Book Symposium on ‘Nuremberg’s Citizen Prosecutor’: Responses to Martha Minow, Natasha Gooden and Emiliano Buis

[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.]

Ben Ferencz, JFK and the Greatest Generation: A Response to Martha Minow

I am so honored that former Harvard Law School Dean Martha Minow is a participant in this symposium. Author of the seminal work Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, she has been a figure of great importance for the project since it began. I first encountered her connection to Ben through a probing 2013 interview she conducted with him (available on YouTube), portions of which appear in the book. She then awarded him the Harvard Law School Medal of Freedom the following year. So I was delighted when my publisher told me she would be contributing a jacket blurb – and not surprised that it was the best one we received, describing the book as “part novel, part psychological study, and part handbook on effective lawyering . . .” Dean Minow’s contribution here offers a powerfully distilled and evocative portrait of Ben Ferencz. In responding, I hope to situate her insights within a broader generational framework that further highlights the resonance of her observations. Her opening question – what one person can do in the face of suffering and injustice – is precisely the lens through which I have long viewed both Ferencz and John F. Kennedy.

Why John F. Kennedy? Let me begin by saying that the connection with Ben Ferencz did not represent my personal introduction to Dean Minow. In 2008, as a law professor at the University of North Dakota, I conceived of and organized a major international conference commemorating JFK’s visit to UND in 1963: “John F. Kennedy: History, Memory, Legacy.” My real coup was securing as keynoter JFK’s top aide and speechwriter, Ted Sorensen. I spent two days with him, hearing remarkable insights about the administration’s most impressive figures. One who stood out was Newton Minow, whom Sorensen praised as the brilliant chair of the Federal Communications Commission (citing his famous “vast wasteland” speech about American television). I did some research and discovered that Minow, a lawyer himself, had three amazing lawyer daughters, one of whom was Martha, then a law professor at HLS.

So why do I bring all this up? It is because I very much associate the Minows with JFK and I have often thought about the connection between JFK and Ben Ferencz – especially the “personal qualities of tenacity and charm” Dean Minow highlights so vividly in her contribution. JFK and Ben were born within a couple of years of one another (JFK in 1917, Ben in 1920), both earned degrees from Harvard (just missing each other in 1940, when JFK graduated and Ben began – and Ben overlapped at HLS with Joe Jr., JFK’s older brother). World War II, during which they both served in the US military (JFK in the navy and Ben in the army) had a tremendous impact on both of their careers (JFK’s prominence arising out of his PT-109 heroics) and Ben’s from his war crimes investigative work for Patton’s Third Army). And both rose to greater prominence immediately after the war, in 1946, with JFK winning a seat in the US House of Representatives and Ben joining the Nuremberg prosecutions team. They were both known for achieving greatness at very young ages – JFK the youngest man to be elected president in 1960 and Ben serving as a Nuremberg chief prosecutor in 1947. 

Maybe I was looking for them, but I couldn’t help but see additional parallels between JFK and Ben Ferencz in Dean Minow’s written contribution for this symposium. Sure, there are obvious major differences: JFK – tall, charismatic, with a patrician Boston accent; Ben short, street tough, New York-accent-gravel‑voiced. JFK grew up in one of America’s wealthiest families; Ben in one of the country’s poorest, most violent slums. 

But, again, I return to a more character-telling trait of Ben highlighted in Dean Minow’s piece – his “personal qualities of tenacity and charm that animated [his] motivations and actions.” And she points out how much he was able to accomplish thanks to those traits:

He investigated war crimes [then] served at the age of 27 as chief prosecutor before the Nuremberg Military Tribunal for the trial of individuals involved in killing at least one million people . . . established reparation and rehabilitation programs for the survivors of Nazi persecution . . . advocated for a permanent international criminal court, joined in negotiations leading to its design and establishment, and participated in its first trial as a special counsel assisting the Office of the Prosecutor. He played a key role in [defining and criminalizing] aggression . . .

Although of a completely different scale and impact, JFK also accomplished much through tremendous tenacity and charm. I suspect many believe that JFK’s family wealth and power handed him the presidency. But that is a misplaced assumption. It certainly helped. But I’ve read many accounts of the tremendous work and effort Kennedy put into winning the Democratic nomination in 1960 (famously barnstorming through West Virginia to beat Hubert Humphrey) and then working his tail off at the Democratic National Convention. He was in severe back pain and exhausted, but his sheer will and determination carried the day. The same was true of his vigorous campaign against Richard Nixon in the general election and his detailed preparations for the debates against Nixon that many think were decisive in the election. 

