from the Ghent Altarpiece showing Adam and Eve.4 I’m sure that one tableau is worth millions. I whistled. It was cold and very damp inside the caves (actually ideal for the storage of oil paintings) and so I cut my sightseeing short and started to interview witnesses instead. The first angle of the case to be covered is what we call “the blowing of the mine case.” As the Americans approached, some of the Nazi big shots in town planned to blow up the entire mine and all its contents. It would have meant not only the loss of the still operating salt mine, but the permanent loss to the art world of very many of the most famous and priceless paintings and statues in existence. Six huge, 1-ton bombs (American made incidentally) had been placed in the caverns within the mine, ready to be detonated at the last moment. Many of the mine workers didn’t relish the idea of the Nazis blowing up their livelihood just to spite the Allies — and so a “Free Austria” group started some plans of their own for sabotaging the Nazis. Though the bombs had been delivered to the mine in crates marked “Marble, Fragile,” the curious workers couldn’t understand why they had all been placed in separate chambers. When their curiosity led them to pry open the lid of one of the boxes they immediately realized what was being planned and moved the bombs out, leaving the empty crates for the super-dupermen. Before the Nazis could take action against them (and with that goes a long story of how the officials started threatening to arrest each other, how telegrams flew thick and fast through to Hitler and back, how special troops placed to hold the mine for the destroyers turned and took side with the miners, etc.) the American troops arrived, and took over the situation as the Nazis fled into the Bavarian woods.

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We had a hot tip that one of the big shots had taken refuge in a hospital in Gmudnen, and so I took off for that place to see if perchance I could apprehend him. This part of the world consists of fast flowing streams, small blue lakes, and towering snow capped mountains, leading sharply into the small “sees.” Green foliage and flowers are stuffed in every other place, and the folks ride around on bicycles in short leather tyrolean pants, green ornamented short jackets, and feathered, medallion decorated felt hats. The houses are small wooden frame affairs, with overhanging eaves and fronts painted with gay pictures. All of this part of Bavaria has been free from the war, for the beautiful spots were reserved for German hospitals, and were thus bomb free. It is by far the most beautiful place I have ever seen, and those who know say that it beats traveling around the Swiss Alps. I drove the Jeep slowly around the countryside, drinking in its beauty, singing aloud, and thinking what a pity it was that we couldn’t be sharing it, sweetheart. It was wonderful to be absolutely on my own, away from the office, and nothing to do but drive slowly through wonderful country to a beautiful destination. At Gmunden I drove directly to the little hotel where I had been before. This time it was full, and at ten o’clock in the evening I was in no position to be particular. I accepted the proffered hospitality of a neighbor who had a fairly nice room where she could put me up for the night. In the morning I started my hunt, contacted our counter-intelligence men, and started through some of the dozens of hospitals in Gmunden. These are ideal hide-outs for Nazi big wigs. They can simply put some bandages over their face, change their name, be listed as a patient, and take things easy in a beautiful home until the pressure is off. The main thing wrong with their plan however is that we are wise to it. It’s still pretty difficult to find them, but it is simply a matter of a little more time. What happened in the search is still a military secret, but by the afternoon I was all set to go swimming — I had brought along a pair of bathing trunks and got my first sun burn of the season. My earlier dip in the Danube had been too brief and too cold for me to acquire immunity to ye olde sun rays, but now I took it squarely on the back. You know the way I feel now, dear. Anyway it was swell, but as always, dear, kinda lonely. I was sorry to leave Gmunden and return to Bad Aussee though the set-up here is really nothing to weep about. We have taken over a small house, which had been a former children’s nursery, and that is our HQ. About 20 guards also share the house and meals so it isn’t quite as cozy as the bed of roses to which I have become accustomed. There are two naval officers, who were former museum directors, and are here from Supreme HQ to check thoroughly into the ownership of the paints, and about 4 suspects being held in protective custody until we can question them and intern them. So the situation is full of suspense and interest, darling, and it is the same old story as far as I am concerned. I miss my mail, but most of all I miss you, Bimbo. They can keep their art and their treasures, their lakes and beautiful mountains; I’d gladly swap them all for a walk through Bronx park, if I could have your hand in mine. But when? Till then, I love you, dear, With all my heart, Ben

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Ferencz says that the man they were looking for in the hospital was found and arrested, but they did not have enough evidence to prosecute him. Ferencz stayed in Bad Aussee for another few weeks and then headed back to headquarters in Munich to file reports on his investigations. On August 8, 1945, in Bad Aussee, he wrote a letter to Miss Fried about the post-war problems in Germany and his getting tired of being away from home: Bad Aussee, Austria Aug. 8, 1945 Dearest Sweetheart: ...There is so little of new interest to write about that it has also hindered my correspondence. The witnesses are different (I am now working on Göring’s strong-arm man in art seizures) but the procedure is the same and nothing very different is being discovered. The details are still military secrets. We expect to wind up here pretty soon and then the vacation will be over and I will probably return to normal living at Munich — I hope. My recent failure in regard to that UNRRA matter sorta dimmed my spirits for awhile, but by this time I have become so accustomed to being bounced on my head that I just take it as another blow. My emotions have really taken a terrific beating in this war. That will be your first job of rehabilitation when we meet again, darling. Do you think you can handle it? Keeping the points system at 85 was another slight disappointment for it meant that the army had their hands full already with getting rid of the men they were prepared to release. My 68 still looks mighty puny. For many reasons I dread being in Europe this winter. First there will be the hunger. It is very apparent now, where thousands of people have a constant diet of cabbage and potatoes, with an occasional drop of some kind of meat. Food is very scarce. Money is useless — there is nothing to buy and no one who has anything to sell will give it away except for something to eat in return. I just saw them unloading the ration truck outside my window. A civilian couple were going by on bicycles and they just had to stop to gaze and wonder. Since there are only a few of us in the house the rations unloaded were not much, but I could see the couple just looking at each other as the boys on the truck handed down the crate of oranges, the chickens and the big loaves of white bread. The elderly couple made me think of the little boy who presses his nose against the candy store window and wishes he had the penny needed for the chocolate. Here there are no candy store windows and no chocolate. Back home there must be many who say, “Let ’em starve!” for I have even heard the same thing here. I know how the people were murdered by starvation in the concentration camps, but I also know that most of the Germans didn’t know about it. And when I see a little German girl being led into the house to a meal of four carefully mashed potatoes I can’t very well say “let ’em starve,” and I wish the people somewhere in the world would pull their belts a little tighter. The displacement is terrific. Not only where the bombing destroyed and hundreds of thousands left homeless, but the concentration camps were opened and many more hundreds of thousands were delivered to empty fields and wished the

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best of luck. Hundreds of thousands more fled from their homes before the bombs and have taken the roads back hoping faintly to find something. Cities have decreed that those who came there as evacuees must leave because former citizens who took refuge are returning. So people who have been living in homes for over a year are being ordered out and told to go back where they came from. There is no transportation. Furniture and clothing, bedding and dishes must be left behind, as a person can only take what he can carry. Quite often the only thing that can be carried is the baby. And there is no place to go. There is no food along the roads. Those who have are afraid to share lest they too be among those without. It may be hard for the people back home to understand why there are many soldiers like myself who never eat the breakfast orange, but who put it in their pocket, and who never consume any of the PX rations themselves. These are hard things to write about for they are difficult to watch. Off hand it just looks like some people walking along the road with a bundle on the backs. The babies look cute and just a little thin. I know this is happening in Germany, and I shudder to think of the rest of Europe which had already been bled white to fatten the Reich. With no fuel, no food, no homes, no transportation this winter in Europe will not be a happy one. And there are no men. The complexities, frustrations and difficulties that adds to the situation are innumerable. For the GIs it’s a pretty favorable situation. For everyone else it’s tragic. Oh to be back in New York, where life is sweet and simple! Just going to the concerts, or stopping in the old ice-cream parlor would be such a simple pleasure for me now. I know I’d trade these beautiful alps and lakes at Aussee for a simple stroll through Crotona Park with that special someone. But for me it still seems a very long way off— and I sometimes wonder if I will ever be able to enjoy those things again the way I did once. You will have to maintain for both of us, dear, the power to enjoy simple things. My senses are being dulled by overdoses of everything. I don’t think, however, that I would ever think I had an overdose of you. At any rate I’m willing and eager to try to find out.... Always, Ben Xxx

Ferencz had entered the army in order to do his part. It was September 1945; he heard the war was over. The good guys had won. All he wanted now was to go home. However, when Ferencz returned to the War Crimes Section from Altaussee, he found that Colonel Joseph, who had handed him his sergeant stripes, had been shipped home. His new boss had another assignment for him. After the army had liberated the Dachau concentration camp, they had imprisoned a number of Dachau SS guards with a plan that they would be tried later in a military tribunal. In addition, Dachau became a holding place for other Nazis from such places as Buchenwald and Mauthausen, who would also be tried. With the war officially over, the army had now started to set the stage for said military tribunals, and Ferencz was charged with the task of helping collect the evidence to support the trials. When Ferencz arrived at Dachau to gather what evidence he could to support the trials, the U.S.

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Army trial staff were already in place and had started to set up the military court to try Nazi SS officers and SS guards that had been captured. While Ferencz did not approve of the lack of proper law procedures, as a 25-yearold sergeant, he had no authority to interrupt the trial proceedings; however, he did provide some guidance. (Details of Ferencz’s involvement can be found in the United States Holocaust Memorial Museum [USHMM] interview with Ferencz regarding military tribunals in Dachau included in Appendix A.) The makeshift court simply proceeded to ascertain that each captured Nazi soldier had been an active member of the staff of the concentration camp, convicted the soldier, and then sentenced him — usually to death. Such on-site action may have been harsh, but under the circumstances it was considered appropriate justice in the presence of massive makeshift graves filled with bodies of innocent victims. This undisciplined approach to the application of criminal law was an unfortunate fallout of war and became one of the many reasons that Ferencz made his life work the goal to ensure peace through law, not war.5 It was now approaching December 1945, and after providing what little support he could to the Dachau tribunals, Ferencz returned to his headquarters to start processing for his discharge and trip home. About that same time his new boss received a personal letter addressed to Sergeant Ferencz, and signed by General Betts, the commanding officer in charge of all war crimes matters. Betts said he knew of Ferencz’s work and would arrange for Ferencz’s transfer to higher HQ if he wished. Even though this included a promotion to officer rank, Ferencz had had enough and wanted to go home. Thus he received his discharge orders and was transferred to a staging area near Paris where soldiers were being assembled for shipment home. Considering how many soldiers were waiting for transport, Ferencz, being only 25 years old and eager to start having fun, decided not to sit around waiting. Instead he decided to take the 10 days of leave he had coming and do some traveling. He spent most of his time in Switzerland thoroughly enjoying himself. However, on his way to Switzerland, he stopped off at Lunéville and enjoyed the second bottle of champagne as promised earlier. After 10 days, he headed back to the camp outside of Paris to await his transfer home. When he got there, he discovered that the unit to which he had been attached for demobilization was gone. Since his 10-day leave time was over, he was now officially AWOL, so he hurried after his unit. He found out they were scheduled to sail home on the Queen Mary from Cherbourg, France, but before he could get there he found out that the Queen Mary had already sailed. Being Ferencz, he quickly headed for a different port (Antwerp, Belgium) and talked his way onto a Liberty ship named Fitzhugh Lee. His trip home was uneventful, and because he had telegraphed that he

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was coming home on the Fitzhugh Lee, his family and girlfriend were there waiting for him with open arms. It was a few days before Christmas, just slightly more than two years after he had left the U.S. for England. He received an honorable discharge as a sergeant of infantry on December 26, 1945. His discharge papers listed the battles he had participated in, from the beaches of Normandy, though the Maginot and Siegfried Lines, across the Rhine at the Remagen Bridge, and the final Battle of the Bulge at Bastogne. He was awarded five battle stars pinned on a ribbon. A letter signed by the president of the United States was part of the farewell package. The facsimile signature of Harry Truman assured him that “a grateful nation” appreciated his service to his country. Ferencz appreciated being home, away from the trials and tribulations of being a lowly enlisted soldier. But mostly he appreciated being away from the atrocities he had seen imposed by the Nazis in their attempt to control Europe and rid their own and their captured countries of what they considered undesirable human beings. Ferencz was traumatized by what he had seen, and he still at age 93 gets choked up when he is asked to recall some of the horrible events he had to witness while doing his sworn duty. As he has said: He peered into hell. In summary it is obvious that Ferencz hated being in the army, he didn’t like taking orders he believed were stupid, he was not treated well in many cases, and he had to put up with occasional anti–Semitic treatment. His letter to his girlfriend on April 20, 1944 — while in England waiting for the invasion of France — is very enlightening. In this letter he demonstrates the depth of his understanding of the philosophy, ethics, and politics of war. He disparages the lack of ideals instilled by the educational and political systems, which leads to blind acceptance and lack of understanding causing the blasé attitudes of the common soldier. He makes it clear that wars are not the answer to solving world problems. After the invasion of France, when fate stepped in and Ferencz was transferred to Patton’s Judge Advocate Section for War Crimes, Ferencz’s life was changed forever. It is impossible to understand what he went through with just the words and pictures to go by. At the age of 25 to see the horrors resulting from atrocious mistreatment and mass killings of human beings — just because they were supposedly “different” or judged “undesirable”— had to and did significantly affect Ferencz’s view of how the world works and what needed to be changed.

Chapter 7

Collecting Evidence to Support Nuremberg Tribunals (1946 to Mid–1947) The war was over. It was time for Ferencz to seek a new life. There were about ten million soldiers recently arrived back in the United States, and they were all looking for a job. Ferencz was one of them. He had a Harvard law degree and was admitted to practice law in New York, but for the previous three years of his life, he had done nothing to prepare for any useful civilian role in the field of law. One day in early 1946, while strolling along Fifth Avenue in New York City, Ferencz had a chance encounter with an old Harvard Law School friend, Murray Gartner, who, on graduation, had obtained an appointment as a law clerk to Justice Robert M. Jackson of the U.S. Supreme Court. Jackson had taken leave to serve as chief U.S. prosecutor at Nuremberg for the upcoming International Military Tribunal (IMT) set up to try Nazi perpetrators of atrocities during the war for war crimes and crimes against humanity. In the conversation with Gartner, Ferencz described his army experiences working on war crimes, and thought no more of the subject. About this same time, Colonel Telford Taylor was acting as chief prosecutor for Justice Jackson in the High Command case of the IMT. Due to his excellent performance in that role, Jackson asked Taylor to take over the role of chief of counsel for the upcoming Subsequent Tribunals since Jackson had decided to return to the United States and his Supreme Court role, which he did in July 1946. Jackson later returned to Nuremberg in late September to hear the final IMT judgments on October 1, 1946. Therefore, it came as a surprise when, shortly after meeting his friend Gartner, Ferencz received a telegram from the Pentagon which began, “Dear Sir.” Ferencz says that no one in the army had ever called him “sir” before. 105

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He was invited to come to Washington, at government expense, to be interviewed for possible employment. Ferencz had no idea that Col. Telford Taylor, one of Jackson’s chief assistants, was about to be promoted to brigadier general and begin a dozen proceedings in Nuremberg designed to expose the entire panorama of Nazi criminality. By March 1946, with the IMT trial well under way, Taylor was in Washington hiring staff to help with his unprecedented new responsibilities. He called on Lt. Colonel David Marcus to help with the recruitment. When Ferencz arrived at the War Department, he was greeted by Lt. Colonel Marcus, who said, cheerfully, “Call me Mickey.” Marcus was born in Brooklyn and had received a free West Point military college education. He had been a boxer and was known as a shrewd and tough cookie. There was an acute shortage of lawyers who knew anything about war crimes trials, and the army was desperate. “Benny,” Marcus said earnestly, “we want you to go back to Germany. We’ll make you a colonel.” Ferencz thought he was kidding and replied that the only way he would go back under military command would be if the U.S. declared war on Germany again and was losing. Marcus made a counter-offer. He offered Ferencz a “simulated rank” equivalent to a full colonel with all of its privileges, yet Ferencz could remain a civilian employee who could quit at any time. “Benny,” he said, “you’ve been there, you’ve seen it — you’ve got to go back.” Marcus suggested that Ferencz have a word with Col. Telford Taylor, for whom he would be working. He was a good salesman; Ferencz became sufficiently intrigued to investigate further. It was not immediately clear to Ferencz where his new official assignment for the War Department would take him. The International Military Tribunal trial in Nuremberg against Göring and leading Nazi defendants had started with Robert Jackson’s opening statement on November 20, 1945. At that time, Ferencz was getting ready for his way back to the States. Ferencz knew very little about the IMT trial, but he knew a great deal about the U.S. Army War Crimes Commission. Ferencz first checked on Taylor’s background. He learned that Taylor was a Harvard Law graduate with a distinguished career in public service. It was no surprise to Ferencz that Taylor had also checked on Ferencz’s credentials. He referred to a letter of recommendation from Harvard professor Sheldon Glueck, for whom Ferencz had served as research assistant, and who was regularly consulted by the War Department as an expert on war crimes. Taylor had also uncovered some of Ferencz’s military records that, understandably, caused him some concern. He noted that Ferencz’s army file indicated that Ferencz was occasionally insubordinate. “That is not correct, sir,” Ferencz said. “I am not occasionally insubordinate. I am usually insubordinate.” Fer-

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encz explained that he did not obey orders that he knew were manifestly stupid or illegal. Ferencz remarked that he had been checking up on Taylor also and didn’t anticipate that he would give such orders. In Ferencz’s recollection, Taylor, trying to conceal a smile, said firmly: “You come with me.” Ferencz asked Taylor if his being given a simulated rank of colonel permitted him to give orders to army lieutenant colonels as necessary to perform his duties, and Taylor confirmed that it certainly would since Taylor, as general in charge, would back him up. Ferencz decided that it would be prudent to accept the offer from the War Department to return to Germany, and now that he had a valid employment opportunity decided it was time to look to the future. The only girlfriend Ferencz had ever had was Gertrude Fried. By that time, Miss Fried and Ferencz had known each other for about ten years, and Ferencz decided that it was time to move forward in their relationship. Having been raised in poverty and having endured the divorce of his poor parents, Ferencz always felt that he could not ask anyone to marry him until he was able to support a family. As soon as Ferencz received his valid offer from the War Department, he phoned Miss Fried, who had been patiently waiting for him all these years, and asked her how she would like to go to Europe for a brief honeymoon. “Oh,” she exclaimed, “this is so sudden. I’d love it!” Ferencz took the job. Ferencz and Gertrude Fried were married in Tanta Chava’s (Aunt Eva Perlman) living room on March 31, 1946. Only a few family members were present. Ferencz says the rabbi who performed the ceremony also happened to be the chaplain for Sing Sing Prison.1 Ferencz saw the army’s offer as a chance to celebrate a joyous honeymoon and balance some of the injustices of having been abused for three years by officers who insisted that rank had its privileges. Ferencz would discover — as he often did in life — that things don’t always work out as planned. Ferencz and his wife would return from their “European honeymoon” some ten years later with their four children born in Nuremberg. By April 1946, Ferencz was on his way to Nuremberg. The official tailor in the Pentagon outfitted Ferencz with the new uniform that the War Department required be worn by all Americans serving in occupied Germany. It was the standard U.S. Army officer’s garb with green gabardine jacket and pink trousers. Of course, it had to be shortened to fit Ferencz. Four small golden stripes were sewn on the sleeve, as required, to show that Ferencz had served two years in combat. Instead of metal bars on the shoulders to indicate rank, the uniforms for Taylor’s staff had a cloth patch sewn on the arm to identify them as members of OCCWC — the new Office of the Chief of Counsel for War Crimes. No one in Germany had ever seen such an insignia.

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About two dozen new OCCWC recruits set sail from New York harbor with tearful wives and girlfriends waving at the pier. The wives were not permitted by the army to accompany their husbands at this time but were later permitted to join them in Germany. The journey on the U.S. troop transport was uneventful. The OCCWC rookies who were not busy throwing up became fast friends starting on a new and challenging adventure. Once disembarked, they all proceeded by train from Bremerhaven to Nuremberg. Nuremberg had been a picturesque city. Courtesy of the Allied air forces, it had been converted into a pile of rubble. Part of the old stone courthouse had been repaired for use by the International Military Tribunal, where Jackson and Göring were meeting face-to-face in the main tribunal against the key Nazi leaders. The Grand Hotel had been partially reconstructed for use by transient officers. It was there that the new OCCWC recruits were lodged to await further instructions. Ferencz, not being one to sit and wait, decided to do some exploring. Dressed in his new uniform, Ferencz hopped on a rickety street car and crossed the bombed-out city to the suburb of Fürth and began his walking tour. He had not gone far before being halted by a Military Police jeep occupied by a lieutenant and driver. “Let me see your pass!” demanded the officer. Ferencz explained that he had none. The lieutenant eyed Ferencz suspiciously. Then came the order, “Get in, you’re under arrest!” Ferencz was happy to oblige since he was tired of walking and anticipated some merriment. At MP headquarters, a captain told Ferencz that he was being charged with the crime of impersonating an officer. To Ferencz that was more than ridiculous, it was an insult. But Ferencz realized that the new uniforms were probably not well known yet and suggested, firmly but gently, that the captain phone the Nuremberg area commander, who had welcomed Ferencz’s group on their arrival, and inform him that an arrest had been made and Benjamin Ferencz was in custody. The captain did so with little trepidation. Almost immediately, the dazed captain began to sputter frantically. All Ferencz could hear of the phone conversation was, “Yes, sir; yes, sir; yes, sir; sorry, sir. Sorry, sir.” The embarrassed captain personally escorted Ferencz back to the hotel, apologizing all the way. Some people, when given power, seem to forget about the presumption of innocence. It appeared that in the army, the higher the rank, the stronger the presumption of guilt. After a few days of temporary residence in the Grand Hotel, the half-adozen OCCWC lawyers of Ferencz’s group were moved into what were euphemistically termed bachelor’s quarters. They were lodged in a nice little villa complete with housekeeper. The house was located in Fürth about ten miles from the Nuremberg court and would have been ideal except for the fact that the recruits were not supplied with food. They also lacked any means

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of transportation to get back to the hotel, which was the only place that meals might be had. These minor technicalities of food and transport had apparently escaped the minds of the planners. The other five lawyers, noting that Ferencz was the only one accustomed to dealing with supply problems, elected him to find a solution. Ferencz accepted the challenge. Ferencz first phoned the motor pool and ordered that a Jeep be sent immediately to rescue six members of the OCCWC. The corporal in charge explained apologetically that he had no authority to dispatch vehicles for such purposes. After Ferencz threatened that the death through starvation of General Taylor’s staff would be on his head, he consented to risk an exception. Ferencz was duly sworn to secrecy by the frightened corporal. When a Jeep and driver arrived, Ferencz directed that driver take Ferencz to the quartermaster depot. There Ferencz was greeted by a friendly sergeant who told Ferencz his name was Bill and where he was from. Ferencz told him that he too had been a sergeant, and they got rather friendly as the sergeant told Ferencz about his life back in the United States, and Ferencz explained the problem back in Fürth. Ferencz’s new friend Bill produced the forms needed to authorize distribution of food to a new mess hall. One of the questions asked was the number of persons to be served. Ferencz, being an honest man, replied that it might vary but six were there now. “Sorry, Buddy,” said Ferencz’s now ex-friend Bill, handing Ferencz the uncompleted forms, “there has to be a minimum of twenty-five. I can’t help you.” Ferencz thanked him for his effort, and after some further casual conversation, elicited that Bill would be going off duty in half an hour to be replaced by a corporal named Joe, from Texas. Ferencz thanked Bill again, wished him well and departed. After driving around for half an hour, Ferencz returned to greet Corporal Joe with a big “Hello” and told him that Sergeant Bill had had to go off duty before completing the forms that Ferencz now had in his possession. Ferencz implied that Joe could handle it, to which Joe readily agreed. Corporal Joe came to the question about how many men were to be fed, Ferencz replied: “Well, it’s a new mess and the number varies. Let’s take the minimum of twenty-five, and if I need more, I’ll come back and talk to Bill.” No problem. Ferencz was now assured of sufficient surpluses to be able to trade with nearby farmers, offering them real American canned goods in exchange for fresh fruits, vegetables, and eggs, which in Germany in the spring of 1946 were a luxury. Another minor inconvenience had to be overcome. Corporal Joe apologized that the beer ration would have to be picked up directly from the local Nuremberg brewery. Ferencz assured him that it would be taken care of, which meant the Ferencz’s need for regular transportation became more acute than ever. Ferencz headed for the nearest army motor pool and explained to the sergeant on duty that OCCWC was on an important mission authorized by

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the president of the United States and they could not function without additional transport. However, the sergeant pointed out that the table of organization contained no vehicles for civilians employed by OCCWC. Ferencz then spotted a German command car parked at the back of the motor pool. It looked like an oversized Jeep that could hold about nine passengers or enough food for an army of twenty-five. When Ferencz inquired as to whom that vehicle was assigned, he was informed that it was captured booty and couldn’t be assigned to any U.S. soldier. Ferencz mentioned that as a civilian he would be willing to take the heap off his hands and forego other demands. With some relief, the sergeant agreed, and Ferencz thanked him for his ingenuity as he drove off in the Nazi command car. Ferencz still had the little problem of how to handle the beer ration that had just been approved. Ferencz doesn’t recall precisely how many barrels of beer were authorized for consumption by twenty-five soldiers, but if that amount were ever consumed by only six civilians, they would soon realize why an army kitchen is called a mess. Beer, along with most foodstuffs, was strictly rationed. Ferencz’s authorization for beer had to be presented to the Nuremberg brewery that was responsible for all distributions. It was an enormous plant, with heavy horses pulling heavy loads of heavy beer being unloaded by heavy men. There was no way Ferencz and his comrades could dispose of so much beer without help. Being inventive, Ferencz learned that the brewery wagons delivered its barrels to all the local beer gardens. The bars would usually serve fresh draft beer but they also had glass bottles with attached snap-on rubber caps for those who preferred to have their drinks at home. Ferencz located the bierstube closest to their quarters on the Lindenstrasse and made a deal with the owner. Ferencz would arrange with the brewery to drop off the assigned kegs at the local bar. In turn, the bartender would put the beer into bottles that would be kept on ice pending Ferencz’s pickup. In appreciation, the bartender could keep half for himself. It was an offer no respectable bartender could refuse. Leave it to an old supply sergeant to be able to get what was needed for his troops. By the end of July 1946, the overarching IMT trial was reaching its conclusion. On October 1, the judgments were announced, and on October 16, the IMT trial ended with the hanging of ten of the convicted defendants. By that time, Taylor’s team had to take charge for the subsequent tribunals and shift into high gear. To be a successful prosecutor, it is essential to bring together two vital components: you must assemble proof beyond reasonable doubt that a punishable crime has been committed and you must have the perpetrator in custody. The team hastily assembled by Lt. Col. Mickey Marcus and General Telford Taylor to conduct the Subsequent Proceedings at Nuremberg was a motley crew of inexperienced people. After all, there had never

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before been an attempt to indict such a wide spectrum of leaders deemed responsible for massive crimes. U.S. Treasury Secretary Robert Morgenthau, who favored draconian measures, lent some of his D.C. staffers to help prove that financiers and industrialists played a vital role in Hitler’s rise to power. Most of the new recruits had only a vague idea about what they were expected to do. Ferencz’s group spent several weeks examining documentation assembled for the IMT trial, but could find few new incriminating gems among the discards. One day, General Taylor called Ferencz into his office with a new assignment. Ferencz was to proceed to Berlin to scour German government archives and to find whatever evidence might help convict additional high-ranking Germans responsible for planning or perpetrating Hitler’s crimes. A pool of qualified translators, investigators, and researchers would be at Ferencz’s disposal. The entire team would work closely with the lawyers preparing for the new trials in Nuremberg. With assistance from the personnel department, headed by an ever-helpful Captain Sarah Kruskel, a staff of about 50 qualified persons was soon assembled. Most of the researchers who were available had fled from Nazi Germany to the United States and had been eager to return to aid in the prosecutions. As chief of the new Berlin branch of the OCCWC, Ferencz flew to Berlin to inspect their assigned offices, ensure proper billeting for his staff, and to start gathering the needed documentary ammunition. The OCCWC team had been given a small building, known as Harnack House, which had been a prominent address, as their base of operations. There was a slight problem — like most of Berlin, Harnack House had been bombed out. Ferencz’s team was expected to occupy the basement, from which some U.S. troops had been hastily withdrawn. The Berlin Command had obviously failed to appreciate the importance of the OCCWC mission, and Ferencz felt it was his patriotic duty to enlighten them. The situation called for creative imagination. By chance Ferencz found, discarded amidst the rubble, a glossy photograph of President Harry Truman — the type sent out routinely by the White House press office. Naturally, Ferencz was not going to leave the president lying on the floor. Ferencz picked up the photo, dusted it off, and, recalling that a friend of his named Harry might have forwarded such a picture to Ferencz, he scrawled on it in large black letters: “To my friend Benny, from your friend Harry.” Ferencz found a frame and posted the photograph prominently on the wall right above his broken desk. Facing the desk, Ferencz parked a large armchair from which the two rear legs had been amputated by U.S. bombs. It offered the occupant an unobstructed view of the president of the United States. Ferencz then phoned the Berlin commandant and informed him that Ferencz and his team had just arrived on a secret presidential mission being carried out by order of General Taylor and it was vital that he imme-

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diately meet Ferencz in the cellar of Harnack House. The startled colonel said, “Yes, sir, I’ll be right over, sir.” The colonel found Ferencz seated in a broken chair behind a broken desk. Ferencz asked him to please have a seat and pointed him to the broken armchair that aimed his face directly at Truman’s portrait. He sat down and his eyes soon were glued on the inscription. Ferencz explained that the OCCWC, authorized by the president and approved by the Congress as part of the Nuremberg trials, was the most important function left for the U.S. Army in Germany. Ferencz intimated that the colonel was sure that he would recognize that the OCCWC could not possibly carry out their assigned duty in such surroundings. Ferencz was giving the colonel an opportunity to avoid embarrassment by correcting the situation, and sure enough he was very apologetic as he agreed profusely with Ferencz’s conclusion. The colonel promised that he would immediately make available half of the building occupied by the army intelligence services adjacent to the headquarters of military governor general, Lucius Clay. Then he asked, “Is there anything else I can do for you, sir?” Ferencz told him that, of course, his team would need at least fifteen army vehicles and drivers assigned to the OCCWC office to carry out their investigative responsibilities. Reluctantly, the colonel agreed, and Ferencz’s team was now properly taken care of and ready to begin their difficult tasking. The Berlin branch staff was divided into different teams; their instructions were to locate and study all official Nazi records that might contain incriminating information needed by the twelve new subsequent trials being prepared. The documents, which were in German, would be summarized in English, and the Staff Evidence Analyses (SEAs) would be distributed to all lawyers in Nuremberg dealing with related prosecutions. If it was considered very important evidence, the original would also be sent. The Germans were great at keeping precise records, with many copies sent to many different official offices. They surely did not anticipate the use to which such evidence would be put. Without the extensive German reports, it would have been much more difficult to convict their leaders of planning and directing the horrors perpetrated by the Hitler regime. Ferencz and the trial lawyers appreciated the paper trail left by such meticulous murderers. What remained of the archives of the German Foreign Ministry was an invaluable source of information. The biggest prize was hidden in the woods of the Dahlem suburb of Berlin. From the air, it looked like any ordinary summer cottage. Beneath that harmless and camouflaged exterior were hidden perhaps ten million Nazi Party files. Ferencz’s group named the treasure-trove the Berlin Document Center (BDC). Subterranean chambers housed row after row of carefully preserved folders showing the applications of all who

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sought membership in the Nazi Party. It gave their family history, why they wanted to join, and a host of other facts of vital importance. The secret police files of the SS showed the promotions and decorations awarded for valor in murdering innocent people. In the meantime, Ferencz’s wife, Gertrude, was waiting impatiently to join her husband in Germany. At first she was thwarted because the army had decided that wives were not allowed to join their husbands at this time. Finally, as it was approaching August 1946, the army changed its policy and Gertrude and a boatload of other army and War Department wives were allowed to travel to Germany. With some unexpected delays due to problems with the ship, it was September 1946 before Gertrude arrived at Bremerhaven, Germany, but the husbands were not allowed to meet the boat. Surreptitiously, Ferencz was able to meet the ship but was not able to get onboard or travel with her to Berlin. Although he saw Gertrude, he was only able to get a message to her that he was now domiciled in Berlin, not Nuremberg. It was an unreal world. On the train en route from Bremerhaven to Berlin, Gertrude saw the devastation and destruction and cried all the way. She knew that the Germans caused the war, but her sympathy for the innocent civilian victims moved her deeply. German currency, the Reichsmark, was worthless. Food for Germans was rationed and in small supply. American cigarettes became the currency of choice, along with American soap and coffee. The black market flourished. The bomb-scarred opera house in the Soviet sector of Berlin was quickly restored, and singers and dancers from the Bolshoi came to Berlin to show that Russian artists had more “Kultur” to offer than the murderous Nazis. Finally reunited, Ferencz and Gertrude spent many happy evenings watching splendid Soviet opera and ballet, which they could never have afforded in New York. The audience included high-ranking French, British, Soviet, and American officers. Some tickets were also reserved for Germans, who could be seen in the cold hall during intermission, munching pieces of bread. They all recognized that it was bad to lose a war; nations should consider the consequences before they start one. In the meantime Ferencz and his wife were comfortably settled in their home in Berlin while working hard to get the data needed for the trials. The assessment of German responsibility posed difficult legal and moral problems. After chief U.S. prosecutor Jackson and the prosecutors for Britain, France, and the Soviet Union had made their final arguments before the International Military Tribunal, most of their staff were eagerly heading for home. General Telford Taylor, as the newly designated chief of counsel for War Crimes, was now swinging into high gear. His assignment was to indict the supporting industrialists, politicians, doctors, and others who enabled the Nazi leaders to commit massive international crimes. His fresh crew of inex-

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perienced lawyers would have to prove the violation of existing international laws. Time was of the essence. Ferencz’s job, as organizer and chief of the Berlin branch, was to scour the official German records in the Nazi capital to supplement evidence previously assembled in Paris and Frankfurt. It kept him and his supporting staff of researchers and investigators hopping. Ferencz’s wife had been led to believe that their sojourn in Germany would only be a vacation, but she soon learned that often in life compromises are necessary — even when one expects an overdue honeymoon. Ferencz’s staff needed all the help they could get. Ferencz kept tight watch on the work produced by each employee, and maintained close liaison with the lawyers in Nuremberg. Taylor was pushing the trials forward as desired by the Pentagon. The Berlin office had to deduce what evidence might be persuasive. Incriminating documents had to be found and rushed to eager attorneys preparing the Subsequent Proceedings. When one of the researchers quit, Ferencz managed to replace her with another woman who had studied German, and who was diligent and reliable and could fulfill a variety of essential tasks. Besides, she was pretty, and was also Ferencz’s wife. For some strange reason, however, Mrs. Ferencz seemed to resent having to ride to work in a cold, open truck with other staff members while Mr. Ferencz was driven in a chauffeured limousine. She was disinclined to recognize that it might look bad if the boss showed favoritism to one staff member just because she happened to be his spouse. Ferencz learned that the army slogan “Rank has its privileges” may work in the military, but it’s not particularly suitable for domestic tranquility. Ferencz’s wife was a firm believer in equal justice for all. From time to time, Ferencz and his wife would interrupt their hectic schedule to remind themselves that they were supposed to be on a honeymoon. Ferencz decided that they should take an official vacation from the rigors of the cold Berlin winds of 1946, and they set out to see the world. Fortunately, they were able to benefit from many guided tours arranged for U.S. troops stationed in Germany. Accompanied by a busload of American army wives and schoolteachers, they visited the beautiful recreational centers in Garmish and Berchtesgaden, and took a tour through Switzerland’s most scenic cities. In Milan, they stopped to visit its famous opera house, and saw the gas station where, when Italy was liberated, the Italian dictator Mussolini had been left hanging from the rafters by his heels. The Resistance fighters also hanged Mussolini’s mistress at his side. Ferencz surmised that it added a certain romantic touch. Ferencz and his wife returned to Berlin shortly after Christmas 1946. Opposite: Ferencz’s wife at the Documents Center in Berlin, where she worked.

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The car assigned to Ferencz for official use was a beautiful convertible Maybach limousine, of Rolls Royce caliber, cherished by Hitler’s top henchmen. Ferencz mounted a small American flag on each front fender. Unfortunately, the car was stolen and damaged on New Year’s Eve, 1946. A member of Ferencz’s OCCWC staff, Eugene Klein, was a Hungarian refugee who had served in the U.S. Air Corps and knew his way around. He managed to get tickets for a gala 1946 New Year’s Eve celebration that would take place at Berlin’s leading cabaret, the Cafe Wien on the Kurfürstendamm. Of course, it was illegal at that time for Americans to be caught frolicking in German bars. However, this night, like Passover, was different from all other nights. Ferencz had a distinguished visitor from Nuremberg, Patty Bull, who was writing something about the Nuremberg trials and whose father happened to be chairman of the Joint Chiefs of Staff at the Pentagon. Ferencz felt it his patriotic duty to be hospitable. Ferencz invited Lt. Col. Bill Wuest to escort the distinguished guest in his staff car and meet Ferencz and Gertrude at the café. Gene Klein, Ferencz, and his wife came along in Ferencz’s impressive Maybach, driven by Ferencz’s German chauffeur, an elderly gent named Barrs, who always wore the black cap from his old uniform. When they all arrived at the raucous cafe, the champagne was waiting on their reserved table.

Mrs. Ferencz with Ferencz’s Maybach limousine in Germany in 1948.

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Of course, Ferencz knew that German drivers were prohibited from leaving their vehicles unattended, but it was freezing cold outside, and being a man of tender heart, Ferencz invited old Barrs to come in to warm himself and have a beer. The elaborate cabaret festivities had hardly begun when Barrs came rushing toward Ferencz in a panic. The Maybach was gone! He had parked it carefully on the sidewalk right in front of the entrance, practically resting on the cafe door, and when he went out to check on it, it had disappeared. The next morning Ferencz received a phone call from the military police in the American sector. Ferencz’s Maybach had been found, and was now located in the MP vehicle compound, but the car was no longer in useable condition. It appeared that someone had come from the café, driven the car somewhere, and then returned it. According to the police, the thief ’s poor driving skills had stripped the gears. Since the thief had been able to bring the vehicle back to the scene of the crime, Ferencz’s investigative instincts told him that the MPs had wrecked it while moving it to the yard. Sadly, Ferencz had to bid goodbye to his Maybach. 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 had 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. In the spring of 1947 one of Ferencz’s many diligent researchers, Fred Burin, burst excitedly into Ferencz’s 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.

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The reports described the daily activities of special SS units nondescriptly called Einsatzgruppen — roughly translated as “Special Action Groups.” They were organized in four units (A, B, C, D) 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, Ferencz added up the numbers murdered. When he passed the figure of one million, he stopped adding.2 That was quite enough for him. Ferencz 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. Ferencz countered that they had in their hands clear-cut evidence of murders on a massive scale and that a trial of the leading criminals could be completed quickly. Ferencz argued that it would be unforgivable if they allowed the perpetrators to escape justice. Ferencz suggested that if no one else was available, he could do the job himself. General Taylor asked if Ferencz could handle it in addition to his other responsibilities and Ferencz assured him that he could. “OK,” he said. “You’ve got it.” And so Ferencz became the chief prosecutor in what was labeled by the Associated Press as the biggest murder trial in history. Ferencz was 27 years old, and it was his first case. He had no idea it would make history.

Chapter 8

The Einsatzgruppen Tribunal (Mid–1947 to April 1948) As soon as General Taylor agreed that Einsatzgruppen commanders should be prosecuted, Ferencz began the move from Berlin to Nuremberg. His 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 Ferencz if he ran into any trouble. In May 1947, the Ferenczs moved into a small house in Nuremberg that had been requisitioned by the army. Ferencz’s rank entitled him to a much grander residence, but the home in Fürth was picturesquely bordered on a large meadow with the River Pegnitz flowing in the background. The little villa had a very neat garden that was tended by an old German gardener who produced neat rows of every conceivable vegetable. One of the first steps taken in preparing for the Einsatzgruppen Tribunal was to safeguard the loose-leaf binders containing the secret daily reports of the murders committed on the Eastern Front by the SS extermination squads. The files were locked in a U.S. postal sack and placed under guard at the Berlin Document Center commanded by Lt. Col. Helms of the United States. It may be recalled that Helms’s brother was an SS officer, but that posed no risk since the brother was already safely incarcerated as a prisoner of war. The next step was to match the evidence of the crimes with the known perpetrators who were in custody. To have one without the other would lead to more frustrations than convictions. There were about 3,000 members of the Einsatzgruppen who spent practically every day on the Eastern Front murdering innocent men, women, and children. Who of these 3,000 would be selected for the honor of being tried in a Nuremberg court of law depended upon other considerations, which Ferencz says, to most rational people, might appear slightly stupid. Ferencz and his assistants were able to put together a fairly complete 119

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roster of EG officers. The lists were sent around to all Allied POW camps with requests to extradite the suspects to the Nuremberg prison. Those SS leaders who were already held in the Nuremberg jail as potential witnesses would be given priority as defendants. As their hosts, Ferencz felt they owed them that measure of hospitality. The total number of mass killers to be tried depended upon finances and furniture. No Nuremberg tribunal could try more than 24 defendants in the same trial. The reason was that there were only 24 seats in the dock. Historians may not believe it, but it’s true. It really wouldn’t look nice to have to jam killers together or to have some of them sitting around on the floor during the trial. It was unfortunately inevitable that some fish, including big ones, might escape the net completely. Justice is always imperfect. Nuremberg never sought to try more than a small sampling of major offenders. A lottery was not used to select the chosen 24, though it might have been almost as good. The selection came from those whose names appeared prominently in the captured documents and who were already imprisoned and competent to stand trial. Having been a former combat sergeant, Ferencz decided that no enlisted man would be prosecuted. The traditional U.S. military practice, and probably the same is true for all militaries, is to exonerate the higher-ups and stick it to those at the bottom. Ferencz believed then, and now, that responsibility starts at the top. The primary targets for prosecution were the highest ranking officers and the most educated killers the prosecution could lay their hands on. They were given a legal presumption of innocence, even though, given the evidence, such a presumption was rather absurd. As the chief prosecutor, Ferencz accepted the challenge to prove beyond doubt that every one of the 24 SS officers chosen for prosecution was guilty beyond doubt of the crimes charged. Ferencz did not handle the trial by himself. All chief prosecutors were aided by an array of lawyers, translators, researchers, interrogators, secretaries, and administrative assistants. General Taylor, as chief of counsel, was an outstanding jurist of impeccable character, eloquence, and skill. One of his deputies, James McHaney of Little Rock, Arkansas, was in charge of other cases against high-ranking officers of the SS. Ferencz gladly consulted with both of them on all policy matters and benefited from their advice. They became fast friends. It was clear that if Ferencz were to convict 24 defendants he would need additional legal help. Every individual accused was entitled to a fair trial on the merits and his personal guilt had to be established beyond reasonable doubt. When Ferencz got the assignment, Taylor had stipulated that no new staff could be hired, and time was of the essence. Ferencz canvassed the other

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trial teams that were busy prosecuting industrialists, foreign ministers, doctors, lawyers, and leading SS functionaries, and some of the other chief prosecutors were eager to be of assistance — it was easier to assign someone to a new trial than it was to fire him. Ferencz thus managed to assemble four lawyers from other trials: Arnost Horlick-Hochwald, a Czech, Peter Walton from Georgia, John Glancy from New York, and James Heath from Virginia. Heath was older than most of the others, and spoke with a soft drawl reflecting his Southern upbringing. He was a handsome gentleman who, despite his mature age, had served as an enlisted man in the war. The following are the 24 Einsatzgruppen defendants that were selected to stand trial1: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Heinz Jost, commander Group A Erich Naumann, commander Group B Otto Rasch, commander Group C Otto Ohlendorf, commander Group D Adolf Ott, commanding officer of Sonderkommando 7b of EG-B Eduard Strauch, commanding officer of Einsatzkommando 2 of EG-A Emil Haussmann, officer of Einsatzkommando 12 of EG-D Ernst Biberstein, commanding officer of Einsatzkommando 6 of EG-C Erwin Schulz, commanding officer of Einsatzkommando 5 of EG-C Eugen Steimle, commanding officer of Sonderkommando 7a of EG-B and of Sonderkommando 4a of EG-C Franz Six, commanding officer of Vorkommando Moscow of EG-B Gustav Nosske, commanding officer of Einsatzkommando 12 of EG-D Heinz Schubert, officer in EG-D Lothar Fendler, deputy chief of Sonderkommando 4b of EG-C Martin Sandberger, deputy chief of EG-D Matthias Graf, officer in Einsatzkommando 6 of EG-D Paul Blobel, commanding officer of Sonderkommando 4a of EG-C Waldemar Klingelhöfer, officer of Sonderkommando 7b of EG-B Waldemar von Radetzky, deputy chief of Sonderkommando 4b of EG-C Walter Blume, commanding officer of Sonderkommando 7a of EG-B Walter Haensch, commanding officer of Sonderkommando 4b of EG-C Werner Braune, commanding officer of Sonderkommando 11b of EG-D Willi Seibert, deputy Chief of EG-D Felix Rühl, officer of Sonderkommando 10b of EG-D

The defense counsel arrayed against Ferencz and his assistants was formidable. Each defendant was entitled to be represented by a lawyer of his choice, plus one assistant counsel. After the trial, in 1948, Ferencz wrote an article in the Journal of Criminal Law and Criminolog y called “Nuremberg

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The four commanders of the Einsatzgruppen SS killing squads (A, B, C, D), leading defendants at the tribunal. Clockwise, from top left: Heinz Jost (A), Erich Naumann (B), Otto Rasch (C), Otto Ohlendorf (D) (USHMM Photos #09936, #09935, #09943, #09929).

