Benjamin Ferencz and Antonio Cassese

Preface

Meeting Benjamin Ferencz and Antonio Cassese

Anyone who has met Benjamin Ferencz and Antonio Cassese knows that here are two men totally committed to the defense of human rights and human dignity. They are by the strength of their personalities guides and tutors. They offer inspiration and an irresistible a remedy against cynicism. Both Benjamin Ferencz and Antonio Cassese have many stories to tell about the power politics and self-interest of states and their leaders and about the excessive violence and cruelty individuals can commit when they get the opportunity. But they also teach us that one need not be a blind optimist to go in search of direction and progress through law. For them to believe this is of itself no small achievement, since their work has confronted them with human behavior at its worst.

This book is published to celebrate the Praemium Erasmianum awarded in November 2009 to Benjamin Ferencz, the former Nuremberg prosecutor and Antonio Cassese, the first president of the International Tribunal for the former Yugoslavia (ICTY) and current president of the Special Tribunal for Lebanon. The prosecutor and the judge together embody the history of international criminal law from Nuremberg to The Hague. The choice to interview the laureates was based first and foremost on the wish to introduce these two remarkable personalities, well known among their colleagues in the lively international legal community, to a wider audience.

The idea for this book is rooted in a book Antonio Cassese published in 1993. At the end of 1970’s, Cassese interviewed in depth the great Dutch international lawyer, B.V.A. Röling, who had been a judge at the Tokyo tribunal, the post Second World War International Military Tribunal for the Far East. For several reasons, the book saw the light only years later, in the watershed year of 1993. In that year, the Tribunal for the former Yugoslavia was established by the UN Security Council to try the war crimes being committed in the heart of Europe. To this day The Tokyo Trial and beyond remains a treasure trove of observations and wisdom: many of the issues Cassese and Röling covered in their conversations have lost none of their urgency. Cassese’s connection with Röling was forged in scholarship and a clear-headed critical approach of international criminal law. By no coincidence, Ben Ferencz and Bert Röling also met in the course of their advocacy to have “aggression” properly defined by the United Nations. Both fiercely independent, both men were deeply aware that every war brings about unspeakable horrors and grief and should be prevented by all available means.


The very first time I saw Ben Ferencz in action was in Rome in 1998. Within the span of five weeks the treaty for the International Criminal Court had to be hammered out. There was a strong sense of momentum, of now-or-never. Debates raged day and night, in the great conference rooms, in the back chambers and in the corridors. In the middle of it all Ferencz could be found, tirelessly working on unwilling or uninformed delegations. I saw government representatives, NGO members and journalists bestow their respect on this former Nuremberg prosecutor. And, Ferencz, who is not the most patient of men showed an immense patience in his explanations of the complicated legal and political subjects at stake. The ICC founding treaty came to pass. The crime of aggression made it to the final text only at the very last stage of the negotiations. But the crucial issue of the court’s jurisdiction over this crime was postponed. It may have been a blow for its champion, but Ben Ferencz saw it as another step forward and he continued to explain, to lobby and to travel the world. It was hard to catch him in one place. With the review conference of the ICC looming in 2010, he moved from meeting to lecture to conference, from New York to Saint Petersburg to Salzburg, always on the same mission, delivering his mantra: stop the war. And, most immediately, he urges his audience: make it possible for the ICC to prosecute crimes of aggression.

At times during the interviews, when we expressed our concerns about legal and human shortcomings in the burgeoning ICC, Ferencz plainly told us that we had our noses too close to the ground. We should take our distance. What may seem stagnation at the time can be seen as part of an important development with hindsight.

Antonio Cassese came from international humanitarian law and human rights law to the new field of international criminal law. At one point in the interview he told us: ''The body of international law is made up of a set of rules that gradually emerge, and as a result the common conscience of mankind is found in customary international law.'' Cassese pairs his conviction that the law of humanity is anything but a stagnant, unmovable system with his own deep awareness that the dignity of humanity is it not safe in the hands of the state. At the same time he has an open mind for the many efforts by individuals representing the state, to do what is right. He has a keen eye for the beauty and the power of the language of criminal law, with its precise definitions and qualifications.
In his first report as president of the ICTY to the General Assembly of the UN in 1994, Antonio Cassese quoted from Benjamin Ferencz’ statement held on 29 September 1947 in the Einsatzgruppen trial in Nuremberg: ‘if these men be immune, then law has lost its meaning, and men must live in fear’. The judge sided with the prosecutor.