And despite serving less than a full term, Kennedy achieved a tremendous amount. His New Frontier domestic agenda produced a dizzying array of programs that significantly shaped American social and economic development: the Housing Act (1961), Area Redevelopment Act (1961), Fair Labor Standards Amendments (1961), Trade Expansion Act (1962), Educational Television Facilities Act (1962), Executive Order 11063 (1962 – banning racial discrimination in federally funded housing/loan programs), the Community Mental Health Act (1963), the Maternal and Child Health Planning Act (1963), the Equal Pay Act (1963), the Clean Air Act (1963), the Presidential Commission on the Status of Women (1963), and major civil rights enforcement (e.g., the showdown with George Wallace and JFK’s great civil rights speech). His foreign policy achievements were equally remarkable: resolution of the Berlin Crisis (1961, and later, the “Ich bin ein Berliner” speech), the establishment of USAID (1961), the Peace Corps (1961), and the Alliance for Progress (1961); averting nuclear war during the Cuban Missile Crisis (1962); the Nuclear Test Ban Treaty (1963); and launching the Apollo program, which put humans on the moon by the end of the decade.

Minow reminds us of Ferencz’s own words to open Einsatzgruppen – his insistence that the case was “a plea of humanity to law.” That aspiration, carried across a lifetime, is what makes him such a defining figure of the “Greatest Generation” and such a guidepost for those of us who came after.

The point of all this, I suppose, is to remark that both John Kennedy and Ben Ferencz were members of that “Greatest Generation” that accomplished so much. Who knows what else JFK could have achieved had his life not been tragically cut short by those horrible bullets in Dallas on November 22, 1963. In contrast, Ben lived a very long life, with his considerable accomplishments laid out by Dean Minow in her piece here. And, of course, she is a Harvard connecting point for both Ben and JFK. She was also a mentor and inspiration for another Harvard grad who went on to become president of the United States: Barack Obama. He and I are of the same generation. I did not attend Harvard (Berkeley being my alma mater), but all this inspires me to believe that our generation can still work hard to leave an important legacy. President Obama, like JFK, will do it at the highest levels. I will continue to follow in the footsteps of my inspiration and guide, Ben Ferencz. As helpfully promoted by Dean Minow in her piece, I will always abide by Ben’s injunction to “never give up” in trying to advance his ideal of “law not war” until my final days.

Parachuting Readers into the Setting: A Response to Natasha Gooden

Reading Natasha Gooden’s generous craft assessment of Nuremberg’s Citizen Prosecutor brought me back to the excitement – and anxiety – I felt when taking on the Ben Ferencz biography. I relished the chance to write a book liberated from the constraints of conventional legal scholarship, yet I wondered whether I was up to the task, never having written a biography before. That pressure hit immediately, beginning with the opening sentences. I decided to lean into this new lexical freedom by describing one of the most horrifying moments of the Holocaust – the Babi Yar massacre – and its connection to the opening of the Einsatzgruppen trial, a moment never far from Ferencz’s thoughts:

September 29, 1947. Nuremberg, Germany. Six years previously, to the day, the Jewish children of Kiev had been rounded up by German invaders and forced to march two miles north of the city to a ragged ravine called Babi Yar. There, trembling with terror, they were stripped of their clothes and forced on top of other naked bodies already lying lifeless in the gully. Those who resisted were beaten until they lay prostrate on the mound of corpses, their ears filled with the surrounding screams of abject fear; their noses with the ubiquitous stench of unnatural death. And then they were shot at close range on the nape of the neck or the back of the head, only to serve as the gruesome final resting place for the next layer of humanity to be piled upon them. (p. 1)

I soon realized that this new freedom of expression allowed me to render historical context with a vividness that situated Ferencz within his emotional terrain. Effective writing, freed from academic limitations, depends on vivid detail stacking – what Professor Gooden aptly calls “parachuting readers into the setting.”