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Trial Procedure and the Rights of the Accused.” In it Ferencz pointed out the complete fairness of the proceedings. In fact, as the trial was about to open, Ferencz thought it was quite unfair — to the prosecution! The 24 defendants could be supported by 48 German lawyers, almost all of whom had been members of the Nazi Party and who knew the facts much better than the

The remaining 20 defendants at the Einsatzgruppen Tribunal in same order as in text (left to right, top to bottom) (USHMM Photos — Row 1: #09941, #09944, #09942, #09938, #09926; Row 2: #09922, #09923, #09928, #09933, #09937; Row 3: #09924, #09930, #09921, #09939, #09945; Row 4: #09940, #09931, #09932, #09934, #09925).

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five War Department recruits representing the prosecution. The German lawyers were given special rations, and their pay came from occupation funds. At least 30 days before trial, they received copies of every document the prosecution intended to use in evidence. They had ample time to prepare for trial. Ferencz was frequently asked, after the trial started, whether as a totally inexperienced young lawyer, he was nervous about facing Germany’s mass killers, including six SS generals who would have shot him on sight. “No,” he said, “I was not nervous. They were nervous. I didn’t murder anyone. They did. And I would prove it. I would convict the accused on their own official records.” There were three judges assigned to hear the Einsatzgruppen Case — the full designation was Military Tribunal II, Case No. 9 (The Einsatzgruppen Case). Judge Richard D. Dixon had been a judge of the Superior Court of the State of North Carolina. Judge John J. Speight was a prominent member of the Alabama bar. The presiding judge was Michael A. Musmanno, who had been with the Court of Common Pleas in Pennsylvania. He had been a captain in the U.S. Navy during the war, and proudly wore his naval uniform beneath his black judicial robes. It was Musmanno who dominated the whole trial. The other two judges were the silent type. Ferencz doesn’t recall that

Ferencz at the podium for the prosecution’s opening statement in the Einsatzgruppen Tribunal (USHMM Photo #09917).

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The three judges of the Einsatzgruppen Trial. Left to right: John J. Speight, Michael A. Musmanno, and Richard D. Dixon (USHMM Photo #41621).

they said anything during the trial or, if they did, that it was worth remembering. When the defendants were arraigned on September 15, 1947, to enter their pleas of guilty or not guilty, Judge Musmanno asked each one to confirm that he had received and understood the indictment and that he was represented by counsel. When he called the name of Emil Haussmann, Ferencz rose to explain that the defendant had died subsequent to the filing of the indictment. Two days after receiving the indictment, Haussmann had committed suicide. The case against him was dropped. That left. Some defendants created special problems. As Ferencz was reading the indictment, one defendant, Eduard Strauch, suddenly stood up in the dock and then disappeared from view. The military guards jumped forward with their clubs raised as he lay writhing on the floor. It appeared that he was having an epileptic fit. He was removed from the room and Ferencz’s reading of the charges continued. Strauch was arraigned a few days later with Otto Rasch, who had been temporarily excused by the court when his counsel stated that he was too ill

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to understand the pleadings. Ferencz vividly recalls when Rasch’s German lawyer, Dr. Hans Surholt, came to Ferencz’s office with a request that the case against his client be dropped because of illness. When Ferencz asked what ailed his client, he replied that it was Parkinson’s disease, which caused Rasch’s body to tremble. Ferencz stated that if he had killed as many people as Rasch had, he too would be shaking. “Is he breathing?” Ferencz asked Rasch’s Nazi lawyer. “If so, I am going to indict the son-of-a-bitch.” Rasch, who held two doctorate degrees, had been the commander of an Einsatz unit that boasted it had slaughtered 33,771 Jews in Babi Yar, a ravine near Kiev. The two-day massacre began on September 29, 1941, just before Yom Kippur — one of the holiest Jewish religious holidays — and shortly after the days when Jews had assembled to celebrate Rosh Hashanah. (Rosh Hashanah was on September 23 and 24, 1941. Yom Kippur was on October 1, 1941.) The genocide, which was immortalized in a poem by the famous Soviet poet Yevtushenko, may have set a world record for deliberately concentrated mass murder. Ferencz was not going to drop a case that was provable by the defendant’s own top-secret reports. When Dr. Rasch, general of the SS, was brought in on a stretcher, he acknowledged that he understood the proceedings and pleaded alike with the others, “Not guilty!” A two-week recess was declared. On September 29, 1947, the prosecution was ready to proceed with the presentation of its case against 23 defendants. It was the sixth anniversary of the infamous Babi Yar massacre. Defendant Rasch died of his illness on November 5, 1947, so actually only 22 defendants were tried. The Einsatzgruppen Case opened in the main courtroom of the partially restored Palace of Justice in the partially destroyed city of Nuremberg, Germany. Twenty-two somber defendants, closely guarded by American soldiers, entered the paneled chamber via a lift that took them from the prison below the courtroom directly into the dock. These very ordinary-looking men were Hitler’s eager executioners accused of “the murder of more than one million persons, tortures, atrocities, and other inhumane acts.” Arranged before them sat rows of former Nazi Party members chosen by the prisoners as their defense counsel. To their right stood tables reserved for members of the prosecution. Behind them were rows of visitors (including Mrs. Ferencz) of varied nationalities who had come to see justice in action.2 Facing the accused was a raised tribune for the three American judges clad in black robes. Translators were poised for the novel rendition of simultaneous translation into the earphones at every seat. The trial was about to begin. The Associated Press called it “the biggest murder trial in history.” As Ferencz was preparing his opening statement, there was never any doubt in his mind that all of the defendants deserved to be convicted. Nearly 200 contemporaneous secret reports, backed up by dozens of affidavits given

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by the accused themselves when they were first arrested, were incontrovertible. At the same time, Ferencz was keenly aware that there was no way for the scales of justice to balance the murder of more than a million innocent human beings against the lives of two dozen of their executioners. It was Ferencz’s hope that the trial would serve a more useful and enduring purpose: that it might somehow help to deter the repetition of such horrors in the future. Ferencz was determined to do whatever he could to help lay a foundation for a more humane world than the one that had indelibly traumatized him during World War II. U.S. Supreme Court Justice Robert Jackson, chief prosecutor for the United States in the Nuremberg trials, opened the case by describing the Einsatzgruppen’s use of gas vans to kill Jews and others during the German invasion of the Soviet Union. When presiding judge Michael A. Musmanno called upon the prosecution to make its opening statement, Ferencz began by noting, “This was the tragic fulfillment of a program of intolerance and arrogance.” Vengeance was not the goal, nor did the prosecution seek merely a just retribution. The victims had been killed solely because they did not share the race or ideology of their killers. Ferencz asked the court to affirm the legal right of all human beings to live in peace and dignity, regardless of their race or creed. Ferencz said: “The case we present is a plea of humanity to law.” (The main portions of Ferencz’s opening statements are provide in the Introduction to this book and are worth reading to get the true sense of this tribunal.) The term genocide first appeared in the indictment against Nazi defendants by the International Military Tribunal under the jurisdiction of Justice Jackson although it was a term previously unknown in criminal law. It was a newly coined word invented by a Polish refugee lawyer named Raphael Lemkin. Ferencz had met Lemkin in the halls of the Nuremberg courthouse. Lemkin had fled from his homeland after his entire family had been murdered by the Nazis. He collared anyone he could, to tell them the story of how his family had been destroyed by Germans. Jews were killed just because they were Jews. He invented a special name for the efforts to destroy groups of people solely because of their race, religion, or nationality. He insisted that it be treated as a very special international crime.3 This somewhat lost and bedraggled fellow with a wild and pained look in his eyes had written a book called Axis Rule in Occupied Europe, which he thrust into Ferencz’s hands. It was Ferencz’s tribute and respect for him, and to the validity of his argument, that Ferencz deliberately used the term genocide in his opening statement to describe the activities of the EG. Today, there is worldwide recognition, based on a universally accepted United Nations Convention, that genocide is a crime that must be condemned and punished wherever it occurs. Lemkin proved that one determined individual, in persistent

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pursuit of a just cause, can make a difference. As an American, a veteran, and a human being, Ferencz is a bit ashamed that it took the United States forty years before ratifying the 1948 Genocide Convention that was hailed worldwide — except among isolationist and conservatives who tried to block it in the U.S. Senate.4 The opening statement for the prosecution which detailed the crimes of each defendant, had been carefully prepared by the EG team and approved by General Taylor. The genocide perpetrated against Jews and Gypsies had been crimes against humanity and war crimes in violation of existing international law. Ferencz promised to show that every man in the dock committed those horrendous crimes with full knowledge and intent. Ferencz concluded: “The defendants in the dock were the cruel executioners whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.” Little did he realize that these words spoken in the Nuremberg courthouse in September 1947 would resonate across the world again half a century later. They were quoted by Professor Antonio Cassese, president of the new UN Special Tribunals for crimes in Yugoslavia and Rwanda, in his September 1997 annual report to the United Nations. Ferencz says: “I must admit that I was deeply touched that the words I had uttered as a young man of 27 had not been completely lost in the wind.” The members of the defense counsel took their turns in making opening statements on behalf of each Nazi client. Whatever arguments could conceivably be made or invented were put forth. Defendants challenged the authenticity of their own official secret reports. They denied that atrocities had been committed. If abuses had occurred, it was not while they were in command. Besides, killing all those people, who were enemies of the Reich, was quite legal — it was self-defense against Bolshevism. Those “eliminated” were partisans who had been convicted by German military courts. Of course, they never used the term murder; that would be crude. Jews were “resettled,” or “eliminated,” or “liquidated,” or simply, “the Jewish problem was solved.” Whatever euphemism was used, the conclusion was always the same — the Jews were all killed. The same applied to the Gypsies. The judges listened attentively. Presiding Judge Musmanno announced: “The Prosecution may now proceed with its case.” Ferencz did not call a single witness for the prosecution’s case.5 He knew that every survivor of a concentration camp would be eager to testify that any one of the defendants was responsible for the murder of his or her family. But Ferencz also knew that witness testimony can be fallible, and he did not have to risk it. Ferencz relied upon the captured official German documents to prove the guilt of each defendant. A typical EG Report, for example, said,

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“In the city of Minsk, about 10,000 Jews were liquidated on 28 and 29 July (1941), 6,500 of whom were Russian Jews — mainly old people, women, and children — the remainder consisted of Jews unfit for work.” Ferencz knew which unit made the report and who was in command. And he and his staff had hundreds of such statements, including totals for each unit that added up to more than a million executions. When the report said only that the area was “cleansed of all Jews” and no numbers were given, Ferencz took a count of only one. He believed in being very fair to the accused, especially since he had over a million more murders to hang around their necks. Despite constant intrusions by defense counsel objecting to the translation or some other technicality, the prosecution submitted its evidence and rested its case after two days. Ferencz supposes that the Guinness World Records might have noted it as the fastest prosecution in a trial of such magnitude. The next move was up to the defendants. As stated, the prosecution’s documentary evidence against the 24 leaders of the Einsatzgruppen was presented in only two days. The defense consumed

Members of the prosecution team at the Einsatzgruppen Trial. Left to right at middle table : Benjamin B. Ferencz, Arnost Horlick-Hochwald, and John E. Glancy (USHMM Photograph #16814).

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The defendants sit in the dock at the Einsatzgruppen Trial (USHMM Photograph #16813).

136 trial days, during which time they presented their objections, alibis, excuses, and justifications for mass murder of Jews, Gypsies, and other presumed opponents of the Nazi regime. The prosecutors could afford to be accommodating. They held the trump cards that revealed the truth. When, for example, a defense lawyer objected vehemently that a prosecution exhibit was only a photostatic copy, he was invited to inspect the original in Ferencz’s office and was promised any error would be corrected. Some of the accused argued that their own self-incriminating reports were a pack of lies designed to please the Nazi higher-ups. The suggestion that the SS commanders would deliberately lie to the dreaded SS chief Himmler but not to the Nuremberg tribunal may have been flattering to the American judges, but it was not particularly persuasive. When defendants insisted that they knew nothing about the murderous plans of the EG, Ferencz introduced a September 21, 1939, order from the chief of the security police, Reinhard Heydrich, to all EG units describing in detail how Jews were to be rounded up for annihilation. Among many other such revelations, Ferencz’s staff produced the July 31, 1941, instruction from Reich Marshal Hermann Göring, who had ordered the security police

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Defendant Otto Ohlendorf testifies on his own behalf at the Einsatzgruppen Trial, October 9, 1947 (USHMM Photograph #43038).

to carry out “a complete solution of the Jewish question.” The efficient Germans could not resist the temptation to brag about their achievements and to leave an impressive written record of their accomplishments. They weren’t so proud when they faced a war crimes court and their own murderous chronicles were submitted for scrutiny by international and American jurists. One of the more interesting, and repulsive, arguments in defense of genocide was put forward by the lead defendant, SS general Otto Ohlendorf. He was a fairly handsome man, father of five children, and had earned a degree in economics. He was distinguished by the fact that Einsatzgruppen D, the unit under his direct command, reported that they had killed 90,000 Jews. Of course, he denied any culpability. Ferencz said he would have loved to cross-examine Ohlendorf himself, but instead decided to assign the role to James Heath, whose mature, stately manner and Southern drawl might make a better impression on the Germans and avoid any taint of Jewish vengeance.

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When Ohlendorf was asked to verify that his unit had murdered 90,000 Jews, the SS general began to quibble. He said he couldn’t confirm it. The reason given was that sometimes his men exaggerated the body count. “Would the general care to venture an estimate?” “No.” “Was it perhaps 80,000 or only 70,000?” “That was possible.” “Or perhaps 100,000?” “Maybe.” “And were there many Jewish children among those who were killed?” “Yes, of course.” But, added Ohlendorf, he never allowed his men to do as some other units did. He told his men never to use infants for target practice nor smash their heads against a tree. He ordered his men to allow the mother to hold her infant to her breast and to aim for her heart. That would avoid screaming and would allow the shooter to kill both mother and child with one bullet. It saved ammunition. Ohlendorf said he refused to use the gas vans that were assigned to his companies. He found that when the mobile killing vehicles arrived at their destination, where they were supposed to dump their asphyxiated human cargo into a waiting ditch, some of the captives were still alive and had to be unloaded by hand. His troops had to drag out corpses amid vomit and excrement and that was very hard on his men. Judge Musmanno seemed to be fascinated by Ohlendorf ’s testimony. He elicited the confirmation that all captured Jews were shot simply because they were Jews. Ohlendorf explained, like a school teacher, that those with Gypsy blood were unreliable and might help the enemy and therefore they too had to be killed. When asked by Heath and the judge why Jewish children were slaughtered, Ohlendorf explained patiently that if the children learned that their parents had been killed, they would grow up to become enemies of Germany. He was interested in long-range security for his country. Hence killing all Jewish men, women, and children was a military necessity —“Isn’t that clear?” Another outrageous Ohlendorf argument was that killings by the Einsatzgruppen were in self-defense. According to Hitler’s reasoning, with which Ohlendorf agreed, Germany was threatened by communism. Jews were known to be bearers of Bolshevism, and Gypsies could not be trusted. Both groups posed a potential threat to the security of the German State. It followed, logically, that all such opponents had to be destroyed. In total war, humanitarian rules are suspended by all sides — he recalled the Allied bombing of Dresden and the U.S. atomic bomb dropped on Hiroshima. He did not seem to notice that it was the one who struck the first blow who should expect legal retaliation. Ohlendorf argued that even if Hitler was mistaken in his belief that the Bolsheviks, Jews, Gypsies, and others posed a mortal threat to Germany, the “executive measures” by the Einsatzgruppen were justified as anticipatory selfdefense. The defendant insisted that he was in no position to second-guess

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the head of state. Accepting Hitler’s orders without question showed the absence of any criminal intent. If the accused believes in good faith that anticipatory self-defense is lawful, the criminal intent required for conviction is lacking. Hence Ohlendorf, admitted killer of about 90,000 innocent people, should be acquitted — despite his assurance that he would do it again. Ohlendorf ’s reasoning struck Ferencz as a recipe for world catastrophe.6 Throughout the Einsatzgruppen Trial, both the prosecution and the judges were determined to be absolutely fair to every defendant. Ferencz frequently doubted that equal consideration was being given to the prosecutors. To be sure, it was a fault Ferencz could tolerate better than the accused since, for him, it did not risk fatal consequences. It was annoying, however, when the court regularly accepted evidence, such as remote hearsay, obviously falsified documents, or biased witnesses that should have been excluded. Wellfounded objections by the prosecution were systematically overruled. Finally, Judge Musmanno made his position clear, as he laid down what came to be known as the Penguin Rule. He informed the prosecutors that he would admit anything offered in evidence by the defendants, “up to, and including the life habits of a penguin.” Ferencz was, of course, quite annoyed. What Ferencz didn’t quite realize, and discovered only later, was that the learned judge could afford to be tolerant because he wanted to give the accused every possible right. He was confident that he would not be deceived by spurious submissions, and that in the end, the court would have the last word.7 The defendants submitted what prosecutors called “affidavits by the bushel” to provide an alibi or justification for their evil deeds. It was not uncommon, when a defendant swore that he was nowhere near the scene of the crime, that Ferencz’s investigative division showed letters they had uncovered bragging about how many Jews the defendant had just “eliminated.” Ferencz said he should not have been surprised that Nazis who would be willing to die for their country would also be willing to lie for their country. After all the evidence was submitted, every defendant was invited to make a final statement. There were no surprises. Most of the glum-looking men in the dock simply summed up previous arguments made by attorneys or in briefs submitted on their behalf. Several of the accused men decided it might be better to remain silent. The cat-and-mouse game had gone on for several months. The prosecutors were patient. After all, the prosecutors were the cats. Four and a half months after the trial began, the chief of counsel, Brigadier General Telford Taylor, who had not previously taken the floor, made the closing statement for the prosecution. He summarized the evidence and the arguments in his usual elegant way. Taylor noted that obedience to orders that were obviously criminal was illegal. Under German as well as international law, it had long been held “that

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one is not legally authorized to kill defenseless people.” Responsibility for the atrocities of “total war” rests not on those who finish the war but on those who start it. “The laws of war develop by common observance, so they are not changed merely because one country breaches them.” He compared the defendant’s contention, that they were only acting to protect Germany, to the argument of a burglar who breaks into a house, shoots the owner, and then claims it was necessary self-defense. He stressed that racial killing was always a prime objective of Hitler’s war. He asked the judges to protect international law and counseled “firmness rather than leniency to those adjudged guilty of this terrible crime against humanity.” During a trial recess in late 1947, Ferencz and his wife had driven to various army resorts around Bavaria where lodging cost one dollar per day. Private accommodations in Czechoslovakia, Switzerland, and Italy cost a little more. The dollar was king. As the end of their journey came about, they checked out of their hotel in Merano, Italy, heading toward Munich in Germany. There was one little difficulty. The Italian Alps were between them and their destination, and the Brenner Pass that might have enabled them to go over the mountain in a shorter journey was closed. Now, Ferencz, being only 27 years old, was not a man to be daunted by a little obstacle like the Alps. His military map clearly showed a very thin red line leading from where they were to where they wanted to go. The topography was not indicated. Demonstrating his true grit, determination and leadership qualities, Ferencz declared: “No problem!” They drove off merrily toward the mighty Italian Alps. The view was magnificent as they headed for the village of San Leonardo, the last Italian town marked on the map. However, as they continued their climb, the road kept getting steeper and patches of snow began to appear on the ever-narrowing path. They had almost reached the pinnacle when the car suddenly skidded toward the edge of the road. A few more inches and it would have gone over the side. Ferencz’s wife, peering into the drop off, was speechless and trembling, with tears in her eyes. There was no way that they could go forward. The weather was getting colder and the nearest town was at least 20 miles behind. They couldn’t walk back so the only hope was to get the car out of the snow and get back to town. Backing up along the winding road was dangerous in that the car might slide over the side. Apprehensively, Mrs. Ferencz slipped out of the car — on the side that faced the mountain so that she could walk behind the vehicle and shout if it was moving toward the drop. She guided her husband carefully as they eased away from the rim and toward the mountain wall to their left. Suddenly, the left wheels hugging the mountain slid into a depression, and Ferencz’s efforts to rock the car out of its trap were in vain. Ferencz got the jack out of the trunk, slid under the car and placed one

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side of the jack against the mountain and the other against the hub cap. By turning the small lever used to elevate the jack, he was able to push that side of the car upwards and inch it up out of the depression. By slithering up and down under the car from front to back, for about two hours, he was able to move the car back onto the road. The rest was relatively easy. Very slowly, they rolled backwards down the hill with Mrs. Ferencz holding one hand on the rear fender and ready to shout “Stop!” After some time, they reached a spot where the road widened to store sand and supplies. Ferencz was able to swing the car around so that they were facing forward rather than rolling backward, and Mrs. Ferencz could come in out of the cold. In due course they reached the foot of the mountain and were able to get back to the hotel in Merano that they had left about 12 hours earlier. They got a good night’s sleep, and then continued their journey, via the Gotthard Pass — a much longer but a much safer ride. They were glad to get back to Nuremberg alive. Ferencz had learned an important lesson. Even at the risk of seeming irresolute or lacking in leadership, if you find that you are on the wrong road, it is better to turn back. A persistent drive that ignores the truth and continues doggedly in the wrong direction may take you over the cliff. In late March 1948, while waiting for the judges to decide the Einsatzgruppen Case, Ferencz, General Taylor, Taylor’s deputy James McHaney, and their wives had a memorable experience. They all faced sudden death together. They were flying from Berlin back to Nuremberg on an old C-47 propeller aircraft with two engines. When they assembled for the flight from Berlin to Nuremberg, the weather was miserable — it was cold and windy and raining hard. Visibility was poor. No civilian aircraft would have been allowed to fly. Gertrude Ferencz told that she had dreamt of dead pigeons the night before. Ferencz jokingly warned the pilot, a cheerful young lieutenant, Tom Squires of Texas, “Be careful, the life you save may be my own.” Army regulations prescribed that all passengers be strapped in a harness with two large rings in the front. That was where a parachute could be attached in an emergency. They were also required to sign a waiver of all possible claims. No one paid much attention to such bureaucratic nonsense; not even Mary Taylor, who was five months pregnant. With help from a crew member, they climbed into their harnesses. When Ferencz’s wife complained that the straps were too loose, Ferencz replied, in his usual jocular manner, that she probably wouldn’t fall out. Ferencz is sometimes noted for his bad jokes. The plane had been aloft for only a few minutes when General Taylor noticed that the right engine was spewing oil. Within moments, a stream of smoke poured along the fuselage and the engine began to backfire, rocking the plane with its explosions. The pilot immediately shut

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down the engine. The old workhorse was supposed to fly on one engine, but it didn’t seem to be doing very well. The drag from the failed engine caused the aircraft to drop from about 6,500 feet rather quickly. There was danger of fire or explosion or that the second engine would stall. Suddenly the order came, “Everybody out!” The navigator, Captain James Moore of New York, quickly hooked a parachute pack to the harness of each passenger. He reminded them to count to ten before pulling the ripcord to avoid being impaled on a wing. Below them were the ruins of the city of Berlin. Mrs. Ferencz took her official army identification card from her purse and put it into her pocket so that her body could be identified. Ferencz grabbed her hand and they rushed to the rear. Crew members were struggling to get the door open. The door was supposed to drop off when a lever was pulled. It didn’t. The wind pressure kept pushing the door back. Ferencz, being strong despite his small size, moved forward to help. He managed to get his left knee outside, but the rest of him was still inside. Suddenly the door opened wider and Ferencz fell out into the clouds. He could see the plane continuing downward out of sight. He had no idea when he would hit the ground, but felt it might not be advisable to count too slowly. He preferred a hasty, “One, two, ten!” and yanked the ripcord. A large billowing parachute exploded above him as he swayed wildly with the wind. His first reaction was of relief that he was out of the aircraft and not lying in pieces on the ground. Then came the realization that his wife and friends were trapped in a plane that was about to explode or crash. It was such a horrible feeling of guilt that he felt like climbing back to join and be killed with the others. When he broke through the clouds he could see that he was dropping fast into the ruins below and might not have many options. Suddenly, he slammed into the ground. He was in the middle of a soccer field, and since he was unhurt, promptly unhooked his parachute. During the war, he had applied for assignment as a paratrooper, but the army rejected him on the theory that due to his small size, he might go up instead of down. They never did recognize his talents. As soon as he had caught his breath, he called out to some astounded youngsters nearby to get him to a phone. They ran with him to a house where, after some difficulties, he managed to contact the control tower at Tempelhof. After becoming exasperated by the routine questions, such as his name, rank, and serial number, he shouted that the general’s plane was crashing, damn it, and search parties and ambulances should be dispatched immediately. He gave them his location, which, he learned, was in the Soviet sector of Berlin. He was relieved when informed by the tower that the C-47, with one pilot and copilot, had just been guided to an emergency landing at Gatow

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airport in the British sector. What happened to any others on board was unknown. Ferencz then phoned the local German police station, which promptly sent a squad car to pick him up. No sooner had he arrived at the precinct than another squad car arrived and a policeman reported that an American woman had slid off a roof nearby and was injured. Ferencz asked for a description. He replied that she was wearing a checkered jacket. “That’s my wife,” Ferencz screamed in German, “Let’s go!” They piled into the police Volkswagen with its horns blaring and raced to a tall apartment house where a crowd was milling about. Ferencz galloped up two flights of stairs while tenants kept pointing the way. There, in a small apartment, he found his wife stretched out on an old couch. Her hair was disheveled, and her head and legs were wrapped in white rags. Ferencz was very relieved and happy to see her in any condition. When she saw him, she burst into hysterical crying. When she had witnessed his fall from the plane, she concluded that he would surely be killed. Ferencz says that no one before had ever been so shocked and happy to see that he was still alive. Mrs. Ferencz, who had followed Ferencz out of the plane, later explained that she must have lost consciousness and forgot to pull the ripcord. Fortunately, the wind brought her back to her senses and she remembered that she had to pull the ring to which the cord was attached. She did so, and the little string came out in her hand. The crew never told them that it was supposed to break off that way. Mrs. Ferencz was convinced that the parachute, like the engine and the door, was also defective and that her end had come. In a moment, the main parachute flew open and she began to think she might be saved. She also felt that, if she survived, Ferencz too would probably be safe. Mrs. Ferencz’s shoes had flown off on their own during her unscheduled flight outside the aircraft. The wind blew her to a five-story building with a sloping tile roof, which she slid down slowly. There was still some air in the chute and she landed in the bushes on the ground below. En route, she floated past a window from which a frightened tenant was peering with a petrified gaze, as if the Russians were again about to attack. Since she didn’t much resemble a Russian paratrooper, she was picked up by a few kindly neighbors and taken to an upstairs apartment. She had enough presence of mind to ask someone to call the Berlin office and the airport. Her thighs were bruised by the sudden jerk of the loose straps on the harness, and her leg was cut on the tiles when she slid off the roof, but in her shocked condition, she was unable to judge the severity of her injuries. That’s when Ferencz rushed in for the cheerful and tearful reunion. Some of the German tenants reminded them that they were in the Soviet sector and it would be best for all concerned if they left as quickly as possible.

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Relations between the Soviets and its former allies had been cooling rapidly. The U.S. was on the verge of a cold war that might turn hot at any moment. Soon, a U.S. Army ambulance arrived on the scene. Two American medics rushed in and delivered first aid. No sooner were Ferencz and his wife ready to depart than they were surrounded by Jeeps filled with Russian soldiers. An interpreter made it clear that they were to follow them. They were accompanied by one Soviet Jeep in front and one in back. The first stop was at a Red Army hospital. Mrs. Ferencz was taken in on a stretcher that was placed on the floor. They insisted that she stay and that the others should get back in the ambulance. When Ferencz refused to leave his wife, some burly Red soldiers, each grabbing Ferencz under one arm, made it plain that he had no choice. Ferencz was back in the ambulance when a search convoy of American troops surrounded the Soviet Jeeps. The commander of the unit was an American captain who served as a liaison officer. Ferencz explained to the captain that Ferencz’s frightened wife was injured and lying on the floor of a Soviet hospital where no one spoke anything but Russian. The captain promised to send the ambulance that was in his convoy to rescue her. Meanwhile, Ferencz was to proceed to the Kommandatura or Soviet headquarters for interrogation. When interrogated by a Russian major, Ferencz told him that they were Nuremberg prosecutors out to convict 24 leading Nazis of murdering over a million Soviet citizens. “Did he really think they were planning an aerial attack on the Soviet Union?” It didn’t take too long to convince him that it was in the Russians’ best interest to let Ferencz go. Sergeant Dudley, the crew chief, was also there for interrogation. He had dislocated his shoulder trying to keep the C-47 door open. From the Kommandatura, he and Ferencz were both taken to the American army hospital in Berlin, where all survivors of the jump were being assembled. General Taylor had suffered painful back injuries when he landed on a concrete intersection in the Russian sector. German civilians had whisked him away directly to the U.S. Army’s 279th General Hospital. As soon as Ferencz arrived at the American hospital he inquired about the others and hastened to the bedside of his chief. The general was worried about the other passengers and crew, and particularly about his pregnant wife. Ferencz reported that she was safe and sound. She had also landed on a roof and floated down three stories to the street, in the French sector. She was taken to what was known as the Jewish Hospital, before being transported by taxi to the 279th. Aside from a few bruises and a black eye she seemed to be in excellent condition. A few months later she gave birth to a handsome baby boy named John. Jim and Marilyn McHaney soon arrived from the French sector, where they had made their unscheduled landing. Marilyn was last seen on the plane

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with her head buried in her hands; she and Jim were refusing to jump. How they left the plane Ferencz cannot say, since he was busy elsewhere at the time. Marilyn had landed on the banks of a stream and suffered only a sprained ankle. Jim had landed unhurt on a flat roof and descended by climbing through the skylight. Finally, Mrs. Ferencz arrived in an American ambulance to report happily that she had been interrogated, but was treated well at the Russian military hospital. The only serious injury was sustained by the radio operator, who had a compound skull fracture. He lay in a coma for several days before being restored to health by a German nurse. He later married the German girl who had brought him back from the brink of death. The day after the jump, Ferencz went back to the Kommandatura to retrieve his parachute, which the Russians had taken from him. Ferencz explained that it was property of the U.S. government and they had better hand it over. Ferencz safeguarded it for the government for many years, and it became a favored tent when celebrating family parties in his garden back home. They all returned to Nuremberg on the last train out of Berlin. All air traffic between Berlin and western Germany was blocked starting that day — the Cold War was on.

The four survivors of the parachuting over Berlin, April 1947. Left to right: James McHaney, Ferencz’s wife Gertrude, Gen. Telford Taylor and his wife Mary, McHaney’s wife Marilyn, Benjamin Ferencz.

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The judges had ordered a recess for almost two months to weigh the evidence and arguments and to study the copious briefs submitted by counsel. It was April 8, 1948, when the court reconvened to render its opinion and judgment in open court. It took the judges two days of reciting in tandem to conclude reading the 175 printed pages. Every argument raised by any defendant was carefully analyzed and compared to the evidence. The authenticity of the EG reports was confirmed, and illustrative extracts showed the basis for the court’s conclusions. The judgment noted that Jews were sometimes killed by working them to death rather than shooting, or by leaving the executions to local Ukrainians who could be incited to conduct pogroms under SS supervision. Jewish prisoners of war were systematically annihilated by the EG after all fighting had ceased. The court described various sadistic means of execution by the EG, including the camouflaged gas vans that carried the aged, infirm, and children on a free ride to their unmarked graves. The most comprehensive portions of the judgment were the fifty-five pages analyzing the validity and interpretation of the applicable law. Every defense argument regarding jurisdiction, self-defense and necessity, superior orders, and non-involvement was put under the judicial microscope and systematically rejected. The decisions reached by the International Military Tribunal on September 30, 1946, were reaffirmed and upheld. The war crimes trials were not victor’s justice or an arbitrary exercise of power, but instead the expression and upholding of existing international law. Every German soldier carried a paybook which included the phrase: “The civilian populations should not be injured.” “Certainly no one can claim,” wrote the EG judges, “that there is any taint of ex-post-factoism in the law of murder.” Murder was not a crime invented retroactively by the prosecution. The court gave detailed consideration to the defense argument that the accused were acting in self-defense of their country that was threatened by Bolshevism, Gypsies, and Jews. The tribunal was astounded that such a proposition could be advanced in all seriousness, since it failed to recognize the distinction between patriotism and murder. Jews were killed because they were Jews, even if they posed no threat to anyone. Nazi rulers started an aggressive war — not the other way around. The argument that the Jews constituted an aggressive menace to Germany was dismissed as untenable and “opposed to all facts, all logic, and all law.” Judge Musmanno felt strongly that “where law exists a court will rise.” He saw an international criminal court as a means of the diminishing crimes against humanity and combating hatred and violence between ideologies. He expressed the hope that mankind, with intelligence and will, would be able “to maintain a tribunal holding inviolable the law of humanity, and by doing so, preserve the human race itself.” The basis for each individual judgment

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was spelled out. Ferencz said that he suddenly developed a much greater respect and affection for Judge Michael Musmanno. When the trials were over, Ferencz relayed his admiration of naval captain Musmanno in a letter of appreciation to the U.S. secretary of the navy. When Ferencz entered and took his seat at the prosecutor’s table on the day of sentencing, the courtroom was empty. It was April 10, 1948, and the past two days had been spent listening to the three judges read their massive judgment that rejected all arguments put forth for the defendants. Ferencz knew it would be a grim day — especially for those accused of the cold-blooded murder of more than a million innocent men, women, and children. Slowly, the room filled with German defense counsel, members of the prosecution staff, translators, clerks, and a smattering of visitors in the gallery. The assemblage was called to order as the judges filed in wearing their black robes over their civilian clothes. The defendant’s dock was empty. No defendant was in sight. Soon, the dark paneled door, leading into the center of the dock from the prison below, slid open. SS general Otto Ohlendorf stepped out. He was flanked by two very tall black guards in crisp U.S. Army uniforms. Their white batons were gripped in both hands on the ready in front of them. Ohlendorf glanced at the guards and the judges and slowly put on the earphones that were handed to him. Judge Musmanno spoke: “Defendant Otto Ohlendorf, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.” The condemned man stood erect, took off his earphones, and without any expression, nodded and stepped back into the small lift that then slowly descended, as if into hell. The next prisoner was brought in. “Defendant Erich Naumann, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.” Other prisoners followed, one at a time. And so it went, down the line. Defendants Paul Blobel, Walter Blume, Martin Sandberger, Willi Seibert, Eugen Steimle, Ernst Biberstein, Werner Braune, Walter Haensch, Adolf Ott, Waldemar Klingelhöfer, Heinz Schubert, and Eduard Strauch were all convicted of being mass killers. All fourteen were sentenced to be hanged by the neck until dead. Several of the defendants had been generals in the SS. Almost all the rest were high-ranking commanders. Some were sentenced to life imprisonment or long prison terms. They were not ordinary criminals. In civilian life, several had earned degrees in law or economics before joining the Nazi Party and taking positions as Gestapo leaders. One of the defendants had been an opera singer, and another a Lutheran clergyman. One thing they all had in common was a fervent desire to serve their Führer, even if that meant killing enormous numbers of innocent men, women, and children. Another thing they had in

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common was that despite their denials, there was no doubt that each one was responsible for crimes against humanity, war crimes, and membership in criminal organizations — as charged in the indictment. The time had come to answer for their crimes. Strange as it may seem, listening to the sentences was a grueling experience, not merely for the defendants but also for the presiding judge and the chief prosecutor. Ferencz knew that Michael Musmanno was a devout Catholic. For about a week before the sentencing he had retreated to a monastery to consult with his priest and with his conscience. The levity he had displayed during the trial, much to Ferencz’s annoyance, had completely disappeared as the judgment and sentences were read slowly and somberly. It is not an easy thing to condemn another human being to be hanged. As the judge read each sentence Ferencz checked off the name on a list he had before him on which he had noted what he thought might be the penalty. Musmanno was much more severe than Ferencz had expected. Each time he said “death by hanging” it was like a hammer blow that shocked Ferencz. When any of the Nuremberg trials was brought to a close, it was customary for the chief prosecutor to invite his staff to his home to celebrate the event. Ferencz asked to be excused from his own party. Ferencz had never asked for the death penalty, although such a recommendation from the prosecutor was widely expected and it was surely deserved by these unrepentant mass murderers. Ferencz felt that it might trivialize the magnitude of the crimes by suggesting that it could be settled, and perhaps then forgotten, by executing a handful of genocidal killers. It was owed to the millions of victims to try to give their deaths some greater significance. Perhaps by revealing the depths of their suffering, and demonstrating that law would not condone such atrocities, the cry “Never again” might become a reality. Ferencz had made it clear when he began his opening statement, at the end of September 1947, that this was not a demand for vengeance but “a plea of humanity to law.” General Telford Taylor, in making the closing statement for the prosecution, had only called for “firmness rather than leniency” when judging the perpetrators of these terrible crimes. At the beginning of April 1948, when the long legal judgment was read, Ferencz felt vindicated. The plea to protect humanity by the rule of law had been upheld.8 It has always been clear to Ferencz that the documentary evidence against the perpetrators of over a million murders was so overwhelming that nothing more would be needed to convict them. Ferencz made a special point of never seeing any of his defendants until they appeared in the courtroom. Ferencz didn’t want his views to be tainted by any personal considerations that might diminish his determination to hold the killers to legal account for their malicious deeds. After the sentences were read and Ferencz was convinced that

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Ohlendorf was sure to hang, Ferencz decided to pay him a visit in the prison beneath the courtroom. Ferencz knew that Ohlendorf was the father of five children and that he was an intelligent and relatively honest man. Ferencz felt that perhaps there was something he could do for him before he died, such as telling his family that he loved them. They met in a small cubicle with a strong glass partition through which they could speak. Ferencz asked him, in German, whether there was anything he could do for him. Some small favor, perhaps? His bitter reply was that the Jews in America would suffer for what Ferencz had done. Ferencz was stunned by his answer. The man had learned nothing, and regretted nothing. Ferencz looked him in the eye, stood up and said slowly, in English: “Goodbye, Mr. Ohlendorf.” Ferencz never saw him again. One of the rules governing the subsequent Nuremberg trials was that each case had to be reviewed by the U.S. military governor, who had power to reduce but not increase any of the penalties. It was March 1949 before the review was completed by General Lucius D. Clay, the respected military governor. After due deliberation, he confirmed all of the sentences. Petitions to the U.S. Supreme Court were rejected on May 2, 1949. The rules stipulated that no death sentence could be carried out until confirmed by the governor in writing. Some imaginative defense lawyers had filed new appeals in various courts. General Clay, a West-Pointer who was not a lawyer, decided to leave the chore of signing death warrants to his successor. Mr. John J. McCloy, a distinguished Wall Street lawyer and former assistant secretary of the army, replaced Clay in 1949 and received the new title of U.S. high commissioner. There was a new and independent West German government. The Cold War was heating up and the winds were beginning to change. The Nuremberg murderers would benefit from the cooling breeze. While waiting for legal formalities to be completed, the convicted prisoners were cooling their heels in a U.S. Army war crimes prison in the town of Landsberg in Bavaria, where, years before, Hitler had written Mein Kampf. In 1949, the West German government abolished the death penalty. Various religious and political groups began beseeching McCloy to spare their former heroes. He appointed a board of three qualified American civilians to advise him. He gave them secret instructions that they were not to challenge any of the Nuremberg findings of fact or conclusions of law. They were only to consider personal circumstances, such as grave illness or inequities in sentences that might justify humanitarian considerations. The board spent the summer of 1950 deliberating in the pleasant environs around Munich. When Ferencz offered to be of assistance, they declined, saying it was not a judicial review or an appellate proceeding but merely a panel that could only recommend clemency. The final decision was up to McCloy.

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McCloy didn’t have to worry about Dr. Rasch, who had been hauled into the arraignment on a stretcher. He did the Babi Yar killings in which 33,771 Jews were murdered in two days in 1941. He died before Ferencz could prove him to be one of the biggest mass-killers in human history. Another one of the EG defendants, Eduard Strauch, who managed to kill over 10,000 Jews in Riga while he was an EG commander, also slipped the noose. He was extradited to the British after being sentenced to death by the Americans. That left McCloy with only thirteen EG defendants who had been condemned to death were awaiting his decision. McCloy, whom Ferencz had gotten to know as a kind and intelligent man, confirmed the death penalty for only four of the thirteen EG leaders. The crimes committed by Otto Ohlendorf, Paul Blobel, Werner Braune, and Erich Naumann, said McCloy, “placed clemency out of reason.” McCloy changed some of the recommendations of his clemency panel. He was not just rubber-stamping or passing the buck. Many, including Telford Taylor, accused McCloy of being politically motivated and seeking to curry favor with the new German military. In his conclusion explaining his decision, the high commissioner affirmed that everyone must respect the rule of law, and explained that he had tried to temper justice with mercy. It seemed to Ferencz that some of his decisions showed more mercy than justice. On June 8, 1951, Ohlendorf and one other EG commander (Erich Naumann) along with Paul Blobel (commanding officer of Sonderkommando 4a of EG-C) and Werner Braune (commanding officer of Sonderkommando 11b of EG-D) were hanged from the gallows at Landsberg Prison. The third EG commander (Heinz Jost) was given a life sentence in prison that was later commuted to 10 years. The fourth EG commander (Otto Rasch) had died prior to the trial. As political and humanitarian pressures mounted, the others convicted in the subsequent Nuremberg trials, as well as by the U.S. military commissions, were quietly given their freedom. Industrialists convicted of slave labor abuse, doctors who performed medical experiments, SS and Wehrmacht officers, as well as Foreign Ministry officials condemned for massive crimes against humanity, were all quietly allowed to go home. By May 5, 1958, all of the prisoners still detained at War Crimes Prison Number 1 in Landsberg had been released. While the releases may be seen as a perversion of justice, the Nuremberg trials set an enduring precedent that never again would crimes against humanity be tolerated. Unfortunately, this precedent has not been forcefully enforced, and Ferencz is still fighting to get the rule of law, not war better established. The following is the list of the 24 defendants that Ferencz had selected for the Einsatzgruppen Tribunal and their final sentencing:

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• Otto Ohlendorf, commander EG-D, death by hanging — June 8, 1951. • Heinz Jost, commander EG-A, lifetime imprisonment, commuted to 10 years; died 1964. • Erich Naumann, commander EG-B, death by hanging — June 8, 1951. • Otto Rasch, commander EG-C, removed from the trial on February 5, 1948, due to medical reasons — died November 1, 1948. • Erwin Schulz, commanding officer of Einsatzkommando 5 of EG-C, 20 years — commuted to 15 years; released January 9, 1954 — died 1981. • Franz Six, commanding officer of Vorkommando Moscow of EG-B, 20 years — commuted to 15 years; released September 30, 1952 — died 1975. • Paul Blobel, commanding officer of Sonderkommando 4a of EG-C, death by hanging — June 8, 1951. • Walter Blume, commanding officer of Sonderkommando 7a of EG-B, death by hanging — commuted to 25 years; released 1955 — died 1974. • Martin Sandberger, deputy chief of EG-D, death by hanging — commuted to lifetime imprisonment, released in 1958 — died 2010. • Willi Seibert, deputy chief of EG-D, death by hanging — commuted to 15 years, died in 1976. • Eugen Steimle, commanding officer of Sonderkommando 7a of EG-B and of Sonderkommando 4a of EG-C, death by hanging — commuted to 20 years; released June 1954 — died 1987. • Ernst Biberstein, commanding officer of Einsatzkommando 6 of EG-C, death by hanging — commuted to lifetime imprisonment, released in 1958 — died 1986. • Werner Braune, commanding officer of Sonderkommando 11b of EG-D, death by hanging — June 8, 1951. • Walter Haensch, commanding officer of Sonderkommando 4b of EG-C, death by hanging — commuted to 15 years — current status unknown. • Gustav Nosske, commanding officer of Einsatzkommando 12 of EG-D, lifetime imprisonment — commuted to 10 years — died 1990. • Adolf Ott, commanding officer of Sonderkommando 7b of EG-B, death by hanging — commuted to lifetime imprisonment; released May 9, 1958. • Eduard Strauch, commanding officer of Einsatzkommando 2 of EG-A, death by hanging — handed over to Belgian authorities — died in hospital September 11, 1955. • Emil Haussmann, officer of Einsatzkommando 12 of EG-D, committed suicide before the arraignment on July 31, 1947. • Waldemar Klingelhöfer, officer of Sonderkommando 7b of EG-B, death by hanging—commuted to lifetime imprisonment—released 1956—died 1980. • Lothar Fendler, deputy chief of Sonderkommando 4b of EG-C, 10 years — commuted to 8 years.

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• Waldemar von Radetzky, deputy chief of Sonderkommando 4a of EG-C, 20 years — released. • Felix Rühl, officer of Sonderkommando 10b of EG-D, 10 years — released. • Heinz Schubert, officer in EG-D, death by hanging — commuted to 10 years. • Matthias Graf, officer in Einsatzkommando 6 of EG-D, time already served. After the Einsatzgruppen Case was completed, General Taylor appointed Ferencz as his executive counsel with administrative responsibilities for the remaining trials. Ferencz received a promotion from his simulated rank of colonel to the civilian equivalent of a brigadier general. Since the War Department had discharged Ferencz as a sergeant of infantry when the war ended, his meteoric rise in rank may have set an army record. At a height of 5 feet 1 ⁄ 2 inches, Ferencz may also have been the shortest general since Napoleon Bonaparte. The only remaining trials, all four of which had already started, were: • • • •

The The The The

IG Farben Trial (August 27, 1947–July 30, 1948) Krupp Trial (December 8, 1947–July 31, 1948) Ministries Trial ( January 6, 1948–April 13, 1949) High Command Trial (December 30, 1947–October 28, 1948)

The Subsequent Tribunals at Nuremberg included three tribunals held for trial of industrialists who had used concentration camp prisoners as slave labors in their factories during the war. The three industries/industrialists tried were I.G. Farben (Carl Krauch, et al.), Flick KG (Friedrich Flick, et al.), and Krupp Group (Alfried Krupp, et. al.). Chief of counsel for the prosecution was General Telford Taylor for all of these trials. Ferencz participated as special counsel for the Krupp trial as well as being the executive counsel for those other remaining trials. In the cases involving the three industrial entities, the key leaders (Krauch, Flick, and Krupp) were all convicted and sentenced to jail along with some of their cohorts: Krauch — 6 years including time served; Flick — 7 years including time served; Krupp —12 years plus loss of all property. However, the new United States high commissioner, John McCloy, as part of his overall clemency actions in late 1950, released all of the German industrialists from prison by January 1951. In addition, Krupp was given back all of his wealth. Later, Ferencz became involved in attempting to get some restitution from these leading industrialists for Jewish prisoners who were used as slaves to support the industrialists’ war efforts. In the case of IG Farben and Krupp, Ferencz was able to get some meager financial recompense; in the case of Flick there were false promises made but nothing was ever received. Both Krupp

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and Flick were extremely wealthy (both billionaires and heads of vast industrial enterprises) but were unwilling to provide any reasonable monetary support to Jews who had suffered under these industrialists’ inhumane treatment while helping make them the richest men in Germany.9 One of Ferencz’s responsibilities as executive counsel was to deal with intransigent personnel problems. Collaboration among staff members and attorneys was very important, since newly discovered evidence might be vital to rebut alibis and lies offered by the defense. One of the able researchers, named Von Eckert, discovered the minutes of a conference that had taken place on January 20, 1942, when Nazi leaders met and agreed upon the detailed plan for “the final solution of the Jewish problem.” In short, the Jews in Europe, estimated at some twelve million people, were all to be systematically murdered. Ordinarily, such powerful evidence would immediately be shared by all the prosecutors. It wasn’t done. The minutes of the meeting, which became famous as the Wannsee Protocol, were given to Robert M.W. Kempner, who was in charge of the Ministries case. He had been a Prussian police official before fleeing to America. One of the participants in the murderous conspiracy was a lead defendant in the Justice Case, headed by a feisty attorney, Charles M. LaFollette, of Minnesota. Of course, Kempner should have shared the evidence with LaFollette. But he didn’t. Perhaps he wanted it kept secret for use in rebuttal or perhaps he planned, at some opportune moment, to reveal it to the press with whom he was very friendly. When Von Eckart learned that the document was not being shared, he blew the whistle. Very shortly thereafter, the enraged LaFollette stormed into Ferencz’s office to put Ferencz on notice that he was going to murder Kempner. Ferencz didn’t think that killing the chief prosecutor of the Ministries case was such a good idea since good replacements were hard to come by. He managed to straighten it out by finally coaxing Kempner to hand over the document from his locked drawer, and then Ferencz presented it personally to LaFollette with apologies. Bob Kempner and Ferencz remained friends long after Nuremberg. Ferencz thinks Kemper appreciated the fact that Ferencz had saved his life — or at least, his job. In the 1990s, the German government converted the villa at Wannsee into a museum that displays in shocking detail the original minutes of the Wannsee Protocol and the biographies of all the murderous participants. No one, other than a liar and a fool, who sees those documents and the records of the Einsatzgruppen Case, could ever doubt, or dare deny, the authenticity and horrors of the Holocaust. Nuremberg’s preservation of the historical record of incredible deeds may be its most lasting contribution. One of Ferencz’s wrap-up functions was to turn over to the appropriate

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German authorities all incriminating evidence regarding suspects who, because of time, financial, or other policy constraints, had never faced the Nuremberg judges. The new Bavarian minister of justice, Camille Sachs, a survivor of Nazi concentration camps, and his son, Hans, were entrusted with seeking additional prosecutions where such action was indicated. A “de–Nazification” process run by the local governments sought out early supporters of the Hitler regime to impose civil or monetary penalties according to the degree of their complicity. Years later, the German federal government created a Central office in Ludwigsburg to bring other German war crimes suspects to justice, but as many former Nazis were not willing to incriminate their colleagues, it grew increasingly difficult to obtain convictions in the German courts. The meager Nuremberg sampling remained the guiding light for the development of international criminal law. Before closing shop in Nuremberg, over 150 tons of official Nuremberg trial records had to be assembled for shipment to Washington. Duplicates, in English and German, were to go to various educational institutions. Representatives of the prosecution, defense counsel, and court supervised the preparation of accurate and objective summaries of each of the twelve trials. Ferencz briefly served as the first editor of what became known as the Green Series. The publication was intended to record the historical truth and lay a foundation for the future development of international penal law. General Taylor sent Ferencz to Washington to coordinate the transfer of records to the Judge Advocate Division of the War Department, where a Colonel Young was to offer assistance. In due course, fifteen volumes were published in English by the U.S. Government Printing Office. An identical text was prepared in German. Unfortunately, it was never published, and since seems to have been lost. The U.S. Berlin command argued that there was an insufficient supply of paper and no further editions were needed. High-ranking army officers, with no legal training, failed to recognize that advancing the rule of law internationally was a means for preserving the peace and thereby protecting the lives of military personnel. The historical value of the Nuremberg trials was hardly perceived by those who were involved in the process. Most of them were very young, enjoying the euphoria of victory, and the excitement of new adventures. Germany was in ruins; its money had no value. The U.S. personnel in Germany were victors in a land whose beaten inhabitants were primarily concerned with their own survival. Everyone was constantly aware of the visible residue of the terrible war and its many innocent victims. The highest price had been paid by those who had barely survived the German concentration camps. Concentration camp survivors did not understand why they were still alive. “Why me? Why me?” was the plaintive cry heard over and over again, as if

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there were some rational explanation for their unearned feelings of guilt. What hand guided them to safety and why? Their only desire was to find the remnants of their families and to leave the cursed and blood-drenched land as soon as humanly possible. And so it was with Ferencz and his wife, as they frequently asked themselves what strange happenstance had brought them to Germany. Their stay had been interesting, disturbing, enlightening, exhausting, frightening, and fruitful, but they both were eager to return home to start a normal life.

Chapter 9

Running a Restitution Organization (Mid–1948 to 1949) In July of 1948, Ferencz’s administrative work in wrapping up the Office of the Chief of Counsel for War Crimes was almost over, and he and his wife were preparing to return home to the United States and a normal life. But unexpectedly Ferencz was approached for a new assignment by a representative of the world’s leading Jewish organizations. Military government law provided that properties seized by the Nazis in the U.S. Zone of Occupation should be returned to the rightful owners. If no owners or heirs could be found, the assets could be claimed by a charitable organization pledging to use the proceeds to benefit survivors of persecution. A consortium of prominent Jewish organizations formed the Jewish Restitution Successor Organization ( JRSO), and they needed someone to set up and manage such a challenging endeavor in Germany. They didn’t really think anything much would come of it, and they were not prepared to invest their limited charitable funds into such an uncertain enterprise. Nevertheless, they felt it was their moral duty to try. They concluded that Ferencz was the right man to help them. The JRSO’s representative, an American lawyer named Joel Fischer, came to Nuremberg from the Paris office of the American Jewish Joint Distribution Committee (referred to as “the Joint,” a respected philanthropic organization) to interview Ferencz. However, before he approached Ferencz, he wisely talked to Ferencz’s wife, who was packing their bags to return to New York. The JRSO wanted a two-year commitment. Mrs. Ferencz, knowing Ferencz’s tempo and temperament, thought it would only take Ferencz a year to complete the assignment. Although she had eagerly joined Ferencz for their honeymoon in Germany in 1946, she had never felt comfortable in Germany. Yet, the moral imperative of possibly being able to help Holocaust survivors 150

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(including some of her own relatives) could not be turned down. With his wife’s encouragement, in August 1948, Ferencz accepted the job and designated himself the director-general of the JRSO in Germany, knowing that Germans would be impressed by someone who was both a director and a general. The military government law under which the JRSO was to operate stipulated that all claims had to be filed by the end of 1948, only four months away. It seemed impossible, within that brief period of a few months, to get organized, find and train staff, and identify and claim all the properties that had been unlawfully seized. Ferencz promptly called on the U.S. military governor, General Lucius Clay, with a request to extend the deadline. The general’s main concern at that time was that Soviet troops might try to take over all of Berlin and possibly all of Germany. (U.S. personnel were required to keep provisions in the trunk of their cars at that time, in case emergency evacuation was ordered.) Clay explained that the sooner the restitution program was out of the way the better. He was, understandably, opposed to any extension. Ferencz argued that a massive search-and-claim operation would require immediate cash for German staff and equipment, and it was not morally justifiable to ask Jewish charities to put up their scarce dollar resources to pay local German personnel when the outcome was so uncertain. Ferencz asked for a grant from occupation funds to enable him to meet the rigid goal set by the military. Ferencz noted that these funds in German currency, which the occupying allied forces used to pay their own local expenses in Germany, were all under combined control of the four victorious powers. Ferencz was sure that the Soviets would never agree to such a use since they didn’t believe in private ownership of property anyway. He also doubted if the British or French would agree either, since they had not yet enacted similar restitution laws for their zones. It looked hopeless. However, Ferencz knew when confronting a hopeless situation, it was advisable to find a better solution. Ferencz turned to his fallback position. He promised Clay that he would do his very best to meet the short filing deadline if he was given the tools to do the job. Ferencz proposed that instead of the grant, which would not meet with quadripartite approval, that Clay give him a loan of German marks from the U.S. share of occupation funds. That did not require the consent of the others, and Ferencz could repay the loan when restitution funds were recovered. Clay asked if that could be done legally. Ferencz replied that he had in his pocket a memorandum that said it could. The sizeable sum of one million marks was promptly advanced, and Ferencz raced away to get started.1 Military government law required persons who had acquired Jewish prop-

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erty during the Hitler years to report the transfer. Under supervision of a small cadre of refugee Jewish lawyers, Ferencz arranged for German staff to be hired and sent to scour every real-estate registry for every property transfer after 1933 by anyone with a name that sounded Jewish. Ferencz requisitioned a large hall that had been used as a recreational center by Baltic nationals, many of whom had been Nazi collaborators. A large pool of JRSO typists worked around the clock to hammer out the claims that poured in from the investigators in the field. On the final day of the deadline, at the final hours of the deadline, the JRSO fully packed a U.S. Army ambulance with over 160,000 claims that were rushed off to the official filing center. Ferencz was satisfied that nothing had been missed, and he phoned General Clay to tell him that no extension was necessary. There is a sequel to this story that occurred years later but perhaps should be recited here. The million-mark loan approved by General Clay, although a considerable sum at the time, was soon spent. Shortly thereafter, East Berlin and East Germany were politically severed from the West — the Cold War was on. General Clay was replaced by a Harvard-trained lawyer named John J. McCloy. McCloy’s assignment was to tie West Germany firmly into the fold of democratic nations. He recognized that what Germany did in the field of restitution would play an important role in her acceptance back into the family of nations. McCloy’s position provided him with an important influence over German chancellor Konrad Adenauer and others in the West German government in persuading them to go as far as possible to meet the compensation demands of Israel and Nazi victims. Ferencz felt it was logical that he should turn to McCloy for help when he needed more funds for the JRSO. Ferencz explained to McCloy that the money advanced by General Clay’s authority had already been spent in carrying out the complicated restitution mandates. Ferencz confessed that some money was coming in and was being distributed to the victims of Nazi persecution. Ferencz remarked that concentration camp survivors still in Germany needed help desperately to enable them to move out of the displaced persons camps — a goal shared by both Germans and Americans. Ferencz argued that it would be politically and morally untenable to give priority to the wrongdoers by returning borrowed funds to the now prospering German state while its victims remained in such desperate need. Agreeing, McCloy approved the loan to the JRSO of another million marks. The same moral arguments prevailed yet again when the loan was renewed for three million marks. Then came a moment of truth and opportunity. Among the defendants convicted as war criminals in Nuremberg was the industrialist Alfried Krupp. He had been found guilty of seizure of foreign

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properties and inhumane treatment of concentration camp inmates as slave laborers. He was sentenced to forfeit all of his property and to be imprisoned for 12 years. In 1951, as part of the overall humanitarian review of all of the Nuremberg sentences, Krupp’s sentence was reduced to time served, and all of his property was restored by order of McCloy. During Ferencz’s frequent contact with the high commissioner, Ferencz resisted the pressures of the Jewish organization to try to influence McCloy’s clemency considerations. He respected McCloy and recognized that he was struggling with a difficult matter of personal conscience. Now, however, Ferencz could no longer remain silent. After McCloy’s Krupp clemency decision, Ferencz went to McCloy’s office in Bonn with a request. Ferencz reminded him of the JSRO loans of three million marks to carry out restitution responsibilities. If he insisted, Ferencz said he would repay those loans in full. “But,” Ferencz said, “I think that would be morally wrong. It should not be the victims who bear the expense of recovering only a portion of what was stolen from them. It should be at the expense of the wrongdoers.” Since McCloy had just given back to a convicted war criminal assets worth probably more than three billion marks, Ferencz asked him to cancel the debt “owed” by the victims of Nazi persecution. McCloy listened somberly and paused. “Can I do that legally?” Ferencz replied, “I have a memo in my pocket that says you can.” McCloy looked up and said, “The debt is cancelled.” Years later, when McCloy had passed his 90th birthday and was recording his memoirs, he and Ferencz were having lunch at the Harvard Club in New York, and Ferencz reminded him of the JRSO debt cancellation story. The next day McCloy phoned Ferencz from home and said, “Ben, you know I might have gone to jail for that!” “I know,” Ferencz replied, “but I would have gone with you.” They both laughed, knowing they had done the right thing. Hitler’s anti–Semitic, “intellectual” minister Alfred Rosenberg had been responsible for assembling and preserving Jewish cultural objects that could prove the perfidy of the Jewish race, religion and ideology. In the eastern territories overrun by Germany, the Einsatzstab Rosenberg collected Jewish Torahs, religious ceremonial decorations, prayer books, and other sacred texts and objects. Much of this material was eventually stored in a large warehouse in Wiesbaden that came under control of U.S. military government. The Jewish Restitution Successor Organization was entrusted with responsibility for the legal and equitable distribution of the captured booty. Of course, Ferencz had no experience whatsoever with the disposition of such artifacts. It was obvious that stolen assets should be returned to their former owners. But that was easier said than done. In most cases, the former owners had been murdered by Nazi extermination programs and the Jewish congregations were no longer in existence. What to do? Ferencz concluded that the JRSO

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would do the best it could under the circumstances. But to those who viewed these materials as holy, that may not have been good enough. As Ferencz said: “It posed challenges of faith versus reason that could have stumped even Solomon or Maimonides, who wrote a famous book to guide the perplexed.” Dispatching the Torahs was relatively easy. Many of them could be identified as coming from well-known synagogues in Poland, Lithuania, Latvia, Estonia, Ukraine, and other centers of Jewish learning. Where there was still a functioning synagogue in a particular area, the Torahs, or as many as could be put to good use, were shipped back to their former congregations. But that was rare. Most Jewish communities in the East had been totally destroyed. Most survivors had sought a new life in Israel, where the Ministry of Religion was happy to distribute the needed scrolls. A refugee community starting a new congregation in a strange land also received the rescued tablets of Jewish law. Many of the Torahs, however, were damaged. Ferencz soon learned that a damaged Torah cannot be used in prayer. If the name of the Lord, as printed on the sacred parchment, has been damaged in any way, no repair is permissible. The Torah must be sent to Israel for burial in accordance with ancient Hebrew rituals. Other repairs are possible, but only by orthodox Jewish scribes. So the JRSO arranged to have a group of scribes come from Israel to work under the supervision of the respected American Joint Distribution Committee offices in Paris. In one of Ferencz’s frequent visits to the Paris office, he encountered another problem that was perplexing. “The Joint” maintained strict inventory controls. Torahs were valuable. Every Torah coming in and going out had to be accounted for. Unfortunately, there was no computerized accounting available at that time, and security was not as tight as it should have been. Ferencz thought he detected a discrepancy in the number of Torahs the JRSO shipped to Paris and the number distributed or on hand. To ascertain the facts and confirm his suspicions would require a detailed examination — particularly of the orthodox scribes who had access to the sacred scrolls. That could prove to be very embarrassing. Besides, Ferencz said, what could be done if it was found that an old rabbi from Israel had pinched a Torah or two? So Ferencz turned to the learned rabbi in charge of the operation (who was not completely beyond suspicion) and told him that there was a problem. Ferencz said that he suspected some of the Torahs may have disappeared, and he didn’t know whether purloining a Torah was a blessed act or a criminal offense. Ferencz asked, “Do I have to look up to heaven or down to the Devil to find the culprit?” The rabbi replied in Yiddish, “Do not look up or down — take my advice — kik vek!” (Look away!) Ferencz says he learned from that rabbi that sometimes the best thing to do may be nothing, and that guiding advice has been very valuable to him throughout his life.

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Not all rabbis adopted so benign an approach. When dealing with the captured ceremonial objects such as candelabra, silver plates, wine goblets, Torah crowns, and all of the related paraphernalia used in a variety of Jewish rituals and holidays, the JRSO followed the same basic principles. Wherever possible, they tried to identify and locate the former owner and return the property. Where the property was damaged, they tried to repair it. This was sometimes even more difficult than repairing a scroll. Missing parts of ceremonial objects could be scattered among several different boxes. The experts brought from Israel’s Bezalel Museum two fine gentlemen named Shunami and Narkiss, who searched long and diligently, trying to restore every object. In the end there were many broken pieces, including table silver and broken candlesticks, that were beyond repair and had to be considered scrap metal. After long deliberation, in which other members of Ferencz’s executive staff participated, they found what seemed a good solution. They shipped these broken bits of scrap silver to England where there was a well-reputed smelting company run by the Jewish Goldsmith family. They were instructed to melt down the objects so that the proceeds could be distributed by the Joint and the Jewish Agency for Israel to the most needy Nazi survivors. Soon thereafter, Ferencz sailed for New York to make his annual report to the JRSO Board of Directors. He was confident that he might receive their praise and possibly also their blessing. Unfortunately, he learned that one should not count his blessings too soon. Ferencz proudly reported to the board about the work done in recovering Jewish properties, homes, businesses, art works, Torah scrolls, and silver ceremonial objects that had been returned to owners or made available to needy congregations. Board members smiled happily at the thought that, by listening to Ferencz’s report, they had vicariously participated in such noble work. Ferencz then detailed what had been done with the smelted scrap silver. Before he was quite through, a hand was being waved furiously by Rabbi Isaac Lewin, the respected head of the orthodox Union of American Hebrew Congregations. He rose slowly, glowered at Ferencz fiercely, and said in a trembling voice, “Do my ears believe me? Did I hear you say that you took these sacred Jewish objects, the last remnant of our murdered ancestors, and you sent them to a CREM-A-TORRIUM?” There was silence. Stunned, Ferencz stuttered that they had done the best they could under the circumstances. It was only many years later that Ferencz felt he had been forgiven by the rabbi. In 1949 another incident regarding sacred treasures caused the U.S. military governor in Germany, General Lucius Clay, to summon Ferencz to Berlin. It appeared that a Jewish U.S. Army chaplain (Ferencz believes it was Captain Phillip Bernstein) had raided the warehouse in which the Germans had stored the most valuable Jewish religious books. Being a man who obviously believed

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in restitution, the captain backed an army ambulance up to the warehouse and filled it with Nazi loot. He arranged to ship it to Israel on a refugee ship — probably also illegal — as a brave gesture of retaliatory justice. It turned out that many of the volumes had belonged to an anti–Nazi Christian sect (Ferencz believes it was the Templars) who had acquired the sacred tomes lawfully long before the Nazis came to power. They wanted their property back. General Clay gave Ferencz an order that since he was in charge of Jewish restitution, he had better get those ancient books restituted back to their rightful, non–Jewish, anti–Nazi owners. He gave Ferencz a long list of the missing volumes. Ferencz promised to do the best he could. On Ferencz’s next trip to Israel, he raised the restitution question with the appropriate government representatives. They were apologetic and promised to restore what had been erroneously taken, but unfortunately, the books had already been sent to the Hebrew University on Mt. Scopus, and even more unfortunately, that territory was in Arab hands. They promised to correct the error as soon as the military situation allowed. Ferencz reported the facts to General Clay. Nothing more could be done. What finally happened to the books, Ferencz does not know. He hopes they were restored —“Kik vek!” It came about that, beginning around 1949, Ferencz became the custodian of several hundred Jewish cemeteries located throughout the Federal Republic of Germany. They fell into the category of properties previously owned by Jewish congregations that had been dissolved by Nazi decree. By virtue of the U.S. military government restitution law, the Jewish Restitution Successor Organization became the lawful title holder. The truth is that, never having been an occupant thereof, Ferencz knew very little about the management of cemeteries. Cognizant of his ignorance in this delicate field, Ferencz was relieved when he managed to persuade a committee of three distinguished rabbinical scholars, including the chief rabbi of Israel, to advise him on all religious practices and prohibitions concerning such holy plots. Little did Ferencz realize what lay in store. First, it was essential to learn precisely what was permissible or impermissible regarding the ancient burial grounds for religious congregations that no longer existed. It was not something taught in Ferencz’s property class at Harvard as, unfortunately, the Talmud was not assigned reading. Ferencz’s rabbinical council made clear that very special rules apply: once a cemetery, always a cemetery; no flowers can be placed on the casket or grave; if a tombstone falls, it must be left lying where it fell; nothing can ever be done to profane the bodies or memory of the deceased. Honoring these ancient traditions seemed simple enough, but it soon became apparent that dealing with the dead can make life quite complicated for the living. The ancient German city of Fulda is noted for its large Benedictine abbey

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that for centuries helped spread Christianity throughout the land. Catholic bishops met there regularly to honor the memory of St. Boniface, who is buried in its beautiful baroque cathedral. Although Jews had lived in Fulda for many generations, their burial grounds were not nearly as impressive. Soon after the Nazis came to power in Germany in 1933, they completely desecrated the old Jewish cemetery. Following the defeat of Adolf Hitler, a new Jewish community, composed mostly of a handful of refugees from Eastern Europe, again took root there. Mortuary records revealed that a sizeable area of the cemetery had never been used. Since it seemed most unlikely that it would ever be needed by the few Jewish settlers in the Fulda area, the question arose whether the unused grounds could be sold to raise funds for needy survivors of Hitler’s persecutions. Of course, Ferencz referred the question to the rabbinical council. The answer came back that an area that had never contained any bodies could not be considered a cemetery. If a wall could be erected to enclose the former burial grounds then the unoccupied portion outside the wall might be sold, providing it was not used for any profane purpose. As the former victims needed money desperately, they were pleased when the local government expressed an interest in purchasing the unused land adjacent to the old Jewish cemetery. To erect an office building to be used by their customs authorities, the Zollamt, city officials were easily persuaded to also build a little park on the site that had been desecrated and to add a plaque to commemorate those who had perished. More than a year had passed when Ferencz received an alarming telegram while attending a JRSO board meeting in New York in 1951. A story had appeared in the German press that, while digging the foundation for the parking lot for the new customs house in Fulda, a number of bones, presumed to be from the bodies of Jews, had been disinterred. Ferencz cabled his office to seek an immediate injunction to stop all construction. Ferencz then took the next plane back to Germany. At a meeting with the local Jewish community leaders and the officials of the city of Fulda, it was pointed out that the terms of the sales contract had been clearly violated. Having recently prosecuted SS leaders who had murdered over a million Jews, Ferencz was in no mood to tolerate the desecration of Jewish graves by any Germans. Ferencz demanded that the building, which was already five stories high and near completion, be torn down immediately and the area restored. The leaders of the new Jewish community in Fulda asked to speak with Ferencz privately. They implored him not to take such a harsh position. They noted that they had to live in Fulda, that the city officials were anti–Nazis who had been most accommodating to the new Jewish settlers, that it was only a small area that had been trespassed, and there was even no certainty

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that the bones that had been dug up belonged to humans. They argued that their lives in Fulda would be made unbearable if Ferencz forced the city to tear down the expensive building. Ferencz reluctantly agreed to refer the entire file to the rabbinical council in Jerusalem for its recommendation. The three learned scholars cited the provisions of the Talmud about respecting the memory and body of the dead and noting particularly that no building of any kind could be placed on top of a Jewish cemetery. Trying to be helpful, they suggested that it would be acceptable if the building could be elevated so that it did not touch the holy ground. How that was to be done was not made clear. It was obvious that the Talmud did not teach engineering. Since no one knew how to raise a five-story building, a second opinion seemed called for. To this day, Ferencz does not know which brilliant mind gave birth to a solution to the “grave” problem. The genius who found the solution noted that only one type of structure was permissible on a Jewish cemetery: a chapel where prayers for the dead could be said. There was apparently nothing in the Talmud that prohibited any structure from being built on top of such a chapel. If therefore, it would be possible to build a chapel under the corner of the building that trespassed on the old cemetery, that corner of the building would not be resting on the cemetery itself, but only on the roof of the newly constructed little synagogue in the cellar. Under a tip of the Zollamt, the interested parties arranged for the construction of a dignified, triangular room no larger than about 15 feet in any direction. A Hebrew inscription, composed in Israel, adorns the wall. Small stained glass windows near the ceiling provide a strained glimpse of the parking lot. Above it stands a monumental five-story office building. None of the drivers who park their cars on the corner of the parking lot have any idea that they are placing their vehicle near the roof of a holy place of eternal worship. About 10 years later, while traveling in the area, Ferencz decided to see what had happened to the unique chapel. Ferencz found the customs house with no trouble, and walked up to the reception window and asked the young receptionist if he could see the synagogue. She replied politely that the Jewish synagogue was located about two blocks down the road, turn right. Ferencz explained that he meant the synagogue in the building. “You must be mistaken,” she replied; “this is the Zollamt.” Ferencz replied rudely that there had better be a chapel in their cellar or there would be real trouble. The rather startled young lady phoned the building superintendent and reported that an American was at her window insisting that he wanted to visit a Jewish synagogue in the basement. The superintendent said he’d be right down. Shortly thereafter, an elderly gent came down jangling a bunch of keys. He introduced himself and explained that he had been there when the building

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was constructed. Yes, there was indeed a Jewish prayer room in the cellar. He led Ferencz out to the parking lot, and then down some steps. He kicked away some cardboard cartons blocking the entrance and unlocked the heavy door. Lo and behold — there was the little synagogue, a bit dusty but quite intact. Ferencz asked him if anyone had every visited the room since it was built. “Not to my knowledge,” he said. If you ever visit Fulda, ask for the old Zollamt. Beneath a large office building that was the old custom house you may find the smallest and most unknown and unused Jewish prayer house in the world. It shall remain in perpetuity as a tribute to Jewish creativity or ingenuity — or something. This chapter has highlighted Ferencz’s management skills development and ability to accomplish seemingly impossible tasks. He became familiar with running large organizations effectively and became an experienced, tough negotiator. All of these fundamental leadership skills set the stage for his next assignments.

Chapter 1 0

Getting Bulk Settlements from the German Government and Starting Work on Reparations from Industrialists (1950 to 1956) The year was now 1950. Ferencz was still working on getting restitution settlements and had now advanced to the level of bulk settlements from the government entities involved. A main reason for creation of an outside organization to handle restitution was to prevent the German state from benefiting from its own wrongful deeds. Millions of Jews had been dispossessed and murdered by the Nazis. All Jewish properties had been transferred to Aryan hands. Money received from sales made under duress was seized through special discriminatory taxes. Normally, unclaimed assets for which there are no known heirs revert to the local government. It was unthinkable to allow any German entity to benefit from these illegal confiscations or to retain the fruits of such crimes. The JSRO often cited the injunction: “Thou shalt not kill and be allowed to retain the possessions of your victim.” Recovering stolen Jewish assets as prescribed by military government law was a complicated legal process. Wherever possible, JSRO lawyers would seek a quick cash settlement with the possessor of property subject to restitution. But that was rarely possible. In the absence of a negotiated amicable accord, the claim would be decided by a special panel of German judges, almost all of whom had been members of the Nazi Party. Their decision could be appealed to a regular German court, then to a superior German tribunal, and from there to the final Supreme Restitution Court — then composed of American judges. Those who were ordered to surrender properties they had acquired from Jews during the Nazi period were lawfully entitled to get back what they had paid — but there was a problem. The original Reichsmarks that had been paid were now worthless. A new currency reform law proclaimed that one 160

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new Deutsche mark would be valued as the equivalent of ten of the old Reichmarks. The acquirers of Jewish property wanted to get back one Deutsche mark for every Reichmark they had paid. Who should bear the loss caused by the devaluation of the currency was a hotly debated legal and moral issue. The “Aryanizers” of Jewish property almost invariably argued that they had paid a fair price, had paid off mortgages, had made many repairs, or were purchasers in good faith. They felt they were being unfairly hounded by this strange American-Jewish organization and its director-general. Old anti– Semitic roots were being watered. Although the JRSO won every case in the Court of Restitution Appeals, it became clear that they needed to find a more expeditious and less contentious way to achieve their goals. Ferencz and his staff hit upon a plan that might get them out of the difficult and time-consuming dilemma. If the German state governments could be persuaded to buy all of the Jewish Restitution Successor Organization claims for a fair price, there would be no unjust enrichment on their part, and the JRSO would have immediate cash on hand to carry out their urgent charitable obligations. The German authorities could then take their time and make whatever concessions to their citizens that they felt were equitable. It took long negotiations to persuade state governments to accept the principle of a “global settlement.” Difficult appraisals had to be made regarding the fair value of thousands of properties before agreement could be reached. Since the plan offered benefits to all parties concerned, a deal was finally struck. It was a most novel and creative solution to a difficult political problem. The first state government to agree to accept the arrangement for a quick cash payment was the German state of Hesse. They would pay the Jewish successor organization twenty-five million marks in cash. That was a lot of money at that time. Arrangements were made to have the formal contract signing in a splendid royal house situated in the midst of a beautiful park in the state capital at Wiesbaden. This would be the first time that any post– Hitler official was to enter into a settlement of claims with an organization representing the “world Jewry” that Hitler sought to destroy. Other states were expected to follow the example. It was to be a solemn and momentous occasion, symbolic of a new relationship between Germany and the Jews. However, a bit of unexpected humor occurred during this solemn occasion. Ferencz had asked his deputy, Dr. Ernst Katzenstein, to join him for the signing ceremonies. Katzenstein had fled from Germany to England and Israel before joining the JSRO. Ferencz packed the heap of legal papers into a new attaché case he had recently bought in the U.S. Army PX. It was a neat box bound in beautiful red leather, and carrying it made Ferencz feel like a British prime minister. Katzenstein was so impressed with the beauty and reasonable cost of the case that he proceeded to the PX and acquired an identical one

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for himself. He agreed to join Ferencz and to stay over in Wiesbaden to do some work at their regional office in the area. They would proceed together by car to the royal palace for the auspicious historical event. When they arrived there, they were greeted by a welcoming party. Their driver handed Ferencz the beautiful red attaché case that he took from the trunk compartment. Ferencz brandished it conspicuously as he placed it near the center of the large round table in the pompous conference room. The minister president made the first speech, noting the importance of the special occasion. The finance minister and the justice minister also made appropriate remarks heralding the event. Then it was Ferencz’s turn. Ferencz made some observations about how happy he was that they had finally reached the point of signing such a historic and important document on behalf of Nazi victims. Ferencz then reached for the contract in his beautiful red attaché case. He snapped it open with verve. But it wasn’t his case; it was Katzenstein’s, and out popped Katzenstein’s pajamas! By the time the war ended in 1945, the Jews of Europe had been decimated. Roma and Sinti, whom the Germans pejoratively called Gypsies, had all been targets of annihilation. Millions of people had been worked or starved to death or just plain murdered because they did not share the race, religion, or ideology of their German executioners. Hitler’s proclaimed “Thousand Years Reich” had been brought to its knees in a dozen years. Defeated Deutschland was in ruins and destitute. How, with what method and means, does one begin to heal the wounds of those who bore the brunt of the crimes perpetrated by the vicious Hitler regime? Early in 1951, the new State of Israel called upon the four occupying powers to seek compensation for victims of Nazi oppression. There was no response from the Allies or the Germans. West Germany’s chancellor, Konrad Adenauer, was eager to restore his country to the family of civilized nations. He was a devout Catholic whom the Nazis had driven out of office as the mayor of Cologne. He had escaped further persecution with the help of a Jewish friend. Mindful of Israel’s appeal, Adenauer publicly acknowledged that unspeakable crimes had been committed in the name of the German people and that imposed on them an obligation to make amends. The president of the World Jewish Congress, Nahum Goldmann, formerly of Berlin, responded to Adenauer’s overture by calling a conference in New York of the world’s leading Jewish organizations. Ferencz was invited to attend as an “expert,” which Goldmann defined as “one who knows everything, but nothing else.” The conference took place in a large New York hotel. Representatives of all the major national and international Jewish groups were present. What was scheduled as a meeting to discuss reconciliation soon turned into a bat-

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tleground. The doors were forced open and a large group of young men, many with flowing curls under their skull caps, stormed into the room. They brandished placards and shouted at the delegates to disperse since they were disgracing Jewish honor by talking about taking blood money from murderers. Ferencz recalls one of the delegates, a rabbi, cringing under a table. There was no need for him to fear. With the help of a few Irish policemen, the intruders were firmly escorted from the room. The very idea of sitting down with Germans to discuss money in connection with the Holocaust understandably gave rise to emotional outbursts on all sides. The Israeli Parliament in Jerusalem was stoned when the subject was raised. Many Knesset members were convinced that negotiating with Germans would lead only to more betrayals. Ben-Gurion, Israel’s prime minister, passed the hot potato to Goldmann. In the end, all agreed that it would be immoral and unwise to reject Adenauer’s overture and expression of repentance. What emerged was a new Jewish non-profit organization, incorporated in New York under the peculiar title of the Conference on Jewish Material Claims Against Germany (Claims Conference). There was general agreement that no agreement would be reached without the partnership of Israel, which had given refuge to so many of Hitler’s victims. A later meeting in London set the agenda for the negotiations between the new German government and representatives of the Jewish organizations. Ferencz was one of a handful of experts invited to join the group. For a full week, the group labored in the Grosvenor House, drafting opening statements and formulating proposals. Moses Leavitt, executive of the respected American Joint Distribution Committee, played a leading role. The negotiations were very difficult and painful. Does one ask for compensation for the six million Jews murdered? How much is one human life worth? How do you measure or prove degrees of fear, or pain, or suffering? Ferencz said he had never found such questions in his law books at Harvard. None of the attendees were prepared to put a price tag on any human life. The group finally reached agreements on the outlines of what could be presented as valid legal claims. Incarceration in a concentration camp, for example, was illegal deprivation of liberty — its duration could be measured and verified. Physical disability caused by persecution could also be translated into measurable financial terms. Other economic losses could also be calculated. Compensation would be demanded for three distinct categories of claims: first and foremost for still-undefined personal injuries; next would be a global sum to the State of Israel to reimburse the costs of rehabilitating survivors; lastly, a sum would have to be given to the Claims Conference for ongoing relief of Nazi victims outside of Israel.

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Because of antipathy among many Jews to anything German, and the tension furthered by militant Jewish groups, it was agreed that negotiations should not take place in Germany, and should be kept secret. It was leaked that the Claims Conference delegation would fly by special plane to a meeting in Brussels. That posed a special problem for Ferencz. Not too long before, Ferencz and his wife had bailed out of a disabled plane over the ruins of Berlin. The trauma of that parachuting incident had left Ferencz’s wife gravely concerned every time Ferencz had to get on a plane. Ferencz’s colleagues were aware of the problem. Israeli security agents responsible for participant safety informed Ferencz to follow instructions that he would receive in a sealed envelope when he checked out of the London hotel. In the cab, he opened the envelope, which read: “Proceed to Hoek van [Hook of ] Holland. You’ll be met.” Ferencz got to the English coast as soon as he could, and took the channel ferry to the Hook. When he presented his passport, he was scrutinized carefully and asked to wait. Soon, a man in a dark suit appeared and asked Ferencz to step into a black Buick sedan. He whisked Ferencz off into the darkness. As dawn was breaking, Ferencz asked him who he was and where he was taking him. He replied politely that he was with the Dutch Security Police and was taking him to the meeting site. Ferencz relaxed and tried to doze, until he noticed that the car had turned into some small roads and was proceeding very slowly. Half-awake, Ferencz was suddenly startled to find the car surrounded by what he thought were uniformed SS men with dogs. Ferencz’s memory flashed back to the concentration camps where he had last seen such guards, and his heart pounded in fear that he had fallen into an SS trap. Then Ferencz noticed, as the car pulled through the gate, that the men in black uniforms with black boots did not have the SS Death Head insignia on their collars, although the Dutch police uniforms were remarkably similar to those worn by the German SS. Ferencz’s fears were unjustified. During the course of the meetings, the attendees were being carefully guarded by the Dutch and Israeli security services. They were warned not to open any suspicious parcels or envelopes. A letter bomb had been sent to Professor Franz Boehm, the head of the German delegation. It had been intercepted and defused. Earlier, a bomb placed in a hollowed-out German encyclopedia addressed to Chancellor Adenauer had killed two policemen in Munich. A plane carrying two delegates from Israel exploded on landing at Frankfurt airport. It was learned that a gang of Jewish terrorists had entered Holland with plans to kill all those who disgraced Jewish honor. Menachem Begin, who later became Israel’s prime minister, was reportedly the leader of one of the terrorist gangs.1 One day, while in the midst of negotiation, an Israeli security agent came up behind Ferencz and whispered that he was wanted outside. Ferencz excused

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himself and another security guard gingerly showed him a soiled envelope. He handed it to Ferencz gently and asked if Ferencz recognized the handwriting of the sender. Ferencz said, “Of course,” as he ripped it open and the guards jumped away. It was a letter from Ferencz’s wife in Nuremberg. She had enclosed two strips of antacid pills to help ease Ferencz’s tensions, and it also contained two rows of film taken of their two infant children. Security had detected the powders and the strips of celluloid and concluded that it might be a letter-bomb. They soaked it in oil or did some other mysterious thing before they dared hand it to him. Instead of being blown up, they all had a needed laugh. After about six months of difficult negotiations, a final agreement was reached. The signing ceremony was scheduled to take place in Luxembourg, where Chancellor Adenauer had scheduled other meetings. First, the accord had to be initialed by the heads of the German and Claims Conference del-

Members of the Conference on Jewish Material Claims that came to Luxembourg for the signing of the reparations agreement between the German Federal Republic, the State of Israel, and the Conference on Jewish Material Claims. Ferencz is in the second row from bottom, second from left (USHMM Photograph #11 036).

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The first chancellor of post-war West Germany, Konrad Adenauer (left), with his aide Professor Franz Boehm (right), at the signing of the reparations agreement between Israel, West Germany, and the Committee on Jewish Material Claims. The clerk in the center is unidentified. September 10, 1952 (USHMM Photograph #11 018).

egations. Ferencz picked up Professor Franz Boehm, and Ferencz’s driver drove them from Frankfurt to The Hague where Leavitt, who was ailing, initialed for the Claims Conference. They then proceeded immediately toward Luxembourg, planning to drive all night. Their route took them through Bastogne in Belgium, which Ferencz had last seen during the Battle of the Bulge when the town was almost completely destroyed. Ferencz knew they could find a café open. In the middle of the night they stopped at an inn for coffee, where Ferencz told the Belgian owner that he had been one of the U.S. soldiers that had liberated the town from the Germans. Ferencz also told him they were escorting a German official trying to reach out for reconciliation with Nazi victims and Israel. The Belgian café owner absolutely refused to accept any payment for the refreshments. The Reparations Treaty was signed in Luxembourg on the morning of September 10, 1952. Chancellor Adenauer, who was to sign first, discovered that his pen had run out of ink. A bad omen? Ferencz handed Goldmann a pen that Ferencz’s wife had given to him when he graduated from law school in 1943. It was an old Waterman with a lifetime guarantee. Whose life was

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guaranteed, it didn’t say. She had given it to Ferencz as a good luck charm with a promise that he would return with it after the war. Ferencz had carried it with him safely through every campaign. Goldmann handed it across the table to Adenauer and said he would be honored if the chancellor signed with “his” pen. Ferencz demanded restitution from Goldmann after the meeting. That historic pen joined Ferencz’s archives at the U.S. Holocaust Memorial Museum in Washington, D.C. While in Luxembourg, Ferencz recalled the last time he had seen that lovely city. It was when the city was liberated during the war. Back then Ferencz was billeted in a bank building where he slept on a cold stone floor. While on patrol one night, he met a young lady who asked Ferencz to escort her home during the blackout. When she opened the door to her apartment, Ferencz was surprised to be introduced to her husband and their small baby boy. As often as Ferencz could, he would steal away from his army quarters to visit the Schneider family and bring them some much-appreciated American goodies. The friendship continued after the war as Ferencz sent welcomed care packages that Ferencz got from New York. After the Luxembourg Treaty ceremony and a few hours’ sleep, Ferencz thought it would be a nice surprise if he dropped in on his old friends. He found their apartment house with no trouble and was pleased to see their name still among the bells. He wanted to surprise them so he walked up the two flights and knocked gently on the door. It flew open and a cheer went up from a flock of neighbors who crowded the apartment. The living room was filled and decorated with balloons and signs saying: “Benny Welcome!” The morning papers had carried a story of the signing of the reparations treaty, and Ferencz’s photo was included with the article. The Schneiders had alerted all of their neighbors that the GI who slept on their carpet during the war would surely show up. Ferencz didn’t disappoint them. He was the one, however, who was the most surprised. To Ferencz it was a touching and memorable conclusion to a historical event. The treaty that was signed on September 10, 1952, was frequently referred to as a reparations agreement, which it wasn’t. That term usually applies to nations that have been at war. It was also known as the Hague Agreement, though it was signed in Luxembourg. Some called it the Luxembourg Agreement, but Luxembourg had nothing to do with it. The Israelis referred to it as the Shilumim Agreement, which no one understood if they didn’t speak Hebrew. In fact, none of the signatories had any reasonable conception of the magnitude of the obligations involved in the treaty they had just solemnly signed. It was the product of political considerations cloaked in moral garb, and heralded as a solution to some profound human and legal problems that, in fact, could never be resolved.

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Negotiations for compensation would not have started without prior secret assurances, given by Konrad Adenauer to Nahum Goldmann, that Germany was prepared to make a significant payment. A billion was a nice round minimum figure that Goldmann liked, even though it was never quite certain whether he had in mind dollars or German marks that were worth only half as much. It did not take very long for West Germany to agree to pay Israel one and a half billion dollars — but they didn’t have the money. Instead of cash, payments would be spread out over 10 to 12 years and would be in the form of German goods. That ingenious arrangement would serve to prime the German economic pump while enabling Israel to use or sell the goods. It was an ironic twist of fate that railroad trains and taxicabs, as well as many other necessities for the first Jewish State, came from the country that had sought to annihilate the Jews. The parties to the Reparations Treaty further agreed that another halfbillion dollars in goods would be supplied to the Claims Conference to carry out its relief work for Nazi victims outside of Israel. The most important part of the deal was the cash compensation that would be made directly to those individuals who had personally endured the brunt of Nazi persecution. Since there were no provisions in normal German law, or the law of any other country, to deal with payments for such atrocities, special legislation would be required to achieve the stated goals. The new law, called the Federal Indemnification Law, would have to pass muster by both the upper and lower houses of the German Bundestag and be supported by the German public. The responsibility for negotiating the details of this legislation with the German government was assigned to the Claims Conference Legal Committee, of which Ferencz was a part. No one present had any experience in such matters and none of them had any idea how it would turn out. The most serious losses and injuries never came within the purview of the new law. About six million Jews had been murdered in cold blood by Hitler’s eager executioners. Gypsies suffered a similar fate, as did many other opponents of the Hitler regime, including many Germans. No one on the Jewish side ever suggested that any payment should be requested, or accepted, for this senseless genocide. When this issue was first discussed at the preparatory meetings in London, it was recognized that there should not be an attempt to place any monetary value on a human life. It was just too painful to consider whether papa was more valuable than grandma or a baby sister. Most of the representatives had tears in their eyes when they discussed it. Nor could they measure the pain of a survivor who had seen his family being murdered, or the constant fear of camp inmates who had been threatened with imminent beatings and death. Such sufferings were beyond the reach of specification, comprehension,

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or compensation. The Claims Conference title referred only to “material claims.” It was trying to fit into a legal frame some measure of redress based on concepts developed among civilized people accustomed to civilized behavior. The crimes of the Holocaust could not be pressed into such a mold. Blinded by outrage and the desperate needs of impoverished survivors who cried out for justice, they embarked on an impossible mission. Many of the committee members, who were expected to protect overall Jewish interests, seemed to focus primarily on serving their own constituents. Those who had been employees of the pre–Hitler civil service demanded reinstatement of all their lost entitlements. Those who had resettled in Germany wanted support for the new communities. Yiddish-speaking Jews from Eastern Europe were viewed as interlopers by some of their German brethren. Even those who had escaped from behind the Iron Curtain showed little concern for those who had been left behind. Since Ferencz had no personal axe to grind, he was often forced into the role of mediator among his own so-called legal experts, in order to present to the world a picture of unity among the disunited Jewish representatives. The German negotiators, many who were carryovers from the former regime, did not feel any moral or legal obligation to impose onerous costs on patriotic German taxpayers who had loyally supported their government. The conservative finance minister, Fritz Schäffer, relied heavily upon the simple argument that Jewish demands exceeded Germany’s capacity to pay. Powerful holders of bonds issued by the Third Reich demanded priority payment, insisting that there could be no economic recovery without restoring Germany’s credit. Beneficiaries competed for a bigger slice of the meager pie. Vague compromises were hammered out in a hurry. The new Federal Indemnification Law, the Bundesentschädigungsgesetz (BEG), which non–Germans could neither spell nor pronounce, was enacted in October 1953. It stipulated that the program for compensating Nazi victims would be completed within ten years. Fifty years later, after $50 billion dollars had been paid out to more than 500,000 survivors, a reunited Germany was still planning a new foundation to wrap up their indemnification responsibilities. As soon as the West German government enacted the new indemnification law, all victims of Nazi persecution became entitled to claim compensation for a large variety of injuries and losses. It was clear to Ferencz that claimants would need legal assistance to submit and prove the validity of their claims. The Jewish Restitution Successor Organization dealt only with the recovery of heirless properties. The Claims Conference was responsible for negotiating the details of new German compensation laws. But who would help the victims file and prove the validity of their unprecedented claims? A Jewish claimant could not be expected to turn to a former Nazi lawyer for help or be able to pay for legal assistance.

