[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.]
Primary Sources as Narrative Necessities: A Response to Professor Mark Klamberg
Mark Klamberg’s piece inspired me to reflect on certain pivotal moments in the initial and research phases of the project that I thought might be helpful to share here. First, when Ben’s son Don encouraged me to take on the project, I had to think carefully about what I could meaningfully contribute. Ben’s memoirs were then available online as the Benny Stories (and still available, now simply called “Stories”) and so it occurred to me that much of his life was already covered and available to the public. But as I read the Benny Stories something struck me: they consisted of a series of anecdotes told in the first person, with relatively little broader contextual framing.
So a big motivator in taking on the project was to provide that context throughout. Thus, Chapter 1 itself helps situate the Jewish community’s history in Ciolt and the surrounding region (which had been Hungarian but became Romanian after World War II), where Ben was born. It then zooms in on the Hell’s Kitchen neighborhood where he lived on arriving in America, detailing the neighborhood’s violent and often bloody environment. Similarly, Ben’s personal struggles during the Great Depression are set against the country’s wider economic turmoil, and the lead‑up to World War II is traced through the watershed moments unfolding in Europe and Asia. Events such as the Cold War, the Eichmann trial, Vietnam, the Gulf War and 9/11 are rendered with what I hoped was enough detail to situate the macro-environments wherein Ben Ferencz was making history in the metaphorical trenches. Thus, I was quite pleased to see Professor Klamberg’s observation that, consistent with other parts of the book covering other eras, I managed to situate “Ferencz’s work within the broader political and diplomatic landscape of postwar Europe, ensuring that the individual story never loses sight of the historical forces surrounding it.”
Professor Klamberg emphasizes the importance of my access to personal papers that had not previously been seen by other historians/legal scholars. And, I must say, that access was crucial for the success of the project. One example illustrates this vividly: a May 24, 1946 letter from Ben to his wife Gertrude, which I found among those papers, turned out to be one of the most important archival finds of the project. A crucial passage of the text reads:
You know we are now busy trying to prove that IG Farben and Krupp and their officials should be hung as war mongers and murderers. It is very interesting going into the details of the organization and finding out how efficiently these sinister forces operated. I’m sure we’ll be able to prove that they desired and planned for war and that they headed the looting of foreign industries as well as used concentration camp inmates for their experiments on poison gases, etc. And these are the distinguished white-collar gentlemen of finance. . . . I feel a certain satisfaction in the work as though we are groping for the roots of war causes. And perhaps we may move a little closer thereby toward permanent peace. (p. 168)
Unfortunately, as noted in my Introduction to this symposium, all the industrialists tried at Nuremberg were ultimately acquitted of the aggression counts. And it was at the end of his later civil litigation work against many of those same industrialists (e.g. Krupp and Flick), as he likely contemplated the justice deficits of that later campaign, that Ferencz decided to phase out of his Holocaust reparations work and devote himself fully to the cause of peace, and, by extension, atrocity prevention. Thus, I argue in the book (and in my symposium Introduction, Ben’s powerful May 1946 communication to his wife is the “missing link” between his Nuremberg work, always associated with the crimes against humanity-focused Einsatzgruppen trial, and his ultimate transformation into a peace advocate.
But it is important to stress that it was not my exclusive access to those personal papers that revealed Ben’s early work at Nuremberg on the industrialist cases. Also as described in my symposium Introduction, after days of rooting through documents at Columbia’s Butler Library Rare Book and Manuscript section, I made an incredible discovery that changed the entire trajectory of the project – a document in the Telford Taylor Papers that indicated Ferencz was cross-examining witnesses in the Krupp trial.
Ben’s work as a Krupp trial podium prosecutor opened up this entirely new vista regarding his Nuremberg work that I was later able to connect with his industrialist investigations at the beginning of his Nuremberg service. That then tied into the May 24, 1946 letter to Gertrude and better explained his civil litigation crusade against the industrialists in the 1950s and 1960s (covered in Chapter 17 of Nuremberg’s Citizen Prosecutor).
And all that links back to one of my original motivations for taking on the project at the outset: to provide a holistic account, complete with all the nitty-gritty details, of Ben Ferencz as a working lawyer in Nuremberg’s Palace of Justice. I wanted to go beyond the one aspect of his Nuremberg courtroom performance that it seemed he would only ever discuss: his Einsatzgruppen opening statement. Thus, I scoured the entire Einsatzgruppen files and trial transcript and extracted from that all the significant moments – from the drafting of the indictment (and how his relationship with Raphael Lemkin, which began and blossomed in the Palace of Justice, affected that drafting), his interactions with the defense lawyers, and his pre-trial and in-trial motion practices.
