Imagine being 27-years-old, having never stepped inside a courtroom and being appointed lead prosecutor in the largest murder trial in history. If this were a riddle, it would be easy for either human rights lawyers or World War Two experts to guess the correct answer. Ben Ferencz was that young man. He made his legal debut on the world stage trying Nazi war criminals. Ferencz was the first person to use the term “genocide” in a criminal trial during his opening statement at Nuremberg in 1947.
Brought up on the tough streets of New York’s Hell’s Kitchen’s neighbourhood, he was a Yiddish-speaking Jewish immigrant who moved to the US when he was 10 months old and didn’t learn to speak English until he was eight. As Ferencz says, he was lucky to survive the journey from Transylvania. He cried so much that his father was practically driven to madness by lack of sleep. Ferencz said the only reason his father didn’t throw him overboard was due to the presence of his uncle. Ferencz, who is now 101 years old, is not only a brilliant lawyer, but laugh-out-loud funny. He is also the last living Nuremberg prosecutor.
Growing up in an impoverished immigrant family, he was told he would be good at one of two things: either a criminal or a lawyer. I would have sent him to the Borscht Belt as a comedian. He could have been the male equivalent of Mrs Maisel in the upstate New York “Jewish Alps,” where many Jews spent their summers. He had seen too much crime growing up, so he decided against a career in gang warfare, but the problem was he didn’t know what a lawyer did. He soon found out. He was so brilliant that he got a scholarship to Harvard, where he studied law. There he discovered a new world of “Wasps”, the White Anglo-Saxon Protestant elite who wore argyle socks, were members of exclusive fraternities and prefaced every sentence with “Sir”. He, on the other hand, could barely scrape together enough money for food.
After graduating, he joined an anti-aircraft artillery battalion of the US Army. After D-Day, he fought from Normandy across Europe and took part in the Battle of the Bulge at Bastogne. After the war, the US Supreme Court Justice Robert M Jackson headed the US prosecution team at the International Military Tribunal where 21 major Nazi leaders, including Hermann Goering, Hans Frank and Albert Speer were tried for war crimes and crimes against humanity. Following this first World War Two war crimes trial, a cross-section of other major Nazi criminals was prosecuted by the US military authorities alone.
The Einsatzgruppen Trial was the ninth of twelve trials held by the US government in occupied Germany. The military trials took place in Nuremberg at the Palace of Justice and are known as the “Subsequent Nuremberg Trials”.
On his website, Ferencz writes: “General Telford Taylor was assigned as Chief of Counsel for 12 subsequent trials. Ferencz was sent with about fifty researchers to Berlin to scour Nazi offices and archives. In their hands lay overwhelming evidence of Nazi genocide by German doctors, lawyers, judges, generals, industrialists, and others who played leading roles in organising or perpetrating Nazi brutalities. The SS murder squads killed every Jewish man, woman, and child they could lay their hands on, without pity or remorse. Gipsies, communist functionaries and Soviet intellectuals suffered the same fate. It was tabulated that over a million persons were deliberately murdered by these special ‘action groups’, or Einsatzgruppen.” Ferencz stopped counting after hitting one million.
Menachem Rosensaft was appointed to the United States Holocaust Memorial Council by Presidents Bill Clinton and Barack Obama. I met him while researching my book on genocide. While discussing the Nuremberg trials with me, Rosensaft suggested I contact Ben Ferencz. I immediately wrote to him— “the last contemporary witness of the Nuremberg Trials and [who] is still standing up for peace and justice in the world”. When I got his response by email the next day, a shiver went down my spine.
There were many prosecutors at Nuremberg (see Ferencz pictured below), and no doubt all of them were impacted by the trial. Ferencz made it his life’s work. At 101, he’s still plugging away at it and doesn’t seem like he’s tired of the subject, which is one reason he stands out.
In his 1988 book, Planethood, Ferencz writes: “Indelibly seared into my memory are the scenes I witnessed while liberating these centres of death and destruction. Camps like Buchenwald, Mauthausen, and Dachau are vividly imprinted in my mind’s eye. Even today, when I close my eyes, I witness a deadly vision I can never forget — the crematoria aglow with the fire of burning flesh, the mounds of emaciated corpses stacked like cordwood waiting to be burned… I had peered into Hell.”