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Moses Leavitt, executive head of the Joint, recognized that a new organization was needed to help the claimants. After all, if camp survivors received compensation, their need for charitable help would be diminished. “Moe” Leavitt was better known as “No Leavitt” because of his tight-fisted monetary controls. Since Ferencz was already head of the JRSO and Claims Conference offices in Germany, Leavitt concluded that Ferencz was just the right man to organize and direct the United Restitution Organization (URO) to provide legal aid to needy claimants. All the reins would then be in one hand, and that would ensure uniformity of policies. No increase in Ferencz’s meager salary was considered necessary. To provide legal assistance to claimants for a modest contingent fee, URO offices were opened wherever there were large numbers of former Nazi victims who might need help in submitting claims. Eventually, there were URO branches in 19 countries, and offices in the major cities of Germany where special Finance Ministry agencies dealt with the indemnification claims. Hundreds of thousands of claims poured in. Each one had to be accompanied by persuasive evidence. Medical examinations had to be translated and verified. The German agencies were swamped with literally millions of claims from Jews as well as non–Jews. German nationals and non–Jews were also among Hitler’s victims, and they all benefited from the legislation pushed by the Claims Conference. In many cases, it was almost impossible to prove the direct causal connection between the alleged injury and the persecution. Despite the best efforts of a URO staff of over 1,000 persons, including 250 carefully screened German lawyers, practically all of the claimants had one thing in common: they all felt that whatever they got was too little and too late. With angry complaints, they blamed the URO. A common complaint was that everybody else had already been paid, or had received more for the same injuries. What claimants did not realize was that a reasonably competent and underpaid staff was working very hard to get as much as possible for them. Some German agencies were sympathetic, but many were antagonistic. They were required by law to be meticulous, and there was no way to deal with so many complicated claims in a short period of time. Protracted litigation was often unavoidable. Ferencz recalls the head of the URO office in Stockholm phoning him in a panic about the clients rioting in the office. Ferencz told him to convene a meeting of all the complainers in the main synagogue and he would be there on the next plane. Ferencz took off his jacket when he addressed the unruly crowd. He took their complaints in English, German, French, Hungarian, and Yiddish. Then he invited anyone who felt he could get better service elsewhere to please come to the office in the morning and they would be happy to give him or her back their file with URO’s best wishes. Of course, not a single complainer showed up.

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Many displaced persons (DPs) fleeing anti–Semitism in Poland and other Eastern countries fled to Germany, where they took up residence. They argued that former Jewish communal property such as synagogues, schools, or oldage homes now belonged to them. The issue of ownership of the communal properties, and properties of organizations that had been dissolved by Nazi decree, finally came before the U.S. Court of Restitution Appeals. The legal arguments took place in the courthouse at Nuremberg where the war crimes trials had been held. Ferencz told the American judges sadly that he had stood on the same spot when he prosecuted Nazi murderers of the Jews, and he never thought that he would stand there again to argue against a Jewish congregation. Ferencz’s legal responsibilities under the restitution law were not merely to aid those now in Germany, but also the majority who had been forced to flee. The judges agreed. The landmark decision did not make Ferencz very popular with the new Jewish communities, even though the JSRO had given the local Jewish communities everything reasonably needed for their survival and growth. The variety and unpredictability of the work in which Ferencz’s group was engaged was unimaginable. All religious congregations in Germany are treated as official government entities. They are supported by income taxes levied on those who declare their religious affiliations. Nazi laws had decreed that all Jewish organizations be dissolved, and their assets forfeited to the Reich. Rabbis, teachers, social workers, and even those responsible for circumcisions, had had to flee for their lives. During the course of the negotiations in The Hague, the question arose about who was to pay for the lost pensions of those Jewish officials. The German negotiators balked, saying they had no way to confirm which officials were entitled to what pension. Wearing his Claims Conference hat, Ferencz proposed that the obligation be capped at 30 million marks. They still refused. Ferencz countered with a proposal to set up a committee to certify each claim and if the Social Ministry did not agree, no payment need be made. That was so reasonable that they dropped their objections. Then the fun began. The Pensions Advisory Board was set up in a small office in Bonn in a rickety old building that was inexpensive because the landlord rented rooms by the hour. The sole staff member, a very meticulous German Jew, E.G. Lowenthal, received the applications from former Jewish officials and, based on his own extensive knowledge and investigations, prepared the initial recommendations. The other advisory board members consisted of knowledgeable persons drawn from the JRSO, URO, and Claims Conference. Ferencz was chairman, and his knowledge of the subject was practically nonexistent. Fortunately, the files were clear and comprehensive and many claims could be rejected or approved with little discussion. In case there was a tie vote, Ferencz would always give the benefit of the

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doubt to the claimant. Ferencz said his ignorance was no excuse for rejecting an application. There were several cases where the negative decision of the advisory board was overruled by the Social Ministry, which insisted on paying the claimant. In such cases, Ferencz felt that his board had been too strict, and he felt better about approving the request. Ferencz’s greatest satisfaction came when it became apparent that the pensions program cost the German government at least ten times more than the 30 million marks Ferencz had offered to settle all pension claims. Ferencz claims that the only thing dumber than his proposal was Germany’s rejection of it. No one anticipated that the initial indemnification law that was called for by the Reparations Agreement of September 1952, which led to the Indemnification Law of October 1953, would have to be expanded repeatedly over time. Additional special agreements were later reached with West Germany to close some of the undeniable holes in the compensation net. While Ferencz was busy doing his thing with the JRSO, the Claims Conference, and the United Restitution Organization (URO), his wife was busy helping Ferencz where she could, setting up their home in Nuremberg, and raising their four children. Their first child (Carol, aka Keri) was born in 1950, and their last child (Nina) was born in 1954. In between they had Robin and Don, all four born at the U.S. Army Hospital in Nuremberg. Ferencz and his family lived in Nuremberg until early 1954, at which time they moved to Frankfurt because Cold War issues were starting to cause problems and the American military government headquarters were now located in the former IG Farben building in Frankfurt am Main. At Nuremberg, there had been three trials conducted against German industrialists without whose help Hitler could not have come to power. They had worked concentration camp inmates to death as slave laborers and had seized factories in German-occupied territories. Around 1953, Norbert Wollheim, a former inmate who had worked for IG Farben in Auschwitz, started a lawsuit against the German company demanding DM 10,000 (then about $2,500) as compensation. German indemnification laws provided a small payment for his unlawful detention, but nothing whatsoever for the value of the labor or the pain and suffering. The Finance Ministry insisted that it was a private matter between the laborers and the companies that employed them. Wollheim and his German attorney, Henry Ormond, who had served time in Dachau, turned to the Claims Conference for help. Because of Ferencz’s Nuremberg connection, it was natural that he should accept primary responOpposite: Ferencz, daughter Keri, wife Gertrude, daughter Nina, son Don, and daughter Robin in Germany, December 1954.

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sibility for proceeding against IG Farben on behalf of all those who had toiled for the firm at Auschwitz and other camps. Ferencz worked on this activity at least part time for 8 years — the last 5 years were after he left Germany and turned over his roles in the various restitution organizations to his key staff but remained as a consultant. Dr. Ernst Katzenstein took over the JRSO responsibilities; Kurt May took over directorship of the URO; and Herbert Schoenfeldt became director of the Claims Conference. Ferencz bid farewell to his staff in 1956 at a party in Kronberg Castle near Frankfurt. The Nuremberg trials could try only a small sampling of major Nazi war criminals. German restitution negotiations were bound to have a less than happy ending, since no payments could possibly erase the harm or painful memories. No problems related to the Holocaust could be resolved quickly or adequately. Nor could they be swept under the carpet and be expected to disappear. This extended period of Ferencz’s life in Germany helped him develop his international law skills and his negotiating skills. Ferencz was still a young man — 28 years old as he finished up his War Crimes duties and still only 36 when he finished his full-time involvement with Jewish victims restitution efforts. But he had already demonstrated his intelligence, commitment, courage, ability to get complicated tasks done efficiently, and management skills. This chapter of his biography, while not filled with danger and horrors, demonstrated his growth as a leader and a man to be reckoned with regardless of the tasks facing him. Ferencz’s efforts during his sojourn in Germany from late 1948 into mid–1956 did not provide much support in developing what became his ultimate goal of peace through law, not war. However, it did strengthen Ferencz’s stature, experience, and incredible drive in accomplishing seemingly impossible tasks. In addition, he extended his exposure to highlevel government officials (e.g., West Germany’s chancellor, Konrad Adenauer; U.S. military governor in Germany, General Lucius Clay; and Clay’s replacement, John McCloy) and added management responsibilities for the Claims Conference and the United Restitution Organization (URO) to his resumé. Last but not least, Ferencz greatly increased his reputation as an expert in International Law through his efforts to obtain restitution from German political entities for Nazi victims of the Holocaust and from industrialist entities for their use of Jewish concentration camp prisoners as slave labor — not always totally successful, as explained in the next section. However, all of these activities strengthened Ferencz’s experience base as he moved forward in what eventually became a goal of establishing laws to ensure world peace.

PA RT I I Chapter 11

Starting Over in New York (1956 to 1968) From Frankfurt, Ferencz, his wife, and four children left Germany in the spring of 1956 to settle in their permanent home in New Rochelle, New York (which is still their permanent home, although they now spend more of their time in their winter home in Delray Beach, Florida). Their children all graduated from college and have their own lives, although Ferencz’s son, Don, is now supporting his father full time in pursuit of international peace initiatives. Supposedly, one of the joys of the legal profession is the opportunity to engage in a large variety of activities. Before Ferencz even began his law practice in New York, he had been a prosecutor of mass murderers, the administrator of innovative new charitable organizations, and the director of what may have been the largest legal aid society in the world. However, none of those activities qualified him for the traditional careers that embraced typical Harvard classmates who joined prestigious law partnerships and became bank presidents and leaders of their churches and communities. But Ferencz says: “I have no regrets.” Those board members with whom Ferencz had worked in Germany, including prominent lawyers and industrialists, who had been so effusive with their praise, seemed to have no use for his private legal talents once he was back in New York. It was the same with some of the large law firms. They wanted to know how many clients he could bring with him. Since he had made up his mind that he would not take any fees from former concentration camp inmates, the attractiveness of his Harvard Law degree was rather diminished. He was assured, however, that if the big law firms had to prosecute mass murderers or cope with masses of claims for Nazi victims, they would be happy to consult with him. Ferencz had gone from law school directly into the army. The decade 175

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spent in Germany prosecuting war criminals and then seeking redress for their victims had severed ties to classmates and the legal profession in New York. With limited employment opportunities, he accepted a beginner’s salary with a small law firm that included Jewish organizations among its clients. He occasionally handled a smattering of their unimportant matters, and soon discovered that the practice of law in New York’s lower courts was definitely not to his liking. He found the coarse and greedy clerks and the crowded and unruly dockets to be particularly distasteful. It was, to put it mildly, a very far cry from the lofty ideals taught at Harvard. He decided to strike out on his own and seek new directions. For a while, Ferencz struggled with every case that came along. He handled a few divorce cases, but it always pained him to see how love could sometimes turn to hate — particularly when children were involved. He urged reconciliation or at least a civilized separation. He recommended against getting lawyers involved in the contest if it could be avoided. Exaggerated negligence claims left him cold, and real estate closings were a total bore. Ferencz never charged for drawing a will, and he gave the original to the client so that he could change it at any time without being bound to return to Ferencz for help. He made it clear to any potential client that his legal experience was limited and specialized. Ferencz says his wife suspected that he was trying to frighten away all paying clients. Ferencz felt like he was condemned, like Sisyphus of Greek mythology, to push a heavy rock up a very steep hill, not knowing if he would ever reach the top. The ultimate goal, of course, would be a world of justice under law where all could live in peace and human dignity. Ferencz tried to live in the real world without losing sight of the dream. It wasn’t always easy. To avoid starvation, he did the things that lawyers are normally expected to do to gain clients. He became a member of the local reform synagogue and went on “retreats” with his rabbi and congregation. He joined organizations and social groups, invited acquaintances to lunch and dinner, went to the theater, and made speeches to countless assemblies that could not afford a speaker. At one Bible breakfast he was rewarded by being allowed to take home three leftover bagels, but man cannot live by bagels alone. He characterized his efforts to attract paying clients as “indecent exposure.” Ferencz even tried investing in real estate, but he soon realized that since there were more tenants than landlords, the “temporary” wartime rent controls would last forever. It was impossible for rental income to match expenses. Ferencz was disheartened to see whole neighborhoods turn into slums, and the prevailing corruption led him to abandon or dispose of his holdings at any price — which wasn’t much. Small commercial transactions and dubious negligence cases on a contingent fee held no attraction or treasures. It became

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plain that an admittedly inexperienced and often-absentee lawyer was not in great demand. Ferencz decided to stick with the subjects he knew best. A hungry lawyer welcomes every challenge. Although Ferencz had resigned from his positions as director of the different restitution programs in 1956, he could not walk away from some of the issues that had engaged his personal attention for many years. Ferencz agreed to remain as legal advisor to the URO and the Claims Conference for a modest retainer. It required frequent visits to URO offices abroad, and continuing involvement in resolving difficult problems. It was in that capacity that he became a driving force in the strenuous and long-lasting attempts to obtain compensation from German industrial corporations, such as IG Farben and Krupp, that had worked concentration camp inmates to death. The details are all contained in Ferencz’s book, Less Than Slaves, published in 1979, which won national prizes as the best book on the Holocaust at that time. From the time he left Germany in 1956 until the mid–1960s, Ferencz continued to support the Claim Conference and URO. In early 1957, IG Farben finally settled with the Claims Conference for a restitution amount of DM 26,250,000 ($6,562,500 at that time). This money was spread over 5,855 Jewish claimants in 42 countries. At the end of 1959, Krupp industries settled their restitution amount at DM 10,000,000 (~$2.5 million), and Flick (who owned Daimler-Benz among many other industries throughout Germany) refused to pay any restitution to Jewish survivors of slave labor performed for Flick industries. In addition, smaller restitution amounts were received from AEG/Telefunken in 1960 (DM 4 million for 2,223 claimants), from Siemens and Halske in 1962 (DM 7 million — most of the claimants were from Israel, Hungary, and the U.S., but there were at least 15 other countries with smaller numbers of claimants), and last from the munitions firm Rheinmetall in 1966 (DM 2.5 million for about 1,500 claimants). During the Rheinmetall restitution case, Ferencz was accused by Julius Klein, former commander of the organization of Jewish War Veterans of the USA, of using unethical means in support of the effort to obtain restitution for Rheinmetall’s use of Jewish prisoners as slave labor during the war. He accused Ferencz of pursuing these claims for a legal fee from his clients. Klein’s accusations had been sent in a letter to Associate Secretary of State Tyler of the U.S. As Ferencz stated, “What Julius Klein could not know, and perhaps would not believe or understand, was that I never requested or accepted a fee from any concentration camp survivor, nor would I derive any personal financial benefit whatsoever whether or not a settlement was reached on behalf of the slave laborers.” While Ferencz acted as a go-between during negotiations with the various industrialists when necessary during the restitution efforts and as an advisor to the Claims Conference and United Restitution Organization,

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his compensation was never associated with the success or failure of any restitution obtained. In general, Rheinmetall acted immorally in their rejection of any restitution for their proven use of slave labor during the war. Rheinmetall only provided compensation when it appeared that their potential sale of a 20 mm cannon to the U.S. Army was in danger of collapsing due to anger in the U.S. over purchasing weapons from a German company who was unwilling to provide any compensation to survivors who were used as slave laborers during the war. Further, Rheinmetall’s meager contribution was provided “under the table, as cash, with no admittance of any wrongdoing.1 While most of the industrialists refused to admit any wrongdoing in using slave labor during the war, they did agree to provide some reimbursement to claimants. In all cases the reimbursements amounted to less than $1 a day for the work performed and nothing for the pain and suffering endured. Even worse was the absolute refusal by Flick to provide any compensation for his companies’ use of Jewish slave labor during the war. This in spite of the fact that Flick was one of the richest people in Europe at the time and his companies (including Mercedes-Benz) had reaped enormous profits both during and after the war. Ferencz writes about Flick in 1970 as follows: The Claims Conference representatives were finally convinced that Flick had no intention of paying anything. Flick’s defiant peroration at Nuremberg —“Nothing will convince us that we are war criminals”— still echoed in my ears. I turned my complete file over to B’nai B’rith, which prepared to give the whole truth to the press. A B’nai B’rith article labeled Flick an “unrepentant slave master.” The story recounted the vast wealth he had amassed under Hitler, and after Hitler, and outlined Flick’s friendship with mass murderer Himmler. Car buyers were told that “the man who profits most from the sales of Mercedes cars is a convicted war criminal who has not yet paid off his debt to society.” The report showed that Flick’s actions were a violation of many international laws. It recited all the dodges and excuses the company had advanced over the years to avoid a payment to the former slaves.

Overall, fewer than 15,000 camp survivors were able to prove their entitlement, and they received payouts that ranged from under $1,000 up to $3,000. Every penny received was divided among the entitled survivors. Only a portion of the accumulated interest from bank holdings during the period required to identify the claimants was used to cover administrative costs. The German companies paid as little as they felt they could get away with. It was often very painful for Ferencz to explain gently why some were paid, while others, who had been equally exploited by other companies, had to go away empty handed. All of the parties were dissatisfied with the meager settlements that were made with a few companies. It was the best that could be done under the circumstances. Many on the German side argued that there was no

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obligation to do anything —“war is war.” Some companies felt that, at best, it was perhaps a moral obligation; survivors insisted it was also a legal one. The paltry sums eked out for former slave laborers would cost the German firms dearly about thirty years later. That is not Ferencz’s story to tell, since he was not involved in the later proceedings. However, that the companies would regret their meager payments was predicted by Ferencz’s law partner, Telford Taylor, in his prescient foreword to Ferencz’s 1979 book, Less Than Slaves (Harvard University Press). Ferencz’s own retrospective evaluation appears in the reprint, published in 2002 (Indiana University Press in association with the United States Holocaust Memorial Museum). There is no doubt that the settlement set a historical legal precedent that those who abuse others in their power have an obligation to make amends. That moral principle became binding international law under the statute for the International Criminal Court created in 2002. Telford Taylor praised Ferencz’s efforts — in spite of the limited success — as follows: Thus, within a few years after the end of the Second World War, German industry was able to present a solid front in support of the proposition that it was in no way to blame for the conduct and consequences of the forced labor program. That is why Benjamin Ferencz’s appeals on humanitarian grounds were so often met with the response, “Much as we would like to do something, it would appear as an admission of guilt, and constitute a precedent for demands to other companies.” In short, anyone who broke the united front would be endangering the image of innocence upon which all of them relied. The image, in turn, was the product of many hands and was a welcome vision for the German industrial community, as its plants and office buildings rose, phoenix-like, from the rubble of war. Given this climate of opinion, the remarkable thing about Benjamin Ferencz’s story is not that he and his colleagues reaped a meager harvest, but that they achieved anything at all. In saying this, of course, I do not mean to condone the attitudes which they confronted. To understand is not necessarily to forgive. And I believe that in time, Germany will regret that their industrial leaders did not write a postwar record of generosity, instead of the cold and niggardly one revealed in this book.

While Ferencz’s work on restitution cases provided some livable income, he was still struggling to get established at home in the U.S. Ferencz’s former chief at Nuremberg, General Telford Taylor, who Ferencz says is possibly the best lawyer he had ever met, had also discovered when he returned in late 1948 that being away from the United States is not a good way to develop a paying legal clientele. Upon his return from Nuremberg, Taylor had entered a large prestigious law firm but, after a few years, he left and set up a small office with his brother-in-law, James Landis, a distinguished public servant

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who had been dean at the Harvard Law School when Ferencz received his diploma there in 1943. Ferencz had kept in touch with Taylor over the years and on his many trips to the United States had visited with him and his family. When Landis died suddenly around 1964, Taylor invited Ferencz to come into the firm. Ferencz was happy to accept the desk that Landis had previously occupied. Taylor was an expert on appellate work. One day, he was requested to file an appeal for a notorious mobster who had been convicted of murder and was out on bail. Taylor was a great authority on constitutional law, but Ferencz was the one who had studied criminology. When they consulted about whether the firm should take the case, Ferencz cautioned, among other things, that the fee should be paid in advance. Taylor appreciated the advice, particularly when his client was shot dead in a barber’s chair before the appeal could be heard. In the absence of regular employment opportunities in a legal firm, Ferencz began to acquire a reputation as a private lawyer who would consider hopeless matters. Many of his clients only came to Ferencz after their cases had been lost or rejected by other attorneys. They were willing to pay a small contingent fee if Ferencz could snatch victory from defeat. Much of his practice revolved around weak cases that were morally justifiable. After much litigation in his continuing consulting work on restitution for World War II Jewish victims of Nazi atrocities, Ferencz erroneously thought the problems had been laid to rest, but time showed that was not so. Since his restitution organizational retainers had required him to travel abroad very frequently, he was eventually able to build up a practice related to international claims. One example of such a case involved the world’s oldest and probably most renowned Jewish social organization, the International Order of B’nai B’rith, which boasted more than half a million members and occupied a large white building in the nation’s capital. B’nai B’rith had over a hundred lodges in Germany that were dissolved when Hitler came to power. In Ferencz’s capacity as director of the JRSO, and therefore as the lawful custodian of dissolved Jewish organizations, he was responsible for the distribution of properties and funds to be used for the benefit of all surviving Nazi victims. Just as the JRSO gave the new congregations whatever they required from the former communal properties, the B’nai B’rith Supreme Lodge in Washington had been given the proceeds derived from the sale of their former German branches. Since Ferencz’s relations had always remained cordial with the B’nai B’rith leadership, they were receptive when Ferencz approached them with an idea that, even though it might take years to fulfill, would prove to the lodge’s advantage. The U.S. government, as was customary, had seized all assets owned by

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nationals of countries with which the U.S. was at war. The sale of such enemy assets by the Alien Property Custodian provided funds that the U.S. Treasury could use to reimburse American citizens whose properties in Germany had been taken by the Reich. B’nai B’rith was an American legal entity. Ferencz’s idea was that if it could be shown that B’nai B’rith was the owner of properties confiscated by Hitler, they might qualify to share in the war claims fund. The president of B’nai B’rith was Philip Klutznick, a lawyer and astute real estate developer from Chicago (he was later appointed Secretary of Commerce). He recognized that retaining Ferencz to present a claim for the lodges might be good business. He was right. Of course, it was not easy to prove that a hundred different lodges registered as owners in a hundred different cities in Germany were not really the German owners, since the property belonged to the Supreme Lodge in Washington. The judges in the War Claims Commission were very impressed with Ferencz’s creative legal arguments meticulously presented to substantiate the claims. After long negotiations, presentations, and appeals, the Foreign Claims Settlement Commission issued a final award in favor of the B’nai B’rith Supreme Lodge in Washington for more than a million dollars. However, that did not mean that the sum would simply be handed over in a check from the U.S. Treasury. If the total amount of the awards for all claimants exceeded the funds available, the payout would have to be prorated among the successful applicants. That could not be known until all awards were issued, totaled, and compared with the assets on hand. That would take time and might significantly diminish the actual payout. At the same time, with the help of some astute Washington lobbyists, a preference had been written into the War Claims Law that might end up allocating all of the money to a few privileged corporate clients with very substantial awards. Innocuous-sounding clauses such as “A Massachusetts Bus Compact” and “The Dutiable Status of Alumina and Hydroxide,” were appended to other bills, and there was a real danger that B’nai B’rith, and similarly situated charitable organizations, might get nothing. A new amendment was needed to cancel the one that had been slipped past the numbed noses of the Congress. Foreign Claims awards were matters of public record. As a former war crimes investigator, it was not difficult for Ferencz to discover who was being skewered and by whom. Since Ferencz’s adversaries had considerable influence on “the Hill,” Ferencz turned to even higher authorities. He decided to mobilize the churches and charities that would be the primary victims of the preferential legislation designed to divest them of their legal and moral entitlements. Ferencz invited them to a meeting where a plan of action could be considered. After due deliberation, about twenty of the participants formed

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the Coordinating Council of Churches and Charities with War Claims Awards. On Ferencz’s suggestion, he was invited to serve as counsel to the council. In addition to B’nai B’rith, he thus included among his clients Baptists, Protestants, Presbyterians, Episcopalians, Methodists, Seventh-Day Adventists, and other religious denominations. The Catholics decided to have their interests protected by Sister Celestine, a lawyer whose cooperation Ferencz always welcomed. Ferencz claims she was as sweet and gentle a nun as ever held a rosary, and her help was inspired and priceless. Her order was the Sisters of Charity, and she may have benefited from charity as well as divine inspiration. In order to protect the churches and charities, it was necessary for Congress to enact another amendment to the War Claims Bill. It could only be expected to pass if no objections were raised by any member of the House of Representatives or the Senate. Ferencz moved into a hotel near the Senate and began to make the rounds. In office after office, he explained to the congressional aides that two corporations with large assets in East Germany were now trying to empty the church plate for their own advantage. The allegation that they were entitled to preference as “small businesses” was a deliberate deception. The politicians were quite impressed by the list of U.S. churches whose parishioners needed protection in all corners of the country. No one dared speak out against the committees of their religious constituents, who were organized to call on their congressmen for support. Despite the merit of the amendment proposed by the churches, and the political pressure of the applicants, there were major obstacles to be overcome. Unless the Judiciary Committee voted for the bill, it could not even be considered by the Senate. Ferencz had learned that a leading committee member was beholden to the lobbyists who were trying to raid the war claims till. Senator Edward Kennedy was also on the Judiciary Committee and he was not beholden; in fact, one of his sisters was a nun. Sister Celestine, not related to Kennedy’s sister, accompanied Ferencz and other members of the group when they sought help from Senator Kennedy. He was sympathetic, but was stymied by the situation. The time had come to replace the silk gloves with a Crusader’s cross backed up by a Star of David. Ferencz had come to know one of the aides to the senator who was blocking Ferencz’s bill. The aide was a religious man who was visibly uncomfortable with the position taken by his boss, who was up for reelection. Ferencz informed the aide that when the senator returned to his home state to campaign over the weekend, he would be visited by a committee of church representatives asking for his help. The important responsibility carried by the senator would be widely advertised in a favorable way. If the senator thereafter voted against the churches, that too would naturally attract widespread publicity.

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When the church group called upon the senator as had been prearranged, he listened but made no commitment. He later invited Ferencz to join him for a cup of white bean soup in the Senate dining room. Ferencz proposed a compromise. The senator’s aide was sent scurrying to see if it was possible. After he had contacted the lobbyists, he reported, “No deal.” Ferencz continued his rounds to the honest congressmen. All parties associated with the Coordinating Council were encouraged to contact their representatives. A few days later, the obstructionist senator spotted Ferencz in the Senate anteroom and approached him menacingly, saying, “Who is putting all this pressure on me?” His face grew redder as he shouted, “I’d like to know who is putting all this pressure on me!” Ferencz replied softly, “Senator, you have your responsibilities, and I have mine.” The next day, the Judiciary Committee was scheduled to vote. Sister Celestine and Ferencz were waiting in the corridor outside the committee door. Soon, Senator Kennedy came rushing over to them. “What did you do to that Senator? I never saw such a flip-flop!” Reason had prevailed. The full Senate vote in favor of the churches was in the bag. The House of Representatives also had an interesting denouement. The Speaker of the House was John McCormack of Massachusetts, a devout Catholic. His wife was ill and hospitalized in a D.C. hospital. Every evening, Speaker McCormack joined his wife for dinner at her bedside. The hospital, as chance would have it, was run by the Sisters of Charity. The nun who carried the evening tray had been briefed by Sister Celestine, Ferencz’s distinguished colleague in law. As the tray was handed to the congressman, the nun always asked, “And how, pray tell, is our War Claims Bill coming along?” Ferencz was sitting in the balcony of the House when McCormick called up the bill for a vote. Before Ferencz knew what was happening, and with no discussion, McCormick slammed down his gavel, and shouted, “Passed.” Ferencz’s fee was seven percent of the additional amount gained for his clients. Some of the biggest awards were made to important churches that took the benefits without contributing to Ferencz or to the group. The Catholics, with a sizeable award, contributed only to the services of Sister Celestine, who was worth her weight in gold. Ferencz was so pleased with the success that he invited all those who had helped with the negotiations to be his guests at a party at a nice Italian restaurant in Greenwich Village. Sister Celestine arrived in a rickety old car driven by Sister Rosa. Since the waiters were not quite ready, Ferencz and the two nuns were invited to have a seat at the bar, where the nuns were served cold Coca-Cola. When the owner showed up, he was quite surprised to see two nuns, in full habit, having a drink at his bar. Ferencz could see his consternation, until Ferencz explained. But it was a good laugh and a fitting celebration of their efforts in a common and noble cause.

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Ferencz says that one of the enduring lessons of his life has been that if you are trying to achieve a just goal, even if it is without precedent and appears hopeless, the obstacles can be overcome with patience, perseverance, and persistence. There are four basic rules to follow: Never give up! Never give up! Never give up! Try harder! Even after unprecedented German laws were enacted to provide some compensation to victims of persecution, and even after they were solidified by laws that were labeled “Final,” it was still possible to obtain additional payments to help fill some of the gaps. When you are doing the impossible, it takes somewhat longer and requires much greater effort. To be sure, having clients who pay in advance makes life easier; Ferencz’s law practice was seldom easy. When the concentration camps were liberated by Allied forces in 1945, many of the inmates were more dead than alive. Tuberculosis, dysentery, diarrhea, typhus, and other diseases had ravaged the emaciated bodies of starving survivors. Army medical teams were on the scene quickly but, if the sick were ever to be restored, long-term medical care would be vital. In most cases, complete recovery from invisible traumas would be impossible. Without immediate medical aid, many of the survivors would have perished. During negotiations at The Hague in 1952, Germany recognized the legal principle that the cost of caring for Hitler’s victims should be borne by the wrongdoing German state. But they refused to compensate any private welfare agencies that cared for the sick and the dying. That refusal of the wrongdoer to reimburse the good–Samaritan private organizations seemed to Ferencz to be an injustice that called for a remedy. After long debates, the responsible German officials agreed to consider reimbursement if the individual victim in fact had a legal obligation to repay the charitable organizations that had incurred medical expenses on the victim’s behalf. As Ferencz would soon find by studying masses of records, this was indeed the case. Many of the Nazi victims had signed hospital paperwork agreeing to assign monies they might receive to pay for incurred costs. This legal obligation on behalf of the Nazi victims could serve as the basis for a claim for compensation. Ferencz passed this along to the Jewish organizations that might profit from the information, with a gentle suggestion that they might wish to consider retaining him to represent them on this difficult and uncertain matter. Not all potential clients were prepared to accept Ferencz’s offer. For instance, Ferencz approached the Canadian Jewish Congress, since many Jewish survivors had found refuge in that country. The president of the congress was Sam Bronfman, who made a fortune selling liquor. It was even reputed that, during prohibition in the United States, the Bronfman distilleries had been a supplier for the notorious bootlegger Al Capone. Bronfman did not want to pay for Ferencz’s services.

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Ferencz had a similar experience with the Jewish Hospital in Denver, which had specialized in treating tubercular concentration-camp survivors. Their cautious administrator felt that they could not agree to cover even part of Ferencz’s expenses. After years of effort in assembling evidence and contentious legal negotiations with several German ministries, Ferencz succeeded in settling the issue in favor of those clients who had authorized him to proceed on their behalf. Ferencz didn’t have the heart to leave the Denver Hospital out in the cold. When he mailed a check with a significant sum to the Denver Hospital, the new administrator thanked Ferencz profusely for what he thought was a very generous personal donation. It was particularly gratifying to present a sizeable check to the Hebrew Immigrant Aid Society (HIAS), which had given Ferencz’s family refuge when they first arrived in America. The New York Association for New Americans (NYANA) was a delighted recipient of unexpected reimbursement from Germany. These agencies had been fully cooperative in gathering the evidence necessary to persuade the Germans to make reimbursement payments, and they were very appreciative of Ferencz’s unusual efforts. Since Sam Bronfman and the Canadian Jewish Congress had instructed Ferencz to do nothing on their behalf, that’s what Ferencz did, and that’s what they got. Another drawn-out case with medical implications concerned young Catholic women who had been victims of experiments while prisoners at the Nazi concentration camp in Ravensbrueck, Germany. For purely political reasons, West Germany refused to consider any claims from Nazi victims who resided behind the Iron Curtain. The argument was made that since West Germany had no diplomatic relations with Poland or other communist countries, claims from those areas were excluded. Ferencz always felt that such irrational discrimination was unjustified, but there was nothing he could do to change it. One day, in 1957, a very nice lady named Caroline Ferriday showed up at Ferencz’s office with an interesting plea. From her association with various anti–Nazi organizations, she had learned about young Polish women who had been shipped to the concentration camp at Ravensbrueck, where they were subjected to a host of medical experiments. The record of such cruelties had been spelled out in the Medical Case at Nuremberg, and Ferencz knew that the Nazis would commit any atrocity in the name of science. Miss Ferriday knew that Ferencz had helped Jewish claimants, and she wondered if Ferencz would also come to the aid of the Catholic ladies from Poland. Ferencz’s humanitarian concerns were never drawn along religious lines, and he promised to be of assistance. After the United States dropped a nuclear bomb on Japan, the editor of the prestigious Saturday Review magazine, Norman Cousins, arranged to bring

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a group of “Hiroshima Maidens” to the U.S. for cosmetic surgery. They were treated by a Jewish surgeon, Dr. Hitzig, in a New York hospital in the hope that the humanitarian gesture might help to heal the wounds in more ways than one. The kindly effort at reconciliation received much favorable publicity. With Ferencz’s support, Miss Ferriday approached Norman Cousins with a request that he consider doing the same for the scarred young women of Poland who had been treated as guinea pigs. After some deliberation, Cousins created a committee of publicists to deal with it. Ferencz was invited to be the pro-bono counsel, and he took it upon himself to try to persuade the West German government to include the victims of medical experiments in their compensation legislation. The Germans absolutely refused to consider it. It didn’t take long for the committee to conclude that they absolutely refused to take “no” for the unkind answer. “Never give up!” was the battle cry. Cousins arranged for a plane to bring a large group of scarred women from Warsaw to New York, courtesy of Pan American Airlines. The young ladies were greeted at the airport by the press, and were then taken to St. Patrick’s cathedral where the cardinal made a stirring speech welcoming the once-fair maidens to his fair city. Arrangements were made for the young ladies to attend meetings in Washington with congressmen who had significant Polish constituencies. All the publicity had the same plaintive song: “See what the Nazis did to these poor girls, and the West Germans won’t give them a cent. For shame! For shame!” The German ambassador in Washington had brushed off Ferencz’s first approaches. After listening to Ferencz’s group’s plaintive melody, which was broadcast on radio all across the country, the embarrassed ambassador began to change his tune. He showed Ferencz a copy of his cable to Bonn saying that it was not a legal matter but a political problem that had better be resolved quickly. Soon, the West German cabinet held a special meeting to deal with the hot political issue. Trying to overcome the adamant German opposition to any payment, Ferencz had proposed that a fixed limit be set on the total cost. Ferencz stood by in the cabinet anteroom in Bonn in case negotiations required his presence. The word soon came that the cabinet was willing to make a payment, but wanted an independent organization to finalize the deal. Ferencz suggested they bring in the International Committee of the Red Cross. When that seemed agreeable, Ferencz flew to Geneva, where the Red Cross stated it would accept the responsibility but only if there was no maximum set on the total. They would medically examine each applicant and pay agreed-upon sums to three different categories of claimants, depending upon the severity of the injuries. The German government, of course, would have to bear all costs. Having gone so far, the cabinet could no longer back out. The deal was sealed.

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On June 22, 1960, the German cabinet passed a special resolution authorizing payments to victims of medical experiments, including those from the East. Ferencz even arranged that payments would be made in Swiss francs at a favorable rate of exchange, and could be spent by the beneficiaries for medical care in Switzerland. Having created the precedent, the German government was soon flooded with similar claims from medical experiment victims in Hungary, Czechoslovakia, and other eastern countries. A few years later, one of Ferencz’s insider German friends, who handled Finance Ministry statistics, reported to him the amount actually paid out for victims of medical experiments. It was at least ten times more than what Ferencz had suggested for a quick global settlement. One of the health-related clauses that the West German government accepted for inclusion in the indemnification laws was the right of an injured Nazi victim to seek free rehabilitation at a German spa. It was argued that if the disability could be diminished, the compensation might be reduced. Israeli doctors, many of whom came from Germany, were quite accustomed to prescribing several weeks of convalescence in quiet surroundings. The indemnification authorities were happy to grant the request. It couldn’t do any harm, and it might help. Besides, the German spas would prosper. URO board meetings were often held in such spas. Ferencz was always tickled to notice that many of the old ladies promenading through the lovely gardens and drinking the waters spoke to each other in Yiddish.

Chapter 1 2

Beginning to Work Toward Peace Through Law (1968 to 1990) Ferencz’s law practice required him 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, Ferencz had a number of varied experiences and encounters that deserve some mention. In the midst of the undeclared Vietnam War in the 1960s and 1970s, 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 Ferencz admired, was then past 90 years of age, and Ferencz was skeptical about having any personal involvement in such an enterprise. He decided to check it out before responding to their requests for his help. On his next trip to London, in 1967, Ferencz located the small Russell office and asked for more information. Propaganda leaflets, extolling the Soviet Union, were neatly stacked on shelves. On the wall, Ferencz noticed a schedule 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 Ferencz expected to be in that city. Sure enough, on the appointed day, Ferencz could see from 188

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the balcony of his hotel facing the Kurfürstendamm that crowds of young people were gathering, waving anti-war placards. It made Ferencz feel right at home. He 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. Ferencz 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. 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. Ferencz tried to analyze and present the issues objectively in an article, “War Crimes Law and the Vietnam War” (American University Law Review, Vol. 17, No. 3, 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, Ferencz wrote another article, “Compensating Victims of the Crimes of War” (Virginia Journal of International Law, 1972). Years later, Ferencz 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 Ferencz first heard the Hugh Thompson story, in a book by Seymour Hersh, Ferencz 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 Ferencz, when Ferencz met him in New Rochelle years later, that he had never met Seymour Hersh and the book My Lai, written by Hersh, was full of fabrications and exaggerations. However, Ferencz 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. 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, jus-

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tice, and peace in the world. These aspirations were articulated by René Cassin, a Jewish lawyer who had fled from Paris with General de Gaulle before the German armies occupied France. Cassin received the Nobel Peace Prize in 1968 for his work in drafting the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948. That same year, he was also awarded one of the UN’s own human rights prizes, even though many of his ideals remained unfulfilled during his lifetime. While on one of his European trips in the 1970s, Ferencz stopped at the beautiful old city of Strasbourg to meet with Cassin at the Human Rights Institute, created there in his honor. Cassin 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. When Cassin was being honored by a luncheon at the Waldorf Astoria in New York, Ferencz served as his translator. They remained in touch for many years. Ferencz admired his persistence and courage and his example encouraged Ferencz in his decision to work for a more humane world. Of course, Ferencz also discussed his plans at length with his friend and ex-law partner Telford Taylor. Taylor too had been drifting away from the practice of law in New York and was teaching part time at various universities. He suggested that Ferencz get in touch with Professor Myres McDougal of Yale. Ferencz knew that Professor McDougal was one of the most outstanding legal scholars in the world. He came from Mississippi. Mac, as he was known to his friends, was quite an exceptional jurist. His focus was on human rights. Ferencz’s experience is that most international law teachers are somewhat stodgy ex-diplomats dealing with the law of treaties and the protection of sovereign states. “Human rights” was not in their job description. They seemed to forget that, in a democracy, governments derive their just powers from the consent of the governed. McDougal was part of a new breed of law teachers who recognized that law was not static but had to adapt to meet the needs of a changing society. In Ferencz’s view these pioneers included professors Louis Sohn at Harvard, who wrote the classic World Peace Through World Law, Lou Henkin, and Oscar Schachter at Columbia, as well as Tom Franck at New York University. They advocated the revolutionary notion that all human beings are endowed with fundamental rights that should be protected by the rule of law. Ferencz liked that idea since it matched with his thinking. In January 1970, Ferencz wrote to Professor McDougal, telling him that he was tiring of practicing law and wanted to devote the rest of his life to the quest for world peace. Ferencz told McDougal that he was impressed with McDougal’s particular interest in defining aggression and creating an international criminal court as stated in McDougal’s book Law and Minimum

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World Public Order. McDougal explained that he and his co-author spent at least a year’s time on their chapter dealing with aggression, that he believed it to be their best intellectual work, and that no other reader had ever commented on it. McDougal invited Ferencz to come up to New Haven and visit him at Yale. Since no one but Ferencz had noticed the profound analysis by this great professor of the subject that was Ferencz’s primary interest, he began to suspect that his own work would not meet with widespread public acclaim. Since he had already concluded that stopping war-making was the most important problem in the world, he was not deterred by the difficulties and indifference that was anticipated. Ferencz does not mean to suggest that he was alone in his determination to seek a more humane world. Quite the contrary, there were countless individuals and organizations that felt the same way. He wanted to find the most effective way that he could apply his experience in advancing the common goal. At first, he thought it might be best to go back to school to learn what he had missed while away fighting the war and setting up restitution programs. McDougal had suggested that Ferencz had enough education with his Harvard doctorate and that he was probably already too old to be accepted for a teaching career. He did not indicate how uneducated or young you had to be to qualify for such positions. Instead he suggested that Ferencz think, read, and write on the subject. Ferencz followed the learned professor’s advice. He had already thought about it but figured it wouldn’t do much harm if he thought some more. He had already read quite a number of books dealing with related topics and was prepared to read many more. He was, however, not prepared to write about anything until he knew more about what he was supposed to be writing about. Ferencz found that many authors were not inhibited by such bizarre restraints. His next step was to bury himself in additional studies. From personal observation of dreamers Ferencz has had the privilege to know, he 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 Ferencz says is beyond his 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 Ferencz encountered in the search for a world of peace and humanity under law. Nations that had historically been at each other’s throats for centuries formed the European Union, with the Convention on Human Rights, which was accepted by all members. The Court of Human Rights was established

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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. Ferencz 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 living examples 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 nonexistent. Soon after Ferencz began to seek compensation from German firms for the abuse of their slave laborers, Ferencz 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 Ferencz could do to help him. Ferencz remained in contact and, in due course, Buergenthal 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, Ferencz lectured to Professor Buergenthal’s class at the New York School of Law in Buffalo. He 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 Thomas Buergenthal was particularly sensitive to the need for protecting human rights. In 1979, Buergenthal became president of the Inter-American Court of Human Rights and the American Society of International Law. Buergenthal continued teaching at various universities, and wrote numerous books and articles dealing with the subject. Buergenthal also 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 he earned many awards. Buergenthal later became recognized for his participation in the International Criminal Court, as explained in the next chapters. Around 1971, Ferencz 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. The conference, along with several similar gatherings in later years, was organized by Robert Woetzel, who had co-authored a book dealing with the feasibility of an international crim-

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inal court. Woetzel managed to bring together more than a dozen noted international legal experts. Professor Louis Sohn of Harvard was the chair. Sohn’s book, World Peace Through World Law, was a classic. Ferencz met Sohn often at meetings of the American Society for International Law, where Sohn was president. Sohn was an outstanding legal scholar who later wrote introductions to four of Ferencz’s books written between 1975 and 1991. He and Ferencz remained friends until Sohn’s death in 2006. 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, he agreed that Ferencz 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. Robinson 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 Ferencz’s privilege to pay homage to this unsung hero at his formal farewell dinner in Trinidad. Professor Ved Nanda of Denver Law School was another Wingspread pioneer. In 1979, Ferencz invited Nanda and Professor Otto Triffterer, then teaching in Germany, to join in a panel discussion in Madrid. Otto failed to show. Fortunately, Nanda had brought one of his bright students with him. Ferencz asked her to serve as a substitute. She did such a good job that Nanda and his student were soon wed. They sent Ferencz photos of their colorful nuptial celebration in India. Ferencz 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 Ferencz 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, they were informed that, regrettably, all the passengers’ luggage had departed for some distant and unknown land. Since Ferencz only traveled with a carry-on suitcase, he promptly prepared a package of shorts and shirt for his short friend Nanda. Years later, when Ferencz was invited to Denver to lecture to Nanda’s class, Nanda introduced Ferencz as “a man who would give you the shirt off his back.” When Triffterer became dean of the Law School in Salzburg, Austria, he arranged summer seminars on international criminal law. Ferencz was happy to be a regular lecturer for his old friend. In summary of this period of Ferencz’s life, he showed his perseverance and negotiating skills as he took on the job of obtaining restitution for victims

