The sad news went around the world during the Easter days: Ben Ferencz has died. The last surviving prosecutor of the Nuremberg trials had passed away, at 103 years of age.
The International Criminal Court (ICC) community reacted with grief to the loss of this veteran of international criminal justice and also with gratitude for his contribution to the struggle for an independent, impartial, and fair permanent international criminal court.
Ferencz was born in 1920 in a Hungarian-Jewish family in Transylvania. When Hungary was divided after World War I and the region became part of Romania, antisemitism became rampant. His parents decided to emigrate to America when Benjamin was still a baby. The family lived in poverty for years in New York and did not know anybody who had been to college, but teachers saw Benjamin’s talents and he eventually got a scholarship to study law at the elite university of Harvard, where he volunteered to help write a book about the prosecution and punishment of war criminals.
During World War II, Ferencz helped to liberate Europe from Hitler’s Nazi tyranny by fighting in the US army. After the defeat of Germany in 1945, Ferencz was assigned to help secure evidence in the liberated concentration camps. The piles of dead bodies and emaciated survivors begging for help were horrific memories that traumatised him, but also guided and inspired his actions for almost 80 years to come.
After the Allied powers had tried the surviving political and military leaders of the Nazi regime before the International Military Tribunal in the Southern German city of Nuremberg, with American, Soviet, British, and French judges, the US organised 12 other trials, the Nuremberg Military Tribunals (December 1946 – April 1949). These were US military courts with American judges and prosecutors and dealt with cases of crimes against humanity committed by lower-level perpetrators among Nazi Germany’s business community and war crimes and atrocities of military officers against prisoners of war, partisans and civilians. Ferencz led the prosecution in the trial of the Einsatztruppen, Nazi death squads that had killed more than one million Jews and other civilians in occupied Eastern Europe.
After his years in Nuremberg, Ferencz returned to the US to pick up law practice, but also helped Jews to get compensation from West Germany and started a campaign for an international criminal court to try suspects of war crimes, genocide, crimes against humanity, and the crime of aggression. For him, it was a step in the right direction when the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, with its seat in The Hague, the Dutch city that already hosted the International Court of Justice, the principal legal organ of the UN.
It was at the ICTY that I first met Ben. He used to come to my office, where I worked with other news agency journalists, and tell us about his conversations with the chief prosecutor and other officials. And he would surprise visiting law students in the ICTY lobby by approaching them and asking them: “What do you want – law or war?” That was one of his favourite slogans, next to “Never give up! Never give up!”
While the UN had established ad hoc tribunals with a limited regional reach in the former Yugoslavia and Rwanda, Ferencz continued to campaign for his dream: a permanent international criminal court with worldwide reach. He waged a campaign with speeches, articles, books, and his website.
His triumph came, first when the founding treaty of the ICC was adopted at an international diplomatic conference in Rome in 1998 which he attended, and secondly, as the Rome Statute entered into force in 2002 when 60 ratifications were in and the ICC could start its work in The Hague.
However, it was somewhat bitter for Ben Ferencz that his second fatherland, the US, did not only fail to ratify the Rome Statute but also committed hostile acts, such as adopting the American Servicemembers’ Protection Act, commonly known as the “Hague Invasion Act”, which “allows” the US president to send troops to invade The Netherlands and free any American detained by the ICC. Ferencz, already a senior citizen, participated in a demonstration on the beach of Scheveningen, the neighbourhood of The Hague where the ICC and UN detention centres are located. The former prosecutor mounted the sandbags that had been piled up to symbolically prevent American soldiers from invading.
Luis Moreno Ocampo, the first chief prosecutor of the ICC, honoured Ferencz by giving him the floor during the closing arguments of the first-ever ICC trial, the case of Thomas Lubanga from the Democratic Republic of the Congo.