He gave an interview to The Washington Post in which he showed how different military legal reality was. “Someone who was not there could never really grasp how unreal the situation was … I once saw DPs [displaced persons] beat an SS man and then strap him to the steel gurney of a crematorium. They slid him in the oven, turned on the heat and took him back out. Beat him again, and put him back in until he was burnt alive. I did nothing to stop it. I suppose I could have brandished my weapon or shot in the air, but I was not inclined to do so. Does that make me an accomplice to murder? You know how I got witness statements? I’d go into a village where, say, an American pilot had parachuted and been beaten to death and line everyone one up against the wall. Then I’d say, ‘Anyone who lies will be shot on the spot.’ It never occurred to me that statements taken under duress would be invalid.” It’s not surprising that Ferencz thinks war should be illegal.
For the 75th anniversary of the liberation of Auschwitz in 2020, Ferencz did an interview with CBS’s flagship news programme, 60 Minutes, in which he talked about seeing those bodies — some were still half-alive, most were dead. He was still visibly shaken. Tears welled up in his eyes, and he turned away from the camera.
I was fortunate that Ferencz agreed to an interview, and he answered the phone from his Florida home with “Hi, ma’am”. There’s not much new you can ask someone who has no doubt been asked the same questions for the last 75 years and who has perfected the art of the brilliant soundbite. As history is a continuum, I wondered what lessons we could learn in the bloodiest century on record.
“There are three lessons.” Then in unison, we said: “One, never give up,” and we laughed and continued. “Two, never give up. And three, never give up. That’s the most important lesson.” He has said it for decades. I told him I had already quoted it in my introduction, which also made him chuckle. His chuckle is contagious and delightful.
Ferencz is known for being optimistic. “We are making progress, slow progress in ways which were unimaginable some years ago. We still have a long way to go.” When Ferencz started, there were no human rights laws. It was a newish concept in what is still a relatively young field of law. As Ferencz has said: “I put my position very clearly to the court at the biggest murder trial in human history. I said I want a rule of law that will protect all human beings. We’re all entitled to live in peace and human dignity, regardless of their race or creed. That has been my theme song for the last how many years is that? 27 to 101. That’s a long time; I can’t even count.”
“That is my theme song, and I see the progress we’ve made. I see the difficulties which lie ahead. We do have an International Criminal Court [he played a crucial role in its establishment]. They paid their respects to me in their first trial. They asked me to make the closing remarks for the prosecution, which I did. I was then, I think, 95, so it took a little while. Nevertheless, the court is there. It’s functioning, not well, but it’s functioning and getting better. [Donald Trump], the President of the United States, [now] the ex-president fortunately, tried to destroy the court and called upon his Cabinet members to agree with him. The new President [Joe Biden] revoked [his order]. So it shows the progress it’s made. It’s a rough road. So you must not be discouraged. There’s another important point. It takes courage not to be discouraged.” We quote this together as well. I love his soundbites, I tell him. “So what else do you need?” he jokes. I know everything off by heart, I joke back. How have things changed?
“I would think there’s been a greater awareness of the entitlement of people to human rights, and we see it every day. We still have some continuation of the Civil War, and Blacks are discriminated against. There are people who protest against that. In Civil War days, Blacks couldn’t protest, or they’d have been lynched. So it’s a slow progress thing. We mustn’t be discouraged by it. We have glorified killing your neighbour for centuries if you disagreed with something. We can’t turn that around in one human life, even a long one — I’m over 100, so I’m working at it, but I appreciate your help.” We laugh more. “You’re not 100, are you?” I can honestly say I’m not.
How do “normal” men and women turn from neighbour to brutal killer? How is it that someone you know can look in your face and kill you or torture you or maim you? Someone who went from being a benign baker one day or a sophisticated man of letters who loved the opera and good food?
“You live by understanding the position of those who are the perpetrators of such crimes. Many perpetrators believed that it was necessary to protect their vital interests — their religion or their country or patriotism, or the economic conditions. They needed to get rid of the enemy. The enemy is characterised as somebody you don’t like and want to go out and kill. That has been a prevailing position in many countries for many years and is still there. So, we have to change the hearts and minds of people. Because until you change the heart, you’re never going to change the mind. They have to realise that they have to treat other humans like human beings, not like animals. And eventually, hopefully — I won’t be here, I don’t think, I don’t think I have another 100 years — eventually, things will get better. Meanwhile, you have to be grateful, as I am, for how fortunate I am to have survived all the things that I have survived over many years and am still be able to make a joke about it.”
