“Benjamin B. Ferencz belongs to those lawyers, activists, and administrators of compensatory justice who, in the wake of the cataclysmic events of the twentieth century, contributed decisively to the development of a regime of universal human rights, the institutionalization and evolution of an international criminal justice system, and the implementation of exemplary restitution practices. The same can be said of other prominent individuals of Jewish origin and affiliation, such as Hersch Lauterpacht, Raphael Lemkin, or Jacob Robinson, whose biographies were shaped by the same existential experience, which harked back to the crisis-ridden interwar period and unfolded in a Central and Eastern European cultural space fractured along the lines of post-imperial nation states.
However, Ferencz was different from this group of people in many respects, despite considerable common ground regarding the legal issues they sought to tackle. These differences are primarily generational in nature. Considerably younger, Ferencz was born in Transylvania, which had become Romanian at the beginning of the interwar period, and immigrated to the United States with his parents as a child. Growing up in New York, he was influenced by the American legal tradition, with its strong emphasis on civil law and a culture of negotiation. In terms of his biography and above all his professional experience, he is therefore first and foremost an American, albeit one who became very familiar with the European context. While the Jewish legal scholars belonging to the above-mentioned group had a Continental outlook and were essentially concerned with questions of individual as well as collective legal protection in the particular circumstances of the interwar period, Ferencz focused on the legal and political issues and procedural questions raised by the subsequent catastrophe. He was thus less concerned with averting state crimes than with addressing those that had already taken place. A formative experience was his work as a young prosecutor, just twenty-seven years old, at the Einsatzgruppen trial, one of the Nuremberg Military Tribunals.
Ferencz’s life and work are a monument to the legal reckoning with the disastrous legacy of the Second World War and the mass crimes committed in its shadows. His name stands for the big questions of retribution, restitution and compensation in the post-war period, as well as for the establishment of a new legal culture and an international morality dedicated to upholding it.
In Ferencz’s life and work, another distinctive feature stands out, namely the way he linked raising particular claims with a universal culture of prevention. For a long period of time, Ferencz was a leading figure in pursuing particular claims for the restitution of Jewish property left behind, primarily in Germany. Ferencz thus became the pre-eminent trustee of a Jewish collective claim to any such property. This collective claim arose because the unprecedented act of an absolute genocide and the extermination of entire family groups raised questions of legal title to the property of murdered victims rendered heirless by acts of murder. To claim this property, a collective subject had to be constructed that could speak on behalf of the slain. This necessitated the legal construct of a “Jewish people” in order to enable the Jewish successor organizations speaking in its name to take action. As the representative of these collective Jewish bodies, Ferencz became, as it were, the agent of the Jewish people in Germany. Indicative of his work in this field is the fact that he participated in the drafting of the 1952 Luxembourg Agreement between the Federal Republic of Germany and the Jewish people, represented by the State of Israel and the Conference on Jewish Material Claims Against Germany.
Nevertheless, when it came to the creation and administration of law, Ferencz did not merely view himself as a Jewish trustee. This is demonstrated, first of all, by his advocacy on behalf of various groups of victims to claim compensation for crimes committed by the Nazis, especially for the forced labor they extracted from their victims through coercion and violence. His work in the field of law enforcement and prevention of future mass atrocities came to the fore in the decade following the end of the Cold War, when Ferencz played a leading role in the campaign to establish the International Criminal Court at The Hague, with the aim of trying crimes such as genocide, crimes against humanity, war crimes, as well as the crime of aggression. Ferencz’s life thus came full circle, beginning with his role as a prosecutor in the Einsatzgruppen trial at Nuremberg in 1947, as the prosecution of mass atrocities had finally become universal.”
By Prof. Dan Diner
Excerpt from the preface to an edited selection of documents from the estate of Benjamin B. Ferencz: Kriegsverbrechen, Restitution, Prävention, Constantin Goschler, Marcus Böick and Julia Reus (eds.), Archiv jüdischer Geschichte und Kultur, Vol. 004, Göttingen 2019.