Global Policy Forum

By Elizabeth Ganga

Benjamin Ferencz thinks there's one element the American people should know about the U.S. government's position on the International Criminal Court.

"They're lying," he said. The Bush administration argues the court, which was formed this summer without the support of the United States, puts American soldiers at risk of prosecution and could be manipulated by hostile nations into targeting American soldiers. Ferencz, a New Rochelle resident who prosecuted the SS Einsatzgruppen at Nuremberg after World War II and has long worked for the establishment of the court, said that couldn't happen.

"Let me give you an example," he said. "They're saying the biggest threat is the prosecutor has inadequate controls over him." Ferencz said ICC prosecutors are more restricted than in any other court; the court has jurisdiction over only three crimes; and an investigation cannot begin without the approval of three judges. Plus, he said, a nation always has the first crack at trying its own citizens. "The court depends for its power upon the respect it will have in the world community," Ferencz said.

The issue of American participation in the International Criminal Court - a key foreign policy debate earlier this year - has been eclipsed recently by talk of war with Iraq. American officials, who have fought vigorously for exemptions for American troops, have most recently been seeking to sign agreements with individual countries that they will not turn Americans over to the court. By last Thursday, 81 nations had ratified the treaty establishing the court. The court, which has jurisdiction over genocide, crimes against humanity and major war crimes, began work July 1 and is setting up now in The Hague. Judges are expected to be sworn in in March.

Ferencz is not alone is his view that, even without U.S. involvement, the court will fill a major gap in the international justice system. "The bottom line is no U.S. administration or U.S. conservative can ever really discredit this court," said Don Kraus, the executive director of the Campaign for United Nations Reform and coordinator of USA for the International Criminal Court, a coalition trying to generate support for the court in the United States. "It's the court that can discredit itself."

When Ferencz speaks about the International Criminal Court, it's as a former prosecutor at the Nuremberg trials, a major precedent for an international court and a formative experience for Ferencz.

Ferencz's family immigrated to New York City from Transylvania not long after he was born in 1920. He attended public schools and Harvard Law School before joining the Army and fighting in World War II under Gen. George Patton.

Near the end of the war, he was transferred into a new war crimes branch of the Judge Advocate section of the Third Army to collect evidence against German soldiers and civilians who committed atrocities. He dug up the bodies of American pilots murdered by mobs and traveled to several concentration camps to seize camp records and interview survivors.

The Army began trying war criminals at the Dachau concentration camp near Munich, but the trials were soon discontinued and Ferencz returned to the United States. Soon, he was asked to help the prosecution team at Nuremberg and returned to Europe. He lead a research team that found reports detailing the murder of over 1 million people by the SS Einsatzgruppen, special military units that followed invading German troops into Poland and the Soviet Union and killed Jews, Gypsies and opponents of the Hitler regime.

Though only 27, Ferencz took over the prosecution of the Einsatzgruppen because no other lawyers were available. All 22 defendants were convicted.

After the war, Ferencz worked on compensation for the victims of the Nazi regime and, after he returned to America in 1956 and bought a house in New Rochelle, he joined a law practice. By the late 1960s, pushed by the Vietnam War and a world that seemed to be getting worse, Ferencz decided to devote himself to peace work. "I said, 'To hell with this. I'm not going to practice law anymore. I'm going to try to improve the world.' "

He began writing and speaking for peace and for the establishment of an international criminal court. He also worked as an adjunct law professor at Pace Law School in White Plains from 1985 to 1996.

Sean Murphy, an international law professor at George Washington University Law School, said Ferencz is one of the leading figures promoting international law for war crimes. "He's a link for our world today back to our last major time when we had war crimes prosecutions," he said.

Ferencz used his living knowledge to push the international community toward the creation of the International Criminal Court. Though the proposal for a permanent court had been around for most of the 20th century, the temporary tribunals for the former Yugoslavia and Rwanda brought the issue back to the forefront in the 1990s. In 1998, the treaty for the court was adopted in Rome. Earlier this year, the required threshold was reached to activate the court when 60 countries ratified the treaty.

Even with this milestone, Ferencz's work isn't done. He is waging his battle in defense of the court and against the Bush administration.

President Bush, who revoked the signature of former President Clinton on a treaty creating the court, has fought to get exemptions for American troops. Administration officials have argued that they feared American soldiers might be subject to politically motivated charges.

With the United States considering going to war against Iraq because of its record of crimes against its own people and the threat of its ability to launch weapons of mass destruction, supporters of the court see an irony in the government's refusal to back the court.

"These are the precise crimes that the International Criminal Court was established to try," said Vienna Colucci, a specialist in international justice with Amnesty International. The court can prosecute only crimes committed after July 1.

Ferencz said Saddam Hussein should be tried in an international court. The United States should have arrested him during the Gulf War, he said, but if they go in again without United Nations support, it will be an act of aggression. "I would go after him using the rule of law," Ferencz said.

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