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The Back Page: �I�d pack the courtroom with as many Muslim clerics as possible�
Ira Rifkin
In 1943, Ferencz joined the U.S. Army fresh out of Harvard Law School, was shipped off to Europe and hit the beach at Normandy. Later, in the military�s War Crimes Branch, he helped gather evidence in newly liberated death camps before returning to New York, where his Romanian Jewish family had settled when he was a toddler. Invited to join the American team at the Nuremberg trials, he was named, at age 27, chief U.S. prosecutor for the trial of 24 top officers of the SS Einsatzgruppen, the extermination squads that rounded up Jews, Gypsies and other civilians for execution in ditches or gas vans. All two dozen were convicted, 14 were sentenced to death. It was Ferencz�s first, and last, criminal case.
Ferencz stayed on in Germany to play a leading role in settling restitution claims by Jews and others against the post-war German government, including the 1952 agreement between Germany and Israel -- which he calls "an historic milestone in international morality." Back in New York, he established an international law practice and advocated unceasingly for the establishment of what is now the International Criminal Court in The Hague. At 84, he still works "15 hours a day, seven days a week," writing and lecturing worldwide.
The Jerusalem Report: How should the legal case against Saddam proceed?
Benjamin B. Ferencz: The same as any other criminal trial. Present the charges, starting with the most easily proven, like the invasion of Kuwait, which the whole world recognizes as a fact. He doesn�t have to be convicted of 100 crimes to make the point. Spell out the charges to the judges and let Saddam defend himself with his own attorneys. He�ll probably try to make a show of it, but good judges will be able to limit him.
I�d also pack the courtroom with as many Muslim clerics as possible so they can see that this is a criminal trial and not some stage play of heroic history. They need to be persuaded to come out and say, "We can�t go on as we have, thinking people like Saddam and [Osama] bin Laden are heroes, if we are ever to have a sane world." The way you truly prevent mass murder, another Holocaust, is to try and change the way people think about people of other races and religions and ideologies.
This trial can have enormous significance if we can demonstrate that even a head of state, whom we now recognize in international law is subject to the same laws as everyone else regardless of past rank and privilege, can be brought to account and, if found guilty, made to pay for his crimes. It can be a huge step forward in the establishment of a more civilized world. The law crawls forward slowly, but this is one of those moments when the movement can be discernible.
What do you make of the Pentagon saying Saddam will be treated as a prisoner of war?
I was quite surprised to hear that. Under the Geneva Convention, all he is obligated to say as a prisoner of war is his name, rank and serial number. I don�t want to give Saddam legal advice, but I wouldn�t say a thing as a prisoner of war if I were him. [The U.S. government] boxed itself into a corner by saying this, and I don�t know why they did that. But they can back out of it easy enough.
Who should try Saddam?
What it shouldn�t be is the U.S. That would be the worst thing. If he gets a trial run by Americans, the entire Muslim world won�t believe it�s a fair trial no matter what. If America wants to put him on trial just because it wants to execute him, they should have pushed him back into his hole and shot him on the spot. But if you want to advance the rule of law, and respect for the rule of law, it�s got to be the Iraqis who try him. They�ll find him guilty easy enough, and kill him on their own.
Can Iraqis stage a trial that others will accept as legitimate?
The Iraqis have plenty of attorneys and judges hanging around with not much to do right now. They would need some foreign legal advisers given the current state of their legal system -- even Americans, as long as they don�t try and dominate.
Isn�t it problematic that many of those Iraqi attorneys and judges are likely to be Ba�athist loyalists?
You can be a Ba�athist loyalist as long as the Ba�athists are in power, and then not be the next day when the Ba�athists are no longer in power. Iraqi attorneys and judges must be involved for legitimacy, domestic and international. Nuremberg still suffers from having been conducted by the victors against the vanquished. Let�s not repeat that in Iraq.
Should politics be allowed to influence Saddam�s trial?
I know it�s impossible to keep politics out fully, but as the judge I would not allow it to the best of my ability. Saddam will certainly try to use the trial as a political platform. It�s up to the judge to cut him off as not relevant. The same thing happened at Nuremberg.
Anybody in the U.S. government coming to you for advice?
No one is knocking on my door. Most of the people in the business know me and the administration knows my views. They know I don�t agree with how they�ve scorned international law in so many ways, including their hostility toward the International Criminal Court [also opposed by Israel]. They�re going backwards.
February 23, 2004
Middle East
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