The Prosecutor and the Judge: Benjamin Ferencz and Antonio Cassese - Interviews and Writings

193 Pages·2010·7.34 MB·English

by  Heikelina Verrijn Stuart

From Nuremberg and Tokyo
Erasmus Prize 2009
to The Hague and Beyond
¶ Heikelina Verrijn Stuart and Marlise Simons
v
e
benjamin ferencz r
, investigator of Nazi war crimes and
r
prosecutor at Nuremberg. Author and lecturer. i
j
n

antonio cassese, first president of the Tribunal for the former st The Prosecutor
u
Yugoslavia and president of the Special Tribunal for Lebanon. a
r
t
and the Judge
The prestigious Praemium Erasmianum 2009 was awarded to Benjamin Ferencz |

s
and Antonio Cassese, who embody the history of international criminal law from i
m
Nuremberg to The Hague.
o
The Prosecutor and the Judge is a meeting with these two remarkable men through n
s
in depth interviews by Heikelina Verrijn Stuart and Marlise Simons about their

work and ideas, about the war crimes trials, human cruelty, the self-interest of ¶
states; about remorse in the courtroom, about restitution and compensation for
t
victims and about the strength and the limitations of the international courts. h
e

Heikelina Verrijn Stuart p
is a lawyer and philosopher of law who has published
r
extensively on international humanitarian and criminal law and on remorse, o
s
revenge and forgiveness. Since 1993 she has followed the international courts and e
c
tribunals for radio and television.
u
Marlise Simons is a correspondent for The New York Times, who has written on t
o
conflicts and political murder, torture and disappearances from Latin America. r
For more than a decade, she has reported on international courts and tribunals in a
n
The Hague.
d
Benjamin Ferencz
t
h
and Antonio Cassese
e

j
u
d
Interviews and
g
e
Writings
isbn 978 90 8555 023 5
(cid:2)(cid:3)(cid:4)(cid:2)(cid:5)(cid:4)(cid:6) (cid:6)(cid:6)(cid:5)(cid:7)(cid:8)(cid:6) www.aup.nl
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The Prosecutor and the Judge
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The Prosecutor
and the Judge
benjamin ferencz and
antonio cassese
interviews and
writings
¶
Heikelina Verrijn Stuart
Marlise Simons

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Cover design and layout: Maedium, Utrecht
isbn 978 90 8555 023 5
e-isbn 978 90 4851 133 4
nur 828
© Heikelina Verrijn Stuart & Marlise Simons /
Amsterdam University Press, Amsterdam 2009
All rights reserved. Without limiting the rights under copyright reserved above, no
part of this book may be reproduced, stored in or introduced into a retrieval system,
or transmitted, in any form or by any means (electronic, mechanical, photocopy-
ing, recording or otherwise) without the written permission of both the copyright
owner and the author of the book.
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Contents
Preface, meeting Benjamin Ferencz
and Antonio Cassese [7]
Heikelina Verrijn Stuart
The Prosecutor: Interview with Benjamin Ferencz [13]
Heikelina Verrijn Stuart and Marlise Simons
The Judge: Interview with Antonio Cassese [47]
Heikelina Verrijn Stuart and Marlise Simons
¶
benjamin ferencz
Removing the Lock from the Courthouse Door
Reconciling Legitimate Concerns [93]
Compensating Victims of the Crimes of War [101]
Seeking Redress for Hitler’s Victims (1948-1956) [117]
¶
antonio cassese
Soliloqui
My Early Years: Hesitating between Law and Humanities [143]
Reflections on the Current Prospects of
International Criminal Justice [171]
Is the Bell Tolling for International Universality?
A Plea for a Sensible Notion of Universal Jurisdiction [179]
Index [189]
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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 remedy against cynicism.
Both men have many stories to tell about the power politics and self-interest
of states and their leaders and about the excessive violence and cruelty indi-
viduals can commit when they have 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 prosecu-
tor, and Antonio Cassese, the first president of the International Tribunal
for the former Yugoslavia (icty) and current president of the Special Tribu-
nal 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 the 1970s, Cassese interviewed in depth the great Dutch
international lawyer, B.V.A. Röling, who had been a judge at the Tokyo tri-
bunal, the post Second World War International Military Tribunal for the
Far East. For several reasons, the book was published much later, in the
watershed year of 1993. In that year, the Tribunal for the former Yugosla-
via 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
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8 | heikelina verrijn stuart
urgency. Cassese’s connection with Röling was forged in scholarship and a
clear-headed critical approach of international criminal law. By no coinci-
dence, 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, they were deeply aware that every war brings about unspeak-
able 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 canvassing 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 expla-
nations 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 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 man-
kind 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 not safe in the hands
of the state. At the same time he has an open mind for the many efforts by
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preface | 9
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 fourth report as president of the icty to the General Assembly of
the un in 1997, Antonio Cassese quoted from Benjamin Ferencz’s statement
given on 29 September 1947 in the Einsatzgruppen trial in Nuremberg: ‘If
these men be immune, then law has lost its meaning, and man must live in
fear.’ The judge sided with the prosecutor.
After some years in Florence, Cassese was 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 on Darfur 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 com-
bines 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 vor-
läufige und fortwährend zu ändernde Vorschläge, das menschliche Zusam-
menleben 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 report-
ers 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, to the laws of warfare, humanitarian law, hu-
man rights law and international criminal law. We only had to pick and
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