Interview with Benjamin Ferencz, a Former Nuremberg Prosecutor, on the ICC: The US government "is doing everything it can to sabotage the principles of Nuremberg."
Presentor (Karel van de Graaf):
Coming Monday the International Criminal Court will begin in The Hague. It has no building of its own, but it will exist in spite of that. And so from next Monday on, anyone in the world can bring a charge against war criminals from any country.
The main example for this court has been the Nuremberg tribunal where liberated Europe put the leaders of Hitler's regime on trial in 1946. Now the world will have a permanent international tribunal, and not everyone is pleased about it. Especially the American government is strongly against it and has refused it any cooperation.
In Netwerk we bring you one American who is enthousiastic, Professor Benjamin Ferencz, 82-years-old, and in 1946, one of the main prosecutors at Nuremberg. To this very day he is involved in international criminal law. Herman van Gelderen visited him this weekend in New York.
Reporter (Herman van Gelderen):
Suppose Bin Laden strikes again or Al Qaida strikes again, where should he stand trial? in America?
No, no. There's only one place to try him now. After July first the International Criminal Tribunal in the Hague is the place to try him. America should never try him because whatever judgement would come out would be condemned by the Muslim community as being biased and unfair. They should be condemned as criminal acts and not glorified as martyrs or on their way to heaven. These are criminals who are abusing their religion in order to commit mass murder and it should be publicly condemned in every tribunal that way.
This is a photograph of me taken while I was in the American Army around 1943 when I was 23 years old. I fought in every campaign in Europe from the beaches in Normandy to the final Battle of the Bulge in the Ardennes, so that I have seen warfare at first hand. And even more so and much more dramatic than that, I had to enter the concentration camps as they were being liberated and collect evidence of the atrocities and the crimes. It's really beyond description - the smell, the sound, the sight of people dying, people dead and lined up like cordwood in front of the crematoria, the crematoria still going. I had to build up a mental block so that, uh,... I'm sorry but there are flashbacks. My mind tried to shut off what my eyes saw. And there just was no time for breaking down. There was too much to do. And so I moved on from camp to camp.
Benjamin Ferencz from New Rochelle near New York, one of the prosecutors at the Nuremberg trials, is also a lawyer, a scientist and the intellectual father of the ICC which will be housed in The Hague from July first 2002. Despite all obstruction, especially from his own country, the 82-year-old Ferencz never gave up.
It's a newborn babe and you can't expect a newborn babe to grow and just flourish, you have to help it along. You have to nourish it. You have to feed it. And when it falls down you have pick it up. One day it will walk. One day it will run. One day it may even carry you. And so it's really a great step forward because it's the first step forward of that kind since Nuremberg. And it's high time that the world began to show greater respect for the rule of law rather that the rule of war.
April this year at the United Nations - more than 60 countries have ratified the statue for the ICC and brought it into realization. A landmark, also for Ferencz. For a long, long time his crusade was not taken seriously, despite his impressive credentials.
Well, there were some people besides my wife who took me seriously, but the big powers were not ready to yield their power. And it was quite clear that this was a rock being pushed up a hill which would roll down the hill the moment you let go.
This is a picture of me as a war crimes investigator in a jeep of the Third Army and the slogan on the windshield, "Immer Allein", means "Always alone", which described how I went out on the investigations. The surest evidence I ever found was clear-cut reports of mass murder by special extermination squads, the SS-Einsatzgruppen, whose assignment it was to go in behind the German troops and kill without pity or remorse every Jew - man, woman and child - they could lay their hands on, as well as every Gipsy or every potential opponent of the Reich. And that's what they did. And then they reported to Berlin exactly which unit was in which town and had killed how many people under the command of which officer. That was a dream evidence for a prosecutor.
Goering, throughout the trial, turned his back on the tribunal, laughed at the tribunal. These were men who ordinarily would never be recognized as mass murderers, who mostly had doctor's degrees; many of them were lawyers, I'm ashamed to say. They were all educated men and I had no sympathy whatsoever with their deeds. I didn't even want to talk to them. I wanted them only tried on the basis of their reports of what they did. There was no remorse whatsoever. I never heard a defendent say, "I'm sorry." I have waited many years in vain for such a statement.