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and families of victims of Nazi crimes against humanity. This was almost a “mission impossible” considering the timelines and overwhelming number of cases that had to be handled. He succeeded beyond anyone’s real expectations, but still fell short of what he would like to have achieved. However, in his role as leader of the JRSO in Germany he had made many important friends and established a name for himself that carried him into his new life as a struggling lawyer back in the U.S. More importantly, however, it strengthened his resolve to pursue the issue of establishing rules of law to ensure peace and prevent war because of the devastating effect of war crimes on innocent people caught in the middle. As time went on, he became more and more involved with people of stature who shared his concerns and wanted to establish some form of legal means to prevent escalation of conflicts. Ferencz’s experiences with Nazi atrocities had left Ferencz with the firm conviction that this behavior should happen “never again.” As Ferencz moved into the 1970s, he began to get more and more involved with people and organizations with a similar mantra: world peace through law. For Ferencz, this was fate at work again, leading him to his new focus in life. This section is about how Ferencz used his amazing energy and vision in the mid–1970s and beyond (into the present) to help ensure the successful establishment of the International Criminal Court. He believes this to be the first and most important step in ensuring a more peaceful and humane world for future generations. Ferencz knows that there is no magic formula for achieving world peace quickly, but he firmly believes that it can and must be done if humankind is to survive on this planet. Ferencz long ago concluded that the framework had to be built around law, courts, and enforcement. Therefore he embarked on a new career as an unpaid lobbyist for peace. The UN became his workshop. His weapons were his pen and his voice, and his tools were books, articles, public lectures, media interviews, and university courses where he spread his gospel. That is how one very dedicated individual has tried to change the world, and this is the story of his successes, albeit still short of his real goal. For Ferencz the idea to spend the rest of his life trying to improve the world is not something that struck him like a sudden bolt of lightning. It came upon him gradually as a result of personal circumstances and observations. He was perfectly aware that there is no instant evolution and no painless revolution. No one requested him to improve the world. No one authorized him to do it. No one paid him to do it. He knows of no rational reason for his decision. Why him? The only explanation he has to offer, to himself or anyone else, is simply that he had to follow that difficult and tortuous road because that is who he is or, because of his experiences, had become. As a young man Ferencz was an avid reader. He was fascinated with books on religion and philosophy. He was never convinced that one particular

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god was better than others, and found it quite remarkable that a poor Jewish boy born in Bethlehem could be worshiped for thousands of years by millions of Christians all around the world. He admired Buddhist teachings for their peaceful acceptance of fate and suffering. He was also impressed by the brazen courage of Mahatma Ghandi and others, who dared to confront power with reason. He was mindful that those he admired most were crucified, burned alive, or assassinated. He had no special ambition to follow in those particular footsteps. The call came from within. The practice of law in New York was disappointing. He considered himself fortunate to be able to continue seeking compensation for victims of persecution. Supplementing his organizational retainers by handling small routine cases in the New York courts was uninspiring. He found himself drifting toward an international practice that depended upon his discovering injustices and trying to correct them. Perhaps he had been spoiled by starting his legal career, at the age of 27, with the biggest murder trial in history. The Nuremberg Tribunals were only the beginning of a process. Trying to heal the wounds by rehabilitating and providing funds for impoverished survivors was even more important and challenging than convicting a handful of mass murderers. He felt that the best tribute that could be paid to those who had perished would be to prevent such Holocausts from ever happening again. Ferencz’s life’s programs were not preplanned, but unfolded in a logical sequence. The 1960s and ’70s were a time of turmoil for America and the world. The United States was at war in Vietnam for reasons that were not shared or understood by large segments of the population. Peaceful student protesters against the war were being shot down by policemen in uniform. Patriotic young Americans were fleeing to Canada to avoid being sent to Vietnam. American combat troops, under pressure of unconventional warfare, were responding with atrocities reminiscent of the Nazi era. Top government officials were suspected of illegal covert activities. The massacre of innocent civilians by soldiers in American uniform at My Lai in 1968 shocked the world. Telford Taylor, Ferencz’s law partner and former chief at Nuremberg, visited North Vietnam and reported, in a best selling 1970 book Nuremberg and Vietnam, that the United States had forgotten the lessons it had tried to teach the rest of the world at Nuremberg. Taylor started shifting toward a teaching career as a professor at Columbia University. The U.S. civil rights movement was also in turmoil. Many despairing and confused young people were getting addicted to hallucinogenic drugs. In a stirring speech aimed at the Soviet Union, President John F. Kennedy threatened to bear any burden and fight any foe to protect American interests. The U.S. government was clandestinely plotting aggression and assassinations in

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various parts of the globe. Ferencz had been schooled to uphold the rule of law. Others in high positions seemed to think that power was more important. Ferencz was beginning to feel like many others who were saying, “Stop the world, I want to get off.” Ferencz decided that life was too short to spend it doing things that provided no satisfaction. Despite inevitable and unavoidable frustrations, Ferencz mostly enjoyed his work on behalf of the victims of crimes against humanity. Now, however, having spent over two decades as a pioneer in those endeavors, he felt he should gradually turn the reins over to others. He did not wish to continue scraping what seemed to him to be the bottom of the barrel. His four children had all received a good education and were growing increasingly independent. By living frugally, Ferencz had managed to save some money, which he had invested cautiously and smartly and was lucky enough to become independently wealthy. He had no fear about striking out in a new direction. But what should it be and how should he go about launching a new career at an age nearing 60? It seemed to him that he should try to build on what he already knew. He had seen the horrors of war and learned about the mentality of unrepentant mass murderers who were prepared to kill large numbers of innocent people in order to achieve their own misguided goals. Ferencz knew about war crimes trials and the rule of law. He had witnessed the suffering of humankind and knew something about the new ideas called human rights. Most important of all, Ferencz recognized how inadequate were the means available to curb the evils that continued to dominate human society. He considered it hypocritical to condemn genocide and other crimes against humanity as long as there was no court to try the offenders. It seemed an enormous tragedy to denounce war as the supreme international crime, yet allow wars to flourish. He believed that if he could harness his experience and legal training to help fashion a more humane and peaceful world, that would be a goal worth pursuing. Even if the goals could never be attained in his lifetime, it would still be worthwhile if some progress could be made. How does one man begin? Never having taken a course in international law, it occurred to Ferencz that he should do some exploratory work in a good library. Fortunately, there was no shortage of books written by distinguished authors who could find solutions for every problem and problems for every solution. Perusing such volumes convinced Ferencz that it would be prudent for him to focus attention on subjects that related to work he had already done. He decided to pick up where Nuremberg left off. He began his new endeavors by seeing what needed to be done to establish a permanent international criminal court to hold the leading planners and perpetrators of the supreme international crime — aggressive war — to personal account.

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The best source for information about world peace could be found in books stored in the locked basement three stories under the main library of the United Nations. In order to gain access, Ferencz managed to get a pass as a member of a non-governmental organization accredited to the UN. The Coordinating Board of Jewish Organizations was happy to list Ferencz as one of their representatives. Later, Ferencz represented the American Society of International Law (ASIL), which was a much more neutral and less provocative affiliation. It did not take long for Ferencz to discover the old League of Nations archives. He managed to be entrusted with a key to the vast treasure trove, and the librarians allowed him to remain in the cellar alone studying the dusty archives to his heart’s content. Ferencz recalls that in his long hours of toiling amidst the musty records, he learned what plans were made to maintain peace after about 20 million people had been killed in World War I. He read all the minutes of all the meetings and all the related books and articles he could lay his hands on. In addition to his intensive research, Ferencz attended lectures, meetings, and conferences at the UN and elsewhere dealing with related topics. He joined many organizations dedicated to creating a more peaceful world. Since these were all non-remunerative, he also kept up with the paid assignments he had from the Claims Conference and the United Restitution Organization, which required him to attend meetings in Europe. At no expense to his old organizational clients, some of his time abroad was also spent studying at the Max Planck Institute in Heidelberg and at UN meetings in Geneva. For almost a quarter of a century, distinguished jurists from nations all over the world were talking about how to define the crime of aggression. They had halted consideration of a more comprehensive code of international crimes because they were unable to agree on a definition of this main crime. If there was no code, there was no need to work on the creation of an international criminal court to interpret the nonexistent code. So they talked some more, and got nowhere. The Cold War was the excuse to put all three topics — the definition, code, and court — in the deep freeze. Meanwhile, wars were raging all around the globe, and young soldiers and countless civilians were dying while hoping for the more peaceful world they had been promised. Ferencz could not avoid feeling frustrated as he began his regular attendance at various UN committees assigned the duty of defining aggression. In addition to collaring diplomats in UN corridors, Ferencz began to write memos and law review articles exposing what was happening, and suggesting various ways to get out of the quagmire in which distinguished representatives were wallowing. Nations should have learned after the First World War that failure to prevent aggression could be bad for their health. Yet, despite the finding of

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international courts after World War II at Nuremberg, Tokyo, and elsewhere, the delegates who sat on the many UN committees that were supposed to define the crime of aggression did practically nothing. They were under instruction of their foreign ministries to protect their own national interests. The sad truth is, that powerful states were not yet ready to entrust their security to any untested international body. Those who didn’t have the power could not bring about needed changes, while those who did have the power were not ready to give it up. Ferencz refused to believe that countries that survived the ravages and barbarities of two world wars would continue, in the nuclear age, to insist upon military might as the main protector of their national destinies. As a former combat soldier and Harvard lawyer, Ferencz had an unshakable conviction that law is better than war. He began to write articles and books designed to outline new legal foundations for the maintenance of world peace. The American Journal of International Law, the Columbia Law Journal, the International and Comparative Law Quarterly, and a host of other highly respected publications carried his pleas for change. He published several compromise proposals to try to help the UN committees carry out their mandates to agree on a definition of the crime of aggression. He distributed copies to all of the delegates and met with many of them with specific suggestions that seemed to be welcomed, particularly by the smaller states. Ferencz had doubts that it did much good, but he didn’t think it did any harm, either. The breakthrough came as the Cold War was beginning to thaw. Arguments became less rancorous, and the outlines of possible compromise proposals began to appear. In 1974, the Special Committee on Aggression was finally on the verge of reaching an agreement. On December 14, 1974, the General Assembly, representing 138 states, routinely resolved to accept the consensus definition without a vote. Ferencz invited his wife to join him at the UN to witness the auspicious occasion. As Ferencz anticipated, after the usual speeches of self-praise, the delegates agreed that a definition of aggression, which had been so thoroughly debated for so long, could be spelled out and accepted by consensus. Ferencz told his wife to look around at the empty visitor’s gallery. He pointed out that they were the only two persons in the large conference room who were not being paid to be there. When the delegates later assembled for the official photograph of those responsible for the historic achievement, the chairman invited Ferencz to stand with the group. Since Ferencz had no official position whatsoever, he was honored to do so. But Ferencz had no illusions; the bottom line of the definition, after all those years, was that aggression is whatever the UN Security Council says it is. The five Permanent Members, those most capable of threatening the peace, would decide whether the use of force was criminal or not. Powerful nations would rather be free to commit aggression than to define it in any legally binding way.

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The heart of the difficulty lay in the unwillingness of the international community to create any effective legal mechanism for the mandatory settlement of irreconcilable disputes. To gain acceptance by consensus, they found it necessary to adopt language that was so exquisitely ambiguous that all sides could interpret it to their own advantage. In the final analysis, it was left to the Security Council to decide when aggression by a state had taken place. Many lawyers worked long and hard to achieve such an uninspiring conclusion. The UN definition was little more than a sieve. Yet, it reflected the irrepressible human desire for peace protected by a rule of law. From 1975 and into the late 1980s, Ferencz continued to explore and document ideas on how to ensure world peace through law. His books — documentary histories and analyses — written during this period include the following trilogy: • Defining International Aggression: The Search for World Peace (1975) • An International Criminal Court: A Step Toward World Peace (1980) • Enforcing International Law: A Way to World Peace (1983) The main accomplishment of the 1974 consensus definition of aggression is that it removed the barrier that had been used as the excuse to halt work on the draft Code of Crimes and the creation of the International Criminal Court that had been mandated by the General Assembly in 1946. The UN general counsel, Eric Suy of the Netherlands, with whom Ferencz had coauthored a publication on the ICC, lost no time in reminding the delegates that they could now proceed to deal with the issues that had been allowed to lie dormant for decades. By that time, most of those present had forgotten the objective of their labors. The U.S. representative argued that they were simply composing a nonbinding declaration that the Security Council might want to look at some time. They ignored the fact that they were laying the foundation for an international criminal code that was expected to be comprehensive and precise. Despite the shortcomings, with the Cold War over, the way was cleared for nations to resume work on the next steps — preparing a new criminal code and creating a new international criminal court. The greatest threats to world peace do not come from swords. “Wars,” we are told, “come from the minds of men.” The inability to reconcile deeply held convictions is what drives nations and people to kill and be killed for their particular ideals. Those who boast that they are rational human beings should have learned that you cannot kill an idea with a gun. An idea can only be vanquished by a better idea. Ferencz’s 1975 two-volume book, Defining International Aggression, was well received and was honored as a Best Academic Book. His next two-volume book, An International Criminal Court: A Step Toward World Peace, in addition

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to the comprehensive narrative, included copies of original documents and speeches made on the subject during the past century. It was an invaluable source book for serious scholars who had neither the time, ability, nor the inclination to bury themselves in the stacks below the United Nations. Copies of all of Ferencz’s books were donated to the UN Law library. Ferencz learned that diplomats and delegates are book-lovers; the UN librarian repeatedly asked Ferencz if he could provide additional copies, since those that had been on the shelf had mysteriously disappeared. After Ferencz’s third two-volume book, Enforcing International Law: A Way to World Peace, was published in 1983, Ferencz’s wife Gertrude suggested that he stop producing such big tomes and write something that normal human beings could understand. In fact, Ferencz regarded his previous comprehensive compendiums as his notebooks. From them, he reached the conclusion that civilized societies, of every size, were based on three foundations: clear laws to define what is permissible or impermissible; courts to interpret the laws and serve as a medium for settlements; and a system of effective enforcement. Each was dependent upon the other. International law, courts, and enforcement were part of an evolving process that had not yet reached maturity. Following his wife’s advice, Ferencz wrote A Common Sense Guide to World Peace. It was only 100 pages long and was published in 1985. In it, Ferencz summarized the basis for his conclusions and described what had been done, what should be done, and what could be done to create a more rational and humane international system. Ferencz drew on his previous trilogy to provide a more reader-friendly discussion of the growth of international law through the years, the utilization of international tribunals (such as at Nuremberg after World War II), and the need for international law enforcement. The Common Sense Guide was respectfully dedicated to “those leaders of the United States and the Soviet Union who will have the courage and the wisdom to overcome their fears and reconcile their differences so that all who dwell on this planet may live together in peace and dignity regardless of their race or creed.” That was the recurring theme of all of Ferencz’s writings since he first peered into the hell of the Nazi concentration camps during World War II. The short book argued for the elimination of all nuclear weapons, and quoted President Dwight D. Eisenhower and other great American statesmen and generals who recognized the imperative need for a more peaceful world order. It stressed the benefits of more caring and sharing and the need for better institutions of international governance. The book noted that it defies common sense to have a policy that makes human survival dependent upon the threat of human destruction. He then goes on to describe what should be done in the areas of improv-

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ing international law, increasing the judicial role, and enforcing the law. In his conclusion he states: If people will use their common sense, certain truths will become self-evident. As we noted at the outset, every town, hamlet, and city — all over the world and for at least hundreds of years — has agreed to be governed by a system of laws, courts and enforcement procedures. Admittedly, the results are less than perfect, but of this we can be sure — even an imperfect system is infinitely better than the anarchy and chaos that would prevail if there were no laws, no courts and no police to enforce rules of behavior. Yet, in the international sphere, sovereign states are bound by very few laws, the international court system (such as it is) lacks the powers of ordinary tribunals, and international enforcement is all but absent. Common sense dictates that even though the international scene is much more complicated than the domestic one, the model that has been found to be essential to regulate every smaller political entity should also be applicable to govern relations among nations. In an interdependent world, it makes little sense for nations to pretend that they are completely independent. Common sense should tell us that in today’s dependent world the notion of absolute sovereignty is obsolete.

Reason should have rejected a world security plan based on a theory that was both genocidal and suicidal. Ferencz refused to believe that humankind could invent the means of destroying the world, yet lacked the intelligence to prevent it from happening. How to achieve the peaceful goal? Well, that required more books, and more work. Although A Common Sense Guide to World Peace was written in 1985, it is obvious that the only real change since then has been the development and establishment of the International Criminal Court. This is where it is seen how Ferencz has — through his dedicated efforts — had at least some partial success bringing his common-sense ideas to fruition. Around this same time one of the professors at Pace Law School, Blaine Sloan, who retired from the UN, urged Ferencz to join his faculty as an adjunct professor. He accepted the task of teaching “the International Law of Peace” one evening a week. Since Ferencz had opted to replace his Bachelor of Law (LLB) degree with the new designation of Doctor of Law ( Juris Doctor — JD) offered by Harvard, he had suddenly become Professor Doctor Benjamin Ferencz. His classes at the Pace Law School started in 1985 and were well attended, with rave reviews from the students. His own books were the primary texts, but the class was required to read the New York Times “Week in Review” on topics related to international peace. There was never any shortage of hot topics to be debated. Teaching was a learning experience for the teacher as well as the students. When Iraq, led by dictator Saddam Hussein, went to war against Iran in the late 1980s, U.S. sympathies were with Iraq. Iran had outraged the American

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public by holding its innocent citizens hostage. About a million young Iranian boys were shot down by Iraqi soldiers equipped with the best weapons the U.S. could provide. Mothers of the slain were filmed proudly displaying photographs of their martyred children. Ferencz asked each member of his class, many of whom came from abroad, what they, as international lawyers, might have done to prevent the senseless loss of innocent lives. No one had any useful answer. When adversaries are vilified and opponents are prepared to kill and die to uphold their own ingrained beliefs, no one can protect them. Nationalism and religious convictions trump the power of reason. Every war in history has had an ending, but most wars end only when the parties get tired of killing each other. Utter defeat is another option, but it is the most destructive one. It would certainly be more humane and logical to end disputes before war begins. The UN Charter lists seven specific procedures for the peaceful settlement of disputes or any “other peaceful means of their own choice.” But the charter, which all nations are legally pledged to uphold, is ignored. Ferencz continued this teaching effort until 1990, when he decided he could better use his time elsewhere. After A Common Sense Guide to World Peace was published in 1985 and while teaching at Pace University, Ferencz received a strange phone call from a man who began by saying, “This is Ken Keyes calling from Coos Bay, Oregon, and you are the hundredth monkey!” Ken explained that he had written a small book, The Hundredth Monkey, which postulated that fundamental changes in thinking and behavior are brought about when a certain critical mass is reached of persons who are striving for one particular goal. He used the verified example of monkeys who struggled for generations trying to learn how to remove sand from sweet potatoes. At a certain point in time, one unknown monkey, identified fictitiously by being called “the Hundredth Monkey,” discovered how sand could be washed from potatoes. Almost simultaneously, monkeys all over the globe independently made the same discovery. A critical mass had been reached which, through some unexplained process, triggered universal awareness of the vital information. The Keyes book was more than monkey business. It was a widely disseminated appeal for ending the nuclear arms race. After reading Ferencz’s book A Common Sense Guide to World Peace, Keyes concluded that Ferencz’s book could provide the missing “critical mass” needed for world peace. Keyes wanted to write a book with Ferencz to support this goal. They corresponded only by phone and mail. The first edition of their joint book, PlanetHood, the Key to Your Survival and Prosperity, appeared in 1988. The invented word “PlanetHood” was to indicate that the notion of “nationhood” had to be enlarged by a broader vision that included all inhabitants of the planet. It proclaimed that the ultimate human right was to live in a peaceful world free from the threat of nuclear war. It

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listed eight steps that could save the life of every reader. In contrast to Ferencz’s other heavily footnoted legal tomes, the Keyes production reached out to the general public with bold declarations. The text was supported by citations from well-known personalities whose quotations were inserted in boxes on every page. The introduction noted that the book was not copyrighted and anyone was free to reproduce it without any obligation to the authors. Keyes was a great public relations man. The books poured off the press. If bought by the hundreds, it cost only 70 cents per copy; a thousand or more could be had for only fifty cents each, including shipping. Ken Keyes was an inspiration. He had contracted polio after having served in the Merchant Marines. Ken Keyes, the man who was so full of love, hope, and optimism, was quadriplegic. He weighed 70 pounds and was completely paralyzed. His legs were like useless ribbons. He could just about scribble his name if a paper was held below his hand. He could not lift a spoon to his lips. However, his mind remained sharp and creative and filled with dynamic vitality. He treated his disability with the contempt he thought it deserved and never let on to any of his readers that he was handicapped in any way. By 1991, Ferencz and Keyes had issued several revised editions of PlanetHood and it was estimated that close to a million copies were in circulation.

Chapter 1 3

Establishing an International Criminal Court (1990 to Present) A few years after Ferencz wrote his book International Criminal Court: A Step Toward World Peace (1985), a new young staff member in the UN Legal Division, Virginia Morris, introduced herself to Ferencz. She asked whether Ferencz was the person who had authored the book on the international criminal court. When Ferencz confessed that it was indeed him, she expressed her delight and proudly declared that she had bought the two volumes for $75 — out of her own money. Ms. Morris soon became the most knowledgeable person at the UN regarding the court. When the UN Security Council finally decided to set up a special Criminal Court to try those responsible for crimes against humanity committed in the former Yugoslavia beginning in 1991, Virginia Morris was one of the first to draft the statutes for the new ad hoc tribunal. Within a matter of months (May 1993), the formation of such a court was approved. Ferencz happened to be in Geneva visiting the International Law Commission when the Security Council text was faxed to them. As soon as it was received, the administrative assistant, Armella Ferrara, handed the copy to Ferencz, saying, “Here, this is your work.” Ferencz was grateful for her kind consideration and felt richly rewarded. Ferencz persuaded Ms. Morris to write a book on the Yugoslavian tribunal. She did so, together with another rising star, Michael Scharf, who had resigned from the State Department. Ferencz found a publisher and wrote the introduction to the two-volume study. To Ferencz’s great delight, both Morris and Scharf became prolific writers in support of international criminal courts. Scharf became a professor at Case Western Law School and a leading supporter of international criminal courts as he rapidly advanced in academia and world renown. In the meantime Ferencz’s attendance and research at the United Nations 204

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continued unabated, as did his contacts with countless numbers of nonprofit organizations concerned with human rights and world peace. There was no end to conferences, seminars, panel discussions, and assemblies in remote places. It gradually dawned upon Ferencz that his reach was greater than his grasp. He decided that he had to sharpen his perspectives if he had any hope of making a significant impact. He decided he would have to limit himself to only a few specific points in the vast matrix of world problems that needed to be resolved. That meant writing one more big book in explaining how global survival could be achieved, and then shifting his focus from the general to the particular areas to which he could devote his remaining time and energies. It has often occurred in history that what was scorned as impossible is hailed as self-evident when it is finally achieved. No one could have predicted the current communications revolution. There was a time, not too long ago, when “reaching for the moon” was considered the ultimate absurdity. Now we are exploring distant planets in outer space. For many months, in 1993, Ferencz rose at 5 A.M. and worked on a new book until 9 P.M., pausing only for food and exercise. Ferencz really couldn’t explain why he worked so long and so hard on such a seemingly hopeless endeavor. He was not sure that it would do much good but was firmly convinced that it would do no harm. So he took the optimistic option and just kept going. The challenge of getting from the harsh reality of “here” to the dream of a more peaceful “there” was faced in his 1994 book New Legal Foundations for Global Survival. It was well received. Ved Nanda, renowned professor at the University of Denver, in reviewing it for the American Journal of International Law described Ferencz’s plan for an improved world as “a masterpiece.” UN Secretary-General Kofi Annan sent a generous note that it was a remarkable book that supported everything the UN stood for. No one really expected the prevailing chaos in the world to be eliminated by a new blueprint, even if it contained a thousand footnotes and listed 500 volumes in the bibliography. The UN legal librarian, Britt Kjølstad of Sweden, who compiled the bibliography, said she was honored to have her name on a book of that quality. Although New Legal Foundations for Global Survival can be found in many law libraries, Ferencz is not sure how many readers could survive reading it; but there are some easily understood elements that show Ferencz encouraging a new way of thinking about how sovereign states around the world should interact. Ferencz cautions that it must be anticipated that the legal prohibitions against the use of arms might well be ignored by some well-armed or terroristic fanatics (or rogue states) who are not prepared to be bound by the rules and who refuse to recognize the enormous perils of the nuclear age. So Ferencz

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argues that the pace toward peaceful change has to be accelerated. He argues that the medieval system of independent sovereign states is no longer suitable for a world that has become increasingly interdependent. The growth of democracy proved that sovereignty no longer belonged to ruling monarchs, who are above the law, but to the people who are supposed to be protected. That’s what the American Declaration of Independence was all about. The courts at Nuremberg held, and the UN confirmed, that no nation and no person is legally entitled to commit aggression, genocide, or crimes against humanity. The ends will never justify such means. New institutions are needed to make the world function more effectively. Until such agencies are created with global reach and vision to peacefully ameliorate justified complaints, violence will increase rather than diminish. Relying on universal consensus before initiating vital changes is to condemn the world to stand still while waiting for its own annihilation. In the late 1970s Ferencz dedicated the remaining years of his life to showing that the well-known shortcomings in the UN Charter cannot be corrected as long as those in power continue to cling to the status quo. Ferencz believed that the founding instrument of the United Nations organization had to be interpreted in ways that enable the organization to carry out its original purposes. All that Ferencz wanted was that sovereign nations live up to their legal commitments to the UN by strengthening the law, courts, and enforcement mechanisms needed to maintain peace. These included a clearer definition of aggression, an international criminal court, a new court of social justice, elimination of all weapons of mass destruction, creation of an international military (police) force, and an improved Security Council. Ferencz showed that the nations comprising the Security Council failed to discharge their most important duty. They never gave the charter a chance. They ignored vital provisions. He urged the privileged five Permanent Members to waive their unfair veto rights and to represent not merely their own nations but the interests of people everywhere. Powerful world leaders who lacked the political will to make vital changes tried to justify their inaction by the refrain: “The time is not yet ripe.” The world has become too dangerous to leave peace to such politicians. Ferencz believed that the voices of the people had to be heard loud and clear; only then would effective change be possible. Many people (especially those in powerful government positions around the world) still believe that the only way to protect national interest is through the use of military power. These hard-liners must be persuaded that their militant policies are leading the world to ultimate destruction. After World War II, the victorious U.S. generals Dwight D. Eisenhower and Douglas MacArthur — who would hardly be described as dreamers — were among

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countless other military leaders who joined in the denunciation of war as an instrument of national policy. In 1958, as president of the United States, Eisenhower declared: “In a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” This became Ferencz’s mantra. Ferencz believes that hope is the engine that drives human endeavor. The first step in achieving any goal is to believe that it can be done. The next step is to make it happen. The frightened public will not remain indifferent forever to the broken promises on which they depend for their security and tranquility. Lincoln was right: “You can’t fool all of the people all of the time.” Ferencz’s book on global survival gives no assurance that the proposals contained therein will be attainable; no doubt they are only a small part of a vast matrix of needed improvements. But Ferencz believes what he has suggested to be no more complex than many past accomplishments. His position is that it is up to the people themselves to create the conditions for a more secure future. His is a call for bold new thinking and new action to avert disaster. However, Ferencz knew that books alone were not the answer. Ferencz’s search for world peace continued simultaneously on multiple tracks. In addition, Ferencz wrote countless letters to the editor and many articles in respected journals to support the call for a humane world under law. The leading Encyclopedia of International Law, published by the Max Planck Institute in Heidelberg, carried three of Ferencz’s articles. Other encyclopedias and law reviews did the same. Ferencz lectured in dozens of schools and universities all over the country and in Europe. There were countless unpaid television and radio interviews. Wherever Ferencz went, he preached the need for new thinking (and to this day he still does). Modern information technology and the free worldwide Internet now offer educational tools that were previously unimaginable. President Ronald Reagan acknowledged that nuclear weapons can never be used; they are homicidal, genocidal, and suicidal. Ferencz believes it should be possible to persuade those who support military budgets costing many billions of dollars that investing only a fraction of those sums to create new institutions may help prevent wars. Ferencz sees this as the best hope for avoiding atrocities and protecting the courageous young people who serve in the armed forces. After having completed what Ferencz’s protective wife hoped would be his last book, and being of an age where normal human beings would ordinarily have said farewell to this world, Ferencz decided that he would try to save some strength for his old age by concentrating on only two problems for the remainder of his life. Both of them related to what he had learned at Nuremberg in the wake of the Holocaust. He had been working on them for

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decades without seeing much progress. One was the establishment of an international criminal court to build on the foundation of the Nuremberg tribunals. The second was to outlaw war-making itself. Undaunted, he set about to achieve these seemingly impossible goals. Ferencz signed some of his letters, “the Man of La Mancha.” Being little more than five feet tall, Ferencz had considerable experience in trying to reach the unreachable. If one tries hard enough and uses a bit of creative imagination, it can be done. You must first believe that it is reachable, and then stretch as far as you can. Having majored in criminology, it seemed logical to Ferencz that if the world hoped to deter atrocious international crimes, such as aggression and genocide, it might be helpful if perpetrators knew in advance that they would be held to account in a court of law. The Nuremberg trials calling for the rule of law to deter international crimes had been affirmed by the entire United Nations in 1945. Despite such widespread acclaim, the movement toward that goal was slow. The course of history is often determined by unforeseen and unforeseeable events; so it was with the international criminal court. Although humans claim to be the only rational animal, significant social changes are more often induced by suffering rather than by reason. The unanticipated outbreak of civil war in the former Yugoslavia in 1992 provided a catalyst for the movement toward international courts. It was reported that thousands of Muslim women had been systematically raped by Serbian forces determined to “cleanse the area” for their own national hegemony. Atrocities, showing starving captives reminiscent of Auschwitz, appeared on television. The world was outraged. That included the rage of American women — of which there is no greater rage anywhere. They demanded immediate action. Unfortunately, U.S. troops had recently engaged in a failed humanitarian mission in Somalia. Worldwide TV had shown U.S. Army Rangers, whose helicopter had been shot down, being dragged through the streets of Mogadishu to the cheers of Somali warlords. After that, neither the Pentagon nor the U.S. public was eager to send Americans to fight and die in Bosnia. Some genius in the U.S. government (and there are such, if one looks carefully) recommended that rather than sending American troops, why not get the UN Security Council to set up a special international court to try the violators of humanitarian law? Ferencz’s 1980 book, An International Criminal Court, contained the history and documents of all previous efforts. It took only two months for the UN Codification Division to draw up the statutes for the desired court. Since its jurisdiction would be restricted to crimes after 1991 in the former Yugoslavia, and no Americans were involved, the U.S. had nothing to fear. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established on May 25, 1993. It demonstrated the

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capacity of the United Nations to act quickly, when its leading members had the political will and courage to do so. In 1994, some 800,000 men, women, and children were systematically and savagely butchered when warfare erupted between rival ethnic tribes in Rwanda. World leaders anticipated that it was likely to happen, yet nothing effective was done to prevent it. That such horrors could occur — despite the lessons that should have been learned from the Holocaust — remains another odious stain on civilization. With none of their own vital interests at stake, nations responded too slowly and meagerly to avert the genocide. Activated by public outrage, the Security Council quickly created another special tribunal, the International Military Tribunal for Crimes Committed in Rwanda (ICTR)— similar to the ICTY. Like its predecessor for Yugoslavia, the Rwanda court had only a very limited reach. Chief Prosecutor Richard Goldstone, a renowned South African jurist, was given jurisdiction over both courts to ensure uniformity of practice — and to save costs, and possibly lives. When he once gave Ferencz a lift in his armored car in The Hague, he explained that his driver was required to race at breakneck speed to limit security risks. Ferencz felt that keeping one eye on crimes in Yugoslavia and another eye on crimes in Rwanda, all while trying to avoid being assassinated, was probably bad for the eyes as well as the blood pressure.1 The establishment of the temporary international criminal tribunals for crimes against humanity committed in Yugoslavia and Rwanda were both important steps forward. But these two Security Council courts were only temporary — ad hoc, as lawyers like to say. These courts had only limited jurisdiction and did not apply equally to everyone. To avoid the immunity from prosecution that heads of state and others had enjoyed in the past, all government leaders must know that, in the future, they will be answerable for the crimes they plan or perpetrate. What was still needed was a permanent court with broader authority to hold accountable those leaders responsible for massive criminality whenever and wherever the crimes occurred. The unreachable had not yet been reached. But, as Ferencz said: “We were on the way!” While the two temporary international criminal courts were getting ready to try those responsible for the massive crimes committed in Yugoslavia and Rwanda, work continued to drag along on the urgent goal of establishing a permanent tribunal so that major criminals in other parts of the world would feel the heat. Some policy-makers responsible for war crimes remained safeguarded at home, with only an occasional visit abroad. Plots continue to be hatched secretly in national capitols. The public scene concerning international cooperation was played out on the stage of UN Headquarters, adjacent to New York’s East River.

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Based on his personal experience in participating in and observing UN activities for many years, Ferencz says to understand why it takes so long to get things done at the UN, one must know how it works — or doesn’t work. The United Nations Charter, a treaty that binds all countries, reaffirms faith “in the equal rights of men and women and of nations large and small.” It should be noted that faith is one thing but reality is something else; the former does not become the latter without considerable effort. The U.S. Mission to the UN occupies a large building directly facing the world body. It employs hundreds of people backed by an even larger State Department staff. Smaller or poorer countries may employ only a few people working out of rooms in some nearby office building. Such disparities reflect the varying abilities of nations to cope effectively with the myriad problems confronted at the UN. The cards were stacked from the beginning in favor of the five original founders, led by the United States, who granted unto themselves the status of “Permanent Members” with the exclusive privilege of vetoing any enforcement action they didn’t like. Some might suspect that it wasn’t exactly a level playing field. It would not be amiss to suggest that primary responsibility for shortcomings, as well as wrongdoings, should rest with those who control the game. The management of the world organization is left to the Secretariat, which is bound by the member sovereign states that pay its bills. As every secretary-general knows, he who pays calls the tunes. The UN operates through numerous organs. Its committees are designed to represent the entire world community. Staff selections must reflect prescribed gender and nationality balances. With such mandated constraints, it is unavoidable that, instead of working hard, some UN employees hardly work. When asked to estimate how many people work at the UN, a frequent guess is “about half.” The other half includes less diligent and dedicated public servants whose efficiency ratings probably approach those in the Pentagon or other large bureaucracies. Distinguished official delegates who fill conference rooms with endless discourse on hundreds of agenda topics are paid by their governments to promote the interests of their own nations. Ferencz doubts if they get paid by the word or by the hour, but he assumes their pay is not dependent upon results achieved. Charter mandates for disarmament, among many other things, are talked about endlessly. The international military force called for in the UN Charter has never been created. High-ranking military officers of the Permanent Members meet every second Friday in Room 9 on the ground floor. Their national flags hang limply on long poles behind a long table. Each bedecked officer in resplendent uniform solemnly announces that he has nothing new to say. These fantastic results are recorded regularly in one paragraph of the Security Council’s annual reports. Not a word has been changed for over half a century.

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When Ferencz tried to sit in on a Military Staff Committee meeting, he was barred. The explanation: “National security.” Ferencz believes that “job security” would have been more appropriate. The original aspirations of the United Nations are often forgotten by those to whom the security of the world is entrusted. Although the Charter opens with the phrase “We the peoples,” the world body is an organization of sovereign states in which the people have no independent voice. The declared primary obligation “to save succeeding generations from the scourge of war” has not been a very resounding success. It should come as no surprise that thoughtful people began to call for new institutions to carry out promises somberly made after some 50 million people had been killed in World War II.2 Following the creation of the two temporary tribunals dealing only with war crimes in Yugoslavia and Rwanda, many individuals and small states raised their voices in support of a permanent international criminal court (ICC) with universal jurisdiction. After all, the 1776 American Declaration of Independence proclaimed that “governments derive their just powers from the consent of the governed.” As King George of England discovered, trying to govern the governed without their consent can be dangerous to those in power. The victims of the French Revolution made the same discovery, but they couldn’t talk much about it since their heads were missing. For many years Ferencz’s attendance at UN conferences was a lonely vigil. Beginning in the 1990s, things began to change. Amnesty International ran a full-page ad in the New York Times calling for an ICC — and for donations. Ferencz assumes the ad paid off, because Amnesty International became an active ICC advocate. Human Rights Watch joined the fray, as did many other organizations promoting various human rights — particularly if the humans were females. The World Federalists had long recognized that an international court was essential to prevent international crimes. The executive director of Amnesty International, William Pace, was successful in convening many non-governmental organizations to lobby jointly in support of an ICC. In time, he was able to boast that his Coalition for an International Criminal Court (CICC) embraced some 2,000 civil organizations. He served as coordinator and succeeded in keeping them together to promote the common goal. It was a fantastic achievement. The fact that it didn’t cost members any money to join made things easier. He deserved the support CICC received from several governments, prominent charitable organizations, and others. Ferencz always tried to coordinate his efforts with those of Pace and the CICC but, since Ferencz was rather a free-wheeler who didn’t like to attend meetings, Pace dubbed him an “NGI”— a non-governmental individual. Organizations to protect the rights of women took a leadership role as

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they joined in support of the ICC. The idea of a special court to hold rapists to account was very appealing, except to rapists. Ferencz welcomed the enthusiastic support of the energetic women’s groups, but not without some hesitation and trepidation. Those seeking redress for female victims of crimes had no experience in implementing such programs. Directing German compensation programs had shown Ferencz that it was a very complicated, difficult, expensive, and lengthy process. Agreement had to be reached regarding the proof required to substantiate claims, how injuries could be measured, the place, procedures, and time required for adjudication, and the extent and source of payment. Not too much thought had been given to who would pay how much for what to whom and where. Fearing that assigning all these problems to the ICC might overwhelm the court, Ferencz urged that they simply call for “restitution, compensation, and rehabilitation” in principle and leave the details for later determination. Ferencz’s limited proposal was not very popular with the women. Ferencz was able to show support for NGOs in a rather unusual way. When the number attending committee meetings had swelled to several dozens, the document room at the UN declined to hand out any more official papers to the non-official activists in the balcony. Without such materials, it was impossible to follow the debates. Ferencz was outraged. He rushed to the top-floor offices of Secretary General Kofi Annan, where he was halted by the usual guard. Ferencz explained the situation, handed the guard his personal check for $500, and asked him to give it to the SG to cover all costs of ICC documents needed by NGOs. A few minutes later the guard returned and reported that documents would immediately be made available. He didn’t return the check. Ferencz knew that Annan favored an ICC and an increased role for civil society, but putting a little grease on the wheel makes it move a bit faster. The preparations for the creation of an international criminal court moved into high gear in 1996. As this was happening, Ferencz decided to offer support to development of an ICC in a more formal way than he had in the past. With his son, Don, Ferencz and his wife, Gertrude, established the PlanetHood Foundation in 1996, funded with Ferencz’s own money. Don Ferencz was installed as the executive director with the objective of developing working relationships with non-government organizations (NGOs) and others towards establishment of the ICC, and educating interested parties to replace the law of force with the force of law. (More on the PlanetHood Foundation will come later. Suffice it to say at this time that both Ferencz and his son Don worked tirelessly throughout the ensuing years in support of the ICC through the auspices of the PlanetHood Foundation.) For many years, 34 independent legal experts — the International Law

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Commission — had been struggling, more or less, to agree on the composition of a code of offenses for the creation of an international criminal court, as had been called for by the UN General Assembly in 1945. Some things just can’t be rushed, particularly if the discussions are between diplomats ruminating in the pleasant environs of Geneva in the summertime. Following the initiative of Trinidad and Tabago’s former prime minister (and later their president), A.N.R. Robinson, the UN General Assembly in 1996 established a preparatory commission (PrepCom) to draft a treaty that would create a permanent international criminal court. All nations were invited to participate. Addressing the assembly in November 1997, President Clinton called for “a permanent international court to prosecute the most serious violations of international humanitarian law.” He was echoing statements he had made at an event in Connecticut in 1995 to honor Senator Christopher Dodd of Connecticut, whose father, Tom Dodd, had been a Nuremberg prosecutor. A crowd of 8,000 cheered. Ferencz knew, because he jumped up to lead the cheering. Under the inspired chairmanship of Adrian Bos, a soft-spoken but determined legal advisor to the Netherlands, the PrepCom began a series of lengthy sessions in New York to cobble together an acceptable accord. Everyone, including those who opposed it, spoke about a court that would be fair, efficient, and effective. But each delegate had his own ideas concerning the meaning of each word. All agreed that the international court would only be activated if the national courts of the accused were unable or unwilling to provide a fair trial. National sovereignty, although obsolete, was thus being safeguarded, which made everybody happy. Determined working groups representing all points of view began to seek consensus on which crimes might come within ICC’s jurisdiction, what powers would be granted to the prosecutor, how judges would be selected and paid, what rules would apply, who would capture the criminals and enforce sentences, and a host of similarly unsolvable problems. To be universal, the final text would have to balance views of the 185 members of the UN with varying legal systems and questionable degrees of commitment to the declared goals. Ferencz says: “While ‘great oaks from little acorns grow,’ it takes time to reach the lofty heights, and the nuts must be adequately nurtured.” When the PrepCom concluded its report in April 1998, much progress had been made, but the areas of disagreement were still overwhelming. Dissensions were reflected in the drafts by square brackets placed around each contested phrase or word. There were at least a thousand — yes, 1,000— such points of contention. It seemed prudent for the delegates to get out of town. Instead of just throwing up their hands in despair, they decided to invite their bosses to join them in Rome for five weeks. What some may have hoped would be a Roman holiday turned out to be an intense working session of

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plenipotentiaries — that is the long title given to those who make short decisions after others have done the work. Their goal was to reconcile what seemed irreconcilable. That’s what diplomats get paid to do. Ferencz’s wife joined him to attend the Rome conference in June 1998. The minutes, and even the hours, are recorded and need not be rehashed in boring detail. Most noteworthy, at least to Ferencz and his wife, was Ferencz’s five-minute speech to the delegates before they settled down to more serious work. (Ferencz’s speech is contained in its entirety in the introduction to this book.) Ferencz was welcomed as a living symbol of the Nuremberg trials. More important Nuremberg luminaries could not appear because they were, unfortunately, deceased. Ferencz thanked the delegates for the honor, and declared that he had come to Rome to speak “for those who cannot speak — the victims of atrocious crimes.” Ferencz summoned them to follow the Nuremberg precedents and concluded with: “The place is here and the time is now!” The audience hadn’t stirred much, but after Ferencz’s stirring peroration they were so inspired, or relieved, that they unexpectedly broke out in sustained applause. Ferencz’s wife felt proud, as surely Ferencz did also. The bargaining, cajoling, pleading, and threatening that went on during

Ferencz addressing the Rome Convention for the establishment of an International Criminal Court in 1998.

