Introducing the Book Symposium on ‘Nuremberg’s Citizen Prosecutor’

[Gregory S. Gordon is Professor of Law at Peking University School of Transnational Law and author of Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford University Press, 2017). A former prosecutor with the Office of the Prosecutor of the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, including in the Office of Special Investigations and as a Special Assistant U.S. Attorney for the District of Columbia, he has tried 24 cases, 23 of them to a favorable verdict.]

On a cold winter afternoon in early 2020, I was sitting in Columbia University’s Rare Book & Manuscript Library reading through the papers of Telford Taylor, Robert Jackson’s successor as U.S. Chief of Counsel at Nuremberg, and I was close to giving up on finding anything new. I had already spent three full days interviewing Benjamin Ferencz about every part of his life. What could an archive tell me that the man himself hadn’t? Then thunder struck. I found a document describing Ferencz cross‑examining a witness in the Krupp trial, the case against the armaments makers who helped Hitler prepare for aggressive war and ran their factories on slave labor. I couldn’t believe my eyes.

I hurried outside without my coat so I could use my phone right away. Then, shivering in the freezing cold while standing in the middle of the Columbia campus, I started calling Nuremberg experts, including Ben’s son, Don. None of them knew that Ferencz had been a Krupp podium prosecutor in Nuremberg. Ben had never mentioned it in recent memory. And that finding changed how I understood his career, and it explains a lot about this book, much of which flows from this previously hidden Nuremberg history. I hope recounting the power of that moment also helps primes readers for the deeper exploration of Ferencz’s career and legacy that this symposium invites. 

I’m grateful to Opinio Juris for hosting it, and to the seven featured scholars who, over the next few days, will be engaging with Nuremberg’s Citizen Prosecutor: Benjamin Ferencz and the Birth of International Justice (University of Virginia Press). In the balance of this post, I would like to explain the origins of the project, the goals I set for myself, the outcomes thus far, and my hopes for the book’s future impact.   

An Unexpected Invitation

The project started over lunch. In 2018, I attended an event in The Hague honoring Ferencz, then the last surviving Nuremberg prosecutor. He had recently written the foreword to my book Atrocity Speech Law: Foundation, Fragmentation, Fruition (OUP 2017), and Don Ferencz invited me to the luncheon that followed. I was lucky to have some alone time with Don and our conversation eventually touched on our mutual amazement that nobody had yet written a thoroughly researched, full‑length account of his father’s life. I said, half joking, that it would be a dream assignment.

A month later, Don contacted me – the light‑hearted banter in The Hague had been taken seriously – and he invited me to write his father’s biography, offering complete access. I jumped on board. Ferencz had long been one of my heroes, and this a chance to place his whole life in historical context and give proper weight to his long, often overlooked work for atrocity victims. I took sabbatical leave and based myself at Florence’s European University Institute, which held a Ferencz archive and strong victim‑justice resources. I began humorously calling it my year of “Ferencz in Firenze.”

Ferencz as Holocaust Justice Connective Tissue

The intensive research gave me a much more holistic view of Ferencz’s accomplishments. We usually think of modern international criminal accountability as a division of labor: investigators gather evidence, prosecutors bring cases, and victims’ counsel seek redress. In Holocaust justice, Ferencz did all three, and the book argues that each role made him better at the next.

He was an exceptional war crimes investigator because, having fought the Wehrmacht as an enlisted soldier, he understood from the ground up how military units operated. He was an exceptional prosecutor because he had been an investigator. At twenty‑seven, in his first trial, he served as Einsatzgruppen trial chief prosecutor, and every defendant was convicted. He was an exceptional advocate for survivors because he had prosecuted their persecutors. He then spent years pressing restitution, compensation, and slave labor claims against German industrialists and others who had profited from Nazi criminality. And then there was the institution building and peace advocacy in the last phase of his career.

That sequence matters. Ferencz was not simply the bookends of his career – a brilliant young lawyer assigned an historic case and then an irascible elder statesman urging the world to substitute law for war. He was, in a very real sense, the connective tissue among the investigation of Nazi crimes, their prosecution, the effort to repair – however incompletely –the damage done to victims, and the creation of institutions for preventing such crimes in the future. At each stage he had to invent methods and institutions on the fly – he was an incredible pioneer.

And his authority came not from pedigree, wealth, political power, or institutional seniority – hence my title: Nuremberg’s “citizen prosecutor.” Ben was born into poverty and antisemitic persecution in Transylvania. In America he grew up in Hell’s Kitchen, eked his way through school on scholarships and odd jobs, and entered World War II as a private. His career was improbable at nearly every turn. Yet, again and again, he confronted the gravest crimes, not as a distant theorist or upper‑echelon bigwig, but as an ordinary citizen called upon to help build legal mechanisms capable of punishing and restraining extraordinary violence.

Discovering Ferencz Beyond the Legend

So how was I able to map all this out? Well, let me start by saying that writing about a living legend is both a gift and a challenge. My long interviews with Ben were indispensable. He had a remarkable memory despite his age, a vivid sense of moral purpose, and a lifetime of stories. But I came to realize that biography cannot rest on its subject’s memory alone, especially when that subject has spent decades publicly explaining his own life. Over the years Ben had honed his narrative. Certain episodes became central. Others faded, were simplified, or forgotten, and some may have been too painful, complicated, or inconsistent with the public story to receive much attention.

So, I took his account seriously without being confined by it. That required intensive archival work – poring over diaries, correspondence, court records, government files, and family materials – and interviews with people who knew him in different contexts. 

