Benjamin Ferencz

On the morning of 29 September 1947 a twenty-seven-year-old American lawyer named Benjamin Berell Ferencz rose to his feet in Courtroom 600 of the Justizpalast and opened the prosecution case against twenty-four senior officers of the SS Einsatzgruppen, the mobile killing units that had followed the Wehrmacht into the Soviet Union in June 1941 and had killed, in the prosecution’s calculation, somewhere over a million people in pits across Ukraine, Belarus, Lithuania, Latvia, Estonia and Russia. It was the first major case Ferencz had ever handled. He had argued no other trial. He had appeared in no other courtroom. The case he had been given was, on the prosecution’s own description, the largest murder trial in history. He had a staff of fifty, a budget that the State Department wanted reduced, and an indictment that he had drafted himself.

The case had come to Ferencz almost by accident. In April 1947 a junior researcher in his Berlin office had brought him a stack of documents recovered from the Reich Security Main Office archives. They were the Einsatzgruppen field reports, the situation reports, the daily and ten-day summaries that the four Einsatzgruppen had filed back to Berlin throughout the campaign in the East. The reports were detailed and precise. They listed locations, dates, units and victim counts. They had been kept by the killers themselves for internal administrative purposes; they had been duplicated, distributed to relevant Reich offices, and filed. Ferencz read them through in three days. He travelled to Nuremberg, knocked on Telford Taylor’s door, and told him: General, we cannot let these men get away with this. We must put them on trial. Taylor pointed out that the Subsequent Proceedings docket was already full and the budget closed. Ferencz argued that the reports made the case prosecutable on a single document each. Taylor looked at the reports. He found Ferencz the budget. The case became the ninth of the Subsequent Trials.

The opening

The opening Ferencz delivered on 29 September 1947 contained the lines that have been quoted in every international criminal proceeding involving genocide or crimes against humanity since:

Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.

He went on, identifying the men in the dock and what they had done:

The defendants were the cream of an organisation reserved for the very best. They were highly educated. Six were lawyers. One a former university professor. They went forth, however, to do their crimes with a meticulous attention to detail. They reported back, with bureaucratic precision, the numbers of those they had killed. The reports of these defendants are before this Tribunal. The defendants do not deny that the killings took place. They cannot deny it. The reports are in their own hands.

Ferencz had structured the case around the documents. He called only one prosecution witness, an SS officer who had defected to the Allies during the war, to authenticate the documents. The remaining evidence was the defendants’ own paperwork. He produced a chart, drawn up from the Einsatzgruppen reports, that recorded killings at over a hundred locations. He read selections of the reports into the record. The defendants’ counsel did not contest the authenticity of the reports. The case turned almost entirely on legal arguments about the standing of the international tribunal, the validity of the conspiracy count and the responsibility of individual officers.

Otto Ohlendorf

The senior defendant was Otto Ohlendorf, who had commanded Einsatzgruppe D, the southernmost of the four units, in southern Ukraine and the Crimea. Ohlendorf had a doctorate in jurisprudence from the University of Pavia. He had served as a research economist at the Reich Group Trade. He had taken the field appointment in June 1941 because, on his own subsequent testimony, he had thought it offered a better path of advancement than continued staff work in Berlin. He had killed, on his own testimony to the Tribunal, ninety thousand men, women and children in the year between June 1941 and June 1942.

Ferencz cross-examined Ohlendorf personally. The exchange has been studied in law schools. It is not Maxwell Fyfe with Göring, the breakdown of an evasive defendant; it is the calm exposition of an unrepentant one. Ohlendorf answered every question. He did not deny what he had done. He defended it. Ferencz at one point asked him about the killing of children. The transcript records the exchange:

FERENCZ: You knew that the orders which you had received were to kill the Jews because they were Jews?
OHLENDORF: Yes, that is correct.
FERENCZ: And to kill all of them, regardless of age or sex?
OHLENDORF: That is correct.
FERENCZ: Did you ever think of refusing the order?
OHLENDORF: No. The order was given by the highest authority. To refuse would have been impossible.
FERENCZ: Was that the only reason you did not refuse?
OHLENDORF: It was the principal reason. There was also the consideration that the children would otherwise grow up to seek revenge.

The court transcript records the answer without comment. Ferencz, asked decades later in interviews how he had managed to keep his composure in the courtroom while a man calmly explained the murder of children as a measure of public hygiene, said that he had wept in private at the end of every day. The cross-examination did not last long; Ohlendorf was not fighting it. The case was made.

The judgment

The judgment of 8 and 9 April 1948 sentenced fourteen of the defendants to death, two more to life imprisonment, and the remaining eight to lesser terms. Ohlendorf, Erich Naumann, Werner Braune and Paul Blobel were hanged at Landsberg on 7 June 1951. The other ten death sentences had been commuted by John J. McCloy in his clemency review of January 1951. Ferencz was in the United States by 1951 and learned of the commutations through the press. He had argued against them in correspondence with the High Commissioner. The arguments had not prevailed.

The work he kept doing

Ferencz returned from Nuremberg to private practice in 1948 and to a long postwar career in international human rights and humanitarian law. He served as the director of the Jewish Restitution Successor Organisation and the United Restitution Organisation, which negotiated the return of property and reparations to Jewish survivors and heirs across Europe. He was a co-author of the 1952 Luxembourg Agreement between West Germany and the Conference on Jewish Material Claims Against Germany. He campaigned for forty years for the establishment of a permanent international criminal court; the Rome Statute of 1998 was, in part, the realisation of work he had done at the United Nations through the 1970s and 1980s. He delivered the closing argument at the first trial of the International Criminal Court, against the Congolese warlord Thomas Lubanga, in August 2011. He was ninety-one years old. The opening lines of the Lubanga closing echoed his Einsatzgruppen opening of sixty-four years earlier:

Let me have the indulgence of this Court to make some remarks of a general nature, for the public, who may not understand the underlying significance of this proceeding. The case before this Court speaks to those across the world who have not yet come to terms with what international law now requires. The world is not the same as it was when I first walked into a courtroom. The principle that I had argued for then has, in the years since, become law.

Ferencz wrote, gave interviews, and continued lobbying into his hundredth year. He died in April 2023 at the age of 103. He was the last of the Nuremberg prosecutors. His personal papers are at the United States Holocaust Memorial Museum in Washington. His final published essay, in the New York Times in 2022, ended with the line that had been the working motto of his sixty-five years of work: Law, not war.

See also

Sources

  • Trials of War Criminals before the Nuernberg Military Tribunals, vol IV (Einsatzgruppen case), U.S. Government Printing Office, 1950
  • Benjamin B. Ferencz, Less Than Slaves: Jewish Forced Labor and the Quest for Compensation, Harvard University Press, 1979
  • Tom Hofmann, Benjamin Ferencz, Nuremberg Prosecutor and Peace Advocate, McFarland, 2014
  • Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945 to 1958, Cambridge University Press, 2009
  • Benjamin B. Ferencz, Planethood: The Key to Your Future, Vision Books, 1991
  • Personal papers of Benjamin B. Ferencz, United States Holocaust Memorial Museum, Washington