And, most importantly, I wanted to chronicle his cross-examinations of the defendants, excerpts of which are liberally included in the manuscript. I gave the Krupp trial similar treatment. In sum, I wanted to take my expertise as a war crimes prosecutor, with substantial trial experience, to narratively highlight what a great lawyer Ferencz was, through every stage of the legal proceedings. So, I am grateful for Professor Klamberg’s observation that in my book the “transcripts allow for a precise and vivid reconstruction of courtroom dynamics, bringing the reader into the room in a way that secondary accounts rarely achieve.”
At the same time, I appreciate his point about writing a book that could appeal both to experts and a wider audience. His generous endorsement of what he calls its page-turning qualities is gratifying confirmation that Nuremberg’s Citizen Prosecutor can appeal to a broader reading public. That signifies to me that one of my key objectives in taking on the project was realized. As well, his endorsement of its scholarly value – calling it a “landmark achievement” – is incredibly appreciated and quite humbling. He and I have spoken at length about his book Genocide: Sweden and the Battle over a Concept and it is clear that, a book he describes as centered on a concept but told through the lives of Raphael Lemkin and others, will be an equally captivating read. I very much look forward to its translation into English.
Law, Mythology and Teaching: A Response to Professor Peggy McGuinness
In The Hero with a Thousand Faces (1949), Joseph Campbell described the archetypal hero who “ventures forth from the world of common day into a region of supernatural wonder: fabulous forces are there encountered and a decisive victory is won: the hero comes back from this mysterious adventure with the power to bestow boons on his fellow man” (p. 30). Professor Peggy McGuinness’s powerful enumeration of “checks” in reference to Ben Ferencz reads almost like a roadmap of Campbell’s monomyth, with one notable difference. Campbell’s heroes are often gods and princes; Ferencz was an everyman – the “citizen prosecutor” of my book title.
Consider the stages of his journey: (1) The ordinary world: born into poverty in Transylvania, Ferencz grew up in a family eking out an existence in a crowded New York tenement in arguably the city’s worst slum. (2) The mentor: Sheldon Glueck, the wise, older Harvard law professor whose work on war crimes pointed Ferencz toward his life’s mission. (3) Crossing the threshold: Army basic training, the Channel crossing, and entry into the war. (4) The abyss: digging up the corpses of Allied airmen and witnessing the horrors of the liberated camps as a war crimes investigator. (5) The revelations and turnaround: investigating the Nazi industrialists, uncovering the Einsatzgruppen reports, and prosecuting war criminals at the historic Nuremberg Trials. (6) The return with the boon: the decades Ferencz spent bringing the lessons of Nuremberg back to the world through Holocaust reparations work, advocacy for defining aggression as an international crime, and helping create the International Criminal Court. In this last stage he became what Campbell called “Master of the Two Worlds,” living at once in the world as it was and the world as law could make it.
The biography hints at this Campbellian undercurrent. Describing Ben at the end of the Einsatzgruppen trial, I wrote:
He had come full circle—having been alone in this same space just before the trial opened, when so much burden had been placed on his young and slender shoulders. And now, he realized, he had survived the ordeal and was on the other end of a truly liminal experience. It had been a rite of passage—he had done all the hard work, negotiated each phase of the proceeding, answered all the challenges; it had transformed him.
But the courtroom was not the end of the journey. Campbell also understood that the return is the hardest stage of the journey: the hero comes home to a world that often does not understand, or want, the boon he carries. Ferencz’s return from Nuremberg lasted more than seventy years, and it never delivered the “decisive victory” Campbell’s formula promises, a clean triumph of what Ferencz called “law, not war.” [Fittingly, Campbell’s own journey resisted a tidy ending, too. After decades of relative academic obscurity, he achieved enormous acclaim late in life, only to have his legacy clouded when Brendan Gill, writing in The New York Review of Books in 1989, accused him of antisemitism, charges that many who knew him disputed.]