During my many hours interviewing Ferencz, I often asked him for minute details about his moments in court. He would bark in his gravelly New York accent: “Who the hell cares about all this damn minutia – just give ’em the basic facts!” I would reply, “But Ben, I want people to experience what it was like to be there.” He would eventually relent. One example is the moment he sat alone in Courtroom 600 on the day of sentencing in the Einsatzgruppen trial:

Ferencz arrived early and sat in solitude, reflecting on all that had happened the past half year… he realized he had survived the ordeal and was on the other end of a truly liminal experience… Like the strong autumnal afternoon light in late September… the soft vernal morning light in early April shone through the great chamber as he awaited the trial’s finish. The radiance of fall that he had perceived as hope was now the luminescence of spring that he knew was peace. (p. 233)

Professor Gooden references another passage in which I relished taking advantage of my literary latitude – the palatial setting of the Wassenaar negotiations leading to the 1952 Luxembourg Treaty. But I would like to point out here that the treaty signing itself offered another moment where more lyrical writing allowed me to capture the intersection of Ferencz’s personal journey and larger historical currents. I am thinking of Ben’s moment sitting across from the German legend Konrad Adenauer, as the treaty was about to be signed:

“Der Alte” was showing the ravages of time and the burdens of office—like an arroyo rotated ninety degrees, his face was vertically striated, with deep furrows that seemed to pinch and constrict his right eye and cheek. Still, he exuded a kind of dignity and firmness of purpose that, fissures notwithstanding, gave one the impression that he had been chiseled out of granite. The grandeur in his movements seemed to emanate from a well of honor and decency deep within that betrayed not the slightest disequilibrium, when, as he began to sign the first treaty, he realized that his pen had run dry. With alacrity, Ferencz produced the one that Gertrude had bestowed on him as his Harvard Law School graduation gift, “an old Wattermann [sic] with a lifetime guarantee.” He had carried it with him ever since, in all the battles through France, Belgium, and Germany, through the liberation of the concentration camps, and during the courtroom skirmishes in Nuremberg. Now it was in Adenauer’s hand, destined to become a more visible instrument of history. (p. 295)

Throughout the writing of Nuremberg’s Citizen Prosecutor, I was aware that the depth of the research could be lost if not conveyed through prose equal to it in quality. I felt fortunate to share substantial portions of the manuscript with Ben before he passed away in 2023. One memory stands out: his son Don told me that he read to Ben the introductory section on Babi Yar and the opening of the Einsatzgruppen trial, and the writing moved them both to tears. Ferencz later sent me a note – now the book’s Foreword – and I particularly appreciated these lines:

But I would be remiss here if I failed to comment on the stellar writing through which Professor Gordon presents his research. I know of no other author who has chronicled my life whose style and technique are as compelling and as moving as Professor Gordon’s . . . I can say unequivocally that his writing style is exceptionally poignant, informative, and powerful. I am extremely impressed by the high-caliber writing, which is the fruit of Professor Gordon’s research efforts on the project thus far. (p. viii)

Reflecting on the importance of craft, I think Professor Gooden has perfectly summed up why the marriage of research and prose matters: it allowed me to bring the law alive through the compelling account of one man’s multifaceted and historic life in international justice. The creation of law is, despite its formality, an entirely human endeavor. Writing about it outside the confines of legal scholarship allowed me to emphasize that truth as fully as possible in recounting Ferencz’s epochal journey. For that freedom – and for the privilege of telling the story of such an extraordinary person – I am deeply grateful.

Actor-Network Theory and the Nuremberg Trials: A Response to Emiliano Buis

Emiliano Buis’s thought-provoking piece makes three distinct points: (1) international law is made by embodied actors; (2) emotion, especially grief, does important legal work; and (3) centering the development and growth of international criminal justice on Ferencz risks collapsing the history of that discipline into the story of one exceptional individual. These excellent points collectively interrogate how international lawyers might narrate their own past. I would like to respond to them with some observations grounded in philosophy, sociology, historiography and methodology more generally. 

First, let me offer some philosophical reflections based on the work of Michel Foucault. And I begin with Buis’s fascinating observation that, in studying international criminal law (ICL), while we tend to focus on its discursive yield, an important part of its output are the human “bodies” that inhabit and move through its spaces. This immediately invites a Foucauldian reading, I believe. In particular, traditional doctrinal analysis aligns with Foucault’s early “archaeological” phase, with an emphasis on discursive formations, rules of enunciation, the archive, epistemes, and how statements become possible within a given regime of knowledge (here, I think of Foucault works such as The Archaeology of Knowledge, The Order of Things, and The Birth of the Clinic). 

