Book Symposium on ‘Nuremberg’s Citizen Prosecutor’: The Definitive Biography of a Towering Figure in International Criminal Law

Let’s start with the obvious: with Nuremberg’s Citizen Prosecutor, Professor Gregory Gordon has written the definitive biography of Ben Ferencz, one of the most important figures in the history of international criminal law. The book is compulsively readable, with the ideal balance of, for lack of a better description, the personal and the legal. In terms of the personal, thanks to Professor Gordon’s vast archival research and dozens of hours of interviews, Ferencz comes alive on the pages of the book in ways that will surprise and delight even those who knew him best. Yet this is not a hagiography; Gordon does not shy away from exploring Ferencz’s flaws as a person or calling Ferencz out for actions that are inconsistent with the beatification that characterises so much commentary on his (admittedly amazing) life.

In terms of the legal, we are particularly fortunate to have Gordon as Ferencz’s biographer. Ferencz was not simply his work, but his work was central to who he was. And legally, Ferencz contained multitudes. Each of the phases of his career would have been enough for one life, yet Ferencz managed to fit them all of them into one blessedly long one. Gordon manages to do justice to all of Ferencz’s many talents, never forgetting to keep the man himself front and center, but also never oversimplifying or downplaying “the law” – a tribute to Gordon’s vast knowledge not only of Ferencz, but also of all the legal worlds Ferencz inhabited. 

In what follows, I want to focus on the fourth “P” in Gregory Gordon’s book – Prosecuting – which traces Ferencz’s starring role in the so-called “subsequent proceedings,” the 12 American military tribunals held after the IMT. I focus on the Nuremberg Military Tribunals (NMTs) for a prosaic reason: I know more about the NMTs, and Ferencz’s role in them, than about any of the other aspects of Ferencz’s legal work, having written (shameless plug coming) a long book about the 12 trials. Sadly, given my critical nature, I have no significant reservations about Professor Gordon’s biography – itself a tribute to its excellence. More just some thoughts and questions.

The first thing to be said is that, despite having immersed myself in the NMTs for a number of years, and despite having tried to convey some of the “colour” of the trials to my readers through biography and anecdote, I rarely went a few pages in Gregory’s book without learning something new about people or events I thought I knew quite well. I had no idea that Telford Taylor used the word “holocaust” during his closing argument in Einsatzgruppen. I didn’t know that Charles La Follette, the chief prosecutor in the Justice case, threatened to kill his colleague Robert Kempner, the chief prosecutor in Ministries, because Kempner was hiding the minutes of the notorious Wannsee Conference. I was unaware that Ferencz was troubled by the death sentence given to Otto Ohlendorf, the leader of the vicious Einsatzgruppen D, because Ohlendorf had been “scrupulously honest” on the witness stand and had tried to ensure that his men killed their victims with as little unnecessary suffering as possible.

I greatly enjoyed these little “aha!” moments as I read the book. At the same time, I also often found myself wondering what Ferencz thought about various aspects of the trials he was involved in – and even occasionally wondering why Gordon didn’t challenge Ferenz on some of the claims he made about the trials or about the NMTs more generally. 

Three examples of the first category are worth mentioning. First, I wish I knew what Ferencz made of the fact that so many Einsatzgruppen defendants were not just educated, urbane men – epitomized, as is often mentioned in the literature, by Waldemar Klingelhöfer, who was an opera singer before the war – but were actually lawyers. By my count, fully 10 of the 24 defendants had a legal background. That is a staggering number given their starring role in the “biggest murder trial in history,” even accounting for the Nazis’ perversion of the German justice system. Surely Ferencz, an educated, urbane lawyer himself, had thoughts about how easily German lawyers were led not only to preside over unfair, predetermined trials, but also to knowingly, voluntarily, and even cheerfully order mass murder. I would have liked to hear those thoughts.

Second, I wonder how Ferencz felt about Judge Michael Musmanno’s habit – going well beyond any of his fellow judges – of cross-examining witnesses from the bench. As Gregory recounts, it was Musmanno, not Ferencz’s colleague Jim Heath, who got Ohlendorf to admit that he would have murdered his own sister if the Führerbefehl (Führer Order) had required it. And it was Musmanno who later undermined Ohlendorf’s superior-orders defence by getting his deputy, Willi Siebert, to admit that he would not have shot his parents in a similar situation. Such aggressive judicial questioning is, as we always tell our students in international criminal law, a regular occurrence in the civil law but almost unknown in the common law. Did Ferencz appreciate the judicial assist? Or did he find it discomfiting?

