Benjamin Ferencz was 27 when the Einsatzgruppen trial began in 1947. There were 22 defendants, all men, all members of the German SS. “One of the counsel has characterized this trial as the biggest murder trial in history,” the military tribunal wrote. “In this case, the defendants are not … charged with sitting in an office hundreds and thousands of miles away from the slaughter.… These men were in the field actively superintending, controlling, directing, and taking an active part in the bloody harvest.” Put simply, the Einsatzgruppen were exterminators: Their squads traveled to towns throughout Eastern Europe, rounding up Jews and shooting them with mechanized efficiency. Some mass graves were filled with hundreds of bodies; others, thousands.
Otto Ohlendorf, Paul Blobel, and almost two dozen others led these divisions of Hitler’s army; after the war, they were indicted for crimes against humanity. Benjamin Ferencz was 27, and he was the chief prosecutor responsible for convicting 22 men on trial for murdering 1 million men, women, and children.
In the nearly 70 years since he took part in the trials at Nuremberg, Ferencz has lived a remarkable life. He led efforts to return property to Holocaust survivors after the war and participated in reparations negotiations between Israel and West Germany. He wrote multiple books, including a hefty, two-volume tome outlining his ideas for the body that would later become the International Criminal Court. He fathered four children.
Now he’s 95, and tired. “I’m getting old,” he said. “I’m running out of steam. I need help from young people.”
To be clear, nothing about Ferencz’s demeanor indicates a deficiency of steam. I met him outside of a convention center in Washington, D.C. on a sunny spring day, and as we went through a metal detector inside, he happily showed off his suspenders for the security guard to check. “How old are you? You get around pretty well,” the guard said. “For an old guy,” Ferencz replied. He pointed a thumb at me. “This is my girlfriend,” he added.
We sat on a bench in the sun, and there, he told me about the bodies at Buchenwald. “I saw crematoria still going, the bodies starved, lying dying, on the ground. I’ve seen the horrors of war more than can be adequately described.” He spoke clearly and without much emotion. I heard familiar phrases that stuck out from previous interviews I had read in preparation for our conversation. This was how he had learned to tell his story: straightforward, detached, honest but without too much detail. This, I think, is how he has survived 70 years of recalling exactly what it looks like when thousands of murdered Jews are laid out side-by-side, stacked in piles.
After fighting with an anti-aircraft artillery battalion in the U.S. army during World War II, Ferencz was assigned to General George Patton’s office and tasked with helping to establish a war-crimes division. This was not a typical mission, for one good reason: The army had never had a war-crimes division before.
As part of this effort, Ferencz joined the forces that liberated a number of concentration camps in what was then Germany, including Buchenwald and Mauthausen. He collected documentation: the number of bodies, and where they were located; the sanitary conditions of the camps; the files left behind by army officials, including ledgers recording who had died, and when. It was this evidence that eventually led to the speedy conviction of the Einsatzgruppen commanders. “I was able to rest my case after two days without calling a single witness—the top-secret documents were indisputable,” Ferencz said.
But without his intervention, these men may have never been taken to trial. “The case had not been planned,” he said. “When we discovered this evidence, I brought it to General [Telford] Taylor, and I said we have to put on a new trial, and he said we can’t.” The Pentagon had already planned its schedule of trials, Taylor said, and the war-crimes division faced staffing shortages and budget limitations.
“I said, ‘We can’t let these mass murderers go free—I have the evidence here in my hands’. And he said, ‘Can you do it in addition to your other work? OK, you be the prosecutor.’”
Looking back, this anecdote seems outrageous, suggesting that the trials following the most extensive genocide in human history were haphazardly assigned to young, newly minted prosecutors. But this is what’s so remarkable about Ferencz’s career: Again and again, he has been asked to establish law and order in situations that had never been dealt with before on such a large scale. If it sounds like the army was making up trial procedures as it went along, that’s because, well, it was.
The Einsatzgruppen case was fairly straightforward, but since then, Ferencz has dealt almost exclusively in ethical ambiguity. Sorting out stolen property and reparations for the victims of the Holocaust after the war proved particularly difficult. “We first had to establish the principals: Who is entitled for the restitution of property? If parents were dead and they owned a house, what happened to the heirs? What happened to the repairs if the house had been bombed? What happened to the mortgage?” he explained. “We had to prove the injuries to each individual victim and evaluate how much they were worth. If a person had lost his arm, it was easy. If a person had lost his mind, it was not so easy.”
This is the challenge of litigating mass atrocities. Terror cannot be quantified. Years of life cannot be paid back in dollars, and sanity cannot be restored through prison sentences. Ferencz used secret records to secure a conviction against 22 mass murderers, but what if there are no cleanly written ledgers to capture the fuzzy outer boundaries of evil?
The law is a blunt tool for this task, but after a lifetime of confronting war crimes, it’s Ferencz’s tool of choice. He is incredibly optimistic about the potency of courts and prosecutors and statutes. Seven decades after liberating concentration camps, he still believes international law can eliminate war.
“The capacity to destroy life on earth has grown incredibly in the course of my lifetime, which increases the need to set up a mechanism to try to prevent that from happening,” he said. “There are perpetrators of crimes, and there are victims of crimes. They are ready to fight and die for their ideals; they cannot have a fair judgment. You need a third party—a court—in order to determine the facts.”
This goes far beyond the scope of the International Criminal Court, which Ferencz was instrumental in establishing in 2002. To date, that body has indicted only 36 people and opened investigations in eight countries, all of them African. Several countries, including the United States, refuse to recognize its authority. It exists to prosecute war crimes, genocide, and crimes against humanity in cases where national governments are unable or unwilling to do so themselves. In its 12 years of existence, the court has convicted only two people.
Despite the current limitations of international law, Ferencz believes that a court with a more extensive mandate could help prevent future conflicts by adjudicating transnational disputes and deterring aggression. He has also proposed that national governments and regional alliances criminalize the illegal use of force in accordance with the way it is defined by the United Nations. This, he believes, would change the very nature of war.
“Of course it will change! The present system is too stupid,” he said. “If two heads of state are unable to agree, they send young people from one country to kill other young people who they don’t even know, for reasons they don’t understand, in places they’ve never heard of.
“I’ve written books on all this,” he added. “Nobody reads them.”
Ferencz has spent his entire life documenting, litigating, and trying to prevent mass atrocities, but he’s still hopeful that war—all war, everywhere—can end. He is also one of the last witnesses of the world’s most extensive genocide—the only living prosecutor left from Nuremberg. Among those who know him, there’s a palpable sense of urgency about capturing his memories—the Holocaust museum has done extensive interviews with him, and even his son got involved in helping me set up a conversation with his father. Eventually—in a matter of years, not decades—the world will only have secondhand knowledge of the Holocaust.
“I can tell you why I’m optimistic: I have no choice,” he told me. “I’m 95. I don’t have much time before I die.”
This article available online at: