The Making of the ICC Monster

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Benjamin Ferencz in 2012, in the courtroom where the Nuremberg trials were held. (Adam Jones, Ph.D.)

Benjamin Ferencz just turned 101 years old. The last surviving Nuremberg prosecutor was born in Transylvania’s Carpathian Mountains in 1920. Ferencz emigrated to America with his family as a baby to escape anti-Semitism and grew up in a small basement apartment in Manhattan. He graduated from Harvard Law School on a scholarship, served in Europe with the U.S. Army during World War II, and became one of America’s liberators of Buchenwald, Mauthausen, and Dachau concentration camps.

Ferencz was tormented by the scenes of death and destruction that he witnessed there. In his 1988 book Planethood, he wrote, “Even today, when I close my eyes, I witness a deadly vision I can never forget — the crematoria aglow with the fire of burning flesh, the mounds of emaciated corpses stacked like cordwood waiting to be burned. … I had peered into Hell.”

That vision led Ferencz to become the lead prosecutor in the Einsatzgruppen Case at Nuremberg following the war, a case the Associated Press called “the biggest murder trial in history.” Only 27 years old at the time, Ferencz was sent to Berlin where he successfully prosecuted 22 members of the SS — many of them doctors, lawyers, and professors — who were charged with using killing squads to murder over a million Jewish men, women and children.

But Ferencz’s quest for justice didn’t end there. He helped negotiate the first German Restitution Law in 1953 for Holocaust survivors. And drawing on the passion that fueled his Nuremberg experience, Ferencz spent decades tirelessly advocating for victims of genocide, publishing several books on the subject. His lifelong pursuit centered on establishing a special international court for the purpose of bringing perpetrators of crimes against humanity to justice.

Two and a half years ago, I attended a special documentary screening of Ferencz’s life entitled “Prosecuting Evil: The Extraordinary World of Ben Ferencz.” Sponsored by the U.S. Holocaust Memorial Museum, it included a talk with the then-99-year-old extraordinary Ferencz.

Imagine my chagrin, when I heard Ferencz speak of how he “spent most of my life” toward his crowning glory of achievement — the establishment of the International Criminal Court (ICC)! I sat in stunned silence listening to him condemn the notion of war for any reason and denounce the U.S. military development of new cyberspace and nuclear weapons as “stupidity” and “totally insane.” He insisted that money would be “better spent on helping poor people in other countries.” And he bashed President Trump as “crazy” for, among other things, warning North Korea of “destruction” if it continued threatening the U.S.

How could a man who has confronted evil not recognize the imperative of military deterrence to defeat evil? How could a Jew who stared down Nazis promote the ICC as a “more humane and rational” system when that court has for years unfairly and illegally targeted the Jewish State? Who would have thought that the culmination of Ferencz’s lifelong efforts would be a corrupt institution that targets both Israel and America?

For some time after the screening, I sought clarification, to no avail. I requested an interview through the PR representative who had invited me to the screening but was told Ferencz had taken ill. I posed my questions via email. Still no response.

Which makes me wonder if Ferencz had a change of heart this month after the ICC’s Chief Prosecutor Fatou Bensouda decided to investigate Israel, over which it has no jurisdiction, for “alleged war crimes” during its defensive war against the terrorist group Hamas and for its expansion in “territories” in Eastern Yerushalayim, Yehudah and Shomron. A decision which Prime Minister Netanyahu calls “pure anti-Semitism” and which Secretary of State Blinken said the U.S. “firmly opposes.”

The inequities of the ICC are no secret. Established by the Rome Statute in 1998 and beginning operations in 2002, the ICC was rejected by many countries, including Israel and the U.S. Past American presidents concluded that it was a faulty institution that lacked safeguards against political manipulation, violates national sovereignty by claiming jurisdiction of non-party states, and lacks sufficient accountability. These and other concerns led President Bill Clinton, who had originally signed onto the Rome Statue without submitting it for Senate ratification, to urge President George W. Bush against ratification in 2002. Bush heeded the advice and was admonished for it by Ferencz at the time.

What were theoretical concerns at its inception turned into full-blown grievances over the years. The ICC threatens legal action against Israelis for “war crimes” in the imaginary state of “Palestine.” And its warnings against Americans for “war crimes” in Afghanistan led President Trump to impose sanctions on those connected to the court last year. Attorney General Barr at that time stated that the Justice Department had received “substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”

All this concurs with an incriminating report on the ICC this past September that details an organization whose employees “suffer internally from distrust … and a culture of fear.” The review reveals the court’s “antagonistic approach” and identifies “instances of harassment and bullying by some judges” that “have not been sufficiently tackled” due to the judges’ “perceived unaccountability.” These same judges demand a 26% pay hike plus other bonuses, despite the court’s “liquidity crisis.”

It seems unconscionable that a champion of human rights like Ferencz would continue to support such an institution.

And though I seek excuses for a man who earned his stature before the ICC’s creation, it does not appear as if Ferencz will be falling on that court’s sword any time soon.

Fatou Bensouda has called Ferencz “a man of conviction, a principled man.”

But in an ironic twist of fate, or perhaps twisted fate, the lead prosecutor at the Einsatzgruppen Case seemingly endorses Bensouda’s ability to sit in bigoted judgement against Jews with apparently no checks and balances.

The road to the ICC might have been paved with good intentions. But it’s time that Ferencz was on the road back.