Third – and this is the question I would most like the answer to – what did Ferencz think about the Einsatzgruppen tribunal’s insistence that, because “morale bombing” was not (yet) prohibited by the laws of war, military necessity fully justified America’s decision to drop atomic bombs on Hiroshima and Nagasaki? Here is what the tribunal chillingly wrote in its judgment:

It was argued in behalf of the defendants that there was no normal distinction between shooting civilians with rifles and killing them by means of atomic bombs. There is no doubt that the invention of the atomic bomb, when used, was not aimed at noncombatants. Like any other aerial bomb employed during the war, it was dropped to overcome military resistance. Thus, as grave a military action as is an air bombardment, whether with the usual bombs or by atomic bomb, the one and only purpose of the bombing is to effect the surrender of the bombed nation. The people of that nation, through their representatives, may surrender and, with the surrender, the bombing ceases, the killing is ended.

Did Ferencz agree? Or did he share Telford Taylor’s opinion, conceded in his seminal 1992 book The Anatomy of the Nuremberg Trials: A Personal Memoir, that the atomic bombings were, like the firebombing of Dresden, war crimes – “tolerable in retrospect only because their malignancy pales in comparison to Dachau, Auschwitz, and Treblinka”?

I also wish Gregory has pushed back a bit against Ferencz’s belief – expressed in the 1948 article Gregory mentions, “Nuremberg Trial Procedure and the Rights of the Accused” – that the NMT trials “rest on a foundation of legal procedure that has satisfied the traditional safeguards of Continental and American law.” I agree with Ferencz that the trials were generally fair, and I say so in my book. But they were not perfect, and it is a shame that Gregory didn’t ask Ferencz about some of their more problematic aspects, three of which are worth mentioning here.

The first is Ferencz’s effusive praise for the NMTs providing each defendant with two counsel of his own choice. That was a very good thing, but Taylor undermined the right to counsel by refusing to provide suspects with attorneys until after they were formally indicted. Taylor justified his position by claiming that “information provided by people in custody is a very important source to us of determining what people should be charged with war crimes.” That was no doubt true – but it could hardly justify creating a situation in which suspects were likely to unknowingly incriminate themselves (which they did on more than one occasion), as anything they said during their pre-indictment interrogation would later be admissible at trial. Did Ferencz agree with Taylor’s position? Did it trouble him?

The second problematic aspect, more technical in nature, concerns Ferencz’s insistence in his article that “[w]here affidavits are admitted the opposing side may call the witnesses for cross-examination or if it is physically impossible for the witness to appear, cross-interrogatories or cross-affidavits may be submitted.” That was not accurate: five NMTs held that interrogatories were enough to admit an affidavit even when the affiant simply refused to testify. Four others took the opposite position, requiring live cross-examination on the ground that written questions were a manifestly inadequate substitute for live questioning. I wish Gregory had challenged Ferencz’s defence of the affidavit procedure, because his two primary cases involved tribunals that took opposite positions, the Einsatzgruppen tribunal admitting unexamined affidavits and the Krupp tribunal excluding them.

Finally – once again leaving the burning question for last – it is a shame that Greg did not push Ferencz on his desultory comment in the article that there was “a review of all sentences by the US military governor as well as the right of subsequent petition for review to the US Supreme Court.” So there was. But discretionary review by an appointed American official was hardly an adequate substitute for a formal appeal to a judge or panel of judges. The American approach also compared unfavorably with the one taken by the French, whose rules of procedure allowed defendants convicted in a zonal military trial to appeal to a higher military court. Indeed, Herman Roechling’s conviction for waging aggressive war would later be reversed in that manner. Little wonder, then, that the absence of appellate review proved to be the most controversial aspect of the NMT trials.

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These are, of course, minor points. Gregory only had so much time to interview Ferencz. My basic response to Professor Gordon’s biography, moreover, remains the same: awe. I cannot imagine writing a biography of any kind, much less one of a towering figure in international law, where substance is as important as story. Gregory Gordon has written the definitive biography of Ben Ferencz, one that honours its subject while avoiding slavish devotion to him. For that we are all in his debt.