Thus, Professor McGuinness rightly emphasizes the messiness of Ferencz’s odyssey. Many sentences from the subsequent Nuremberg trials were commuted, including those of some of the most murderous Einsatzgruppen commanders. Alfried Krupp, who helped arm Hitler’s aggression and profited from slave labor made possible by it, was released early and had his confiscated fortune restored. Since Nuremberg, aggression, genocide, war crimes, and crimes against humanity have claimed millions of lives on nearly every continent, and they continue today. Meanwhile, the permanent International Criminal Court, Ferencz’s ultimate dream of justice, has struggled mightily.
As Professor McGuinness observes, “By now it is a cliché to say that we are living through the end of the post-World War II international legal order.” She adds that friends “quip (more in sorrow than in joy?), ‘It must be a tough time to teach international law!’” Indeed, it is. But she is also right that Ben Ferencz’s story reminds us “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.” Of course, his other famous mantra was “Never give up!” He lived by it until his dying day.
For me, Peggy’s point about the teaching value of Ben’s story, and the inspiration it offers, was underscored when I lectured to her class at St. John’s Law earlier this year. Afterwards, several of her students contacted me wanting to talk more about Ben and his life. They were clearly encouraged by his story and felt it could help them keep their faith in international justice. So we met for lunch the next day, at the spiffy refurbished TWA terminal at JFK Airport, and had a marvelous discussion. They volunteered to help me in any way they could if I would let them. And I am happy to report on subsequent assistance in planning my Ferencz biography presentations in the United States and abroad. They, in turn, have inspired me.
Peggy’s remarks also reminded me of a lesson I learned early in my career as a law professor: the best way to teach is by telling stories. Looking back on my attorney years, I think Peggy is right, too, that storytelling is the most effective way to practice law. Even the driest, most technical, arcane points of law, I have found, can be the subject of a human narrative. So it was humbling to read her generous observation that Nuremberg’s Citizen Prosecutor shows me to be “both a great lawyer and a great storyteller.”
The eminent Yale law professor Robert Cover once wrote something that connects Peggy’s points about teaching with Campbell’s insights about myth: “For every constitution there is an epic, for each decalogue a scripture.” Cover also wrote that “law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative.” That image of law as a bridge speaks directly to Peggy’s closing theme of hope. Ben’s whole career was an effort to span the distance between the world as it was and the world as law could make it. In his Einsatzgruppen opening statement, he called it “a plea of humanity to law.” If Campbell gives us the hero, Cover reminds us that law, too, needs its epics. Ben’s epic is unfinished, and that is exactly why it is worth teaching, as Peggy McGuinness’s outstanding contribution to this symposium has demonstrated so effectively.
From Krupp to Cisco: A Response to Ambassador Beth Van Schaack
I am deeply grateful to Ambassador Beth Van Schaack for her generous and illuminating contribution. Few people are better placed to write about Ben Ferencz and the industrialist cases. She knows the terrain as a scholar, as an advocate before the U.S. Supreme Court, and as a diplomat who, as she (somewhat jocularly) recounts, was on the receiving end of Ben’s relentless lobbying on the crime of aggression. Anyone who knew Ben can imagine what that must have been like! That said, being a “source of perennial disappointment” to him was, in its own way, a badge of honor. He saved his most persistent campaigns for people he believed could actually change things.
In Nuremberg’s Citizen Prosecutor, I tried to recover a chapter of Ben’s life that he had largely written out of his own story. The Krupp document I found in the Telford Taylor papers, and the previously unseen letters that followed, showed that his work on the I.G. Farben and Krupp investigations was anything but marginal, and neither was his role at the podium in the Krupp trial. They also showed how deeply the acquittals on the crimes against peace charges wounded him. My argument is that this disappointment shaped the rest of his life. It helped turn the young Einsatzgruppen prosecutor into the lifelong crusader for criminalizing aggression, for establishing a permanent International Criminal Court, and for building a lasting world peace grounded in law rather than force.
Ambassador Van Schaack has done something my book, by design, could only gesture toward. She has placed Ben’s industrialist work within the broader arc of corporate accountability for international crimes and traced what became of it over nearly eight decades. Her account of the Alien Tort Statute litigation is especially valuable. Nuremberg’s jurisprudence became a battleground in those cases.
In Kiobel, the Second Circuit read the absence of corporate convictions as proof that international law reaches only natural persons. Every other circuit to consider the question read the same history the opposite way. Ambassador Van Schaack’s work on the Nuremberg scholars’ brief in Jesner and the amicus brief in Doe v. Cisco is a reminder that the meaning of the industrialist cases is not settled history. People are still fighting over it. And her survey beyond U.S. courts, from state tort claims against BNP Paribas to the Lafarge proceedings in France and the Lundin/Orrön prosecution in Sweden, shows that the path Ben helped clear has not closed. It has moved to new places.