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the five turbulent weeks in Rome were indescribable. Many small states were convinced that without the rule of law to protect them they could not survive the ravages of great powers. Mighty nations were simply not ready to trust their security or their aggressive impulses to judgments by any untried international institution. For over 50 years, the efforts to create an acceptable permanent criminal court had been stalled. A new PrepCom chairman, Ambassador Philippe Kirsch of Canada, a highly competent and experienced diplomat, had replaced the ailing Adrian Bos of Holland. Kirsch was called “the Magician” for the many compromises he seemed to pull out of thin air. The tension was palpable on the last day of the five-week conference — July 17, 1998. As night fell, Kirsch “stopped the clock” which is a magical way of having conference time stand still even while the earth defiantly continues to rotate. In last-minute maneuvering, the India-Pakistan proposal — that the first use of nuclear weapons should be listed as a war crime — was unacceptable to those who happened to have a larger nuclear arsenal. It remained illegal, under old Hague rules, to shoot your enemy with a poisoned arrow but, under the new rules, it would not be illegal to destroy a city with a thermonuclear explosion. Justice Oliver Wendell Holmes was right when he said the growth of the law is experience, not logic. Finally, after many additional skirmishes and midnight approaching, Kirsch called for a yes-or-no vote on the statute as a whole. Would the world community finally accept a more-or-less rational rule of law designed to help preserve peace? The Americans and some others did not wish to reveal their hand, so the vote was counted without counting the vote. Delegates just held up their hands (one to a customer) while staff members verbally tallied and shouted totals. The chairman, covered with perspiration and quivering with excitement, announced that 120 had voted in favor and only seven against adoption of the Rome Statute as the constitution for the first permanent international criminal court in human history.3 The hall went wild with joy — Ferencz also. The U.S. was one of the seven nations that rejected the ICC, including a couple whom the U.S. had previously branded as “rogue states.” Twentyone nations abstained. Although Ferencz had joined in the burst of applause when the overwhelming vote in favor of the court was announced, it pained him when the victors did not let up but continued their rhythmic clapping while circling and glaring at the U.S. delegation defiantly. Ferencz had known and respected the U.S. ambassador, David Scheffer, for many years. Scheffer sat glumly with representatives from the Pentagon and the Senate, whose Foreign Relations chairman, the conservative Jesse Helms of North Carolina, had sworn that the ICC would only come into existence over his dead body. Ferencz didn’t

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think he intended it as a quid pro quo offer. Ferencz’s joy at the victory for the rule of law was tempered by his sorrow that the U.S. was in opposition, and his friend Scheffer, who represented the United States as a loyal public servant, had to bear the burden of international humiliation. Israel’s delegate, Ambassador Eli Nathan, had worked with Ferencz when the Israel-German reparations treaty was signed in 1951. The small country that many had hoped would be “a light unto the nations” surprisingly voted against the ICC. There had been a last-minute minor disagreement about the legality of transferring settlers into occupied territory. But that was only an excuse, and those differences were quickly resolved later. Israel, dependent upon Big Brother, could not vote against Uncle Sam. Eli sent Ferencz an apologetic personal letter. Despite the appearance of opposition, important legal voices within Israel were in favor of an ICC. Israel wisely continued to participate in its deliberations; the United States government, not so wisely, followed a different course. Despite many concessions made to keep the U.S. on the team, America’s defiant opposition succeeded in antagonizing the 120 nations that had voted for the International Criminal Court. The United States was seen as a hypocritical bully that wanted to impose its views on the rest of the world. Ferencz remembered the stirring pleas at Nuremberg of Justice Robert Jackson and Telford Taylor, who inspired the world with their calls for a new rule of law binding on all. Ferencz refused to believe that the American public, if properly informed, would reject the noble Nuremberg ideals that had earned the admiration of people everywhere. The opposition to the ICC was led by Senator Jesse Helms, chairman of the powerful Foreign Relations Committee. The distinguished senator — who had been a reporter before being repeatedly re-elected by his constituents in North Carolina — seemed to be in defiance of the constitutional requirements for separation of church and state with his strong opposition to what was called secular humanism. He was the darling good ole boy of the conservative Religious Right, whose interests he served faithfully and well. In bursts of patriotic fervor, he adamantly declared that no American would ever be tried by a foreign court. Conservatives were determined to kill the new International Criminal Court while it was still in its infancy. The Pentagon, in the business of killing, eagerly joined the fray. They could see no advantage in creating a new and independent tribunal competent to judge the legality of actions by the military. Conservatives were mobilized to alert the public and warn them of the hazards that faced the nation. Helms introduced legislation that threatened economic and military sanctions against any state that cooperated with the court. His Service Members Protection Act endangered our service members more than

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it protected them. As the U.S. should have learned at Mogidishu, without an ICC, U.S. soldiers could be dragged through the streets, completely at the mercy of their captors. The Dutch ridiculed the Service Members Protection Act as “The Hague Invasion Act,” since it authorized the president to “use all means necessary and appropriate” to free any American arrested on behalf of the court. Every conceivable argument against the court was trumpeted throughout the land. Congressmen, hearing the clarion call, and understandably eager to show support for our men and women in uniform, rallied around the flag. They paid little, if any, attention to the fact that every argument made against the court was demonstrably false. Ferencz embarked on a one-man campaign, assisted by other concerned citizens, to tell the truth to the American public. On April 12, 1999, an A&E TV film, Investigative Reports: Nazi’s Secret Killing Squads, hosted by Bill Kurtis, was seen by over two million people. It featured Ferencz’s views on international justice. He wrote articles, launched e-mail tirades, appeared on radio and TV, and lectured at universities and institutions, but it was no match for the propaganda coming from the conservatives and the White House. The most persistent complaint was that an uncontrolled prosecutor could bring unwarranted accusations against Americans, inhibiting our humanitarian or military goals. Ferencz is quick to tell anyone willing to listen to reason that the truth is that • no prosecutor in human history has ever been subject to more controls than the prosecutor for the ICC. • each sovereign state (including the U.S.) is always given priority to try its own nationals. • the ICC prosecutor cannot file any charges without approval by panels of judges. • the Security Council (which obviously includes the U.S.) can suspend prosecutions indefinitely. • all proceedings must be open to public scrutiny. • the over one hundred parties that have ratified the statute have complete control, and these include many staunch allies of the United States. • a frivolous prosecutor would be fired like a shot. Politicization of the court would amount to its suicide. • the “uncontrolled prosecutor” argument is made by those who are fools or liars or both. It is a shabby pretext by those who seek to avoid the rule of law. One day, Ferencz received a rather strange and unexpected phone call from Washington, D.C. It was from former secretary of defense Robert McNamara, whom Ferencz had never met. He asked whether Ferencz could draft

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an op-ed article for the New York Times that he and Ferencz could sign in support of the international criminal court. “Mr. Secretary,” Ferencz replied, “you must be aware that some people have been calling for your trial as a war criminal for having sent troops to fight in Vietnam even after it was clear that the war was lost. Why do you want to support the ICC?” He explained that if he had known that what he was doing might be illegal, he would not have done it. The court was therefore important to put the public and officials on notice. Ferencz drafted the article, which McNamara quickly approved. It was published on the op-ed page on December 12, 2000. It urged President Clinton to sign the treaty setting up the international criminal court. On Sunday, December 31, 2000, approaching his last day in office, President Clinton instructed Ambassador David Scheffer to proceed to the United Nations to sign the Rome Treaty. Israel followed suit. Senator Helms was livid. The Chicago Tribune quoted the irate senator as saying, “I will make reversing this decision ... one of the highest priorities of the new Congress; this decision will not stand.” The senator from North Carolina, backed by the Pentagon, was declaring war on the ICC. George W. Bush was elected president of the U.S. with the narrowest of margins. His political pollsters attributed the Republican victory to the vote of the Religious Right; Helms was their man. Friends of the ICC had to prepare for heavy weather, regardless of any effort to tell the American public the truth about the ICC. In February 2001, the prestigious American Bar Association, after extensive reviews, concluded, “The Security interests of the United States and of its service members and officials ... are better protected if the United States joins the ICC than if we reject it.” A former State Department legal counsel — and president of the American Society of International Law — assembled ten former presidents of the society to publish their conclusion that arguments against the court were unfounded and unjustified. Senator Christopher Dodd (D–Connecticut) and Senator Patrick Leahy (D–Vermont) spoke out in Congress in defense of the court, as did a few other courageous congressmen. But they knew they were whistling in the wind. Even if the Right Wing was wrong, a conservative Republican president and a conservative Congress held the reins of power, and they called the tune. No treaty could become binding without the advice and consent of twothirds of the Senate. A president’s signature merely reflects an affirmation of support, not a legal obligation. Nevertheless, there was no limit to the rage of Senator Helms and his friends. On June 18, 2001, an appropriations act was amended to prohibit any U.S. funds being spent in connection with the ICC. Paying a cab fare to a UN meeting that dealt with the ICC could be illegal. It may have been good politics, but there was no real need for Helms to get so agitated.

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On September 11, 2001, two hijacked U.S. passenger airplanes were used by 19 suicide bombers to crash into the World Trade Center in New York, causing the death of at least 3,000 innocent persons. Some Arab quarters rejoiced, but most of the world was shocked and outraged. The president declared war on terrorism. Although that sounded to me like declaring war on sin, the Republican Congress kneeled before the Republican president; the self-proclaimed commander-in-chief could do whatever he considered necessary to protect the terrified nation. Osama bin Laden, the leader of Al Qaeda, a loose organization of militant Moslem fundamentalists, appeared on worldwide television to boast of the successful attack. President Bush vowed to bring the criminal to swift justice. No mention was made of the international criminal court. It was 10 years before Osama bin Laden was taken down, long after Bush was out of office. Under its terms, the Rome Statute would only go into effect when, and if, it was formally ratified by at least 60 nations. On April 11, 2002, that number was surprisingly exceeded. There was a joyous celebration at the UN. The seat marked for the U.S. delegate was empty. The U.S. deliberately flaunted its contempt by its absence. Ferencz felt ashamed that his country, which was primarily responsible for the Nuremberg trials and had supported so many other international criminal courts, should now turn its back on the momentous occasion being celebrated by so many other nations. In May, 2002, Helms’ protégé John Bolton, then an assistant secretary at the State Department, sent a one-paragraph letter to the UN, declaring, “The United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature of December 31, 2000.” This unprecedented repudiation of a solemn presidential commitment was another unnecessary slap in the face to the rest of the world. Amnesty International called it “a new nadir of isolationism and exceptionalism.” Richard Dicker of Human Rights Watch referred to it as “an ideological jihad against international justice.” Bolton went on a rampage to get nations to agree that they would never send an American to The Hague. If they failed to sign such an “immunity agreement,” all economic and military aid would be severed. In effect, such action would deprive our friends of funds needed to fight terrorists, drug traffickers, and other enemies. Secretary of State Condoleeza Rice, who always struck Ferencz as a sensible lady, almost had it right when she eventually tried to curb Bolton by warning that the U.S. should not adopt policies that would be “shooting ourselves in the foot.” On July 1, 2002, the treaty creating an international criminal court went into effect. The long-overdue baby was officially born. The U.S. government, ignoring any paternal responsibility, set out to destroy the infant. Why? Only

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the guilty need fear the rule of law. Was the U.S. trying to hide something illegal? Everyone must be presumed innocent until found guilty in a court of law. In this case, you can’t avoid getting a bit suspicious. The London Times reported that as early as April 2002, in Crawford, Texas, President George W. Bush and Britain’s prime minister, Tony Blair, were considering the imperative for a regime change in Iraq. To gain public support for military action, an assault could be justified by pointing to hazards posed by terrorism and weapons of mass destruction. They agreed that Saddam Hussein, Iraq’s tyrannical dictator, was a nasty fellow, but whether he was responsible for those dangers was not quite clear. Top people in the British cabinet had their doubts. Although U.S. leaders at Nuremberg had condemned aggression as the “supreme international crime,” there was no tribunal in existence with authority to test the issue. Perhaps it was understandable that President George W. Bush did not see any urgent need for such a court. This is not the place to argue about the legality of the Iraq war. Ferencz’s personal views are amply reflected by the dozens of articles, interviews, and lectures that appear on his web site starting in 2001. In short, Ferencz believes that the use of armed force in violation of the UN Charter is a crime of aggression. Some otherwise competent lawyers do not share that view. Ferencz’s reasoning is spelled out in a long lecture to the American Bar Association in November 2005 that appeared repeatedly on national public television. A shorter speech, to a standing ovation, can be found in Ferencz’s May 26, 2005, address at the Library of Congress in Washington in celebration of the sixtieth anniversary of the end of World War II. Ferencz did not use any prepared texts. He was speaking not from his notes, but from his heart. In addition, Ferencz wrote an article and made an address at the Washington University Global Studies Law Review’s Symposium — Judgment at Nuremberg (2007)— in which he emphasized the arguments for an ICC and took issue with some well-known positions/actions of the U.S. government (see Appendix B for a copy of the speech).4 Ferencz knew Elizabeth Wilmshurst as a very dignified and regal lady, who had represented the United Kingdom at the United Nations for many years. At meetings of the Preparatory Committee for the Establishment of an International Criminal Court, she was recognized as an outstanding legal expert. Ferencz did not share her conclusion that the crime of aggression could only exist if there was a war. She was relying on a World War I legal opinion of Lord McNair, and Ferencz didn’t agree with His Lordship, either. It came as a great and pleasant surprise to Ferencz when, on the verge of the Iraq war, Ms. Wilmshurst suddenly resigned. The reason given by her for that unexpected departure, as reliably reported in the press, was that she could no longer serve a government that was committing “the crime of aggression ... so destructive of the international order and the rule of law.” Ferencz felt like

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shouting “Bravo Lizzy!” She declined Ferencz’s efforts to pin a medal on her at a formal ceremony, but she did, finally, accept a solid gold medal with a portrait of Queen Elizabeth and a peace design on the obverse, as Ferencz’s personal token of appreciation for her courage and integrity. While public attention was diverted by wars of questionable legality in various parts of the world, the ICC Assembly of State Parties continued to meet in The Hague to build their new legal institution. Arrangements had to be made to elect the 18 independent judges from various regions of the world, as required by the statute. There was no shortage of candidates, many of whom were well known to Ferencz from their days at the United Nations. Ferencz had first met candidate Philippe Kirsch in 1999 when they were both recipients of an award for human rights at McGill University in Montreal. After receiving his award, Kirsch made an acceptance speech before Ferencz was expected to do the same. He apologized for having to leave for another appointment; and no sooner had he finished his brief appreciation then he grabbed the large glass-framed award certificate and dashed from the crowded room holding it over his head. In later meetings, Ferencz had fun teasing him about how he had fled in apparent panic the moment he heard that Ferencz was about to speak. Ferencz and Kirsch met often thereafter, and since Kirsch had done such a fantastic job as chairman of the Rome Conference, Ferencz was pleased to write to Kirsch’s Canadian prime minister to support Kirsch’s nomination for the ICC. Ferencz is sure that his recommendation was not decisive, but it probably didn’t do much harm. Not only did Kirsch get the job as judge, but the other judges then elected him the first president of the new International Criminal Court in 2003. Ferencz first developed friendly contacts with Hans-Peter Kaul while Ferencz was lecturing in Bonn between 1997 and 1999 and Kaul was serving in the German Foreign Office. He and his charming wife Elizabeth lived in a nearby villa in Koenigswinter on the edge of the Rhine. Kaul was a leading participant in the PrepComs and was elected as one of the 18 ICC judges in 2003. The initial terms were staggered by lottery and he won only a threeyear term. At the UN, as elsewhere, votes are sometimes traded for favors, and an ICC appointment for nine years, with a lifetime pension, was a very desirable plum. Ferencz followed the tight 2006 balloting on his computer in Florida and requested his son Don to stand by at the UN. When Kaul was re-elected, Don grabbed both the judge and his wife in the corridor and, using his cell phone, Ferencz was able to convey his personal congratulations to his German friends. The German people had paid a very high price for their support of Hitler’s criminal regime; and Ferencz was particularly gratified that they as a nation had learned the lessons of Nuremberg and had finally become one of the strongest advocates of the rule of law.

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Another elected judge was Navanethem Pillay of Sri Lanka, whom Ferencz first met in 2000 at a Guatemalan monastery that had been buried for hundreds of years. Ferencz, his wife, and daughter Keri did not go there as archaeologists or for prayer. They were attending a human rights conference at the excavated and restored Casa Santo Domingo hotel. While in Antigua, Ferencz and his wife toured the area. It was a moving experience for both of them to witness the extreme poverty and hardships combined with the strength and determination of the poor people who live there. The natives’ pride at being able to survive reminded Ferencz of their own difficult origins. The conference participants got to know each other personally since they dined and talked together for several days. In 2003, Ferencz was happy to see Pillay sworn in as an ICC judge — even if he couldn’t pronounce or spell her first name. She is currently serving out her term as the UN high commissioner for human rights — through September 2014. While the new court was getting itself set up, the fight by U.S. conservatives opposed to the court continued unabated. The ICC organizers treated the U.S. government opposition to the court with the contempt it deserved. On March 11, 2003, a festive ceremony was prepared in a large hall at The Hague where the judges were individually sworn in to office. It was to be followed by a lunch in the royal palace hosted by Queen Beatrix of the Netherlands; Ferencz received a formal invitation and, of course, accepted. Ferencz says that the reception in the palace was quite grand. Ambassadors and other eminent personages were seated around tables with white tablecloths and flowers. Ferencz’s seat was next to the podium, where a keynote speech was made by the prime minister, Jan Peter Balkenende, who greeted the judges and distinguished guests and then, much to Ferencz’s surprise, announced that it was an extra special occasion because of Ferencz’s presence. Someone had apparently tipped him off that it was Ferencz’s 83rd birthday. After effusive praise, he proposed a toast to Ferencz as a former Nuremberg prosecutor. Ferencz guesses that he wished Ferencz a long life in homage to the fact that Ferencz was apparently still alive. They filled their glasses with the fine wines that had been set before them and some even applauded; although that was rather hard to do with one hand. Ferencz says it was a most unexpected and impressive birthday celebration and that it was even more memorable than his Bar Mitzvah. Holland’s Princess Maxima was the hostess at the swearing-in ceremony for the prosecutor on June 16, 2003. Ferencz was invited to make one of the congratulatory speeches. Since Ferencz was eager to air his critical observations about U.S. opposition to the ICC, Ferencz felt it might be prudent to clear the text with his hosts. The new prosecutor, Luis Moreno Ocampo of Argentina, was fortunate to have as his principal assistant Silvia Fernandez de

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Guermendi. Ferencz had known and admired her for many years at the UN. She had also been with Ferencz in Antigua and he knew they could speak frankly. Her boss Ocampo, and the amiable chairman of the assembly, Prince Zeid Ra’ad Al-Hussein of Jordan, concluded that it would not be very diplomatic to use the occasion to assault another government. It might even further enrage ICC adversaries, who shall remain nameless. Being an obliging fellow, Ferencz took all the paprika out of the speech and delivered what he considered mild chicken soup that would not upset anyone’s stomach. Ferencz noted that the new prosecutor was not blessed with the evidence or powers Ferencz had at Nuremberg and that he would have to proceed cautiously in a very difficult assignment. Ferencz proclaimed that the principles of Nuremberg would never die, and wished him luck. Ferencz was congratulated for a fine speech and the sponsors heaved a sigh of relief. The mayor of The Hague was not to be outdone. The city prepared a large reception at which Ferencz was to be a key speaker. That was Ferencz’s chance to convey his uncensored outrage about the stupidity of his government’s irrational opposition to the ICC. Ferencz let go full blast and received a sustained standing ovation from the jubilant audience; however, in fairness, Ferencz says that there were no chairs in the reception hall. In 2002, the United Nations elected Tom Buergenthal to its highest judicial office — the International Court of Justice in The Hague. In 2003, while in The Hague, Ferencz enjoyed an informal reunion with his old friend Tom Buergenthal, at whose class in Buffalo, New York, Ferencz had lectured. They had remained in contact over the years, and Ferencz was delighted to see him in his new position as a judge of the International Court of Justice in The Hague — probably the highest honor that can be paid to an international lawyer. Ferencz met Buergenthal in his chambers overlooking the gardens of the Palace of Justice, and they reminisced about how their paths had intertwined over the years. 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. Ferencz views the absence of any U.S. government representative as another stain on the history of the United States. While the ICC was formulating rules of procedure and obtaining and training staff for the new tribunal, the attempts by the U.S. government to throttle the court continued unabated. President George W. Bush continued to stretch his powers as executive and as the new commander in chief. John Bolton continued to bully small nations into signing immunity agreements

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to exempt all Americans and their employees from the reach of the ICC. He was rewarded in August 2005 by being designated by the president to be the U.S. permanent representative to the United Nations. That position normally requires approval by the Senate, but Bolton’s appointment was sneaked through as an interim appointment when Congress was not in session. Ferencz’s warning to the Senate Foreign Relations Committee and its Republican chairman, Richard Lugar, was in vain. The Republican Congress, controlled by conservatives and intimidated by the Religious Right, was not inclined to challenge the White House. A new rule of law was invented for the Pentagon that prisoners of war need not receive humanitarian treatment if the captives are labeled “insurgents,” “terrorists,” or even “suspects.” Holding prisoners without filing charges or allowing legal representation, along with the abusive conduct of some of our military service members, brought the nation into further disrepute. There was no international court competent to judge the merit of such deeds or accusations. In the House of Representatives, the all-powerful Speaker, Thomas DeLay of Texas, ruled with an iron hand that gave him the nickname “the Hammer.” He castigated the International Criminal Court as “a shady amalgam of every bad idea ever cooked up for world government ... threatening the American people with prosecution by Kofi Annan’s kangaroo court.” He even denounced the ICC as a “clear and present danger to the war on terror.” In a stinging peroration recorded in the Congressional Record on July 15, 2004, he warned against allowing “American soldiers to be imprisoned and shipped off to Brussels without their constitutional rights.” It was not surprising that the House leader should repeat the standard canards about the ICC, but at least he should have known that the court was not in Brussels, but in The Hague, which is in another country. Reading his tirade made Ferencz ashamed that such men could sit in high positions in our government. The American public, eager to believe their elected representatives, and always supportive of our troops, went along with congressional and Executive Branch abuses. But as Lincoln wisely predicted, “You can’t fool all of the people all of the time.” In the mid–term elections of 2006, the Republicans were swept out of power. The vitriolic Jesse Helms had disappeared from the political scene toward the end of 2005. His wife later confirmed that he was afflicted with multi-infarct dementia. Tom Delay, admonished by the House Ethics Committee in 2004 and accused of taking large sums as political bribes, was indicted in 2005; he was forced to resign in June 2006. Two of his aides went to jail in bribery scandals. As for the provocative Ambassador John Bolton, when it became obvious at the end of 2006 that he had no chance of being confirmed by the Senate, he resigned as the temporary permanent representative of the United States to the United Nations. His tenure there, and

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his virulent opposition to the ICC, had done nothing to enhance the soiled reputation of our country. The International Criminal Court — which had been Ferencz’s dream as a very young man — became a reality after Ferencz became an octogenarian. Ferencz admits that he was never sure that he would live to see that day. The motto “Never give up!” had paid off. Ferencz regrets that the rank and file members of the American public have not been told the truth about the court. He still hopes to correct that shortcoming during his lifetime. His final goal is one that he fears he will never reach. It is to put a stop to the absurd and barbaric practice of killing large numbers of innocent people because their leaders are unable to settle disputes in a more rational and humane way. Nuremberg taught that aggression is the supreme international crime. Being a combat soldier taught Ferencz that there can never be a war without atrocities, and illegal war-making is the biggest atrocity of all. Ferencz has concluded that the best, and probably only, way to protect the lives of brave young people serving in our military is to abolish war itself. He has written and spoken more on the subject of stopping the crime of aggression than any person dead or alive. At the UN, he has often been referred to as Mr. Aggression. He refuses to believe that rational people are unable to accept the obvious truth that law is better than war. The UN Charter clearly outlawed the use of armed force except when authorized by the Security Council or in temporary response to a direct armed attack. Despite these legal restraints binding all nations, powerful states still insist upon the sovereign right to determine for themselves when the use of armed might is lawful. It was as if the bank robber could determine for himself when it was lawful to rob a bank. The most contentious issue that divided the delegates at Rome in 1998 was whether the ICC should be given authority to decide when an accused leader was guilty of the crime of aggression. Putting the posturing aside, it soon became clear that powerful states remained unwilling to yield their sovereign power, and less powerful nations lacked the power to do anything about it. Ferencz was excluded from closed sessions dealing with the topic. At almost the very last moment, the stalemate at Rome was broken by a compromise. The subject was pushed to the back burner and left to be resolved at some unspecified future date. Aggression was listed as a crime within the jurisdiction of the ICC, but the court could not act regarding that offense before certain conditions were met. There had to be near-unanimous agreement on a new definition of the crime and an agreement reached regarding the Security Council’s powers in relation to the court. It had taken about 40 years to reach a consensus definition of aggression that was more sieve than substance. Permanent Members who controlled the Security Council were adamant in their refusal to surrender

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any of their charter prerogatives. Based on past experience, there was every reason to believe that the stipulated preconditions to enable the ICC to deal with the crime of aggression would never be met. The most important provisions of the UN Charter and the Rome Statute were thus left hanging in limbo. The world community remained unable to come to grips with its most destructive activity. Its new International Criminal Court still lacked competence to deal with the “supreme international crime.” There was no doubt in Ferencz’s mind that many of those who insisted upon a new definition of aggression — although there were many adequate indicators available — were motivated not by respect for the law but by the desire to evade it. Ferencz feels that dropping aggression completely, as was strongly urged by some of his friends, would be a repudiation of Nuremberg. It would undermine the rule of law while sanctifying the legality of war. With no official status, Ferencz could do nothing to change the outcome in Rome. Now, beginning his 93rd year, his final goal is to continue trying to bring the crime of aggression down to earth. His hope remains that by eliminating the existing immunity of those who are the principal architects of illegal war, the horrible crime of aggression may occasionally be deterred. In the meantime, an ICC committee has been created to deal with the problems of enabling the court to deal with the crime of aggression. It should come as no surprise that they have been unable to reach agreement on points that had bedeviled other delegates for decades. Most participants feel an obligation to say something different or significant. Some succeed; many simply rehash old arguments. Learned scholars love to demonstrate their unexcelled capacity to split hairs. Ferencz has been unable to persuade them that it was not necessary to compose a new definition of unassailable clarity, but to formulate a text — any text — that will be acceptable to the overwhelming majority. Ferencz suggested many specific compromises, but to no avail. He was unable to overcome the traditional way that diplomats deal with such problems. They just keep talking. Ferencz keeps trying to solve the problem. His current approach is to see if he can get the crime of aggression redefined as “illegal use of force” in hopes that this will be both a cleaner definition and easier to get approved and implemented as a legal statute.5 There are plenty of other crimes that can keep the new court and its growing staff quite busy. Genocide, crimes against humanity, and a long list of war crimes, all meticulously defined, are punishable by the ICC. In his second annual report to the UN, in October 2006, Judge Philippe Kirsch, president of the ICC, summarized the progress that had been made during the first three years of the court’s existence. Investigations were being conducted by the prosecutor for crimes committed in Uganda, the Congo, and Sudan, where tribal and sectarian rivalries sparked massive crimes against humanity.

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Some arrest warrants had been issued, and various chambers of the court were dealing with an array of procedural questions. The challenges facing the court and its investigators are formidable — ICC investigators must enter areas where fierce fighting is raging, and victims and witnesses, speaking strange tongues, are intimidated. The ICC has no security forces of its own. It is dependent upon support by local governments, some of whose leaders are themselves suspect. In short, the ICC manifests all the helplessness of a newborn babe. It needs help badly before it can stand on its own feet. But given assistance, in time it will mature and hopefully will become an increasingly powerful moral force in deterring terrible crimes that, in the past, were committed with impunity. While going about his business as usual, Ferencz on several occasions had to stop to get personal recognition from people or organizations who highly respected his efforts. There were two deserving special notice that occurred relatively recently. In November of 2009, Ferencz received the Erasmus Peace Prize from the Netherlands in conjunction with Judge Antonio Cassese.6 The prize was awarded to them for their significant contributions to the development of a universal system of law. On February 26, 2010, Pres-

In The Hague, Benjamin Ferencz (left) and Antonio Cassese (right) are honored with the prestigious Erasmus Peace prize by Prince Willem-Alexander of The Netherlands.

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ident Horst Köhler decided to confer the Commander’s Cross of the Order of Merit of the Federal Republic of Germany on Ferencz. And, in May of 2010, in a ceremony at the Federal Foreign Office in Germany, Ferencz was awarded the Commander’s Cross for his lifelong commitment to international law. On October 13, 2010, Ferencz wrote an article that appeared in Global Brief that noted the ICC now had a definition for the crime of aggression and the power to pursue violators of this crime, although there were still issues that ultimately needed to be resolved. To Ferencz this was a significant step forward, something he had been working to get established for more than 50 years. Even though it still had weaknesses and ways for certain states to avoid being prosecuted for aggression, it did make it harder for any state to ignore the recognition that aggressive war was considered an international crime that carried real consequences to potential perpetrators. Each step along the way makes it easier to make the next step. Ferencz is still working to help establish a new vision of an international confederation of states who will succeed in using the law to make war obsolete.

Ferencz with the Royal Family in the Netherlands when receiving the Erasmus Peace Prize along with Antonio Cassese (left to right: Princess Margriet, Princess Máxima, Ferencz, Cassese, Prince Willem-Alexander, Queen Beatrix, Cassese’s wife), November 2009.

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Against what was once deemed impossible odds, in 2009 the ICC succeeded in conducting its first trial in a case of crimes against humanity against Mr. Thomas Lubanga Dyilo of the Congo. Closing statements were issued on August 25 and 26, 2011.7 Ferencz was asked by the ICC chief prosecutor, Luis Moreno Ocampo, to give one of the closing speeches. (See the introduction in this book for the full text of this speech.) After the closing of the prosecutor’s case, Ferencz was given a kiss on both cheeks by Angelina Jolie, who was attending the trial because of her interest in preventing abuses to children around the world. Ferencz believes it is likely that the public will become impatient with the slow progress toward world peace through law. The wheels of justice grind slowly, particularly when they are traveling over uncharted terrain. When Ferencz went to school, there was no such thing as international criminal law or international humanitarian law; today it is taught everywhere. Progress is reflected by the fact that genocide is now prohibited all over the world. Perpetrators responsible for such horrors know that they may have to face the judges of the ICC. New special international criminal tribunals, as well as human rights courts, have been created and are operational. To be sure, there are difficulties, but they can be overcome. The progress made within the span of one human life has been truly remarkable. Seen in proper historical perspective, the existence of the ICC must be recognized as a significant step toward a more humane world under the rule of law.

Chapter 1 4

The Future The most difficult thing to change is a deeply entrenched idea. Religion, nationalism, and economic power are among the most frequent causes of homicidal strife. Here too, despite recurring evidence to the contrary, progress is readily discernible to an eager eye. The American Declaration of Independence was viewed as a revolutionary document. The idea that all men are created equal was an inspiring innovation. It became more inspiring when women were eventually given the same status and rights, too. The world is in constant transition. Ferencz notes that we have witnessed the end of colonialism, the decline of racial discrimination, and the growing awareness of our dependence upon a sustainable environment. He also notes that we have not done as well with disarmament and dispute resolution. Human survival may depend upon the peaceful settlement of disputes through the rule of law. The future, driven by the information revolution, is today unimaginable. Ferencz regrets that it is unlikely that he can hang around to see how it all works out. He wishes the world the best of luck. Although at times Ferencz struggled to keep gainfully employed, he was very successful in his work and increasingly rewarded in his compensation, especially as he grew in worldwide renown as an expert in international law. But he was even more successful in making good investments. Over the years he was able to become sufficiently well-off financially to have great freedom in performing his goal of achieving peace through law, not war. Therefore, in 1996, with the assistance of his son, Don, as executive director, Ferencz founded a small, private family foundation called the PlanetHood Foundation, the aim of which is to educate people and organizations — wherever appropriate — on the need for replacing the law of force with the force of law. With the advent of the International Criminal Court and certain other international-style criminal tribunals, the foundation has worked with various courts to educate others about their mandates and has assisted in a very modest way with some of their operational needs, particularly as regards the use of legal 230

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interns. In addition to working with various educational institutions to help with internships at such tribunals, the foundation has focused on issues pertaining to outlawing the greatest crime against humankind: the use of armed force in violation of the UN Charter and modern humanitarian law. At the Nuremberg Trials, waging aggressive war was branded “the supreme international crime.” Among the objectives of the foundation is the fulfillment of the Nuremberg legacy: holding perpetrators accountable for conduct that results in significant loss of life stemming from the illegal use of armed force. This is the end of Ferencz’s story for this book. However, Ferencz is not yet done. By the time this book is published, Ferencz will be well into his 94th year, but this means virtually nothing to him. He is swamped daily with his work on trying to get a suitable definition of the crime of aggression — which he is now trying to get changed to “illegal use of force”— that is acceptable to the members of the ICC (and hopefully the UN as a whole) as well as responding to requests for his support from international law confederates from around the world. In March 2012, Ferencz met with Luis Moreno Ocampo (the former chief prosecutor of the ICC) and other international lawyers (at Ocampo’s request) for extended discussions concerning the ICC and what lies ahead. In August 2012, Ferencz flew to Europe and was filmed and interviewed for a movie documentary being assembled to cover the high points of Ferencz’s experiences during World War II and his involvement in the Nuremberg Tribunals. In October 2012, he returned to Germany to be the first Honorary Nuremberg Lecturer for Peace and Justice, appointed by the commissioner of the new Nuremberg Academy for International Criminal Law. Only death will stop this man’s forward momentum, and hopefully that is still some years into the future. For those of you who would like to keep abreast of Ferencz as he continues his journey through life, he has a wonderful website (benferencz.org — which Ferencz encourages everyone to visit) that stays up to date on what Ferencz is doing. In this section it has been shown that the fruits of Ferencz’s labor are beginning to ripen. Since the mid–1970s he has dedicated his life to assisting in and seeing progress in the establishment of rules and organizations necessary to achieve world peace through law. He spent many hours over many days at the United Nations Organization in New York, becoming well known as Mr. Aggression for his efforts in getting the crime of aggression defined. He wrote books, gave interviews, and met with world leaders, and he received recognition and awards for his efforts to ensure that a proper foundation was built for world peace. He established his own PlanetHood Foundation to facilitate his pursuit of this objective. The successful institution of the International Criminal Court is in its way the recognition that his efforts have not been in vain.

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(Left to right) Don Ferencz, Benjamin Ferencz, and Gertrude Ferencz — the three directors of the PlanetHood Foundation — in 2003.

He still works constantly at the age of 93 for more progress and won’t quit until his life is over or all aspects of his goals are embraced by all people and countries around the world (especially by the country he loves — the United States of America). One might ask if this dream is really necessary. Does the world need a unification of sovereign states with the commitment and tools to ensure peace through law? Isn’t that what the United Nations organization was set up to do? While the answer to the last question is yes, the reality is that the UN has been almost totally ineffective in its role of ensuring peace throughout the world. Ferencz says that the primary reason is that the UN Security Council’s single-veto provision usually gets in the way of any consensus action. Maybe the Security Council needs to be changed to include more sovereign states and a provision for some sort of majority vote to allow action, rather than a veto provision. Even with that being the case, while the UN does have the necessary statutes to define unlawful actions, it does not have the means to enforce the law nor the organizational structure to act effectively. In this book, it can be seen that Ferencz has made the case that in order to achieve effective justice there must be an overarching organization with laws that

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define what is right, courts to judge whether or not the law has been violated, a police force to stop unlawful actions and obtain custody of the offenders, and the will and power to act. Without all of these four conditions being met, there can be no lasting peace in the world. In Ferencz’s work to achieve world peace he has seen the UN statutes upgraded and an international criminal court established. But what he has not seen is the organizational will to act nor the necessary independent police force put in place to enforce the law. He believes that until the majority of sovereign states are willing to give up the necessary power to an overarching, peace governing organization (e.g., the UN) and further strengthen it with the necessary military police force to enforce the law, wars and conflicts will continue unabated. The truth of this is probably best made obvious by looking at the record of deaths — caused by the same atrocities that were experienced in Europe, the Soviet Union, and China (among many others) prior to and during World War II — that have been going on since 1945. The objective of “never again” proclaimed at Nuremberg in 1948 has not been met. According to a very thorough compilation of data — and actions taken and not taken by world powers and the UN — since 1945, the number of deaths from wars and conflicts from 1945 through 2000 has exceeded 40 million (with the vast majority being innocent people — men, women, and children). The same atrocities that occurred during the existence of the Nazi Third Reich have continued to be committed. Further, these same atrocities and deaths of innocent people are continuing now at a rate of upwards of 500,000 deaths per year in hot spots around the world. And how effective has the UN been in preventing or stopping these actions, for which they have had ample warning in almost all cases? The UN has either ignored or taken pitifully little action against these crimes — either because it has been blocked at the Security Council level or because it had insufficient support by the more powerful members of the UN (either because the UN leaders felt powerless to act or because they didn’t feel action was warranted; i.e., they essentially ignored the consequences of taking little or no action).1 So apparently the answer to the question of whether this dream of world peace through law is really necessary is yes, at least if the people of this world want to see the unconscionable killing of millions of innocent men, women, and children stopped. That is why Benjamin Ferencz has dedicated his lifetime efforts to making peace through law, not war happen sooner rather than later.

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Appendices A. Additional Ferencz Interviews A.1 Ferencz describes the process of collecting evidence (including evidence of crimes in the Buchenwald camp) and issuing arrest warrents. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/wlc/en/media_ oi.php?MediaId=4954.) I had never heard the name “Buchenwald.” That was something, just as I had never heard the word “Einsatzgruppen” or “Babi Yar” ... which I was much involved with later. We didn’t know those names; we knew there was a concentration camp. A report would come in to Third Army headquarters that so-and-so tank division is approaching an area in which they believe there is a concentration camp, or has just overrun an area in which there is a concentration camp. And the conditions are horrible, et cetera. And that would come to me, that report would come to me, and I would say, “I’m going out into the field to investigate that.” Later on we had others who would go out into the field, but I was very eager to go out and because I was the most experienced man in the outfit and nobody else knew what to do, in fact, I would go out. And going out meant I’d get there as fast as I possibly could, usually on a Jeep, find out which unit was going in or had just entered, and go into the camp. And what I would do immediately would be to secure the records. There was in every camp a Schreibstube, or an office. I’d go into the Schreibstube immediately; “Beschlagnahme the Schreibstube,” which means you’d seize, I’d seize the Schreibstube and everything in it, nobody could go in, nobody out, all records are confiscated and secured. For example, in Buchenwald, I seized the Totenbuecher, the death books, which were the registries of the people killed in Buchenwald. They were long, big, black books, bound, they were not the looseleaf folders, but there they recorded the name of all the inmates as they were killed. And they would put down next to them 235

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the date, the name, the date of birth, usually if they had it, of the inmate, and his number, of course, and then the reason for his death. And they were all so obviously fictitious. “Auf der Flucht erschossen” (Shot while trying to escape); “Auf Typhus” (Typhoid), or other diseases. And those books then became the the basic evidence for what had happened in the camp and who was there. And then I would follow that up by bringing in witnesses from the survivors to take statements from them describing what had happened in the camp. And by the time I got through — and usually it took two or three days, not usually more — I had a complete picture. And on the basis of that I could go back to headquarters, write a report, and issue arrest warrants for everybody connected with it. A.2 Ferencz describes collecting evidence of death marches. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/wlc/en/media_oi.php? MediaId=4954.) As the camps were about to be liberated, the Germans tried to move the inmates out, those who were still able to walk or to work. They left those behind to be killed or to die who were too sick. But they marched them out. And they were marching, I think it was from Flossenbürg to march to Dachau, or one of the camps. And, they took them through the woods and they marched at night, and if anybody faltered on the way, they were immediately shot; if anybody paused to try to pick up a potato or to eat a root or something, they were shot. And I was able to follow this trail through the woods, uh, of mass grave —10, 20, 30, 50 killed, you know. And I would get the nearest farmer to say, “Dig them up.” They would say, “Oh yes, we heard firing there last night, there was shooting going on.” “Where was it?” “Over there in the woods.” And I would say, “Let’s go.” And we’d go out to the woods and there would be a newly dug-up place, and I’d say, “Get some shovels,” and I’d stop some Germans on the street, “Take those shovels, dig ’em up,” and we’d dig up the bodies of people who’d been obviously shot through the head. Usually the top of the skull is blown off, shot probably kneeling from the back. Some of them were tied still, you know, just lightly covered over with you know, six inches of dirt, something like that. So I could follow the trail of crime being committed all along the way. A.3 Ferencz describes evidence collected at the Mauthausen camp. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/wlc/en/media_ oi.php?MediaId=4954.) What I would do, as a matter of procedure, I would immediately try to seize the records of what had happened in the camp. And every camp had an office, a Schreibstube, writing office. And what I would do is I would imme-

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diately go to the Schreibstube and try to find out who was in charge there, what was there, and seize whatever would be relevant for war crimes prosecution. And when I came to the Schreibstube in Mauthausen there was an inmate there who was a “Schreiber” [who worked in the office], as they called them, and that was a favored position, in fact, in the camp if you would be in the hospital or in the Schreibstube or in the kitchen. And he said, “Oh, I’ve been waiting for you,” and he said, “Come with me,” and I recall going out with him to the electrified fence and his digging up a box of records which he had kept. And those records were the records of all of the SS men — the identification cards — who had entered that camp and who had left the camp. It had their photographs on it. It had their identifying numbers and addresses, date of birth, things of that kind. And he was supposed to destroy each one of those records before a new one was issued or when the man left the camp, and he didn’t do that, which meant that every time he saved one of those records — and there were hundreds of them — he put his life in jeopardy. And he was ready to do that, hoping and knowing that one day there would be a day of retribution. And he saved those records for that day. So to me, it was a reflection of human hope and confidence, and faith, you know, and courage, which was very moving and dramatic for me. A.4 Ferencz describes early war crimes investigations in which he participated. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/ wlc/en/media_oi.php?MediaId=4954.) Well, the typical early investigation would be, we had a report, for example, of American flyers, parachuters, who’d come down and been killed by the populace down below. And we’d receive such a report from some informer or somebody in the field and had come through military intelligence down to the war crimes unit, and what I would do then was I’d get into a Jeep and take off for the location, and very often by myself, or I’d have a Jeep driver and I’d arrive at the site and go to the nearest authority, whether it’s a Buergermeister [mayor] or a police chief or, and say, “We have a report of war crimes being committed here,” and, “Do you know anything about this?” Of course, “I know nothing about it.” “Sit down and write out an affidavit, and describe everything you know, and if you lie you’ll be shot and I want you to arrest everybody within the next, you know, the next 500 yards of this place, and bring them in here and sit down and have them write statements. Explain to them....” I’d find somebody who spoke German — at that time I didn’t, I’d never studied German, and I learned German, of course, after a while, but at that time my German was very broken, it was Yiddish mostly, but I managed to make myself understood enough to get the job done. I would say, “Get somebody who knows English and German and you, you’re the translator.

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You explain to these people...” Now they’d arrest maybe 50 or 75 people, and say to all of them, “Sit down and write out exactly what happened. Anybody who lies will be shot.” And they would stand at attention and tremble and sit down and write. And separately — you know — keep them all apart. Then I’d collect the statements and say, “Now read ’em to me.” And they would read ’em to me, and pretty soon if you read 75 statements you get 40 of them telling you the same thing. The others saying, “I wasn’t there,” “I never heard of anything,” “I happened to be milking the cow at that moment,” and so on. But with the 40 statements you knew what had happened. So that I could write — you know — that on this and this date an Allied plane was shot down, two American flyers were captured, brought to the middle of the town, there they were beaten by the populace or they were taken to the Gestapo headquarters, and it varied, there were many such cases, and then I would go to the Gestapo headquarters to see if I could catch the man — they had invariably fled, but I’d capture the records and find out who was in charge. Then I’d go try to find the bodies, and dig ’em up. Sometimes I dug ’em up myself, sometimes I’d call the graves registration and have them send in a crew or sometimes I’d stop the Germans and say to start digging, and I’d unearth the bodies, call in camera crew, Signal Corps, take pictures, wash ’em down, try to identify them and then write a report and issue an arrest order to all units to arrest so-and-so and so-and-so — by that time prisoners of war were being captured and being identified — and hold them for war crimes trials. So, that kind of an investigation I could do by myself. A.5 Ferencz describes taking testimony from witnesses while collecting evidence of war crimes. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www. ushmm.org/wlc/en/media_oi.php?MediaId=4954.) We didn’t have a regular courtroom where you could call in a witness and examine him with a secretary present and someone else cross-examining or securing his rights. We — if we were taking testimony from friendly witnesses — we’d take an affidavit from them. He’d swear to it before an officer. If it was from a hostile witness we would interrogate him privately in order to see if we could ascertain the truth. And when we reached the point where we felt we had ascertained the truth, we asked him to write it out in his own hand and subscribe to it as being true, and usually brought in an officer to witness that, or to take a separate deposition under more favorable circumstances from a point of view of trial. And that was the evidence that we then used. A.6 Ferencz describes how he became involved in preparations for the Subsequent Nuremberg Proceedings. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/wlc/en/media_oi.php?MediaId=4954.)

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I got intercepted by a call from also then a colonel, Telford Taylor, and would I come and talk to him? And he said, “Look, I’m going back to Nuremberg, I’ve been over there, the International Military Tribunal is already in process, Justice Jackson is there, we’re winding up that trial but I’m going to take over after him, and we’re going to set up a whole series of subsequent trials. And I’m going to be in charge, and I need staff, and I’ve heard about you and I’d like you to come with me.” And I say, “What have you heard about me?” And he said, “I heard that you’re occasionally insubordinate.” And I said, “That’s not correct. I’m usually insubordinate, because I will not follow orders that I know are stupid.” I said, “But I’ve also been checking up on you, and I know you’re a Harvard man, I know your background, and I don’t think you’re going to give me stupid orders, and if you don’t you couldn’t get a better man.” He said, “You come with me.” So I said, “Fine,” I called up [Colonel Mickey] Marcus, I said, “Marcus, I’m off that army junket, I’m going out with Telford Taylor.” And so I did, still intending to have nothing but a good time and enjoy myself and get even with the U.S. Army. Well, it turned out that Telford was an excellent lawyer, and he was much engrossed in the whole problem of who do you try after you’ve tried these few leading Germans, when you have the entire hierarchy of German life also responsible: the ministries, the industrialists, the generals, the SS people, the doctors, the lawyers, all of them conspired together to make it possible for Hitler to do what he was doing. And Telford’s approach was, we have to reach out into all these segments of German society in order to demonstrate how it really worked. And it was quite fascinating and I really took the work quite seriously, and I said, “All right, what do you want me to do?” He said, “Well, where do I begin? Where do I go?” I said, “We got to get the evidence.” I said, “I’ll go to Berlin, that’s where all the evidence is.” So he said, “You go to Berlin, set up an office in Berlin.” So I went to Berlin, my wife I had to leave behind. And there I set up the Office of the Chief of Counsel for War Crimes — Berlin Branch. A.7 Ferencz describes collecting evidence against alleged war criminals. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www.ushmm.org/wlc/en/ media_oi.php?MediaId=4954.) The office was the Third Army, Judge Advocate headquarters, which kept moving as the front kept moving up. It was either in Erlangen or it was in Munich or it was someplace else, and, you know, we had, usually took over a German Kaserne [barracks] and we had a room and a desk and a typewriter. So I would get back there with whatever notes I had, whatever documents I had, and write up a report. And the reports would say: “On certain date U.S. Army troops entered the camps of X”— let’s assume Mauthausen, for example.