But Buis’s essay implicitly urges us to consider Foucault’s later genealogical work, especially in Discipline and Punish, which foregrounds the body as the site where “micro-power” operates. In that text, Foucault shows how modern power no longer depends strictly on sovereign directives but on the credibility and comportment of expert bodies – doctors, criminologists, legal professionals – whose disciplined presence authorizes interventions into the lives of fellow citizens. Institutions such as schools, barracks, prisons, and courts choreograph bodies through ritualized performance; in the courtroom, judges, prosecutors, and defendants are positioned and timed so that authority appears natural. 

Buis’s analysis also resonates with Foucault’s late‑phase exploration of biopower and governmentality. Biopower involves the management of bodies and populations, and the Nazis’ machinery of slave labor, concentration camps, and extermination centers represents its most grotesque perversion. Ferencz’s own body, moving through Buchenwald’s “charnel house of indescribable horrors,” becomes a relay through which biopolitical violence is translated into legal categories. As Buis notes, for Ferencz “the archive…was not initially an archive. It consisted of buildings, papers, bodies, smells, survivors and perpetrators…” 

And ICL’s response, I would posit, links to another of Foucault’s later-developed concepts – “governmentality,” an outgrowth of bio-power that means an ensemble of macro-power consisting of institutions, procedures, calculations, and tactics that allows governance of large aggregations of bodies. In my piece Transnational Atrocity Victim Networking: A Neo-Foucauldian Account of International Criminal Law, I argue that ICL grew organically from low-level transnational networks that ultimately facilitated the series of procedures, analyses and tactics that reached critical mass in Nuremberg, as exemplified in Ferencz’s experience. 

Turning to sociology, Buis’s essay also brought to mind Bruno Latour’s Actor-Network Theory (ANT), particularly in his The Making of Law: An Ethnography of the Conseil d’Etat (2010). ANT treats documents, architecture, and technologies as actors. Buis’s account of Nuremberg is an ANT case study waiting to be written: the trials as made through everyday practices, interactions, and material conditions, not simply through doctrinal reasoning. Of course, Latour is famous for arguing that ANT results in socially constructed knowledge that resonates with critiques of Nuremberg as “victor’s justice” and, more broadly, of ICL as a form of Western-imposed judicial imperialism.

And Buis’s point about emotion and law also connects to foundational sociological insights. Max Weber argued that affect animates the “ethic of responsibility” and the “ethic of conviction” that drives institutional creation. Consistent with this, his account of charisma demonstrates how emotionally charged authority becomes routinized into bureaucratic structures. And, more directly relevant here, his sociology of law acknowledges that moral outrage and ethical pathos often precede formal legal rationality. 

Similarly, Durkheim’s work on collective effervescence and the emotional basis of solidarity explains that institutions – including law – arise from shared affective experiences, expressing the “moral density” of society. Thus, collective grief and outrage generate new normative boundaries. Buis’s point that Ferencz’s grief – both over what he witnessed in the aftermath of the Holocaust and over the murder of his own family members – translated into a broader postwar moral movement whose affective energies fueled the creation of new legal categories (e.g., crimes against humanity) and new institutions (e.g., accountability mechanisms and international war crimes trials) is entirely consistent with this sociological tradition.

That said, I take issue, in part, with Professor Buis’s historiographical stance. He is wary of what might be termed the “Great Person” theory of history (traditionally the gendered “Great Man” theory) – the idea that powerful individuals via extraordinary feats play an outsize, if not decisive role in shaping the course of human events. Popularized by Thomas Carlyse in the nineteenth century, it has been criticized over the years (see, e.g., Ian Kershaw). But it has had its defenders, including William James and, more recently, Margaret MacMillan. I take a middle-ground position. Certainly, larger socio-political factors as well as networked relationships and cultural contexts sculpt the historical narrative to a great degree. That said, I think individuals also make an important difference. And Ferencz is one of those individuals. 

And this position can be supported sociologically through the doctrine of “methodological individualism,” championed by Weber and Talcott Parsons, among others. It posits that social phenomena result from individual actions emanating from the intentional states that animate the individual actors who produce those actions. Again, Ben Ferencz, I would argue, was one of those actors. But there were certainly others. And I fully agree with Professor Buis that the lives of other key players in the Nuremberg proceedings should also be examined closely. There is much important history in this area still to be excavated.