This bigger-picture perspective matters for two reasons. First, it corrects the historical record. The industrialist judges plainly regarded the German conglomerates as having violated international law in their corporate form, even though no corporation was held liable. The Allies also moved to liquidate complicit firms through Control Council legislation. Leaving corporations out of the dock at Nuremberg was a policy choice, not a legal prohibition.
Second, it vindicates Ben. In my conclusion, I speculated about why he called this work “marginal”: the Cold War clemency, the rehabilitation of convicted executives, the meager compensation that reached survivors. Ambassador Van Schaack’s answer is that his chagrin was misplaced. I agree, and I wish I could have shown him her essay. Ben was a prosecutor who measured success in verdicts and in payments to victims. He did not always see how slowly precedents travel. Seeds planted in the Krupp courtroom are now bearing fruit in Paris and Stockholm.
As this symposium has made clear by now, Ben’s motto was “law, not war.” Ambassador Van Schaack shows that this vision reaches the boardroom as well as the battlefield. Those who finance, arm, and profit from atrocity are part of the machinery of mass violence, just as Ben argued in 1948. I am grateful to her for showing how far his work has reached.
A Book for the Beach and the Bench: A Response to Kevin Jon Heller
Regular readers of Opinio Juris know that Kevin Jon Heller doesn’t hand out praise lightly. By his own account, he has a “critical nature,” and he has spent years taking apart weak arguments with great skill and apparent enjoyment. So I hope readers will forgive me for saying that his big-hearted contribution to this symposium has left me honored and, frankly, thrilled.
When I started Nuremberg’s Citizen Prosecutor, I didn’t want to write a dry “life in the law.” Ben Ferencz was too vivid a person for that and, besides, I relished being liberated from the shackles of traditional academic writing. So I suppose one could say that I wanted a book rigorous enough for specialists that a reader could still take to the beach and not want to put down. I was never sure if I had pulled it off. So when the editor-in-chief of this blog, who also wrote the definitive study of the Nuremberg Military Tribunals, calls the book “compulsively readable,” that means more to me than I can easily say.
I’m especially grateful that he “rarely went a few pages” without learning something new. His book on the subsequent proceedings has been a constant companion of mine, particularly while writing Nuremberg’s Citizen Prosecutor. Hearing that the archives and my interviews with Ben surprised even him is about the best compliment an historian of these trials could ask for. I also appreciate his observation that the book isn’t hagiography. Ben deserved an honest portrait that humanized him, making his great accomplishments that much more remarkable, and relatable.
Kevin’s questions are, as always, razor sharp. They include, inter alia, how Ben felt about Judge Musmanno questioning witnesses from the bench, and what he thought of the tribunal’s troubling comments on Hiroshima and Nagasaki. Kevin is also right that the NMTs, though generally fair, were far from perfect. As he points out, defense counsel were not available pre-indictment, the rulings on affidavits were inconsistent, and there was no real appellate review.
Readers might like to know some of the background on why I didn’t pursue every one of these points. My original contract with the University of Virginia Press was for 135,000 words. I had no idea how much the research would turn up, and my first manuscript came in at 215,000 words. The Press asked me to cut it to 185,000, and losing those 30,000 words was painful. Even before that, knowing the contract length, I felt I couldn’t go as deep on every subject as I would have liked in my conversations with Ben. I had to choose which threads to follow and leave others alone. Some questions, of course, Ben simply didn’t wish to explore, and I respected those boundaries. Alas, some doors closed for good when Ben passed in 2023. One tries one’s best but, as any biographer of a living subject learns (and as Kevin’s post implies), the conversations you don’t have can sometimes matter as much as the ones you do.
And so, quite helpfully, Kevin’s questions point to work that remains to be done. I hope other scholars take them up – perhaps on the beach, with both our books in their bags.
Kevin ends his essay by saying we are all in my debt. The truth is the reverse. Everyone who writes about the subsequent proceedings is working in ground he cleared, including me (just look at the end notes of Nuremberg’s Citizen Prosecutor, where his book is cited liberally). For his generosity, his careful reading, and his willingness to set aside his usual skepticism (just this once!), I am deeply grateful.
