Eccentric readers may not have heard of Benjamin B. Ferencz. On March 11, 2020 he was 100 years old. I had a wonderful teleconference call with him recently. He is the last surviving US prosecutor at the Nuremburg War Crimes Trials in 1945, when he was a young Harvard Law School trained US Army officer. He investigated Nazi war crimes after World War Two and was the Army’s Chief Prosecutor at the Einsatzgruppen Trial, one of 12 sets of trials held by the US authorities at Nuremburg, all very prescient today with only this past January 27 being Holocaust Remembrance Day, the 75th Anniversary of the liberation of Auschwitz in 1945, the largest Nazi concentration camp. Mr. Ferencz was not involved in the trial of the infamous major Nazi war criminals. He was born in Transylvania, Romania, and came to the United State as an immigrant. Since 1945 he has been a major advocate for the establishment of the international rule of law and the creation of what in due course became the United Nations (UN) International Court of Justice (ICJ) and the International Criminal Court (ICC) in The Hague, Netherlands. As an aside readers may wish to take a look at the Netflix, “Prosecuting Evil”. This fine American and I discussed the United States’ future role in prosecuting international war crimes, crimes against humanity, and a whole range of other related international crimes that affect all of us: Human trafficking (and particularly the exploitation of women from poorer countries, many of whom are here in the US illegally and enslaved in hidden prostitution), drug running, illegal weapons transfers, terrorist movements, money laundering of many kinds (often associated with illicit weapons deals, terrorism, and drug activities) and the expanding domains of asymmetric warfare, practiced especially by Vladimir Putin’s underground Spetsnaz derived operatives, who are now infiltrating the Western democracies. The latter is non trivial, the growing manifestation of Russia’s inability to match the West in any serious conventional warfare contest (Russia’s Gross Domestic Product is less than the state of California, but Russia has nuclear weapons and an oligarch based dictator as leader) by using new unconventional means of attacking and disrupting Western interests without the appearance of using conventional forces. 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 International Court of Arbitration is also a critical venue for determining international issues. The UN International Court of Justice was founded on June 26, 1945 in San Francisco by a statute under the UN Charter. But, and this a hugely significant “But”, the US is not a “State Party” to the International Criminal Court established by the Rome Statute on July 1, 2002. The US signed, but did not ratify the ICC Treaty. US citizens are therefore not liable for prosecution before the ICC and the US as a result has no judges on the ICC. The US claimed that ICC membership would be unconstitutional because it would allow, for example, the trial of US citizens for crimes committed on American soil which are unilaterally under the jurisdiction of the US legal and court system. This therefore applies to all potential crimes committed internationally by Americans anywhere under the ICC remit. Readers will see how this affects the US’ role in the enforcement of, for examples, human rights violations, and what will be an increasing body of international law affecting “Green Energy and Climate Change”. The separate UN High Commissions for War Crimes and Human Rights are instrumental in investigating and leading the prosecutions of violations. The Myanmar leader Aung San Suu Kyi was recently brought before the ICJ in The Hague in December, 2019 to answer genocide charges against Myanmar as a result of the alleged brutal treatment of Rohingya Moslems in Rakhine state. Slobodan Milosevic, the late Serbian leader, was brought before the ICC for war crimes. He died in his prison cell in The Hague from a heart attack in March, 2006 without a trial verdict. The ICJ later found that he had committed a breach of the Genocide Convention by failing to prevent the genocide from occurring and not pursuing the perpetrators. There was no evidence to link him directly to actual genocides committed by Bosnian Serb forces during the Bosnian war. These cases show that no one is above the law internationally. However, the United States is not legally part of the system. In the western democracies there is a singular movement towards change that may leave the United States behind and in possible limbo. For example, the Dutch government was recently found guilty in a major civil case in Holland’s High Court for “Not reducing coal production, thereby not protecting the Dutch population from the effects of CO2 emissions”. This was legally categorized as human rights violations because the Dutch government failed to “lower emissions”. This may seem extreme to many here in the US, but this is undoubtedly the beginning of an international trend that may see cases come before the ICJ to enforce “Green Energy” regulations in member states. We in the US may therefore face a dilemma. We are not part of the ICJ and ICC system. At the same time we lead in countering the worst violent aspects of, for examples, Iranian support to Hezbollah in Lebanon, Hamas in the Gaza Strip, and Houthis terrorists in the Yemen. We are not able therefore to use the international legal system to enforce the rule of law and ensure the prosecution and trial of many war criminals and human rights violators committing atrocities. I ask readers to consider the long term efficacy of killing people such as the Iranian Major General Qasem Soleimani in one-off covert operations versus the long term prosecution of all such people in the ICC for war crimes, crimes against humanity, and other violations of the international code, such as the Geneva Conventions. The United States with the British led the way at Nuremburg. We ended the Nazi era in an international court. I ask, “Should we not follow a great American international jurist, Benjamin B. Ferencz, by ensuring that his legacy endures by the US becoming a formal member of the ICJ and the ICC community?” I think so. This Letter from The Plains is dedicated to Ben Ferencz. He wrote the following to me for inclusion in this month’s Letter, having read my Letter, and wanted all who read the Middleburg Eccentric to know what he thinks and feels about the future:
“Tony Wells has got it right. Let’s make America America again. Let us be the nation of laws, and not of men, that our founding fathers envisioned. 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.”
Let us all wish Ben Ferencz the very best on reaching 100 years of age.