After some years in Florence, Cassese is once again drawn to the epi-centre of international criminal law, the Dutch city of The Hague, this time as president of the Lebanon tribunal. His life often shifts among his many roles from being a judge on the bench to leading the UN Commission of Enquiry to Sudan and then again to periods with a different perspective as scholar, teacher, editor, commentator and writer of innumerable articles and books. But never do these changes bring about disconnection. Cassese keeps his nose to the ground, to use the words of Ben Ferencz, and combines a talent for seeing and thinking through the themes of international law with great clarity and command of detail.
On the wall of his office we found a text by Bertolt Brecht: “Von Natur bin ich ein schwer beherrschbarer Mensch. Autorität, die nicht durch meinen Respekt entsteht, verwerfe ich mit Ärger, und Gesetze kann ich nur als vorläufige und fortwährend zu ändernde Vorschläge, das menschliche Zusammenleben regulierend, betrachten.”(I am by nature a man who is difficult to control. I reject with outrage any authority that does not rest on my respect. And I regard laws only as provisional and soon to be changed proposals for regulating human intercourse.). It speaks for itself and for Cassese.


About the book

Marlise Simons and I share a long history of working closely as reporters at the international tribunals and the ICC, Marlise as a correspondent for The New York Times and I as a contributor to law journals and Dutch radio and television. Now, in this project we found a great way to pool our resources.

Of course, when we suggested the interviews, both Cassese and Ferencz protested that they had written extensively about every imaginable subject relating to international law, the laws of warfare, humanitarian law, human rights law and international criminal law. And in general, there is an abundance of publications about the international tribunals, the International Criminal Court and any subject related to the stormy development of this area of law. We only had to pick and choose from their work. But, quoting from Cassese’s Preface to the Tokyo Trial and beyond we retorted, what better medium is there than ‘the oldest and noblest means of communication: word of mouth’?

And so we met with Ferencz in Florida and with Cassese in The Hague. Over the course of several days, we sat for long hours of questioning, discussing and contemplating, but also laughing, gossiping and being utterly chaotic. The interviews were far too long and freewheeling, in the same way as Cassese described the result of his interviews with Röling. And after much pruning and reordering, trying to make sense, we ventured to send the draft text to our interviewees. They reacted in character. Ferencz preferred to discuss changes by telephone and said he was too occupied preparing new seminars. Cassese not only added to the text and clarified any vagueness, but also meticulously corrected errors and typos. And both were more than willing to answer additional questions. So ultimately this has become their book and we can only hope that they will consider it a worthy present on the occasion of their Erasmus Prize.

To further paint the portraits of the prosecutor and the judge, we have chosen articles written by the laureates themselves, some older, some from a more recent date. Instead, we could have just published the extensive bibliographies and referred to the website of Benjamin Ferencz where every article and lecture and the more personal “Benny stories” can be found. However, we wanted to underscore the interviews with some of their own texts offering a link from the past through the presence to the future. The selection of articles could be considered random, but we have looked for texts that are related to subjects covered in the interviews.

Since the legal definition of aggression in war and, ultimately, bringing the crime of aggression under the jurisdiction of the ICC, have been a life-long obsession of Ferencz, the obvious choice was one of his articles about this theme: Removing the Lock From the Courthouse Door. Reconciling Legitimate Concerns, earlier published in May 2008.
Ferencz’ heartfelt wish that an effective compensation system for victims of war crimes in their broadest sense would one day become possible is backed by the choice for his article Compensating Victims of the Crimes of War, dated 1972. And lastly, we have chosen some chapters from his so-called Benny stories about a complicated and troubled period of Ben Ferencz’ working life. In Seeking Redress for Hitler's Victims (1948-1956) he offers us a glimpse, not yet the whole story, of an under-reported post War period. Ferencz is one of the very few who was there, who can tell us about the aftermath of the Second World War from his own experience, not only about the Nuremberg tribunal and the Einsatzgruppen trial, but also about the restitution system that he practically invented in Germany to compensate victims and their relatives for some of their losses. Here the man, who stood in the middle of it all, grappling for a rational solution in irrational circumstances, gives us an insight into the many questions he had to face then and which are all to recognizable in our time. Today, the ICC is struggling to find a balance between functioning as a criminal court and answering the dire needs of the countless victims of the massive violence. The ICC Trust Fund for Victims in particular has to go through several of the complicated stages Ferencz touches upon in this series of stories.


Antonio Cassese wrote earlier published his Soliloqui in The Humanitarian Dimension of International Law, Selected Papers. It is his personal history as a scholar and as a practitioner of law and it is a great pleasure that we were allowed to add this beautiful article to the book. Cassese covers the latest developments in international justice in his recently held lecture Reflections on the Current Prospects of International Criminal Justice. From the abundance of articles about court decisions and the merits of international criminal law, we have chosen, and we admit that we could have just as well have picked one of the many others, the article called Is the bell tolling for universality? A plea for a sensible notion of universal jurisdiction, published in 2003. It covers the intricate matter of the universal jurisdiction, the sovereignty of states and immunities of the senior state officals, which we have further explored in the interview with Antonio Cassese.

Heikelina Verrijn Stuart