Book Symposium on ‘Nuremberg’s Citizen Prosecutor’: Small Man, Big Trial – Benjamin Ferencz and the Embodied Making of International Law

[Emiliano J. Buis is Chair of Public International Law and an Associate Professor of Ancient Greek Law and Culture at the University of Buenos Aires. He is also a senior researcher at the National Scientific and Technical Research Council / Consejo Nacional de Investigaciones Científicas y Técnicas (CONICET).]

Gregory S. Gordon’s Nuremberg’s Citizen Prosecutor: Benjamin Ferencz and the Birth of International Justice (University of Virginia Press, 2025) is, on its face, a biography of one of the most familiar—and yet strangely under-biographed—figures in the history of international criminal law. It is also something rather more interesting. Gordon follows Ferencz from his impoverished childhood in New York’s Hell’s Kitchen, through Harvard Law School and wartime service, to his work investigating war crimes in liberated Europe; from there to the Einsatzgruppen and Krupp trials, the long and complicated struggle for restitution and reparations, and finally Ferencz’s extraordinary late-life campaign for a permanent international criminal court (ICC). Gordon is unusually well placed to tell this story. A former war-crimes prosecutor himself, he was also the first scholar to receive full access to Ferencz’s personal papers. The result is a biography that is simultaneously archival, legal and—this matters for what I want to say here—strikingly attentive to personality.

This last feature is important because Ferencz has become almost too easy a figure to monumentalize. On September 29, 1947—twenty-seven years old—he delivered the prosecution’s opening statement in the Einsatzgruppen trial in Courtroom 600, prosecuting twenty-two defendants implicated in the mass murder of more than a million people. He subsequently devoted much of his professional life to restitution for Holocaust victims and, eventually, to the construction of the institutional and intellectual foundations of the ICC. By the time of his death in 2023, at the age of 103, he had become the last surviving Nuremberg prosecutor and something close to a living synecdoche for the postwar international criminal justice project.

Gordon’s achievement is that he largely resists turning that synecdoche into a statue. Ferencz emerges as determined and brilliant, but also stubborn, angry, vulnerable, ambitious and occasionally difficult. The book therefore invites a question slightly different from the one biographies of international lawyers usually invite. Rather than asking only what Ferencz contributed to international criminal law, we might ask what looking closely at Ferencz allows us to see about the way international law itself gets made.

I want to pursue three answers. The first concerns the body: international law is made by embodied actors whose physical experiences matter to the law they subsequently articulate. The second concerns emotion, and grief in particular: affect does not simply interfere with international legal judgment but can become productive of legal institutions and normative projects. The third is historiographical. Precisely because Ferencz makes such a compelling protagonist, his story raises the question of what disappears when the history of international criminal law is organized around its exceptional individuals.

A Body, Not Just a Robe

Almost every account of Ferencz eventually mentions his size. He was barely five feet tall. The detail is usually offered as an amusing prelude to the familiar paradox: this diminutive young man would eventually stand before a Nuremberg tribunal prosecuting some of the principal organizers of mass murder in Eastern Europe. Gordon makes good narrative use of that contrast. The “citizen prosecutor” of his title was not a general, diplomat or statesman (“the remarkable story of this everyman”, p. 11). He was a physically unimposing young lawyer whose authority had to be produced through evidence, speech and performance. 

That bodily dimension deserves more attention than legal history normally gives it. Ferencz’s size matters, however, not because physical stature somehow explains legal agency, but because it exposes something about the performance of legal authority. The authority he exercised in Courtroom 600 was not carried naturally by the body that appeared before the judges: it had to be produced through evidence, speech, professional competence and institutional position. There is a useful tension here between the visible body and the legal role it came to inhabit. International legal history has traditionally been more comfortable reconstructing arguments and institutions than asking how authority is performed by particular people, in particular rooms, before particular audiences. Ferencz makes that question unusually difficult to ignore. 

There is, however, another and more consequential sense in which Ferencz’s body matters. Before he prosecuted mass killing at Nuremberg, he had entered liberated concentration camps as a war-crimes investigator, confronting what he later described, speaking of Buchenwald, as “a charnel house of indescribable horrors” (p. 115). Gordon’s chapters on Ferencz as Patton’s soldier (pp. 81-93), war-crimes investigator (pp. 97-110) and witness to the liberation of the camps (pp. 111-132) are therefore not merely biographical preliminaries to the “real” legal story. They are part of that story. Here embodiment is no longer primarily a question of appearance or performance, but of knowledge: what did it mean for a future prosecutor to know atrocity first through physical encounter and only subsequently through legal categories?