Ferencz continued his advocacy and academic campaign. During the opening ceremony of a moot court at Leiden University’s Campus The Hague, it became clear what kind of respect and admiration he had acquired also among the future generations of international lawyers when he received a standing ovation from hundreds of law students from all over the world:
Ferencz tells the story of his life himself in this video, before the background of concentration camps and Nuremberg courtroom footage:
Al Jazeera published a portrait of Ferencz on the occasion of his 100th birthday, in which Richard Goldstone of South Africa, the founding chief prosecutor of the United Nations international criminal tribunals for the former Yugoslavia and Rwanda, described him as “the heart and soul of international criminal justice”:
Journalists For Justice collected reactions to Ferencz’ death from key figures in the field of international criminal justice:
Bill Pace, who led the NGO Coalition for the International Criminal Court (CICC) from 1995 until 2019: “Ben Ferencz was an inspirational member of the Coalition for the ICC. I began working with Ben on the ICC when Prime Minister Robinson introduced the ICC CARICOM Resolution to the UNGA in 1989. Ben always had the longest view – his goal was outlawing war itself – a goal as important today as it was at the end of the horrific WWII, the founding of the United Nations, the beginning of the age of nuclear weapons.” (Arthur Robinson, as prime minister of Trinidad and Tobago, revived the idea of an ICC with his speech in New York in 1989 and, having become president of his Caribbean island country, was the only other head of state present next to Queen Beatrix of The Netherlands, when the ICC held its inaugural session in the Hall of Knights in The Hague in 2003 in the presence of UN Secretary-General Kofi Annan.)
Prof Mischa Wladimiroff, the lead defence counsel in the first-ever trial before the ICTY, the first international war crimes tribunal since Nuremberg and Tokyo: “The passing of Ben Ferencz feels like a personal loss. Ben was a giant who has done more for the promotion and application of international humanitarian law than anyone else. We will remember him as an amiable and righteous person. A friend has passed away.”
Serge Brammertz, the last Prosecutor of the ICTY and head of the prosecution at the International Residual Mechanism for Criminal Tribunals, the successor organisation of ICTY and ICTR: “Ben Ferencz has been an inspiration for many generations of international prosecutors and will continue to be an example to follow for generations to come. His unwavering voice – reminding governments around the world that there can be no peace without justice – will be profoundly missed. We, his colleagues and friends, will also miss the many anecdotes he shared from his time as a prosecutor at the Nuremberg trials. Every year, at the meeting of international prosecutors, his stories would bring us back to the time when international humanitarian law was born. His legacy will live on in the many international jurists that he has mentored and inspired.”
Karim Khan KC, the current Prosecutor of the ICC, on Twitter: “Much more than a Prosecutor: A person whose determination for a world governed by law was forged as an eyewitness to the unspeakable horrors of concentration camps. Rest in peace dear Ben.“
Marlise Simons, who covered the international courts in The Hague for The New York Times for decades, and Heikelina Verrijn Stuart, who covered the ICTY for Dutch national radio for years, interviewed Ferencz in Florida over several days in 2009 for a book they wrote together. They had this to say about him:
“We had known Ben as a passionate speaker, moving his audiences with outrage and empathy, calling for more laws and courts and never pulling his punches. But up close, this life-long anti-war activist also made it clear he did not believe blindly in international law. ‘The law is an act of faith,’ he said. Without it, ‘you’re condoning the wrongful behaviour.’ With it, ‘you do the best you can. In the end, you certainly don’t get perfect justice.’
“His take on the Nuremberg trials? ‘Where was the justice in the trials after the war? You have selected people whom you happened to catch, against whom you happen to have documentation. You cannot really speak of justice. You can only point to the horrors of this type of criminal behaviour and where it leads. You can hope that by showing the suffering, there will be some deterrent effect.’
“His take on the world’s many human rights treaties and international agreements to deter violence? ‘All of them have loopholes, opt-out clauses.’
“So was there any purpose to the many efforts to strive for more humane behaviour in war? According to Ben Ferencz, ‘Humane war? Humanitarian war? Of course, it is very laudable that people try to minimise the horrors of war. But it is absurd to assume you can have a humane war. It does not exist. You go to war, you know what it is about. It’s about killing the other guy. And if you have to kill his family and everyone around him, and all his neighbours, and his city, and his country, well so be it… War itself is the greatest crime, it is the greatest atrocity. It encompasses all the other crimes.”