A Prosecutor's Personal Account: From Nuremberg to Rome.

• Author: Ferencz, Benjamin

The Nuremberg trials in 1946 were the beginning of a process that sought to apply the rule of law to protect fundamental human rights of people everywhere. As a prosecutor at Nuremberg, I peered into the eyes of remorseless murderers--many of them educated men. How does one cope with those who remain convinced, in complete absence of shame or regret, that they were part of a master race and that what they did was necessary and just? Teaching tolerance, understanding and compassion in a world replete with nationalism, arrogance, hatred and fear is not a quick or easy task. Economic, social and religious disparities are so dominant that rooting out causes of violent discontent remains our greatest challenge. The lesson of my life, however, has been that progress is surely possible and the goal of a humane world under law can be reached.

I was born in 1920 in a ramshackle cottage in a tiny village in Transylvania. Hungary had ceded the region to Romania after the First World War and my parents were eager to escape the Romanian persecutions of the Hungarian Jewish minority. Without education, funds or skills, the young couple took their family and emigrated to America.

My childhood recollections begin in a basement apartment in Hell's Kitchen, a crime-infested district in New York City. I was educated in the public schools of New York, including City College, where I studied crime prevention. Based on the results of my criminal law exam, I won a scholarship to Harvard Law School, where I served as a research assistant to Professor Sheldon Glueck, a leading criminologist who had written a book on the prosecution of war criminals. He profoundly influenced my subsequent career.

When the United States entered the Second World War, I applied for an assignment in army intelligence but was disqualified due to my foreign birth. After I received my law degree, I enlisted and was assigned as a private in the supply section of an anti-aircraft battalion trained for the invasion of France. Soon after, the Allies landed on the beaches of Normandy and my unit joined General Patton's Third Army that was pursuing the Nazis back across the Rhine and on to the final Battle of the Bulge. After three years of military service, I was honorably discharged as a sergeant with five battle stars. The most formative events of my army career, however, centered on war crimes.

U.S. ARMY WAR CRIME TRIALS, DACHAU

Following the defeat of Adolf Hitler, Allied leaders were determined to hold war criminals accountable for atrocities committed during the war. Washington turned to Professor Glueck for guidance.(1) He suggested that the army try to locate me to help set up a war crimes branch, noting I had just written an article on the "Rehabilitation of Army Offenders" as a corporal with the 115th AAA Gun Battalion.(2) In December 1944, I was transferred to a new Judge Advocate section of the Third Army headquarters in Luxembourg.

The first persons targeted for trial were Germans who had committed atrocities against Americans--such as killing prisoners of war or downed allied flyers. Captured Nazi concentration camp commanders were also called before American military courts. A few enlisted men carried out the investigations. After digging up bodies of American flyers murdered by German mobs, I prepared reports identifying the suspects and listing the violated war laws. Witnesses were ordered to write out a complete description of the criminal event--under threat of being shot. Confessions from the accused were obtained by similar persuasions--even though they usually were rewritten under more sympathetic circumstances before an officer validated it for evidence. It was a grisly assignment. But the worst was yet to come.

As a form of symbolic justice, the army decided to try the captured criminals in a former Nazi concentration camp at Dachau, near Munich. The proceedings were in the nature of traditional military commissions, where judges, prosecutors and defense counsels were U.S. army officers--many with no legal training. No great new principles of law were established. The trials were abruptly discontinued when Pentagon policy toward Germany was reversed. Many U.S. government officials now viewed the Germans as a potential ally against the Soviet threat. Hence, the discontinued trials offered no new vision of a more humane world inspired by peace-seeking justice proceedings. I left Germany after the war as soon as I could and hoped never to return there again.

THE VISION OF NUREMBERG

Shortly after I arrived back in New York I received a telegram from the War Department inviting me to Washington. The highly publicized trial against German Field Marshal Hermann Goering before the International Military Tribunal (IMT) was already under way in Nuremberg. I was urged to return to Germany as a civilian with the simulated rank of full colonel to continue doing essentially what I had done as an army sergeant. I was interviewed by Colonel Telford Taylor, a Harvard lawyer with a distinguished career in government, and a key member of the U.S. prosecution team at the IMT trial. The United States also had decided to conduct a number of additional trials at Nuremberg after the IMT trial was completed. These subsequent proceedings were to portray the broad panorama of Nazi criminality. Taylor was in charge and he was looking for help. I agreed to join him.

The charter of the IMT, whose principal architect was U.S. Supreme Court Justice Robert H. Jackson, was signed in London on 8 August 1945. The United States, United Kingdom, France and the Soviet Union agreed that only three categories of crimes would fall within the jurisdiction of the international court: crime against peace (aggressive war), crimes against humanity and war crimes. Superior orders would be no defense but could be considered in mitigation. The official position of the defendants would not free them from responsibility, and leaders who were instigators and accomplices could be held accountable. No one could be convicted unless found guilty after a fair public trial. In their final judgment, the learned IMT jurists confirmed that the London Charter was a valid expression of existing and binding international law. The Nuremberg principles and judgment were unanimously affirmed by the first General Assembly of the United Nations.(3)

Justice Jackson's opening statement as the chief American prosecutor was an inspiring call for universally binding international law:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility ... That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason ... We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow.(4) These same principles guided Telford Taylor, who was promoted to brigadier general and chief of counsel for the 12 subsequent trials. Those accused included German doctors who directed medical experiments on helpless victims; German judges and lawyers who persecuted the innocent; industrialists like Alfried Krupp and companies such as I.G. Farben that seized enemy properties and worked concentration camp inmates to...