The distinction matters. Ferencz had himself moved through some of the spaces in which the violence he would later prosecute had occurred. The archive, for him, was not initially an archive. It consisted of buildings, papers, bodies, smells, survivors and perpetrators encountered in circumstances in which the distinction between battlefield and crime scene had barely crystallized. Before those traces could become exhibits, files and evidence, they had been material things encountered by a particular person. Biography can recover precisely this passage from experience to abstraction: the process through which things seen, touched and remembered are eventually translated into legally cognizable facts.

That is one reason biography can do something that conventional doctrinal history cannot. A doctrinal account of the “birth of international criminal law” naturally moves toward judgments, definitions, jurisdictional innovations and institutional precedents. Biography can preserve the contingencies that disappear in that movement. It can remind us that doctrines are sometimes articulated by people whose bodies have already encountered the events those doctrines seek to describe.

There is a larger methodological point here, one related to the recent interest of scholars in the concrete objects and places shaping the realities of international law. Recent work on embodiment has taught international lawyers to pay closer attention to the material and corporeal dimensions of legal practice. Ferencz’s trajectory suggests that such attention belongs in the historiography of international criminal law as well. The history of the field is not merely the history of ideas about crimes against humanity, aggression or individual responsibility. It is also a history of encounters between particular bodies and particular forms of violence — encounters that only later, and only partially, harden into doctrine.

Grief, Doing Legal Work

The same is true of emotion. International law has long cultivated an image of itself as a discipline of reasoned judgment in which emotion appears primarily as a disturbance to be controlled. Anger threatens impartiality; sympathy threatens objectivity; grief belongs to victims rather than lawyers. The ideal international lawyer is consequently imagined as someone capable of creating a sufficient distance between experience and judgment.

Ferencz makes that image difficult to sustain. His relationship to the Holocaust was not merely professional. Members of his extended family in Transylvania were murdered at Auschwitz, and Gordon’s biography does not treat this fact as an incidental biographical detail detachable from the legal career that followed. Nor should we. The more interesting question is not whether Ferencz’s grief “biased” his judgment, as though somewhere behind the grieving Ferencz there existed a perfectly neutral prosecutor waiting to be recovered. It is what that grief did.

One of the most revealing episodes is Ferencz’s insistence that the evidence concerning the Einsatzgruppen could not simply be absorbed into the trials already under way. His famous insistence to Telford Taylor—“You can’t let these guys go. This is mass murder on a scale never before seen in human history” (pp. 3-4)—is rhetorically fascinating precisely because it is not much of a legal argument. It is an exclamation before it is a submission. But the exclamation generates legal consequences. Moral shock is converted into prosecutorial insistence; prosecutorial insistence produces an institutional response; and an emotional judgment—this cannot simply be allowed to pass—eventually acquires the form of a criminal proceeding.

That sequence is worth dwelling on. International lawyers often assume a temporal order in which emotion belongs to the initial encounter with atrocity and law arrives afterwards to discipline it. Ferencz’s story suggests something more complicated. Emotion can itself perform legal work. Grief can determine what is noticed; indignation can make institutional inertia intolerable; empathy can influence which harms appear worthy of legal recognition. But that productive capacity is not necessarily benign. The same affective economy that renders some suffering legally urgent may leave other suffering unseen, or make some victims more readily recognizable than others. The point, then, is not that emotion corrects legal reason, but that it participates in distributing legal attention. Affect does not simply precede legal rationality as its primitive opposite: it helps produce the questions, priorities and exclusions to which legal rationality subsequently gives form.

This connects Ferencz’s story to a broader rethinking of the affective life of international law. Gerry Simpson’s The Sentimental Life of International Law (helpfully assessed by Anne Saab at Humanity Journal), Emily Kidd White’s work on emotion and international legal thought, and a growing body of scholarship on affect, empathy, fear and indignation (including my own work) have made it increasingly difficult to sustain the old opposition between legal reason and legal feeling. Ferencz supplies an unusually vivid historical example of the same problem. 

What makes Gordon’s account particularly productive in this respect is that Ferencz’s emotional engagement does not end with punishment. The architecture of the book itself matters. The movement from “Prosecuting” (pp. 151-260) to “Providing” (pp. 261-328) and finally “Preventing” (pp. 329-391) traces a transformation in the object of Ferencz’s legal commitments. Retribution leads toward restitution and reparations, and these in turn toward an increasingly ambitious project of prevention through permanent international institutions.

The trajectory complicates the familiar image of Nuremberg as a founding moment defined primarily by punishment. For Ferencz, international justice progressively became something more than identifying and prosecuting perpetrators. It involved material repair for victims and ultimately an institutional aspiration to prevent future war and atrocity. Gordon’s particularly suggestive chapter title, “The Connective Tissue between Retribution and Restitution” (pp. 263-281), captures something essential here: these were not wholly separate phases of Ferencz’s career but different legal responses to an experience of mass violence that continued to demand an answer.