"Never again" genocide nor any other form of mass murder, that was the message attached to the judgement against the Nazi leaders. Now 55 years after Nuremberg and many millions of wartime victims further, an international court of the United Nations has been created to try war crimes. But the resistance is enormous. America, as the only remaining super power, is utterly against the possibility that American military personnel or politicians might have to appear before a non-American court.
The real policy is, "What do we need the rest of the world for? Why should we bother? Don't get entangled in foreign affairs." At the moment a very conservative, militant right-wing has taken control of the government and is doing everything it can to sabotage the principles of Nuremberg - for which we stood and which inspired the world and elevated the position of the United States - to sabotage those principles and replace them with a rule of anarchy, because they've shown nothing but contempt for the rule of law.
I have not forgotten that it took the United States 40 years to ratify the Genocide Convention which we sponsored. But the world didn't wait for the United States. If the United States comes on board sooner, and I hope it will, and I expect that it will, so much the better. If they don't, the world will move ahead and the United States will remain behind and it will lose the leadership role which it has enjoyed for so many years. In this photo I am introducing documents in the Einsatzgruppen trial against the defendents who murdered over a million people and two of the defence counsel have jumped to the podium to object or comment to some of the document being introduced. "My" Einsatzgruppen, if I can call them "my" Einsatzgruppen, had 3000 men who for two years every day went out and slaughtered innocent civilians, including thousands and thousands of children. I tried only 22.
Why was that?
We couldn't try more. We had a limited mandate. This was a sampling. We wanted to establish the historical record and to establish a principle of law - that these were terrible crimes in order to deter people from committing such crimes in the future.
But if we look at the criteria of war crimes in the statute and, for instance, we take the bombing of Leipzig, Dresden and Nagasaki and Hiroshima, would those be considered as war crimes?
Probably not; and I say "probably" advisedly. Some of them, certainly not. If you're in the midst of a war where the adversary has declared, "total war", and no rules would apply, as Adolf Hitler did, then the principle of "reciprocity" would allow you to do the same. Whether the use of nuclear weapons, which kills generations still unborn, is a crime against humanity, is a question which has not yet been resolved. And the presence of a court as the ICC is, will hopefully give us all a clearer picture of what's permissible and what's not permissible.
United Nations headquarters in New York, cradle of the international tribunal, with Europe diametrically opposed to the United States. Washington, historically distrustful of the UN, fears that the court wil be misused for anti-American politics. Ferencz judges this fear to be totally groundless. As Security Coucil member, the United States has maximum influence.
The statute has given them the right to instruct the court at any time to halt the trial or investigation of any case for a twelve-month period and they can then renew it for an indefinate twelve-month period. So the power still remains in the hands of the Security Council to stop this tribunal in its tracks while they continue efforts to make peace by other means. And no one mentions that either.
That the ICC was created in spite of everything was a reaction to the horrific wars in the 1990's in the Balkans and the genocide in Rwanda. International pressure to not let the culprits go unpunished was the deciding factor. Two ad hoc tribunals were formed and led the way to the new court.
The genocides that would take place and the crimes that would take place in other parts of the world made it impossible to continue to set up all these temporary tribunals à la carte, as we called it, wherever there was a tragedy, in Sierra Leone, in East Timor, wherever it was. And people began to think more seriously of the idea of a permanent international criminal court. Not retro-active, but to build a better world in the future. And that's what we're in the process of doing right now.
Suppose you weren't 82, but 27? Would you like to be a prosecutor for the ICC?
I think it would be fun, because it's a new field and it's challenging, and I have been pushing this rock for 60 years. But I'm 82 years old. There's a limit to how much longer I can do this. I hope some of your viewers will agree to take on this burden; some of the younger viewers.
A man to take your hat off to . . .
This was a report from Herman van Gelderen en Jolan Douwes.
This was Netwerk, June 25th, 2002.
Source: Dutch Netwerk TV, Nederland 1, 8:30 p.m. Tuesday, June 25th, 2002. Unofficial transcript, translation by Kate Kruize.
International Criminal Court
This document has been published on 20Sep02 by the Equipo Nizkor and Derechos Human Rights