After the Nuremberg convictions, rather than go to cocktail parties with his colleagues, Ferencz went to bed. He was also invited to watch the hangings. He declined, but he wanted to talk to his lead defendant, SS Brigade Führer Otto Ohlendorf, a father of five and an economist with a PhD who had been the commander of Einsatzgruppen D.
“According to [Ohlendorf’s] report, he had killed 90,000 Jews. What he explained was that the men were inclined to exaggerate, so it probably was something less than that, 70,000 or 80,000.” Why did he kill? “He felt what he did was his patriotic duty, because the Russians, according to Hitler, were about to attack. And since Hitler knew more about politics than he did, he felt it was his duty to come to the aid of his country. That point of view still prevails in many places. And it’s a very dangerous point of view. You have to treat everybody as human beings and protect them by the rule of law, and that applies equally to everyone. So not everyone agrees with me. Some people think I’m naive, that I’m a fool. And I think anybody who thinks that war is better than law should have his head examined. And I think that’s so obviously true, and that denial of that is the high water-mark of stupidity.”
“Can I just ask if you are recording this? I hope so,” he says. On two devices, I tell him, which I thought I had mentioned at the beginning. “Now that I’m being recorded, I have to be more careful about what I say.”
Ferencz tells me about the 60 Minutes interview, which I had already watched. “When I did the broadcast for 60 Minutes, the question put to me was: how did I feel dealing with all these monsters? And I said: they’re not monsters.” Presenter Lesley Stahl’s response was, how can you say that of people who killed thousands of children?
“I said, is the man who dropped a nuclear bomb on Hiroshima — is he also a monster? He killed thousands of children. She never came back to me on that. So, everybody who goes to war is a monster because he is going to kill, deliberately, thousands of people he doesn’t even know, who never did him any harm. That’s the current system. People cheer that system, and they join the Army. The Army gave me five battle stars for not getting killed in any of the major battles in World War Two. I said I was no hero. I was hiding under a truck; somebody said, well, you survived. Yes, I survived, but that’s not the goal. We have to change our way of thinking about our responsibility. It’s very simple: treat human beings like human beings. Don’t treat them as enemies or fiends. Treat them as you would like to be treated. It’s my opinion; if they don’t share my opinion so what can I do? I’m still hanging in there.”
I ask him if Paul Tibbets Jr was a monster. He was the pilot who flew the B-29 Superfortress known as the Enola Gay when it dropped Little Boy, one of the two atomic bombs, on Hiroshima.
“Speak a little louder,” says Ferencz, “I’m having trouble hearing. I’d probably hear more if I put one of my hearing aids on.”
“There is an answer. I don’t think Truman was a monster. He was not. I thought he was a pretty good President, but it depends who you are comparing him to, and it depends upon your values. If you think your values are worth killing and dying for. And the principal causes of that are first of all, religion, second, nationalism, and third your economic condition. If you believe that your version of God is being challenged by somebody, you should kill and die for that. Same if you believe that our flag has got to be preserved. Anybody who spits on our flag, why we deserve to hang him, shoot him, kill him. It’s a point of view. And people have different points of view; that’s the essence of democracy. But people who believe in law and order have got to say there are limits to what you can do. You cannot decide that you’re going to kill somebody because he doesn’t believe in your god or doesn’t wave your flag, or he doesn’t want to give you a job. You have to learn tolerance and compassion. You can stress, instead of patriotism and killing, [that] tolerance, compassion, and compromise are the answers to a more humane world. So in my next life, I’ll emphasise that. Meanwhile, I’ll rely on you.”
The fight goes on.
This article is taken from Heidi Kingstone’s forthcoming book, One Hundred Years of Genocide: From the Ottomans to ISIS. From the slaughter of the Armenians by the Ottomans to the Holocaust, to Cambodia, Rwanda, Srebrenica, the massacre of the Yazidis by ISIS and the destruction of the Uighurs, state-sponsored mass murder of minorities makes genocide a current story. The book looks at the motivations, complicity of ordinary men and women, and why we haven’t learned the lessons of the past.