Book Symposium on ‘Nuremberg’s Citizen Prosecutor’: Teaching Hope – ‘Nuremberg’s Citizen Prosecutor’ in the International Law Classroom

[Margaret E. (Peggy) McGuinness is Professor of Law at St. John’s University School of Law, where she directs the LL.M. in Transnational Legal Practice. A former U.S. Foreign Service Officer and special assistant to Secretary of State Warren Christopher, she co-edited the award-winning Research Handbook on Law and Diplomacy (2022) and Words Over War: Mediation and Arbitration to Prevent Deadly Conflict (2000), and co-founded Opinio Juris in 2005.]

By now it is a cliché to say that we are living through the end of the post-World War II international legal order. Friends quip (more in sorrow than in joy?), “It must be a tough time to teach international law!” In Nuremberg’s Citizen Prosecutor, his biography of Ben Ferencz, Gregory Gordon reminds us – and we do need reminding – that the international community has been in tough situations before. And it is precisely because Ferencz saw what he saw, reacted as he reacted, and advocated as he did, over as many decades as he did, for the cause of international peace and justice, that his story deserves to be told, read and taught. 

It is often said that to be an excellent lawyer – or at least an excellent litigator – you need to be a good storyteller. With this impressive and compelling biography, Gordon has shown himself to be both a great lawyer and a great storyteller. Each chapter reads quickly and succinctly while packing in significant historical and doctrinal details that are the hallmarks of the best legal non-fiction narratives. This book has key elements you might expect from a narrative spanning the improbable life of Ben Ferencz over the 20^th century: Exile from eastern Europe to escape crushing poverty and persecution? Check. Colorful immigrant life in crowded NYC tenement neighborhood? Check. The striver moving from humble origins (and petty street crime) to serious academic achievement at City College? Check. Scholarship student at Harvard Law who has to work his way through school – yet still manages to impress a hardened law professor (who later serves as his champion?) Check. The scrappy, under-sized NYC kid as the “fish out of water” at Army basic training in the American south? Check. The harrowing Channel crossing of the Allies in the post-D-Day recapturing of Nazi-occupied France? Check. The wily Army corporal who finds “creative” ways to book weekend leave or requisition beer for himself and his friends? Check. The ordinary man who rises to the extraordinary circumstances of the final years of the war and first years of post-war Allied occupation of Germany? Check. Any one of these chapters of Ferencz’s life has enough personal and historical meaning to fill its own book (or make a stand-alone movie script!). Gordon’s treatment of these chapters of Ferencz’s life is thorough but tight, driving the narrative in ways that effectively lend significant context to the doctrinal and practical lessons from Ferencz’s life story.

Gordon’s book includes what is often missing from a life-in-the-law narrative: the intellectual dimension of a lawyer’s life. It is not enough to teach what lawyers do, but why they do those things. It is this interaction between events as they unfold and the lawyer’s reaction to those events that shapes the story. Excavating the ideas and intellectual motivations that drive the lawyering and advocacy across a career reveals the “why” of the post-war drive to international justice. Here, it is the outbreak of World War II, Ferencz’s participation in the hostilities and later occupation, and his role in the Nuremberg Military Trials (NMT) – the role that informs the book title – that shape the young lawyer and advocate. He bore witness to the absurdity of war and the horrors of atrocity. And he experienced how law could be deployed to bring accountability in the wake of war and atrocity and, perhaps, prevent them from recurring.

I had the pleasure of teaching two chapters from the book – Chapters 12 and 13 on the Einsatzgruppen Trial – to the St. John’s international law colloquium students last spring. They uniformly loved the readings. For some, it was their first engagement with the story of the Nuremberg trials. For others, they had learned something about the main IMT, but had never read in detail about the work of the prosecutors and defense counsel, the behavior of the defendants (and the fact that some SS officers had “fans”) and the judges. Criminal trials, as all law professors know, are a useful mechanism for teaching how the law works: charges are brought, evidence is gathered and tested, defenses are raised, judgment is rendered and sentences are imposed. For my students, it brought the promise of international criminal law “to life.” 

Most international law casebooks include, for example, the London Charter and some brief introductory materials about the elements of the core crimes prosecuted at the IMT: War crimes, crimes against humanity and crimes against the peace (aggression). They typically introduce the so-called “Nuremberg Principle”; that individual persons can be held legally responsible for breaches of international law, and that states can create international courts with jurisdiction to try those individuals. In human rights classes, a text might go further to introduce the ideas of command responsibility and the rejection of the defense of superior orders as concepts that give contours to the principle of individual accountability. But it is rare for introductory materials on Nuremberg to discuss what Gordon does so effectively here: 1. Lay out the realities of how contingent the process was on the circumstances of the last months of hostilities and the realities of the immediate post-war occupation, as well as on the available personnel and budgets [Chs. 7-9]; 2. Illuminate how cases followed the available evidence – and that discovery of the evidence was serendipitous, uneven and ad hoc [Chs. 9-13]; and 3. Describe how the grim logic of the early Cold War (and alleged personal affinities of U.S. officials to particular industrial and Nazi-leadership) led to the overturning, shortening and suspension of many of the sentences handed down by the NMT [Ch. 14]. 

For me, it is in the chapters about what happened after the NMT, that the book packs the most pedagogical value. Gordon helpfully illuminates through Ferencz’s career arc other aspects of international law beyond international criminal trials: 1. How the real work of making amends to victims and grappling with the historical record of the war and the Holocaust began only in earnest after the Nuremberg trials were over [Chs. 15-17]; 2. Designing a legal process for compensation and restitution of property tests conceptions of fairness and complicates simple narratives about perpetrators and victims and questions of collective guilt (and in the case of post-war Germany was further complicated by communist expropriations in East Germany) [Ch. 15-17]; and 3. How norms and institutions of international law do not appear organically but are the work of advocacy across borders and between and among governments and people. [Chs. 18-19]. (It is significant that Gordon includes at least a few details about how the post-war compensation, restitution and societal de-Nazification that took place in West Germany, proceeded in a decidedly different direction in East Germany and the occupied states of Eastern Europe [Ch. 17].) Most important, the post-Nuremberg chapters illustrate just how long the arc of reparatory justice can extend – spanning decades following large-scale atrocities. 

In this way, the achievement of Gordon’s biography is not simply that it makes one Nuremberg prosecutor’s life journey teachable, but that it shows how one lawyer’s legacy of advocacy – of which the NMT prosecutions were a small (but influential) part – reflects the reality and challenges of this larger project we call international law. As a pedagogical device the book would work well as a throughline narrative assigned to any course in international criminal law, international human rights, or even a broad survey class in international law – for undergraduate, graduate or law school students. This is especially the case as the facts of World War II and the Holocaust become ever-distant historical events for current students who are at least four generations removed from the war and the institutions built in its wake.

Ferencz’s life in the law reflects the messiness of international law – how it is made, how it is articulated and applied by states and non-state actors, how it is enforced (or not enforced) and importantly, how it can change in directions that better serve humanity. The book effectively illustrates the “two steps forward, one step back” experience of proposing and implementing new mechanisms to cooperate across borders that give effect to the values of peace and human rights. It illustrates what has been (and will always be) the central and constant struggle of international law: Applying the rule of law against the brutal logic of raw power. At its center, the project of international law is a fight against the worst of humanity on behalf of the best of humanity. And teaching two chapters of this book to my own students last spring opened my eyes to the possibilities of teaching something that Ben Ferencz conveyed to his last days: Hope. That is something all of us, but especially our students, need today more than ever.