What I found made his accomplishments even more impressive. I uncovered connections that had received little or no attention. His investigations into Nazi art looting, for instance, produced important evidence relevant to the case against Hermann Göring at the first Nuremberg trial. Many are not aware that his work intersected with Hannah Arendt’s cultural restitution efforts as executive director of Jewish Cultural Reconstruction (he was technically Arendt’s boss!). My book also reveals that Ferencz had behind‑the‑scenes conversations that arguably affected the formulation of trial strategy in the Eichmann case.

The Missing Link: The Industrialists and Aggression

In my opinion, though, the most important discoveries I made involved Ferencz’s work on the industrialist cases. Ben’s oft‑told public story went like this: he arrived at Nuremberg in spring 1946, was sent to Berlin to head the prosecution’s most important investigative office, discovered the complete set of Einsatzgruppen field reports, convinced Telford Taylor to authorize the Einsatzgruppen proceeding, served as its chief prosecutor, and then worked as Taylor’s Executive Counsel. It was a remarkable trajectory, but incomplete.

The Krupp trial document I found in the Taylor archives, together with previously unseen letters, revealed previously unknown extensive work on the Nuremberg industrialist cases and showed that, at the time, this early, hidden part of his Nuremberg service mattered a great deal to him intellectually and morally. The irony is that the case he rarely mentioned was the one whose failure most shaped what he spent his last decades trying to fix. The industrialists were not peripheral to Nazi criminality – they helped make aggressive war possible. For him, holding them accountable was linked to preventing war itself.

That solved a puzzle that had long bothered me. Ferencz is best known for Einsatzgruppen, a crimes‑against‑humanity case against the leaders of mobile killing units that murdered more than a million Jews and other Nazi “enemies.” Yet his final decades were devoted primarily to criminalizing aggression. How did one get from the Einsatzgruppen trial to a lifelong campaign against aggressive war?

The answer, I came to believe, ran through the industrialist cases. They were the “missing link” in his career. They taught him that atrocity did not begin only at the killing sites. It depended on structures—military, bureaucratic, financial, industrial, and political. If law were to prevent mass violence, it had to reach not only the trigger‑pullers and immediate commanders but also those who enabled criminal systems and unleashed them through aggressive war. That insight, I posit, fills the key gap in his career trajectory.

Why did he never speak of this critical part of his Nuremberg service? My best explanation: what I believe was his perception that involvement with the Krupp proceeding might muddy his Nuremberg legacy. All the defendants in Krupp were acquitted of crimes against peace, and even those convicted of crimes against humanity received relatively light sentences. And they were soon released thanks to U.S. High Commissioner John J. McCloy’s indefensible, Cold War–driven clemency decisions. Compare this to Einsatzgruppen – arguably Nuremberg’s most black‑and‑white case – for which more death sentences were issued than any other trial (and one of only three NMT proceedings pursuant to which defendants were executed).

Victims at the Center

I also hope the book rebalances how we remember Ferencz’s work for victims. After Nuremberg, he did not simply declare victory and return home. He stayed in Europe pursuing restitution and compensation for survivors and confronted the question that always follows atrocity: after judgment is pronounced, what happens to the people who suffered?

The answers were necessarily inadequate. No legal process could restore murdered families, stolen childhoods, destroyed communities, or years of forced toil. But Ferencz insisted that victims were not abstractions. They had names, claims, and losses that could be documented, pressed, and at least partially acknowledged. His career helped lay the groundwork for today’s debates about, and positive movement toward, victim participation and reparations.

My Other Hopes for the Book

I wrote the book to rediscover a life and illuminate a field. Ferencz did not begin as a grand strategist. He began as a young soldier, then became an investigator, a prosecutor, a victims’ advocate, and finally a global campaigner for peace through law. His life shows international justice being built case by case, file by file, witness by witness, and institution by institution.

But I always had to remind myself to be admiring without being hagiographic. Ferencz was extraordinary; yet he was not made of marble. He was ambitious, driven, sometimes rip‑roaringly funny, sometimes impatient, and always shaped by family love as well as pressures and personal complications. Those features bring him fully to life and make his accomplishments more understandable and inspiring. International justice was not built by saints. It was built by human beings with families and friends, working quickly under immense pressure, with incomplete tools, imperfect institutions, and often seemingly impossible facts.

Finally, I hope the book speaks to the present. Ferencz believed deeply that war could no longer remain the central instrument of human affairs without eventually producing catastrophe. He knew what organized violence looked like when released from legal and moral constraint. His answer was not sentimentality but institution‑building, documentation, prosecution, compensation, and persistence.

That vision remains unfinished. Recent events have made clear that the institutions Ferencz championed are fragile, and international criminal law is unevenly enforced, politically contested, and often painfully slow. But the lesson of his life is not that law always succeeds. It is that law must be made to matter by people willing to devote themselves to it and do the work.

I am honored that these seven distinguished experts will be engaging with the book in the days that follow (and in the order that their pieces were submitted):

• Martha Minow will open and discuss Ferencz’s life and legacy 
• Natasha Gooden will reflect on the art of writing, unconstrained by traditional academic limits 
• Emiliano Buis will look at the book through the lens of theory and historiography 
• Mark Klamberg will comment on narrative constructed through rigorous archival research in the service of non-doctrinal scholarship 
• Peggy McGuinness will share insights on biography as a tool for legal educators 
• Beth Van Schaack will provide insights on Ferencz’s industrialist work and its legacy 
• Kevin Heller will consider the unanswered questions and suggest avenues for further research

I hope the discussion opens new vistas onto Ferencz’s remarkable life and asks what his example demands of us now, at a moment when principled, victim‑centered, prevention‑oriented international justice is as urgent as ever.