You might not have heard of Benjamin B. Ferencz. He was born in Transylvania, Romania, and came to the United States as an infant. On 11 March 2021, he turned 101.
Ferencz is the last surviving U.S. prosecutor of the Nuremberg Trials in 1945, when he was a young Harvard Law School–trained U.S. Army officer. He investigated Nazi war crimes and was the Army’s chief prosecutor at the Einsatzgruppen Trial, one of 12 trials held by U.S. authorities at Nuremberg.
Since 1945, Ferencz has been an advocate for the international rule of law and for the United Nations International Court of Justice (ICJ) and the International Criminal Court (ICC) in The Hague, Netherlands. He and I have discussed the United States’ future role in prosecuting international war crimes, crimes against humanity, and a whole range of other international crimes that affect us all: human trafficking, drug running, illegal weapons transfers, terrorist movements, money laundering, and the expanding domains of asymmetric warfare.
I subscribe to the “Benjamin Ferencz School of International Law,” whereby the ICJ and ICC are the key vehicles for global law enforcement and the maintenance of the international order. The ICJ was founded on 26 June 1945 in San Francisco under the U.N. Charter. But—and this a hugely significant “but”—the United States is not a “state party” to the ICC, established on 1 July 2002.
The United States signed, but did not ratify, the ICC Treaty. U.S. citizens therefore are not liable for prosecution before the ICC, and, as a result, the United States has no judges on the ICC. This affects the United States’ role in, for example, the enforcement of human rights violations and an increasing body of international law affecting green energy and climate change.1
Slobodan Milošević, the late Serbian leader, was brought before the ICC in 2001 for war crimes. He died in his prison cell before a trial verdict, but the ICJ later found he had breached the Genocide Convention by failing to prevent genocide from occurring during the Bosnian War and not pursuing the perpetrators. In December 2019, Myanmar leader Aung San Suu Kyi was brought before the ICJ in The Hague to answer genocide charges against Myanmar for the alleged brutal treatment of Rohingya Muslims in Rakhine State.
The United States is not legally part of this system. It leads the world in countering the worst aspects of, for example, Iranian support to Hezbollah in Lebanon, Hamas in the Gaza Strip, and Houthi terrorists in Yemen, yet it is not able to use the international legal system to enforce the rule of law and ensure the prosecution and trial of war criminals and human rights violators committing atrocities.
Consider the long-term efficacy of killing individuals such as Iranian Major General Qasem Soleimani in one-off covert operations versus prosecuting all such people in the ICC. The United States with the British led the way at Nuremberg. They ended the Nazi era in an international court. Today, the United States should follow the lead of Benjamin Ferencz, ensuring that his legacy endures, by becoming a formal member of the ICJ and the ICC community.
Ben Ferencz wrote the following to me for inclusion in this article:
Let’s make America America again. Let the light of our democratic principles and respect for the rule of law be the lamp that guides us forward toward a more humane world under a strengthened respect for the rule of law. The world is hungry for moral leadership, and it is high time that America retook the moral high ground by leading the way.
1. Recently, the Dutch government was found guilty in Holland’s High Court of not reducing coal production, thereby not protecting the Dutch population from the effects of CO2 emissions. This was legally categorized as a human rights violation. See Tonya Mosley, “Dutch Court Says Government Inaction On Climate Change Violates Human Rights,” WBUR.org, 13 January 2020.