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“There the troops encountered the following scene: there were originally 50,000 inmates in the camp, there were 12,000 still alive, 10,000 had been marched out the day before. The camp officers were so-and-so. The crematoria were still going, there were so many bodies stacked in front of the crematoria. I took witness statements from 10 witnesses, they’re attached as exhibits one to ten. The suspected persons responsible for these crimes are so-and-so and so-and-so. Issue orders immediately to have them put on the CROWCASS list,” the Central Registry of War Criminals and Security Suspects. “Have them distributed to all members of the U.S. Army, wherever any POWs are, compare them with this list, have them arrested, and report back to headquarters.” So, the goal of my investigation was to describe what had happened, to collect credible evidence admissible in a court of law, which could be used to convict the persons responsible of a known crime under international law. That was the objective, and that’s what we did. A.8 Ferencz describes preparations for trials before military tribunals (for example, in Dachau. Interview: 1994 at the U.S. Holocaust Memorial Museum (USHMM). (Can be found in both text and video at http://www. ushmm.org/wlc/en/media_oi.php?MediaId=4954.) I recall having nailed up the sign: Headquarters, Third United States Army, War Crimes Trials, Dachau. We decided that we were going to have the trials in Dachau. Now Dachau was liberated by the Seventh Army, not the Third Army, but we were occupying, General Patton was there, and that was the site, that’s where we were going to have trials. And so we took these army officers who had been assigned to the Judge Advocate section, not because they were lawyers but because they were at liberty and we needed staff and they had nobody else. And they were going to set up tribunals. These were in fact military tribunals, they are not to be confused with what happened later at the International Military Tribunal at Nuremberg, which was an international court. These were military-style tribunals which have existed under the laws of war for a very long time. And they were staffed by military officers, similar to a court martial, it followed the court martial procedure. So that you would have three officers, a colonel, a major, a captain, a whatever, the highest ranking was the presiding officer, the prosecutors were selected by the Judge Advocate group, they may or may not have been lawyers, sometimes they were, sometimes they weren’t. They were a lieutenant assigned to defend so-and-so or to prosecute so-and-so, as they would a soldier who’d gone AWOL. And then they had all these nice reports, prepared by me, by Nowitz, by a few other guys, Slotnik was another lawyer who came on board, and we had a fellow name of Briggs who was a lawyer, went up to Boston, all these were enlisted men, and they did all the work. And they’d have these reports, and based on those reports they would, we would draw up the indictment, I

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would draw up the indictment. And the indictment would say that SS major so-and-so is indicted for mass murder of so many concentration camp inmates of such-and-such camp during such-and-such period when he was in command. And the evidence is: photographs obtained by the Signal Corps, statements from the survivors, my own affidavit or other affidavits of, for witnesses who were there, usually not my own, I would certify to the procedures whereby these affidavits were obtained. And on the basis of that the defendant would be asked, “How do you plead?” And they’d say, “I plead not guilty.” “All right, let’s proceed with the trial.”

B. A World of Peace Under the Rule of Law: The View from America Presented by Benjamin B. Ferencz at the Washington University Global Studies Law Review — Symposium — Judgment at Nuremberg in 2007 (Washington University Global Studies Law Review 6, 663 [2007], http://www.law. wustl.edu/WUGSLR/index.aspx?id=6188. Reprinted by permission.) Full text of speech as given by Ferencz: Thank you very much for that brief introduction. I’ve had twenty-five speakers ahead of me describe everything there is to know about Nuremberg. I have to find something different that you haven’t heard before. So let me begin by confessing that I am more connected to Nuremberg than anyone else in this room. My wife and I had four children born in Nuremberg. A sample is here in my son Donald. I shall try to give you some indication of what it was like for an American in Germany during and immediately after the war. First, I’m going to ask Professor Safferling, who has carefully explained past and present attitudes in Germany, to do me a personal favor. You may have noticed that he comes from Erlangen, which is near Nuremberg. I entered Erlangen for the first time when I was serving as a war crimes investigator in General Patton’s headquarters. We received a report from the London Central Registry of War Crimes and Security Suspects that doctors in the Erlangen Hospital were suspected of having conducted medical experiments on Nazi victims. I strapped on my .45-caliber pistol, jumped into my Jeep and raced to Erlangen. I found the trembling chief doctor and demanded that he show me through the hospital since he was accused of illegal medical experiments. A cursory search revealed nothing incriminating. The U.S. Army was moving forward rapidly and I couldn’t tarry. In anticipation that I might return later, I gave him an order: “I’m placing you under house arrest. You are not allowed to leave here unless I give you my permission.” He responded in German with a crisp, “Yes, Sir!” as he snapped to attention. I left. Well ... I must admit that I never went back. What I want to ask Professor Safferling to do when he gets home, is to go to the hospital and if he sees an old

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doctor, a very old doctor, standing at attention, please convey my apologies and tell him he can go home now. The program says that I am supposed to talk to you about a world of peace, the rule of law, and the view from America. In order to have a peaceful world, you need three basic components. You need laws to define what is permissible and impermissible. You need courts to settle disputes amicably or to hold wrongdoers accountable. And, you need a system of effective enforcement. Those three components — laws, courts, and enforcement — are the basic foundations for every society, whether it be a city, or a town, or a village, or a nation, or the world. You can imagine what the world would look like here in St. Louis if you didn’t have laws, or courts, or enforcement. You’d have total chaos. And in the international arena, all of these component parts are very weak. The laws are uncertain and ambiguous. International courts, such as the International Court of Justice, have no independent enforcement powers. The new International Criminal Court (“ICC”) and other similar international tribunals are all part of a burgeoning evolutionary process, as is evident from Professor Tom Franck’s prescient observations regarding state responsibility. We live in a world that is just beginning to be put together on an international level that contains the vital component parts for a more civilized world community. Insofar as we succeed in putting the missing parts in place, the world will be more tranquil. To the extent that we don’t have those components, the world will be less peaceful. The most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, was henceforth going to be punished as an international crime. That was a revolution in thinking. We’ve always had wars, and many would say that warfare was inevitable and immutable as part of some Divine eternal plan —“The big fish eat the little fish.” Well, Justice Jackson said, “No more!” Jackson was very explicit when he wrote to President Truman saying the time had come when we must hold accountable those leaders who hold the reins of power, so they will know that they will be answerable for their evil deeds, and warfare is an evil deed. It’s an evil thing. And they agreed that no matter what the reason, no matter what justification is offered, warfare would not be tolerated. International disputes could be settled by peaceful means only. That was the main point of Nuremberg. I was a combat soldier in World War II — from the beaches of Normandy to the final Battle of the Bulge. I know about war. Jackson’s call for a world of peace under the rule of law deserves universal support. Nuremberg also condemned crimes against humanity; these principles were articulated after the First World War. Since the American Civil War, there were legal prohibitions against certain forms of criminal behavior on the battlefield. It’s illegal, for example, to use poison gas or shoot your enemy with a poisoned arrow. But, it’s not yet illegal to be the first to drop a nuclear bomb on a city. Philippe Kirsch presided over the Rome Conference where the delegates from India and Pakistan, both possessing nuclear weapons, proposed that the first use of such weapons should be punishable. There was no way that good idea would be acceptable to the great nuclear powers — particularly the United States. So there is still a long way to go before we get civilized. In fact, the current U.S. administration insists that, although we possess and have used such weapons,

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other nations that plan to acquire such weapons must be stopped, by unilateral force if necessary. The first meeting of the U.N. General Assembly passed three resolutions to follow up on the Nuremberg trials. They affirmed the Charter and Judgment of the International Military Tribunal (“IMT”) and called for a codification of international criminal law based on the Nuremberg precedents. Committees were formed to prepare for an international criminal jurisdiction to enforce the new code. That was 1946. I was young then. Forty years later, the International Law Commission came up with a code of crimes. It confirmed that aggression is a crime and that the definition that proved acceptable to Justice Jackson and all the IMT judges was adequate. Germany’s attacks against her neighbors were so flagrant and such a flagrant violation of existing treaties that it was clearly criminal. Aggression is listed as a crime in the Rome Statute for the ICC, along with genocide, war crimes, and crimes against humanity. Unfortunately, the tribunal cannot act on the crime of aggression until certain conditions have been met. One: they have to redefine it. Two: they have to agree upon the elements of the crime, whatever that means. And three: practically all state members of the court have to agree. When and whether that will happen remains to be seen. The sad fact is that many nations are not yet ready to give up their right to go about killing innocent people if they think that it is necessary to protect their own national interests. That’s what war is all about. Today wars kill ten civilians for every person in uniform. That’s not very nice at all. The lesson that we tried to teach at Nuremberg doesn’t seem to have been absorbed very well. In fact, it was largely due to the skill of Chairman Philippe Kirsch that aggression was even listed as a crime in the Rome Statute for the ICC. Jackson’s greatest contribution had to be pushed to the back burner until the other prescribed preconditions were met. Until then, the ICC cannot act on what the IMT called “the supreme international crime.”

The Rule of Law — Twelve Subsequent Trials at Nuremberg Something which hasn’t been discussed here — much to my surprise — were the twelve subsequent trials at Nuremberg. Everybody knows about the IMT and the role of Justice Jackson. He was a great man and it was a great trial. He deserves all the credit that we have all been giving him. But there were twelve subsequent trials after Nuremberg. General Telford Taylor, an outstanding Harvard lawyer who had served in military intelligence during the war, was the man in charge. He was my chief at Nuremberg and we were later law partners. The trials under his direction were designed to show that Germany could not have committed all of those horrible crimes without the support of a broad cross-section of German society. Bankers and industrialists supported the Nazi party and programs. Doctors performed medical experiments. Jurists perverted the law for political purposes. Ministers conspired to commit Nazi aggressions, and the military carried them out. The Schutzstaffel (“SS”) were mass murderers. Taylor first assigned me to help collect evidence for the twelve subsequent trials. Whitney Harris has explained that a great deal of evidence was assembled in

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London and in Paris. But there was quite a lot that we still didn’t have. Hidden in the woods around Berlin, there was what appeared to be a small villa. Beneath the small house there were subterranean caverns holding about ten million carefully filed Nazi Party records. They showed the names of every member of the Nazi party and the comprehensive documentation of how they served the Third Reich. It’s ironic that the highly esteemed German judge Hans-Peter Kaul, who sits on the new ICC in the Hague, has his residence not far from the old Berlin Document Center. When I worked there in 1946, the German staff employed by the Americans was happy to be paid with cigarettes, soap and coffee. That was the only currency that had any value. Let me give you another brief illustration of what it was really like. One of my researchers in Berlin came upon a number of loose-leaf binders, which were the reports of the SS from the Russian front. Special units called Einsatzgruppen (“EG”)— a name Americans couldn’t pronounce and nobody could translate. These were special extermination units assigned to follow the German lines as they advanced into Poland and the Soviet Union and were there to “eliminate” (they never said “murder”) every Jewish man, woman, and child they could lay their hands on, as well as every Gypsy, and any suspected opponent of the Nazi regime. And that’s what they did. And then they proudly reported the details. How nice! The top secret reports gave us the name of the commander, the unit, how many people they killed, the time, the place, and the distribution list with as many as one hundred names of leaders who later said they knew nothing about the genocide. I took a sample of the damaging evidence and flew from Berlin to Nuremberg. I said to General Taylor, “We’ve got to put on another trial.” Taylor was hesitant. Another trial had not been planned and no budget had been approved. Taylor was persuaded to approve an unplanned trial against these killing squads and assigned me to be responsible for the case, in addition to my other work. So, I became the chief prosecutor for the United States, in what was truly the biggest murder trial in human history. I accused twenty-two SS officers, including six SS generals, of murdering in cold blood over a million people. Relying on the documents and without calling a single witness, I rested the prosecution’s case after two days. I was twenty-seven years old and it was my first case.

The Rule of Law — The Crime of Aggression One of the EG commanders was being held in Nuremberg as a potential witness in the IMT trial. Whitney Harris had interviewed him. He became the lead defendant in the new EG case. SS general Dr. Otto Ohlendorf, father of five children, a handsome man, was one of the smartest and outspoken of the accused. He had admitted that his unit killed about 60,000 Jews, but he quibbled about the precise number since sometimes his men bragged about the body count. Imagine, bragging that you murdered more than you actually killed! None of the mass murderers showed any remorse whatsoever. Ohlendorf was asked to explain why they had killed all the Jews. Most defendants argued that they were only obeying superior orders. Ohlendorf was much more honest. He said it was necessary in self-defense. Self-defense? Where do you come up with self-defense? Germany attacked all of its neighbors. “Ah, yes,” he explained, “we

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knew that the Soviet Union planned to attack us, and therefore it was necessary for us to attack them first.” (These days we call it “preemption.”) Question: “And why did you kill all of the Jews?” Answer: “Well, we knew that the Jews were sympathetic to the Bolsheviks. Everybody knows that. So, we had to get rid of them, too.” Question: “And why did you kill thousands of little children?” Answer: “Well, if they grew up and learned that we had eliminated their parents, they would become enemies of the Reich. So, of course we had to take care of them, too.” It sounded so natural and logical ... to the mass murderer. It was not persuasive to the three American judges. They carefully considered the doctrine of preemptive self-defense, or anticipatory self-defense. They held, unanimously, that it was not a valid defense that could justify the crimes. If everyone felt they could go out and attack their neighbor, and also kill their children and other perceived enemies, what kind of a world would we have? It was an echo of Justice Jackson’s famous phrase that has been quoted here about not passing the Germans “a poisoned chalice” lest we put it to our own lips as well. Law must apply equally to everyone. In Telford Taylor’s closing statement, he said to accept preemptory selfdefense as a justification for murder would be like saying that a man who breaks into a house can then shoot the owner in presumed self-defense. Those who made that argument were found guilty and were hanged. I was a young man then, and it was clear to me that those innocent souls who were slaughtered by these Nazi extermination squads were killed because they did not share the race, or the religion, or the ideology of their executioners. I thought then that such thinking was pretty terrible. I still think it’s pretty terrible today. Of course, it affects my judgment when I come to consider the view from the United States.

The Rule of Law — The View from America America is a great democracy. It consists of very many people, with very many different views. And there is no such thing as the view from the United States. There is a view from this administration, or from some previous administration. And I can talk to you about that, but I want to remind you that when America began in 1776, it was in a revolution against King George, King George of England, I mean. Because we live in a great democracy, there are those here and in other parts of the world that don’t believe in the rule of law. They say that’s nonsense, that’s idealistic dreaming. If you’ve got the power, use it. That’s the way the world has always been run. Countries have grown by conquest, that’s the way to go. That was not the view of Justice Jackson. He said, “No more!” And he didn’t invent that prohibition. The IMT judges went into the question of ex post facto law. The idea that war was impermissible had been an evolving doctrine from the First World War. The legal committee of the League of Nations at the time was unanimous that aggression was a crime, but the best that could be done was to agree that in future it would be punished — regardless of the rank or status of the responsible perpetrator. The Kellogg-Briand Pact of 1928 specifically prohibited the use of armed force. Truth is that the leaders of important powers in the world today are not prepared to give up their right to use force in their national interests, when they

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believe it’s necessary, or even as a preemptive matter as far as the United States is now concerned. That is the policy of this administration as confirmed by the Quadrennial National Defense Strategy Reviews issued by the president and the Pentagon. We specifically reserve the right to act unilaterally in defense of our national interest when the administration sees fit. Of course, there are many citizens who think that’s correct; that’s what presidents are supposed to do. But even at the risk of being labeled an idealist or a dreamer, I ask: where is that policy getting us? Have we found peace that way? Have we served our people that way? Have we advanced our reputation worldwide by staying the course to show resolve? When I look at the view from America, I see two different trends. Let us first view things, which, in my opinion, do not serve our national interests. The present security strategy of the United States is a repudiation of the most important principle coming out of the Nuremberg trials. If you compare the published national security strategy with the judgments of the Nuremberg trials, it is clear that they are not compatible. The argument made by “realists” is that times have changed; we live in a nuclear world where the mushroom cloud looms. Terrorists do not respect the law. To meet the new threats, administration lawyers argue that they can disregard or stretch the law. They invent new terminology. It’s “soft law.” Soft law means you’re violating the law, but you’re trying to find a moral basis in order to justify what you’re doing. Well, that’s one way to approach it, and there are good lawyers who have taken that position. I think it’s a very dangerous practice to allow people to decide that the law doesn’t work so they’re entitled to ignore it. If the law doesn’t work, what you must do is improve the law, not discard it. Imagine what would happen if every time a judge rendered a bad decision, or they passed a new law which may have been a bad law, you decided you were entitled to disregard it. What would the world look like? We’d be back to the Wild West. That may bring nostalgia in some Texas hearts, but as a policy for peace in the world, I don’t think that would be very effective. An illegal act does not become legal when it is done with good intentions. Let me note another problem that causes concern. Tom Franck will recall the top secret “Downing Street Papers” published by the London Times in July 2002. Leading British cabinet members discussing plans for an upcoming war with Iraq concluded that the United States was fixing the facts to match the policy. It seemed clear to them that the U.S. had made up its mind to go to war against Iraq, no matter what. The Americans were determined to bring about a “regime change.” When it was noted that doing so by force would be illegal, administration lawyers, adept at finding new interpretations of laws, came up with the argument that preemptive force would be justified as self-defense from an imminent nuclear threat. The U.N. Charter says a nation may defend itself against an armed attack. As far as I can make out, Iraq wasn’t engaged in or even planning an armed attack against the United States. So the creative lawyers stretched the law by arguing that since the Security Council of the U.N. was too politicized, it could be bypassed if necessary. A preemptive war followed. America’s misguided opposition to the ICC also troubles me. Judge Goldstone and Ambassador David Scheffer have given other examples of U.S. intransigence. John Bolton now sits as America’s permanent representative at the U.N., having

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found a way to bypass the normal constitutional requirement of Senate confirmation. Ambassador Scheffer mentioned “Article 98” immunity agreements. The U.S. insists that unless a country signs a commitment never to send an American to the ICC, all U.S. military and economic aid will be cut off. Many of the countries use our funds to hunt narcotics traffickers and terrorists. Judge Goldstone wrote a news article saying the American policy almost borders on the irrational. That’s the language of a real gentleman. I would have put it more simply. I would have said, “It’s plain crazy!” Other current administration actions that are distressing include those strengthening executive powers regarding prisonerof-war interrogations that have brought our nation into worldwide disrepute. Now let us look at the more positive things. The progress toward a world under the rule of law has been fantastic! When delegates from about 160 nations went to Rome in July 1998 to seek agreement on an international criminal court, there were about a thousand points still being discussed, and they reconciled all of them. That was largely due to the determination of many countries and the skill of Chairman Philippe Kirsch and others who worked very hard in the preparatory commissions (“PrepComs”). We now have a truly international criminal court for the first time in human history. Unfortunately, the crime of aggression, that was the most important achievement of Nuremberg, was only listed as one of the four core crimes. But, the ICC was not empowered to deal with that offense until various conditions could be met. Nevertheless, the confirmation in the ICC statute that aggressive war is an international crime had significant repercussions. One of the delegates at the PrepComs and in Rome was the representative of the U.K., Elizabeth Wilmshurst, a very nice lady and British civil servant who occupied an important legal post in the Foreign Office. She was their expert on aggression. When she recognized that Britain and the U.S. were going to war against Iraq without Security Council approval she resigned. “I can no longer serve a government which is engaged in the crime of aggression,”1 she wrote. That’s an exact quote. I have a copy of the letter. Britain’s legal officer says the U.K. and the U.S. are engaged in the crime of aggression. Britain’s top intelligence people say the U.S. is misleading the public about the proximity of a nuclear attack and that Iraq supports terrorists that bombed the United States. These are allegations that challenge the validity and legality of our going to war and they call for more detailed explanation than has been forthcoming. I’ve never seen the people of this country so frightened. And I have lived through the Depression, when lawyers and doctors were selling apples on the street, and the days when Father Coughlin was preaching racial hatred and support for Hitler. I have seen how Senator McCarthy decimated the State Department by falsely challenging the loyalty of patriotic Americans. These national crises have been overcome. It is necessary to change the way people think. If people are prepared to kill and die for their particular ideals, whether it is nationalism or religion or anything else, there is no easy solution. Those who are prepared to die while blowing up a school bus see themselves as heroic martyrs. Their mothers bless them and boast to their neighbors about the noble death of their child. These are ideas that cannot be fought with a gun. You can only prevail over a confirmed idea with a better idea. Changing the way people think about ingrained ideals takes hard work and a long time. You have to begin

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very early to educate young minds that war is not glorious. War is an abominable crime, no matter what the cause. The U.N. Charter (“Charter”) prescribes many ways of settling disputes by peaceful means. It is time to give the Charter a chance. There is a growing awareness that current thinking regarding peace and power must be changed. What I am going to propose to you is something that I realize may sound a bit crazy. It will take a long time and hard work to achieve the peaceful world all people desire. But I believe it can be done — eventually. I suggest that we all try to live up to Jackson’s dream and to the aspirations we’ve heard here from former Nuremberg lawyers and several distinguished professors. We have to eliminate war-making. You may well ask: “How can you do such a thing?” It has never happened. Well, nothing ever happened until it happened for the first time. By definition, everything that is new has never existed before. Let me remind you of the two brothers in Ohio, Wilber and Orville Wright. They had the crazy idea of putting wings on a bicycle and peddling hard until it left the ground. The neighbors mocked them as mad. “If God wanted man to fly He would have given them wings.”2 At this moment there are thousands of airplanes circling the globe. Being a little crazy may be a good thing. We are at the beginning of an amazing information revolution, the magnitude of which we cannot even grasp. The potential for changing the way people think is enormous. But it will take time. I don’t know if it will be a hundred years or two hundred years or more. There is no such thing as instant evolution or painless revolution, but it can be done. How do I know? Well, I see the trend from all the changes I have witnessed during my lifetime. We are spiraling upward. For example, when I went to school there were no females in my class in high school, college or law school. Under the U.S. Constitution, women had no right to own property or to vote. A man with white skin could legally own a man with black skin. Those discriminations, fortunately, no longer exist in our country. We had to fight a civil war to end slavery because some argued that our economy and way of life was at stake. We have changed the way people think on such important issues in a relatively short time. An international criminal court never existed before in human history. But it exists today. New institutions are being born to cope with global problems. Such transformations all required and still require determination, patience and a willingness to teach tolerance, compassion and the benefits of compromise rather than conflict. The U.N. Charter prohibited the use of armed force without Security Council approval. It called for disarmament and the creation of an international military force to preserve the peace. It listed many ways to settle disputes by peaceful means. No doubt, the Charter needs improvement, and that should be our primary goal. It is time for all nations to live up to their legal and moral obligations.

The Rule of Law — Conclusion You cannot achieve lawful ends by unlawful means. Respect for the rule of law is basic. Good intentions can’t make legal what is illegal. I do not challenge the intentions, or the patriotism, of persons who do not share my point of view. They are entitled to their opinions. Please let me quote some distinguished

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Americans whose views I admire. They also reflect a view from America. I quote: “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”3 My supreme commander in World War II, Dwight D. Eisenhower, wrote that on April 30, 1958, when he became president of the United States. Lest you think that is an exception, let me quote from the 1964 memoirs of another great military leader, General Douglas MacArthur: “For years, I have believed that war should be abolished as an outmoded means for resolving disputes between nations.”4 On January 16, 1991, President George Bush, the father of the present president, addressed the nation, saying: “We have before us the opportunity to forge for ourselves a new world order where the rule of law, not the law of the jungle, governs the conduct of nations.”5 I would be happy if his son would listen to his papa. There are other patriotic military leaders whom I know personally and who do not believe in war: Robert McNamara, former secretary of defense; Admiral Stan Turner, former head of the CIA; four-star general Lee Butler, who was trusted to carry the trigger for the nuclear bomb. On his retirement, Butler warned the nation of the devastating perils of nuclear warfare. All of them are agreed that our present nuclear policy is insane. That’s their language, not mine. Who is crazy? I think we have an obligation to remember and honor Nuremberg for what it stood for. Tom Paine, who inspired the American Revolution, had it right. A patriot is not one who says, “My country, right or wrong.” A true patriot will support his country when it is right but will have the courage to speak out when it’s wrong and try to set it right. Let me close with a message written by Thomas Paine on February 14, 1776, in his pamphlet Common Sense: “O, ye that love mankind! Ye that dare oppose not only tyranny but the tyrant, stand forth!”6 I say to you stand forth! Never stop trying to make this a more humane and peaceful world. Keep pedaling. It’s going to fly!

C. Benjamin B. Ferencz Collection at the United States Holocaust Memorial Museum The following is an abbreviated listing of the contents of the Benjamin B. Ferencz Collection at the U.S. Holocaust Memorial Museum (USHMM) in Washington, D.C., based on his donation in 1994. Mr. Ferencz has since donated an additional set of archive boxes of data in early 2012 that are not yet included in the collection’s listing, and is scheduled to donate another set of archives in November 2012. The main text of this book did not attempt to cover everything that is identified in this listing, since the resulting book would have become unwieldy. For example, the listing identifies Ferencz’s Pace Peace Center, which he set

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up in 1990. However, it was not successful and was quickly abandoned and therefore not included in the biography. This and many other activities of Ferencz’s were not included when they did not add significant value to the overall story of his life. Suffice it to say that Mr. Ferencz has been a very busy man throughout his life, and it is all well documented, as can be seen. The full collection list can be accessed at the USHMM website at http:// collections.ushmm.org/artifact/image/d00/00/d0000001.pdf.

RG-12.000 M United States Holocaust Memorial Museum Archives Finding Aid RG-12 RG-12.000 M Acc. 1944.A.0037 Title: Benjamin B. Ferencz collection, 1919–1994.

Extent 170 boxes, 80 linear feet. 29 folders, 282 photographs: b&w, col. ; 28x35 cm. or smaller. 31 videocassettes (VHS)(NTSC) ; sd., col. ; 1/2 in. 34 audiocassettes; 1/8 in. 1 desk set: black marble + 2 pens, metal clock. 1 serving tray: silver plated. 1 serving tray: pewter. 1 serving plate: porcelain. 1 relief: bronze. 27 books: War Crimes Trials: United States of America vs. Ohlendorf, et al....trial Transcripts.

Provenance Benjamin B. Ferencz donated his collection to the United States Holocaust Memorial Museum in October 1994. The National Archives also transferred to the USHMM a small portion of his personal papers in December 1994. Restriction on access: Unrestricted access. Restriction on use: No use restrictions. Summary note: The collection consists of the personal papers of Benjamin B. Ferencz, chief prosecutor of the Einsatzgruppen Subsequent Tribunal at Nuremberg. Includes materials relevant to the Second World War, the Nuremberg Trials, Holocaust-related restitution and indemnification issues,

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war crimes justice, the efforts to establish a permanent international criminal court for war crimes, and biographical information pertaining to Ferencz.

Organization and Arrangement Organized into 22 series; Series 1. Family Biographical Information, 1933–1994. Series 2: War Crimes Trials and War Crimes Related Records, 1945–1994. Series 3: B’nai B’rith Records, 1937–1994. Series 4: Claims Against Industrial Firms Records, 1952–1994. Series 5: Slave Labor Related Records, 1962–1994. Series 6: Claims Against the East German Republic, 1972–1991. Series 7: Records Relating to the Conference on Jewish Material Claims Against Germany, Inc., 1952–1989. Series 8: Correspondence and Related Records Regarding the Jewish Restitution Successor Organization, 1954–1992. Series 9: Correspondence and Related Records Regarding the History of Restitution (Wiedergutmachung), 1957–1983. Series 10: United Restitution Organization Budget Files, 1962–1993. Series 11: Correspondence and Related Records Regarding the Bundesentschädigungsgesetz (BEG), the War Claims Act of 1948, and the German-American Social Security Agreement, 1948– 1988. Series 12: Correspondence and Related Records Regarding Restitution for Victims of Medical Experiments, 1957–1981. Series 13: Correspondence and Other Records Regarding the Establishment of an International Criminal Court, 1970–1992. Series 14: Records Regarding International Law, 1970– 1993. Series 15: Correspondence Regarding Human Rights, 1970–1981. Series 16: Correspondence and Other Records Regarding World Peace Organizations, 1977–1994. Series 17: Speech File, 1981–1991. Series 18: Alphabetical Subject Reference File, 1939–1994. Series 19: Photographs, 1926–1990. Series 20: Video Tapes, 1979–1994. Series 21: Audio Tapes, 1979–1994. Series 22: Artifacts, 1948–1962.

Series Descriptions SERIES 1: RG-12.001. Benjamin B. Ferencz Collection: Ferencz Family Biographical Information, 1919–1993. The series includes correspondence, notes, scrapbooks, identification documents, reports, yearbooks, diaries, educational certificates, notebooks, and other records related to the private life, career, and professional development of Benjamin and Gertrude Ferencz. Notably, the series includes letters from Benjamin Ferencz to Gertrude Ferencz that detail the capture, interrogation, and investigation of Karl Haberstock, Hitler’s personal art dealer. The letters describe the theft of billions of dollars in art treasures throughout Europe.

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Appendix C

SERIES 2: RG-12.002. Benjamin B. Ferencz Collection: War Crimes Trials and War Crimes Related Records, 1945–1994. The series includes but is not limited to correspondence, notes, scrapbooks, newspaper clippings, identification documents, essays, memoranda, reports, photographs, and other records related to war crimes in general, and the Einsatzgruppen war crimes trial in particular. The collection is chiefly related to Benjamin B. Ferencz’s involvement in the Einsatzgruppen trial. SERIES 3: RG-12.003. Benjamin B. Ferencz Collection: B’nai B’rith Records, 1937– 1994. The series includes but is not limited to correspondence, newspaper clippings, memoranda, notes, essays, reports, and other documents pertaining to Benjamin B. Ferencz’s professional association with B’nai B’rith. Primarily, the material concerns the efforts of Ferencz to obtain restitution for real, material, and capital property lost by B’nai B’rith during World War II. SERIES 4: RG-12.004. Benjamin B. Ferencz Collection: Claims Against Industrial Firms Records, 1952–1994. The series includes but is not limited to notes, correspondence, memoranda, telegrams, reports, and other documents related to Benjamin B. Ferencz’s legal representation of individual and group claims brought against German industrial firms after World War II. Primarily, the material concerns the efforts of Ferencz to obtain restitution for slave laborers from the German industrial firms that forcibly employed them. SERIES 5: RG-12.005. Benjamin B. Ferencz Collection: Slave Labor Related Records, 1962–1994. The series consists of correspondence related to Benjamin B. Ferencz’s efforts to obtain restitution for slave laborers employed by Nazi industrial firms during the war. The series also includes notes, drafts, research materials, annotated copies, and other materials related to the publication of Benjamin B. Ferencz’s monograph Less Than Slaves. SERIES 6: RG-12.006. Benjamin B. Ferencz Collection: Claims Against the East German Republic, 1972–1991. The series pertains to efforts of Benjamin B. Ferencz and others to obtain restitution from the German Democratic Republic (the former East Germany)

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for victims of Nazi oppression. The series details the legal arguments Ferencz and others made to this end. The case was argued until the reunification of Germany in 1990. SERIES 7: RG-12.007. Benjamin B. Ferencz Collection: Records Relating to the Conference on Jewish Material Claims Against Germany, Inc., 1952–1989. The series includes correspondence, notes, memoranda, and news clippings related to the Conference on Jewish Material Claims Against Germany, Inc. The conference existed to aid Jewish persons and organizations victimized by Nazi persecution in matters relating to the restitution of personal and property rights. The series notably includes materials related to the Goldmann Hardship Fund. The fund was established in 1981 for victims of Nazi persecution who emigrated from East Europe after 1965 (the cutoff date for restitution claims). SERIES 8: RG-12.008. Benjamin B. Ferencz Collection: Correspondence and Related Records Regarding the Jewish Restitution Successor Organization, 1954–1992. The series consists of correspondence related to the Jewish Restitution Successor Organization. Primarily, the correspondence deal with internal JRSO matters, such as funding and operations budgets. The series includes materials detailing the disposition of the desecrated Jewish cemetery at Fulda, and Ferencz’s efforts to arrive at a solution that violated neither civil nor Talmudic law. Also included in the series is the court decision of JRSO vs. Augsburg; a case concerning the destruction of 800 synagogues in Bavaria and Hesse and the resulting obligations for restitution. SERIES 9: RG-12.009. Benjamin B. Ferencz Collection: Correspondence and Related Records Regarding the History of Restitution (Wiedergutmachung), 1957–1983. Includes correspondence, notes, critical reviews, and draft letters related to Dr. Walter Schwarz’s “Rückerstattung nach den Gestzen der Alliierten Mächte,” a history of restitution. Also included are correspondence and notes related to the publication of a pamphlet on the history of the United Restitution Organization by Norman Bentwich. SERIES 10: RG-12.010. Benjamin B. Ferencz Collection: United Restitution Organization Budget Files, 1962–1993.

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Appendix C

Chiefly correspondence between Benjamin B. Ferencz and others involved with the United Restitution Organization, Ltd., regarding URO budgetary matters; together with notes, financial statements, reports, memoranda, minutes of board meetings, board meeting agendas, URO staff lists, URO salary schedules, and independent auditor reports as to the disposition of URO operations expenses and capital obligations. Also includes the files of several precedent-setting cases that either altered or significantly influenced URO policy, including those of David Karpf, Genia Rotenstein, Lucien Ludwig Kozminski, and Violet Dattner. SERIES 11 : RG-12.011. Benjamin B. Ferencz Collection: Correspondence and Related Records Regarding the Bundesentschädigungsgesetz (BEG), the War Claims Act of 1948, and the German-American Social Security Agreement, 1948–1988. Chiefly correspondence concerning the (West) German Federal Indemnification Act of 1965 (Bundesentscheädigungsgesetz or BEG), its synthesis, amendments, and implementing regulations, together with correspondence concerning the United States War Claims Act of 1948 and the German-American Social Security Agreement. Each legislative action was designed to provide compensation for deprivation of life and liberty and related persecution measures. SERIES 12: RG-12.012. Benjamin B. Ferencz Collection: Correspondence and Related Records Regarding Restitution for Victims of Medical Experiments, 1957–1981. Chiefly correspondence, to and from Benjamin B. Ferencz, concerning the efforts of Ferencz and others to obtain restitution for victims of Nazi medical experiments; together with memoranda, clippings, articles, affidavits, reports, power of attorney documents, and other papers detailing the nature of the medical experiments, the efforts to obtain restitution, and the response of the German government. Of particular historical interest are materials relating to Dr. Hertha Oberheuser, the only female tried and convicted at the Nuremberg War Crimes Trials. Following her early release from prison, Dr. Oberheuser resumed her medical practice until her license was revoked by German medical authorities, largely as the result of protests by British medical authorities. Also see the Caroline Ferriday collection (1994.A.334) for further information on Dr. Oberheuser and the Ravensbrück Lapins. SERIES 13: RG-12.013. Benjamin B. Ferencz Collection: Correspondence and Other Records Regarding the Establishment of an International Criminal Court, 1970–1992.

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The series details the efforts of a variety of institutions and individuals in bringing about an international criminal court. Chiefly correspondence between Benjamin B. Ferencz and others allied to this effort. Mr. Ferencz pressed the United Nations and other supranational institutions for the establishment of an international criminal court, as the result of both his experiences as a war crimes prosecutor at the Nuremberg Trials as well as his convictions rising from his personal response to the Vietnam War in general, and the My Lai massacre in particular. Includes but is not limited to correspondence, memoranda, pamphlets, speeches, articles, news clippings, United Nations publications, legislative publications, and newsletters. SERIES 14: RG-12.014. Benjamin B. Ferencz Collection: Records Regarding International Law, 1970–1993. Chiefly correspondence, newsletters, financial reports, meeting agenda, meeting minutes, and other materials related to the American Society of International Law (ASIL), an organization dedicated to educating and engaging the public in international law and to advance international law as a vehicle for resolving international disputes. Also includes syllabi for law courses taught by Ferencz at Pace University Law School, as well as copies of speeches by Ferencz, and documents related to the Peace Center at Pace University, where Ferencz was executive director. SERIES 15: RG-12.015. Benjamin B. Ferencz Collection: Correspondence Regarding Human Rights, 1970–1981. The series pertains to Benjamin B. Ferencz’s efforts at advancing the cause of universal human rights. Primarily correspondence between Ferencz and other individuals and organizations involved in human rights. Also includes but is not limited to news clippings, articles, essays, public statements by the American Civil Liberties Union (ACLU) and other organizations, memoranda, draft copies of scholarly submissions, ACLU activity reports, and other miscellaneous materials concerning human rights. SERIES 16: RG-12.016. Benjamin B. Ferencz Collection: Correspondence and Other Records Regarding World Peace Organizations, 1977–1994. The series pertains to Benjamin B. Ferencz’s efforts at advancing the cause of world peace. Primarily correspondence between Ferencz and other individuals and organizations involved in promoting international dialogue and cooperation as a means of conflict resolution. Also includes but is not limited to news clippings, articles, essays, meeting agenda, financial reports

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Appendix C

for world peace organizations, meeting minutes, memoranda, and other miscellaneous materials concerning world peace. Includes correspondence and other materials related to Benjamin B. Ferencz’s active solicitation for a position with the U.S. Institute of Peace. SERIES 17: RG-12.017. Benjamin B. Ferencz Collection: Speech File, 1981–1991. The series pertains to speeches, television and radio interviews, and other public appearances Benjamin B. Ferencz gave regarding the history of the Nuremberg War Crimes Trials process, and to advance the cause of world peace and the formation of a permanent international criminal court. SERIES 18: RG-12.018. Benjamin B. Ferencz Collection: Alphabetical Subject Reference File, 1939–1994. The series largely consists of previously published materials, together with notes, correspondence, clippings, pamphlets, and other ephemeral materials peripherally related to the Benjamin B. Ferencz collection as a whole. SERIES 19: RG-12.019. Benjamin B. Ferencz Collection: Photographs, 1926–1990. The entire series consists of 282 photographs, primarily in black and white, spanning 1926–1990, related to a wide variety of topics pertaining, primarily, to the life and career of Benjamin B. Ferencz. Many of the photographs are annotated, some by Ferencz. SERIES 20: RG-12.020. Benjamin B. Ferencz Collection: 31 Video Tapes, 1979–1994. Contains lectures, interviews, and media appearances by Benjamin B. Ferencz, recorded on video tape. Primarily lectures and interviews focusing on the Nuremberg Trials and international criminal law. SERIES 21: RG-12.021. Benjamin B. Ferencz Collection: 34 Audio Tapes, 1979– 1994. Contains lectures, interviews, and media appearances by Benjamin B. Ferencz, recorded on audiotape. Primarily lectures and interviews focusing on the Nuremberg Trials and international criminal law. SERIES 22: RG-12.022. Benjamin B. Ferencz Collection: Artifacts, 1948–1962. The series consists of various three-dimensional realia. Including a

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twenty-seven volume set of books entitled War Crimes Trials: United States of America vs. Ohlendorf, et al....Trial Transcripts. Embossed on each volume is “Benjamin B. Ferencz Chief Prosecutor,” dated 1947–1948, Nuremberg, Germany, in English. Language: In English.

Chapter Notes Introduction

Chapter 1

1. I have taken advantage of the vast resources of the Internet to enhance the factual information in this book, and therefore, this book contains many references to Internet sources that may or may not exist whenever this book is being read. However, none of these references are critical to the fundamental information presented in this book. These Internet sources are indications that much of the information in this book can be enhanced or additionally verified through the use of such sources, and I encourage the reader to further expand on his or her knowledge of what is presented in this book by using the Internet whenever the subject matter is of special interest. In addition, virtually all of the information in this book can be verified and or enhanced through access to Ferencz’s web site (benferencz.org) and the Benjamin B. Ferencz Collection at the U.S. Holocaust Memorial Museum in Washington, D.C. (see Appendix C). The prosecution’s full opening speech as well as every other recorded portion of the Einsatzgruppen’s tribunal can be found in the Army Green Series held by the Library of Congress (http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-IV. pdf ). Note that in the documentation of the prosecution’s opening speech, the Green Series shows “Maidanek”; the more common spelling is “Majdanek” (Aktion Reinhard Camps, “Majdanek,” www.deathcamps.org/ lublin/majdanek.html). 2. Copies of Ferencz’s speeches at Rome in 1998 and The Hague in 2011 were provided to the author personally by Benjamin Ferencz.

1. Ferencz says that it was only by chance, after he had passed his eighty-fourth birthday, that he became aware that he had entered the United States under false pretenses. The records of the immigration authorities on Ellis Island showed that he came into the country from the town of Ciolt, in Romania, on January 29, 1921, as a 4-month-old single female by the name of Bela. He says the truth is that he is, and always has been, a male. He was at least two-and-a-half-times older than the record stated, and no one has ever called him Bela, although his Jewish name was Berrel. He says the indication that he was unmarried at that time is probably accurate. He doubts whether even the Immigration and Naturalization Service would treat the errors on the ship’s manifest as valid cause for deportation. He says that he will always be grateful for the generous immigration policies of the United States at that time. 2. Lou Perlman’s sister Shirley Perlman (now Shirley Hofmann) is the author’s wife and Ferencz’s step-cousin by virtue of Ferencz’s father’s marriage to Lou and Shirley’s Aunt Rose, thus making the author also part of Ferencz’s extended family. 3. If the reader has followed all of the family relationships in chapter 1, the reader will see how extended the family is. The author’s wife Shirley (nee Perlman) is Gertrude Ferencz’s natural first cousin and Ferencz’s stepcousin by marriage (since Ferencz’s stepmother is Shirley’s aunt). This family gets further extended because Lou Perlman (Ferencz’s best friend) later married Tia Legman, who is Ben’s first cousin and the neice of Ferencz’s mother (Shari Ferencz, nee Legman). Ben also has two half-brothers from his father

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Notes — Chapters 2, 3 and 4 and stepmother as well as his own four children.

Chapter 2 1. Excellent details of World War II training and battle experiences for the army’s 115th Anti-Aircraft Artillery Gun Battalion under Commander David W. Hopper — easily related to Ferencz’s experiences — can be found at http://115th-aaa-gun-bn.com. 2. While in the army, Ferencz wrote letters to his girlfriend back home in the U.S.— Gertrude Fried. Miss Fried kept all of these letters; they were later declared a National Treasure by the National Archives organization and donated to the Holocaust Memorial Museum in Washington, D.C., as part of the Benjamin B. Ferencz Collection. Fourteen of the Ferencz family’s copies of these letters are repeated in this book verbatim to show the realities faced by Ferencz during the war. All of Ferencz’s letters were originally typewritten by him and then hand signed. This book is the first time these letters have ever been published.

Chapter 3 1. In 1994 Benjamin Ferencz was interviewed by personnel at the U.S. Holocaust Memorial Museum regarding many of his World War II war crimes investigation activities. Some of these interviews are included verbatim in Appendix A in this book. 2. In 1994 Benjamin B. Ferencz donated historic materials to the U.S. Holocaust Memorial Museum related to his World War II activities. These materials filled 170 archival boxes of documents, reports, and photos relative to his war crimes investigations and the subsequent Nuremberg tribunals with emphasis on the Einsatzgruppen tribunal. In addition, in 2012 Ferencz donated another set (roughly 200 archival boxes) of additional documents, personal files, and photos to the museum.

Chapter 4 1. The Ohrdruf concentration camp was the first camp liberated by the U.S. Army — on April 4, 1945 (89th Infantry Division of World War II, “Ohrdruf,” www.89infdiv ww2.org/ohrdruf/ohrdrufintro.htm). The

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Russians had already liberated Majdanek in eastern Poland on July 23, 1944, as the first concentration camp to be liberated in Europe. Sources differ on the date of this event, giving from July 22 to July 24, 1944, but July 23, 1944, is given by the United States Holocaust Memorial Museum, “Lublin/Majdanek Concentration Camp: Conditions” (http://www. ushmm.org/wlc/en/article.php?ModuleId=10 005190) and by the Jewish Virtual Library, “Inside Majdanek” (http://www.jewishvirtual library.org/jsource/Holocaust/Majdanek1. html). The prosecution’s opening statement in the Einsatzgruppen tribunal uses the spelling “Maidanek.” 2. President Franklin Roosevelt died on April 12, 1945, and Harry S. Truman, then vice president, replaced him. 3. Chancellor Schuschnigg (this is the correct spelling — different than that of Ferencz in his letter to Miss Fried) of Austria, after disagreement with Hitler about the role of Austria in the Third Reich, was held in Gestapo headquarters in Berlin and then incarcerated initially in Sachsenhausen and then later in Dachau; he was never in Flossenbürg (Wikipedia, “Kurt Schuschnigg,” http://en. wikipedia.org/wiki/Kurt_Schuschnigg). He survived his stays in both of the other concentration camps. He was transferred out of Dachau in late April 1945 (before the liberation of Dachau), moved with other political leaders to Tyrol, and was later turned over to American troops on May 5, 1945. After World War II, Schuschnigg emigrated to the United States, where he worked as a professor of political science at Saint Louis University from 1948 to 1967; he later died back in Austria. However, Wilhelm Franz Canaris ( January 1, 1887 — April 9, 1945), who was a German admiral, head of the Abwehr, the German military intelligence service, from 1935 to 1944 and a member of the German Resistance, was known to be incarcerated in Flossenbürg (Wikipedia, “Wilhelm Franz Canaris,” http://en.wikipedia.org/wiki/Wilhelm_Franz _Canaris). He was there because it became known that he was opposed to Hitler. He was hanged by the SS at Flossenbürg on April 9, 1945, after being tortured. Canaris was not a traitor to Germany but was in contact with the UK in an attempt to overthrow Hitler. Probably Ferencz had been given wrong information about Schusschnigg, and Canaris was probably the one that had somehow been confused with Schusschnigg.