Grief, on this reading, did not simply find a courtroom. It changed legal forms. It moved from prosecution to compensation, from compensation to prevention, and eventually from Nuremberg to Rome. That may be one of the most interesting lessons of Gordon’s biography for international lawyers: emotions do not merely motivate legal actors. Over time, they may help determine which institutions those actors imagine to be necessary.

The Trouble with a Good Protagonist

There is, however, a danger in all of this, and Gordon’s success as a biographer makes it particularly visible. Biography requires a protagonist, and Ferencz is almost irresistibly good material: physically small, intellectually formidable, an immigrant, self-made, morally confident, astonishingly long-lived, present at several of the twentieth century’s defining moments in international criminal justice. As Ferencz himself put it in his foreword to Gordon’s book, his own trajectory shows “how persons of humble origins…can work hard, dedicate themselves to higher causes, and make an important difference” (p. viii).

The problem is historiographical rather than biographical. The more compelling the protagonist, the easier it becomes for the history of an institution to turn into the history of a person.

International criminal law has been especially susceptible to this form of storytelling. Its past is populated by recognizable founding figures—Robert Jackson, Raphael Lemkin, Hersch Lauterpacht, Benjamin Ferencz—whose individual stories provide coherence to an otherwise institutionally and politically messy history. There is nothing inherently wrong with recovering these lives. Quite the contrary: Gordon demonstrates just how much intellectual and institutional history can be recovered by taking an individual life seriously. Indeed, Philippe Sands’s enormously influential East West Street has also proven just how illuminating such a biographical approach can be, weaving the lives of Lemkin and Lauterpacht into the emergence of genocide and crimes against humanity as legal categories. 

Yet the very narrative power of this approach also illustrates its risks. The problem is not simply that concentrating on exceptional individuals leaves other, less visible actors outside the frame. Biography can also quietly supply a theory of historical causation. Once international criminal law is narrated through Jackson, Lemkin, Lauterpacht or Ferencz, legal transformation begins to look like the product of identifiable agents who encounter injustice, formulate ideas and translate conviction into institutions. The messier possibility—that legal change emerges from dispersed practices, bureaucratic routines, technologies, political contingencies and forms of collective labour that cannot readily be attributed to a single intentional subject—is much harder to narrate.

Nuremberg makes the problem particularly visible. Its proceedings depended upon interpreters, translators, secretaries, archivists, document analysts, investigators and witnesses; upon technologies of simultaneous interpretation; upon practices for locating, sorting, translating and reproducing captured German documentation; and upon survivors whose knowledge entered the evidentiary machinery of the trials. These were not merely supporting actors surrounding the people who “made” international criminal law. Their work was constitutive of what Nuremberg could know, say and ultimately judge. The historiographical challenge is therefore more demanding than simply adding forgotten names to an existing pantheon. It is to retain what biography reveals about embodied and situated agency without allowing the history of international law to collapse into methodological individualism.

This tension has become increasingly visible in revisionist histories of international criminal law. Immi Tallgren and Thomas Skouteris’s The New Histories of International Criminal Law: Retrials unsettles the familiar narrative of a progressive institutional trajectory running from Nuremberg to the present — an operation Tallgren extends in Portraits of Women in International Law by recovering lives conventional histories have pushed to the margins. Francine Hirsch’s Soviet Judgment at Nuremberg makes the same point from another angle, showing how much the familiar Western account of the trials depended on historiographical choices about who counted as an architect of international justice.

Ferencz himself offers an intriguing way into this tension. His recurring resistance to being treated as a solitary hero—his insistence on circumstance, luck and opportunity—can be read as something more than personal modesty. It is also a useful historiographical warning. The image of the “citizen prosecutor” democratizes the heroic narrative by suggesting that an ordinary person, placed in extraordinary circumstances, can act upon history. But it remains a heroic narrative nonetheless: circumstance becomes the stage on which individual agency reveals itself. Gordon is alert to this difficulty, and the richness of his research prevents Ferencz from floating free of the institutions, relationships and contingencies around him. Yet no biography can entirely escape the gravitational pull of its protagonist. In my view, this problematic aspect of the genre is perhaps one of the reasons Nuremberg’s Citizen Prosecutor is so useful for thinking about how international lawyers write their own past.

The question Gordon’s book leaves me with, therefore, concerns the companion histories still to be written. What would Nuremberg look like from the interpreter’s booth rather than the prosecutor’s lectern? What history of international criminal law would emerge from its secretarial work, its documentary practices, its translators, or the survivors whose knowledge became evidence? 

Perhaps that is the most productive way to read Gordon’s book. Nuremberg’s Citizen Prosecutor gives Ferencz the sustained, careful and humane biography he has long deserved. But it also invites international lawyers to turn their gaze sideways—to the bodies, emotions, accidents and less visible actors out of which international justice was made. The birth of international justice, after all, did not take place only when a prosecutor rose to speak in Courtroom 600. It was also taking place in everything, and everyone, that made that speech possible.