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Notes — Chapters 6, 7 and 8

Chapter 6 1. Some of the history of the Eagle’s Nest and many photos can be found in Geoff Walden, “Obersalzberg: Kehlsteinhaus (‘Eagle’s Nest’)” (Third Reich in Ruins, http://third reichruins.com/kehlsteinhaus.htm). 2. Baron von Pöllnitz Castle in Aschbach, Austria, is now used as a falconry training resort by the current Baron (Falkenhorst, http:// www.nicolas-falcons. com/en/ index. shtml). 3. During World War II this extensive complex of salt mines served as a huge repository for art stolen by the Nazis, but it also contained holdings from Austrian collections (Wikipedia; National Archives [archives. gov]). More than 6,500 paintings alone were discovered at Altaussee. The contents included Belgian-owned treasures such as Michelangelo’s Madonna of Bruges, stolen from the Church of Our Lady in Bruges; Jan van Eyck’s Ghent Altarpiece, stolen from Saint Bavo Cathedral in Ghent; and Vermeer’s The Astronomer and The Art of Painting which were to be focal points of Hitler’s Fürhrermuseum in Linz, Austria. 4. For pictures of the famous Ghent Altarpiece, see Closer to Van Eyck, “The Ghent Altarpiece,” http://closertovaneyck.kikirpa. be/#home/sub=altarpiece. 5. Ferencz in his Memorial Day address at the Library of Congress on May 26, 2005 (part of the Veterans History Project, commemorating the 60th anniversary of the end of World War II), made additional comments about the lack of proper jurisprudence in the Dachau tribunals. This address can be found on Ferencz’s web site, www.benferencz.org.

Chapter 7 1. The family members present at the wedding of Ferencz and Gertrude Fried — in Ferencz’s Aunt Eva Perlman’s living room — included Eva Perlman’s daughters Shirley Perlman and Alice Perlman. Shirley Perlman is now the author’s wife and Gertrude Fried’s first cousin. Eva Perlman was Gertrude Fried’s aunt since Miss Fried’s father was Eva Perlman’s brother. Note that Eva Perlman was also Ferencz’s aunt by virtue of Ferencz’s father’s second marriage to Rose Fried — Eva Perlman’s sister. 2. About 60 years after the end of World War II the German government released access to miles of documents recording infor-

mation on concentration camp prisoners. A story was aired in 2006 on CBS’s 60 Minutes about a long-secret German archive that houses a treasure trove of information on 17.5 million victims of the Holocaust. The archive, located in the German town of Bad Arolsen, is massive (there are 16 miles of shelving containing 50 million pages of documents) and until recently, was off-limits to the public. But after the German government agreed earlier this year to open the archives, CBS News’ Scott Pelley traveled there with three Jewish survivors who were able to see their own Holocaust records. The key parts of the CBS documentary can be seen on YouTube at the following links: http://youtu. be/m9cet2_ LoJQ and http://youtu. be/ g63zTkDsxfM.

Chapter 8 1. The list of defendants in the Einsatzgruppen tribunal can be found in Douglas O. Linder, “The Nuremberg Trials: The Einsatzgruppen Case” (http://law2.umkc.edu/fac ulty/projects/ftrials/nuremberg/meetthedefen dants.html). 2. Gertrude Ferencz was present at the Einsatzgruppen trial for two reasons: First, it was her husband who was the chief prosecutor, and second, she was a part of the group who put together the documentation for the trial, as was noted in the Army Green Series (Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 4, “The Einsatzgruppen Case,” “The Rusha Case,” http://www. loc.gov/rr/frd/Military_Law/pdf/NT_warcriminals_Vol-IV.pdf ). 3. Information on the term genocide can be found at Prevent Genocide International, “Chapter IX: ‘Genocide’” (http://www.pre ventgenocide.org/lemkin/AxisRule1944–1. htm). 4. President Reagan finally signed the United States’ ratification of the Genocide Convention on November 5, 1988 — 40 years after the convention (Steven V. Roberts, “Reagan Signs Bill Ratifying U.N. Genocide Pact,” New York Times, http://www.nytimes. com/1988/11/05/opinion/reagan-signs-billratifying-un-genocide-pact.html). 5. While Ferencz did not call a single witness during the prosecution’s case, he did call one witness during the defendants’ case — a handwriting expert (Francois Bayle on Feb. 11, 1948)— to verify the validity of certain handwritten documents that were used as ev-

Notes — Chapters 9, 1 0, 11 and 1 3 idence by the prosecution (The Mazal Holocaust Library, “Introduction,” http://www. mazal.org/archive/nmt/04/NMT04-T0003. htm). 6. The reader may recognize that this reasoning of anticipatory self-defense — used by Ohlendorf and other Einsatzgruppen defendants — was also used by President George W. Bush and his staff in justifying the U.S. attack on Iraq. Ferencz believes that this action on the part of the U.S. government was an international crime, as he stated in a CSPAN television interview in 2005 in recognition of the 60th anniversary of the start of the Nuremberg IMT as well as in a CSPAN video recording of Ferencz’s address to the American Bar Association in Washington, D.C., in November of the same year. 7. According to Yale F. Edeiken (“An Introduction to the Ensatzgruppen,” http:// www. holocaust-history.org/intro-einsatz/), the full story of Musmanno’s tolerance toward defense arguments is as follows: The attention that the courts gave to allowing the defendants to present a full defense is best illustrated by a famous incident at the trial of the leaders of the Einsatzgruppen. At one point in the trial, the prosecution objected to the argument that one of the defendants had been forced into duty with an Einsatzgruppe. Justice Musmanno, the presiding judge, overruled the objection, stating: “The defense can introduce any evidence short of describing the lives of the penguins in the Antarctic and, if the defense can convince me the habits of the penguins are relevant evidence to the case, then the lives and times of those whitefronted creatures can also be admitted as evidence.” 8. Holocaust Education and Archive Research Team, “The Einsatzgruppen Trials: Military Tribunal II: Case No. 9,” http:// www.holocaustresearchproject.org/trials/ einsatztrial.html. 9. Ferencz’s book Less than Slaves contains the full details about the industrialists.

Chapter 9 1. In 1948, the German mark’s value was set by the occupying forces at 1 ⁄ 10 of one U.S. dollar — so 1 million marks was equivalent to $100,000 in 1948 dollars. In comparing the value of $1 in 1948 to $1 in 2012, that $100,000 would now be equivalent to approximately $1 million today.

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Chapter 10 1. Menachem Begin once headed the Israeli Irgun terrorist group (American-Israeli Cooperative Enterprise, “Irgun Zeva’I Le’umi: ‘The National Military Organization’ [Etzel, I.Z.L.], http://www.jewishvirtual library.org/jsource/History/irgun.html; Institute for Historical Review, “The Zionist Terror Network: Background and Operation of the Jewish Defense League and Other Criminal Zionist Groups,” http://ihr.org/books/ ztn.html).

Chapter 11 1. Details about Rheinmetall are found in Ferencz’s book Less Than Slaves, chapter 5: “The Cannons of Rheinmetall.”

Chapter 13 1. The International Military Tribunal for Crimes Committed in Rwanda was established by the UN on November 8, 1994 (Project on International Courts and Tribunals, “ICTR: International Criminal Tribunal for Rwanda,” http://www.pict-pcti.org/courts/ ICTR.html). 2. Estimates of World War I deaths range from 17 million to 35 million. Estimates of World War II deaths range from 50 million to more than 70 million (Matthew White, “Source List and Detailed Death Tolls for the Primary Megadeaths of the Twentieth Century,” http://necrometrics.com/20c5m.htm). 3. The seven countries that voted against the Internation Criminal Court treaty in 1998 were Iraq, Israel, Libya, the People’s Republic of China, Qatar, the United States, and Yemen. Of the five Permanent Members of the UN, only the UK and France are signatories; Russia abstained, China abstained, and the U.S. voted against. The full list of signers as of April 2012 is 121 (Wikipedia, “International Criminal Court,” http://en.wikipedia. org/wiki/International_Criminal_Court). 4. Ferencz’s speeches at the Library of Congress and to the ABA in May 2005 are available as videos on his web site (benferencz.org ) under the category “Interviews, Documentaries & Lectures.” 5. For the Ferencz article on definition of the crime of aggression for the ICC see Benjamin B. Ferencz, “What of Military Aggression?” (http://globalbrief.ca/blog/2010/10/13/

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what-of-military-aggression-in-the-21st-cen tury/). 6. Harvard Law School, “Benjamin Ferencz ’43 receives prestigious Erasmus Prize,” http://www.law.harvard.edu/news/2009/08/ 05_ferencz.html). 7. The final verdict in the Lubanga trial was given on March 14, 2012. He was found guilty of crimes against humanity and was sentenced to 14 years in prison. The ICCNOW web site indicates that 14 cases have been brought before the court as of this time, of which four are at the trial stage. As of mid2012, seven situations were currently under investigation in Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), Kenya, Libya and Côte d’Ivoire (Coalition for the International Criminal Court, http://www.iccnow.org/).

Chapter 14 1. An excellent source for the number of deaths since 1945 due to wars and conflicts, as well as the reasoning behind UN and world powers’ lack of action to stop atrocities from occurring, can be found in Milton Leitenberg’s paper “Deaths in Wars and Conflicts in the 20th Century” (Center for International and Security Studies at Maryland,

http://www.cissm.umd.edu/papers/files/deat hswarsconflictsjune52006.pdf ).

Appendix B 1. Elizabeth Wilmshurst, Wilmshurst Resignation Letter (Mar. 24, 2005), available at http://newsbbc.co.uk/2/hi/uk_news/politics/ 4377605.stm. 2. Dr. Richard Stimson, Celebrate the Success of the Wright Brothers, Wright Brothers Stories, http://www.wrightstories.com/avia tors.html (last visited Oct. 15, 2007). 3. Dwight D. Eisenhower, president of the United States, Presidential Statement in Observation of Law Day (Apr. 30, 1958), available at http://www.eisenhowermemorial.org/ speeches/#1958 (select “Statement by the President on the Observation of Law Day” hyperlink). 4. See Douglas Macarthur, Courage Was the Rule: General Douglas Macarthur’s Own Story (1965). 5. George H.W. Bush, president of the U.S., address to the nation on invasion of Iraq ( Jan. 16, 1991). 6. Thomas Paine, Common Sense, line 53 (1776), available at http://www.bartleby.com/ 133/3.html.

Bibliography Ferencz, Benjamin B., and Ken Keyes, Jr. Planethood. Coos Bay, OR: Love Line, 1991. Leitenberg, Milton. Deaths in Wars and Conflicts in the 20th Century. Peace Studies Program Occasional Paper #29. Ithaca: Cornell University Peace Studies Program, 2006. Revised 3d edition of the monograph available at http://www. cissm.umd.edu/papers/files/deathswars conflictsjune52006.pdf.

Chapin, Chip. The Story of the 11 5th A.A.A. Gun Battalion. N.p: self-published,1945; republished online, 2001. Accessed at 115th-aaa-gun-bn.com. Ferencz, Benjamin B. A Common Sense Guide to World Peace. Dobbs Ferry, NY: Oceana, 1985. _____. Defining International Aggression: The Search for World Peace. Dobbs Ferry, NY: Oceana, 1975. _____. “Enabling the International Criminal Court to Punish Aggression.”Global Studies Law Review 6.3. http://law. wustl.edu/WUGSLR/Issues/Volume6_ 3/ferenczp551.pdf. _____. Enforcing International Law: A Way to World Peace. Dobbs Ferry, NY: Oceana, 1980. _____. An International Criminal Court: A Step Toward World Peace. Dobbs Ferry, NY: Oceana, 1980. _____. Less Than Slaves. Cambridge, MA: Harvard University Press, 1979. _____. New Legal Foundations for Global Survival. Dobbs Ferry, NY: Oceana, 1994. _____. “A World of Peace Under the Rule of Law: The View from America.” Speech given in 2007. Washington University Law. http://law.wustl.edu/ WUGSLR/index.aspx?ID=3849.

Web Sites Benjamin B. Ferencz, personal site. www. benferencz.org. International Criminal Court. http:// www.icc-cpi.int/Menus/ICC/Home. Library of Congress Military Legal Resources pages. Full text of the Blue Series and Green Series Trial Proceedings for the Neurnberg Tribunal can be found at www.loc.gov/rr/frd/Military_ Law/NT_major-war-criminals.html. National Archives. www.archives.gov. United States Holocaust Memorial Museum, Benjamin B. Ferencz Collection. Finding aid, http://collections. ushmm.org/artifact/image/d00/00/d00 00001.pdf.

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Index AAA Battalion 34, 38, 39, 45 Aachen, Germany 60 absent without leave (AWOL) 47, 103, 240 abuse 43, 144, 179, 192 Abwehr 259 Adenauer, Konrad 152, 162, 163–168, 174 Adolf Hitler Strasse 46 AEG/Telefunken 177 Africa 94 aggression 9, 117, 208, 225, 231, 247; as crime 225, 226, 228, 243; defining 198, 206, 262; US 188, 220, 231 aid, aide 15, 111, 171, 185; Congressional 224; economic 247; legal 170, 175; medical 184; restitution 185 Air Corps 116 aircraft 32, 40, 48, 86, 118, 135–139, 157, 164, 170, 186, 192–194, 219, 238, 248 Al-Hussein, Prince Zeid Ra’ad 223 Al Qaeda 219 Alien Property Custodian 181 Allies 78, 87, 99, 162 Alps 90, 134 Altaussee, Austria 97, 102, 260 Amberg, Germany 93 American Bar Association 218, 220, 261 American Society of International Law (ASIL) 192, 197, 218, 255 American University 189 Amnesty International 211, 219 Angeli (daughter of Ved Nanda) 193 Annan, Kofi 205, 212, 224 Antigua, Guatemala 222, 223 Antwerp, Belgium 103 Arbeitslager (work camp) 54 Argentina 222 Army Green Series 260 arrest 48, 61, 75, 99, 108, 227, 235–238, 241

art 93, 95, 99; dealer 93, 95, 97; Nazi stolen or looted 92, 97–99, 155 Aschbach, France 96, 260 asphyxiation 132 Associated Press 6, 126 atomic bomb 132; see also nuclear atrocities 2, 5, 17, 45, 91, 134, 142, 207, 223, 225, 233, 262; in My Lai 195; by Nazis 49, 50, 53, 126, 128, 168; in Yugoslavia 208 Auschwitz, Poland 7, 63, 172, 174, 208 Austria 74, 78, 80, 87, 90, 97, 99, 193, 259, 260 Avranches, France 39 Axis Rule 127 Babi Yar, Ukrain 126, 144, 235 Bad Aussee, Austria 98, 100, 101 Balkenende, Jan Peter 222 Bamberg, Germany 96 barrack 32, 34, 43, 44; see also Kaserne Barrs (Ferencz’s chauffeur) 116 basement 15, 38, 44, 111, 158, 197 Bassiouni, Prof. Cherif 193 Bastogne, Belgium 47, 60, 104, 166 Battle of the Bulge 47, 104, 166, 242 Bavaria, Germany 93, 100, 134, 143, 253 beer 36, 58, 92, 109, 110, 117 Begin, Menachem 164, 261 Bela (Ferencz’s mistaken name at Ellis Island) 258 Belgium 47, 52, 58, 60, 103, 145, 166, 260 Bellevue, England 32 Ben-Gurion, David 163 Benjamin B. Ferencz Collection 1, 249–263 Benny (Ferencz’s nickname) 29, 30, 51, 79, 92, 106, 111, 167 Berchtesgaden, Germany 90, 93, 114

265

266

Index

Berchtesgadener Hof 90 Bergman, Ingrid 21 Berlin, Germany 54, 63, 78, 96, 111–119, 135–139, 148, 151, 155, 162, 164, 188, 192, 239, 244, 259 Berlin Document Center (BDC) 112, 244 Bernstein, Capt. Phillip 155 Bethlehem, Palestine 195 Betts, Gen. 103 Bezalel Museum, Israel 155 Biberstein, Ernst 121, 141, 145 Bill (sergeant at quartermaster depot) 109 bin Laden, Osama 219 Blair, Anthony (Tony) 220 Bligh, Harvey 42, 43 Blobel, Paul 121, 141, 144, 145 Blois, France 39 Blume, Walter 121, 141, 145 B’nai B’rith 178, 180–182, 251, 252 bodies 38; American 48; concentration camp 66, 67, 72, 74, 86, 184, 240; Jewish cemetery 156, 157 Boehm, Prof. Franz 164, 166 Bolshevism 128, 132 Bolton, John 219, 223, 224, 246 bones 62, 74, 80, 83, 89, 157, 158 Boniface (St.) 157 Bonn, Germany 153, 171, 186, 221 Bos, Adrian 213, 215 Bosnia 208 Bradley, Gen. Omar 56, 57 Braune, Werner 121, 141, 144, 145 Bremerhaven, Germany 108, 113 Brenner Pass 134 brewery 36, 109, 110 Briggs (lawyer at Dachau) 240 Brighton, England 34 Bronfman, Sam 184, 185 Bronx, NY 5, 17, 20, 22, 26, 80, 100 Brooklyn, NY 20, 23, 106 Brussels, Belgium 164, 224 Buchenwald, Germany 5, 53, 57, 58, 62– 64, 73, 102, 235 buck private 27 Buergenthal, Thomas 192, 223 Buffalo, NY 192, 223 Bull, Patty 116 Bundesentschädigungsgesetz (BEG) 169, 251 Bundestag 168 Burin, Fred 117 Bush, George W. 218–220, 223, 249, 261, 262 Butler, Gen. Lee 249 Buxbeidl 96, 97

Calley, William 189 Cambridge, Massachusetts 74, 263 camp 29, 54–66, 71–89, 103, 148, 168, 170, 178, 185, 235–237, 240, 241, 259; see also concentration camp Camp Blandford, Dorset, England 32 Camp Davis, North Carolina 27, 29 Camp Pickett, Virginia 29 Camp Shanks, Orangeburg, New York 30 Canada 195, 215 Canadian Jewish Congress 184, 185 Canaris, Wilhelm Franz 259 Capone, Al 184 Cardozo, Benjamin Nathan 25 Carentan, France 39 Casablanca, Morocco 82 case (general law) 176, 185; Einsatzgruppen (EG) 6, 7, 11, 124–127, 260; industrialists 146; medical 185; restitution 161, 180, 253 Case No. 9 (Einsatzgruppen tribunal) 261 Case Western Law School 204 Cassese, Judge Antonio 12, 227, 228 Cassin, René 21, 190 Catholicism 142, 157, 162, 183, 185 Catskill Mountains, NY 17 cave 92, 93, 98 Celestine, Sister 182, 183 cemetery 51, 60, 156–158, 253 censor 62, 69 Central Registry of War Crimes and Security Suspects (CROWCAS) 93, 241 Chafee, Prof. Zechariah 24 charity 182 Cheever, Col. Charles 47 Cherbourg, France 103 Chicago, Illinois 60, 94, 181, 218 Chicago Tribune 218 China 79, 233, 261 Christianity 156 Churchill, Winston 45, 76 Ciolt, Transylvania, Romania 15, 258 citizenship 27 City College of New York (CCNY) 21 civil war 58, 208, 248 Claims Conference 163–178, 197 clandestine actions 195 Clay, Gen. Lucius D. 112, 143, 151, 152, 155, 156, 174 clemency 144, 146 Clinton, Pres. William Jefferson (“Bill”) 213, 218 Coalition for an International Criminal Court (CICC) 211, 263 Coblenz, Germany 60

Index code of conduct, crimes 8, 199, 213, 243 Cold War 138, 172 college 20, 22, 23 Cologne, Germany 60, 162 Columbia Law Journal 198 Columbia University 195 combat exposure 27, 28, 39, 120 Commander Hotel, Boston, Massachusetts 25 Common Sense Guide to World Peace (Ferencz) 200–202, 263 compromise 9, 11, 183, 198, 225, 248 comrades 29, 43, 59, 110 concentration camp 2, 5, 7, 10, 12, 27, 50– 70, 76–88, 95, 98, 101–103, 128, 148, 152, 153, 164, 174, 175, 177, 184, 185, 192, 200, 235, 241, 259, 260; see also Auschwitz; Buchenwald; Dachau; Ebensee; Flossenbürg; Gusen; Majdanek (Maidanek); Mathausen; Ordruf; Ravensbrueck; Sachsenhausen conference 192, 193, 222; see also Claims Conference; Rome Conference for ICC Congo, Africa 229, 262 Congress 112, 181, 182, 218, 219, 224 Connecticut 213, 218 conservatives 128, 217, 222, 224 Control Council Law (#10) 7 Coordinating Board of Jewish Organizations 197 Coos Bay, Oregon 202, 263 corruption 24, 176 Coughlin, Father 247 court 7, 23, 64, 103, 128, 131, 140, 189, 196, 206, 208, 209, 220, 224, 240; formal 105, 124, 160, 191, 192, 223, 242; for Nuremberg tribunals 6, 119, 131, 133, 140, 148; for Rwanda and Yugoslavia tribunals 8, 128, 204, 208, 209, 261 Cousins, Norman 185, 186 Crawford, Texas 220 crematorium 64, 70, 74, 83, 86, 89 criminal law 2, 3, 6, 8, 10, 12, 23–25, 103, 127, 148, 193, 229, 243, 256 criminology 22, 25, 180, 208 Czechoslovakia (Czech) 68, 70, 81, 121, 134, 187 Dachau, Germany 71, 73, 78, 102, 103, 172, 236, 240, 259, 260 Dahlem, Germany 112 Daimler-Benz 177 Darrieux, Danielle (actress) 21 death 6, 48, 57, 65, 71, 72, 74, 80, 82, 162,

267

168, 247, 258; by atrocities, wars, conflicts 262, 263; Ferencz escaping 135; march 71, 73, 236; of the president 57; registry 63, 235 (see also Totenbuch); sentence 141, 143, 144; as slaves 140, 172, 177; World Trade Center 219 de Gaulle, Charles (Gen.) 190 DeLay, Speaker Thomas 224 delegate 163, 164; Rome convention 215; United Nations 198, 199, 213 Delray Beach, Florida 175 demobilization 79, 103 Denver Law School 193 Department of Military Justice 49 De Paul University 193 Deutschland (Germany) 162 Dicker, Richard 219 Dietrich, Marlene 58, 61, 62 disarmament 10, 210, 230, 248 discrimination 185, 230, 248 disease 71, 72, 80, 82, 184 Dixon, Judge Richard D. 124, 125 Dobbs Ferry, New York 22, 263 Dodd, Sen. Christopher 213, 218 Dodd, Tom 213 Downing Street Papers 246 Dresden, Germany 132 Dudley, Sgt. 138 Dutch Security Police 164 Dyilo, Thomas Lubanga see Lubanga East Berlin, Germany 152 East Germany 152, 182, 252 Eastern Europe 157, 169 Ebensee, Austria 5, 78, 80, 85–90, 98 economics 163, 168, 169, 216, 219, 230, 247 Einsatzgruppen (EG) 2, 5, 6–8, 12, 118– 149, 235, 244, 250, 252, 258–261 Einsatzkommando 121, 145, 146 Einsatzstab Rosenberg (resource center) 153 Eisenhower, Dwight David 56, 57, 200, 206, 207, 249, 262 El Italia 193 Ellis Island, NY 15, 258 Enforcing International Law — A Way to World Peace (Ferencz 1983) 199, 200, 263 England 30, 32–35, 37, 104, 155, 161, 188, 211, 245 English 15, 20, 21, 34, 38, 97, 143, 148, 164, 170, 257; translating into 48, 63, 74, 112, 237 English Channel 34, 38 entitlement 169, 178, 181

268

Index

Episcopalians 182 Erasmus Peace Prize 12, 227 Erlanger, Germany 69 Estonia 154 ethics 24, 33, 104 European Union 191 evidence 5, 11; JAG war crime specific 12, 53, 56–58, 63, 74, 76, 83, 102, 236, 238; Nuremberg specific 2, 5, 12, 111–120, 124, 129, 142, 147; restitution 170, 185, 223 extermination 6, 7, 54, 57, 61, 83, 118, 153, 244, 245 Fairmont Place 22 Fani (Ferencz’s aunt) 17 Fendler, Lothar 121, 145 Ferencz, Benjamin Berrel: as chief prosecutor 5, 118, 120, 121, 141, 142, 222; civilian status at Nuremberg 5, 106, 110; clerk role in Army 39; escaping death 135 Ferencz, Carol (aka Keri) 172, 222 Ferencz, Don 212, 230, 232 Ferencz, Gertrude 15, 22, 25, 32, 48, 63, 107, 113, 114, 116, 119, 134–139, 149, 150, 165, 166, 172, 176, 183, 200, 207, 212, 214, 221, 232, 251, 258–260 Ferencz, Josef 15, 16 Ferencz, Nina 172 Ferencz, Pearl (Pepi) 15, 16 Ferencz, Robin 172 Ferencz, Shari (nee Legman) 15, 19, 258 Ferrara, Armella 204 Ferriday, Caroline 185, 186, 254 Fischer, Joel 150 Fitzhugh Lee 103, 104 Flick, Friedrich 146, 147, 177, 178 Flossenbürg, Germany 53, 68–76, 236, 259 Foreign Claims Settlement Commission 181 Foreign Ministry 117, 144 Foreign Relations Committee 216 France 5, 12, 27, 34, 38, 39, 44, 45, 52, 58, 60, 93, 95, 103, 104, 113, 190, 261 Franck, Prof. Tom 190, 242, 246 Franconia 96 Frankfurt, Germany 114, 164, 166, 172, 174, 175 Frankfurt am Main, Germany 172 freedom 10, 32, 44, 81, 82, 144, 189, 230 French forces 39 Fried, Gertrude see Ferencz, Gertrude Fried, Rose (Ferencz’s step-mother) 17, 260 Fulda, Germany 156–159, 253

Fuller, Prof. Lon 24 Fürth, Germany 108, 109, 119 G-5 (military intelligence group) 70 gallows 74 Garmish, Germany 114 Gartner, Murray 105 gas 83, 88, 127, 132, 140 Geneva, Switzerland 186, 197, 204, 213 genocide 7, 126–128, 168, 196, 206, 208, 209, 229, 243, 244, 260 Genocide Convention 128, 260 Georgia 121 German Armed Forces High Command 78 German Federal Republic 165 German Foreign Ministry 112 Gestapo 50, 51, 59, 75, 95, 117, 141, 238, 259 Ghandi, Mahatma 195 Ghent Altarpiece 99, 260 Glancy, John E. 121, 129 Glueck, Prof. Sheldon 25, 46, 106 Gmunden, Austria 87, 100 Goldmann, Nahum 162, 163, 167, 168, 253 Goldstone, Richard 209 Göring, Hermann 95, 101, 106, 108, 130 Graf, Matthias 121, 146 Green Series (Army documentation of Nuremberg Subsequent Tribunals) 148, 258, 263 Greenwich Village, NYC 183 Grosvenor House, London, England 163 Guatemala 222 Gusen, Autria 86 Gypsy 132, 140, 162, 168, 244; see also Roma; Sinti Haberstock, Karl 93–97, 251 Haensch, Walter 121, 141, 145 The Hague, Netherlands 3, 6, 166, 167, 171, 184, 209, 215, 217, 219–224, 227, 244, 258 Hague Agreement 167 Harnack House, Berlin, Germany 111, 112 Harris, Whitney 243, 244 Harry (friend of Ferencz) 111 Harvard Law School 5, 12, 23, 24, 26, 27, 45, 105, 180, 262 Harvard University 2, 179, 263 Haussmann, Emil 121, 145 Heath, James 121, 131, 132 Hebrew 15, 154–156, 158, 167, 185 Hebrew Immigrant Aid Society (HIAS) 15, 185 Hebrew University 156

Index Heidelberg, Germany 192, 197, 207 Heinkel 192 Helms, Jesse 215, 216, 224 Helms, Lt. Col. 119 Henkin, Lou 190 Hersh, Seymour 189 Hesse, Germany 161, 253 Heydrich, Reinhard 130 Hickman, Maj. 28 Himmler, Heinrich 130, 178 Hiroshima, Japan 132, 186 Hitler, Adolf 33, 68, 78, 90, 98, 111, 132 Hitzig, Dr. 186 Hoek van (Hook of ) Holland, Netherlands 164 Hofmann, Shirley (née Perlman) 258 Holmes, Justice Oliver Wendell 25, 215 Holocaust 6, 147, 163, 174, 177, 209, 249– 257 Hopper, Commander David W. 259 Horlick-Hochwald, Arnost 121, 129 House Ethics Committee 224 Hudson River, NY 30 Human Rights Institute 190–192, 211, 219, 251, 255 Human Rights Watch 211, 219 humanitarian 8, 9, 31, 132, 143, 153, 179, 185, 186, 192, 208, 213, 217, 224, 229, 231 Hungary 17, 20, 71, 81, 83, 116, 170, 177, 187 Hussein, Saddam 201, 220 identify friend from foe (IFF) 40 imprisonment 23, 76, 141, 145 India-Pakistan 215 Indiana University Press 179 Inter-American Court of Human Rights 190–192, 211, 219, 251, 255 International and Comparative Law Quarterly 198 International Committee of the Red Cross 186 International Confederation of States 228 International Court of Justice 223, 242 International Criminal Court (ICC) 1, 3, 6, 8, 10–12, 140, 179, 190, 192–194, 196, 197, 199, 201, 204–231, 242, 247, 248, 251, 254–256, 261–263 international criminal law 6, 10, 148, 193, 229, 231, 245, 248 international law 189, 192, 197, 198, 204, 205, 207, 218, 230, 243, 251, 255 International Law Commission 204, 243 international military force 10, 210

269

International Military Tribunal (IMT, ICTY, ICTR) 106, 110, 209 Iran 201, 202 Iraq 201, 220, 246, 247, 261, 262 Ireland 94, 163 Iron Curtain 169, 185 Isaac, Sam (Ferencz’s uncle) 17 Israel 152–168, 177, 187–188, 216, 218, 261 Italy 78, 81, 114, 134, 183 Jackson, Justice Robert M. 105, 106, 108, 113, 127, 216, 239, 242–245, 248 Japan 185 Jerusalem, Israel 158, 163 Jewish Hospital 138, 185 Jewish Restitution Successor Organization ( JRSO) 12, 150, 153, 156, 161, 169, 253 Jodl, Gen. Alfred 78 Joe (corporal in quartermaster depot) 109 Joint Distribution Committee 150, 154, 163 Jolie, Angelina 10, 229 Jordan 223 Joseph, Col. 46, 53, 54, 102 Jost, Heinz 121, 122, 144, 145 kangaroo court 224 Kaserne 239; see also barrack Katzenstein, Dr. Ernst 161, 162, 174 Kaul, Hans-Peter 221, 244 Kellogg-Briand Pact 245 Kempner, Robert M.W. 147 Kennedy, Edward 182 Kennedy, Pres. John F. 195 Keyes, Ken 202, 203, 263 Kiev, Ukraine 126 King George III of England 211, 245 Kirsch, Amb. Philippe 215, 221, 226, 242, 243, 247 Kjølstad, Britt 205 Klatte (Capt.) 43, 64, 66, 68, 92 Klein, Eugene 116 Klein, Julius 177 Klingelhöfer, Waldemar 121, 141, 145 Klutznick, Philip 181 Knesset 163 Koch, Ilse 63 Koenigswinter, Germany 221 Köhler, Horst 228 Kommandatura 138, 139 Konzentrationslager 54 Krauch, Carl 146 Kronberg Castle, Germany 174 Krupp, Alfried 146, 152, 153, 177 Krupp Trial 146

270

Index

Kruskel, Capt. Sarah 111 Ku Klux Klan 34 Kugel action 83 Kultur 7, 74, 82, 113 Kurfürstendamm (street), Berlin, Germany 116, 189 LaFollette, Charles M. 147 Landis, James 179, 180 Landsberg, Germany 143, 144 Latvia 154 Lazaret 74 Leahy, Sen. Patrick 218 Learned Hand 25 Leavitt, Moses 163, 166, 170 Legman, Tia 258 Le Mans, France 39 Lemkin, Raphael 127 Less Than Slaves (Ferencz, 1979) 1, 177, 179, 252 Lewin, Rabbi Isaac 155 Lexington Avenue, Manhattan, NYC 20 Liberty ship 103 Lincoln, Abraham 207, 224 Lindenstrasse (street), Nuremberg, Germany 110 Linz, Austria 80, 90, 260 Lithuania 154 Little Rock, Arkansas 120 Liverpool, England 32 London, England 32, 34, 93, 163, 164, 168, 188, 220, 241, 244, 246 London Times 220, 246 Lowenthal, E.G. 171 Lubanga 10, 11, 12, 229, 262 Ludwigsburg, Germany 148 Lugar, Richard 224 Luxembourg, Grand Duchy of Luxembourg 39, 46–49, 52, 58–60, 165–167 MacArthur, Gen. Douglas 206, 249 Maimonides, Moses 154 Mainz, Germany 60 Majdanek (Maidanek), Poland 7, 258, 259 malnutrition 71 Manchester, England 32 Manhattan, NYC 5, 20 Mannheim, Germany 65 Mapes Avenue, Bronx, NYC 17, 22 Marcus, Lt. Col. David (Mickey) 106, 110, 239 Massachusetts 181, 183 massacre 72, 98, 126, 195, 255 Mauthausen (also Mauthausen-Gusen),

Austria 5, 78, 80, 84–87, 98, 102, 236, 237, 239 Max Planck Institute for Public International Law 192 May, Kurt 174 McAuliffe, Gen. 47 McCloy, John J. 143, 144, 146, 152, 153, 174 McCormack, John 183 McDougal, Prof. Myres 190, 191 McGill University 221 McHaney, James 120, 135, 139 McHaney, Marilyn 138 McKay, Lt. Dwight 94, 95, 97 McNamara, Robert 217, 218, 249 Mein Kampf 143 Memorial Day 260 Merano, Italy 134, 135 Merchant Marines 203 Merkers, Germany 56, 57 Michelangelo (di Lodovico Buonarroti Simoni) 260 Milan, Italy 114 Minnesota 147 Minsk, Russia 129 Mississippi 60, 190 Mogadishu, Somalia 208 Montreal, Canada 221 Moore, Capt. James 136 Moreno Ocampo, Luis 10, 222, 231 Morgenthau, Robert 111 Morris, Virginia 22, 204 Moscow, Russia 121, 145 Mt. Scopus, Israel 156 Munich, Germany 67, 78, 91, 92, 101, 134, 143, 164, 239 munitions 44, 177 murder trial 126, 244 Musmanno, Judge Michael A. 124, 125, 127, 128, 132, 133, 140–142, 261 Mussolini, Benito 114 My Lai, South Vietnam 189, 195, 255 Nanda, Prof. Ved 193, 205 Narkiss ( Jewish artifact expert) 155 Nathan, Ambassador Eli 25, 216 Naumann, Erich 121, 122, 141, 144, 145 Netherlands 6, 12, 199, 213, 222, 227, 228 New Haven, Connecticut 191 New Legal Foundations for Global Survival (1994) 205, 263 New Rochelle, NY 12, 175, 189 New York Association for New Americans (NYANA) 185 New York City 2, 23, 26, 105

Index New York Times 201, 211, 218, 260 New York University 23, 190, 192 Nobel Peace Prize 190 Normandy, France 21, 38, 40, 94, 104, 242 North, “Starchy” 38, 39, 79 North Carolina 27, 41, 215, 216, 218 Nosske, Gustav 145 Nowitz, Pvt. Jack 48, 240 nuclear age 198, 205, 246, 247; arms 82, 185, 200, 202, 207, 249; see also atomic bomb Nuremberg trials 7, 9, 106, 111, 112, 118, 120, 123, 126, 128, 129, 133, 140, 142, 146, 148, 195, 208, 231, 260 Ohio 248 Ohlendorf, Otto 121, 122, 131–133, 141, 143–145, 244, 250, 257, 261 Ohrdruf, Germany 53–58, 259 Omaha Beach, France 5, 12, 38, 39 Ormond, Henry 172 Ott, Adolf 121, 141, 145 Pace, William 211 Pace Law School 201 Pace Peace Center 249 Paine, Tom 249, 262 Palace of Justice, Nuremberg, Germany 126, 223 Paris, France 44, 59, 103, 114, 150, 154, 190, 244 Parliament 163 Passover 116 Penguin Rule 133, 261 Pennsylvania 124 Pensions Advisory Board 171 Pentagon 105, 107, 114, 116, 118, 208, 210, 215, 216, 218, 224, 246 Perlman, Alice (Kessler) 260 Perlman, Eva (nee Fried) 17, 107, 260 Perlman, Lou 17, 18, 20, 22, 258 Perlman, Shirley (Hofmann) 258, 260 Pillay, Navanethem 222 PlanetHood Foundation 3, 12, 212, 230–232 Poland 7, 154, 171, 185, 186, 244, 259 Pound, Roscoe 24 P.S. 80 (public school in NYC) 20 Quadrennial National Defense Strategy Reviews 246 Queen Mary 103 Racine, Wisconsin 192 rape 47

271

Rasch, Otto 121, 122, 125, 126, 144, 145 Ravensbrück, Germany 185 Reagan, Pres. Ronald 207, 260 real estate 176, 181 Reich 54, 82, 102, 118, 128, 130, 171, 181, 245 Reichsmark 113 religion 17, 127, 153, 162, 194, 245, 247 Remagen Bridge, Germany 104 Rembrandt 95 Reparations Treaty 166, 168 Rheinmetall 177, 178, 261 Rice, Condoleeza 219 Right Wing 218 River Pegnitz, Germany 119 Robinson, A.N.R. (August Napoleon Raymond) 193, 213 rogue state 205, 215 Roma 162; see also Gypsy; Sinti Romania 5, 11, 15, 20, 258 Rome, Italy 8–12, 213, 214–219, 221, 225, 226, 243, 247, 258 Rome Conference 214, 221, 242 Roosevelt, Franklin D. 45, 76, 259 Rosa, Sister 183 Rosenberg, Alfred 153 Rosh Hashanah 126 Rühl, Felix 121 Russell, Bertrand 188 Russia 5, 7, 59, 66, 73, 74, 76, 84, 113, 129, 137–139, 244, 261 Rwanda, Africa 209, 211, 261 Sachs, Camille 148 Sachsenhausen, Germany 192, 259 Safferling, Prof. 241 Saint Bavo Cathedral 260 St. Louis, Missouri 242 Salisbury, England 32, 34, 36, 37 Salisbury Cathedral 34, 37 Salzburg, Austria 90, 94, 193 Sandberger, Martin 121, 141, 145 San Leonardo, Italy 134 Sasha, Tovarich 59 Saturday Review (magazine) 185 Schachter, Oscar 190 Schäffer, Fritz 169 Scharf, Michael 204 Scheffer, David 215, 216, 218, 246, 247 Schloss 93 Schoenfeldt, Herbert 174 Schreibstube 63, 235–237 Schubert, Heinz 121, 141, 146 Schulz, Erwin 121, 145

272

Index

Schuschnigg, Kurt (chancellor of Austria) 74, 259 Schwartz, David 15, 17, 19, 21 Seibert, Willi 121, 141, 145 self-defense 5, 128, 132, 134, 140, 244–246, 261 Senate Foreign Relations Committee 224 Service Members Protection Act 216, 217 Shawcross, Sir Hartley 8 Shilumim Agreement 167 Shunami ( Jewish artifact expert) 155 Sicily, Italy 193 Sinti 162; see also gypsy; Roma Siracusa, Sicily 193 Sisters of Charity 182, 183 Sisyphus (of Greek mythology) 176 Six, Franz 121, 145 Sloan, Blaine 201 Sloop, Capt. 41 Slotnik 240 Slovenia 192 Sohn, Louis 190, 193 Solomon (king) 154 Somalia 208 Sonderkommando 121, 144, 145, 146 Southampton, England 38 Speight, Judge John J. 124, 125 Squires, Lt. Tom 135 Sri Lanka 222 Staff Evidence Analyses (SEAs) 112 Stalin, Marshal Joseph 45, 76 Star of David 182 Steimle, Eugen 121, 141, 145 Stimson, Dr. Richard 262 Stockholm, Sweden 170 Stonehenge, England 34, 37 Strasbourg, France 190, 192 Strathnaver 30, 31 Strauch, Eduard 121, 125, 141, 144, 145 sub-camp see concentration camp Subsequent Tribunal 1, 12, 105, 146, 250 Sudan (Africa) 262 suicide 30, 82, 125, 145, 217, 219 Supreme Headquarters Allied Expeditionary Forces in Reims, France (SHAEF) 78 Surholt, Dr. Hans 126 surrender 47, 54, 78, 79, 94, 160, 225 Suy, Eric 199 Switzerland 100, 103, 114, 134, 187 Talmud 156, 158 Taylor, Mary 135 Taylor, Telford 1, 5, 12, 105, 106, 110, 113,

118, 133, 139, 142, 144, 179, 190, 195, 216, 239, 243, 245 Templars 156 Texas 109, 135, 220, 224, 246 Third Reich 6, 7, 59, 71, 95, 117, 169, 233, 244, 259, 260 Thompson, Hugh 189 Thousand Years Reich 162 Tito, Marshal Josip Broz 74 Tobago 193 Tokyo, Japan 198 Torah 154, 155 torture 56, 88 Totenbuch 63 Townsend Harris Preparatory School 20 Transylvania, Romania 5, 11, 15 Tribunal for Former Yugoslavia (ICTY) 208, 209 Tribunal for Rwanda (ICTR) 209 Triffterer, Prof. Otto 193 Trinidad 193, 213 Truman, Pres. Harry 104, 111, 112, 242, 259 Turner, Adm. Stan 249 Tyrolean Alps, Austria 87 Uganda, Africa 262 Ukraine 154 Union of Soviet Socialist Republics (USSR) 5, 117 UN Charter 10, 11, 202, 206, 210, 220, 225, 226, 231 UN High Commissioner for Human Rights 222 UN Security Council 198, 204, 208, 232 UN Special Tribunals for Crimes in Yugoslavia and Rwanda (ICTY, ICTR) 8, 128 United Restitution Organization (URO) 170, 172, 174, 177, 197, 251, 253, 254 U.S. Army 2, 5, 28, 30, 41, 48, 53, 57, 66, 88, 97, 99, 106, 107, 112, 138, 141, 143, 152, 155, 161, 172, 178, 208, 239–241, 259 U.S. Court of Restitution Appeals 171 U.S. Graves Registration Co. 51 United States Holocaust Memorial Museum (USHMM) 1, 3, 103, 179, 249, 250, 259, 263 U.S. Mission 210 U.S. Senate 128 U.S. State Department 50 U.S. Supreme Court 105, 127, 143 U.S. Treasury 111, 181 U.S. War Department 2, 46

Index U.S. Zone of Occupation, Southern Germany 150 Universal Declaration of Human Rights 10, 21, 189, 190, 192 Van Cortland Park, Bronx, NYC 17 van Eyck, Jan 260 Vermeer, Johannes 260 Vermont 218 Vernichtungslager 54 Vienna, Austria 81 Vietnam 188, 189, 195, 218, 255 Vietnam Wall 189 Vietnam War 188, 255 Virginia 29, 30, 121, 189, 204 Virginia Journal of International Law 189 Volkswagen 137 von Pöllnitz, Baron 93, 260 von Radetzky, Waldemar 121, 146 Vorkommando 121, 145 Wall Street, Manhattan, NYC 143 Walton, Peter 121 Wannsee Protocol 147 War Claims Bill 182, 183 War Claims Commission 181 war crimes 102, 238, 240 War Crimes Commission 27, 106 War Crimes Investigations 46, 90 War Crimes Law and the Vietnam War 189 War Crimes Section 12, 47, 54, 56, 93, 102 War Department 5, 28, 106, 107, 113, 124, 146, 148 warrant 42, 43, 189 Washington 3, 46, 79, 106, 148, 167, 180, 181, 186, 189, 217, 220, 223, 241, 249, 258, 259, 261, 263 Washington, D.C 3, 167, 217, 249, 258, 259, 261 Washington University Global Studies Law Review 220, 241

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Week in Review (New York Times section) 201 Wehrmacht 66, 118, 144 Weimar, Germany 57, 73 Weisbaden, Germany 60 West Point, NY 28, 106 Westminster Abbey, London, England 34 White House, Washinton, D.C. 111, 217, 224 Wiesbaden, Germany 153, 161, 162 Wild West 246 Willy (Yugoslavian boy in Flossenburg camp) 74, 141, 145 Wilmshurst, Elizabeth (Lizzy) 220 Wingspread, Racine, Wisconsin 192, 193 Woetzel, Robert 192, 193 Wollheim, Norbert 172 World Federalists 211 World Jewish Congress 162 World Trade Center, NYC 219 World War I 1, 2, 3, 9, 10, 17, 26, 30, 31, 47, 68, 127, 180, 197, 198, 200, 206, 220, 231, 233, 242, 249, 252, 259 World War II 1, 2, 3, 9, 10, 17, 26, 30, 31, 47, 68, 127, 180, 198, 200, 206, 231, 233, 242, 249, 252, 259 Wright, Frank Lloyd 192 Wuest, Lt. Col. Bill 116, 119 Wurzburg, Germany 96 Yale 48, 190, 191, 261 Yevtushenko, Yevgeny Aleksandrovich 126 Yiddish 20, 22, 154, 169, 170, 187, 237 Yom Kippur 126 Young, Col. (war department assistant) 148 Yugoslavia 74, 204, 208, 209, 211 Zollamt 157, 158, 159 Zugspitze (mountain) 90, 91

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