Remarks for the ASIL 2024 Annual Meeting Panel: “More than a Prosecutor: Honoring Benjamin Ferencz and the Interconnectedness of International Law”

We gather today to celebrate a life dedicated to a singular pursuit: accountability for the worst crimes known to humanity. A life that serves as a beacon, guiding us towards a world in which peace is not merely an aspiration, but a reality secured by law. That life belongs to Benjamin Ferencz, a former Nuremberg prosecutor, a tireless champion of justice, and a lifelong advocate advancing accountability for the crime of aggression.

Many of you know Ben as the young prosecutor at Nuremberg who was given the responsibility at the age of 27 with holding Einsatzgruppen death squad members to account in proceedings described by the AP as “the biggest murder trial in human history.” He also distinguished himself by being the last living Nuremberg prosecutor, who left us last year, almost a year ago to the day, at the age of 103. 

But these two facts are mere bookends to a life lived in the service of peace and justice.  Ben understood that the Nuremberg Trials were a crucial first step toward a larger aspiration, not just a singular achievement to be celebrated in our history books. Rather, he envisioned a future in which global leaders would be deterred by the law and the actionable threat of punishment, in which states would submit their disputes to “the rule of law rather than the rule of force,” and in which those who initiated wars of aggression—unleashing unimaginable suffering on innocent populations in blatant disregard for the sanctity of human life—were met with a universal cry of condemnation and with weighty legal consequences.

Witnessing the horrors of the Holocaust firsthand as a young enlisted man confronting the Nazi death camps, he wasn’t content with simply punishing those responsible. He saw the need to create a system of rules that would prevent such barbarity from ever happening again. This vision propelled him on a lifelong mission to strengthen the framework of international justice.

For decades after Nuremberg, he championed this cause with unwavering determination. He lobbied governments, scholars, and activists tirelessly arguing that there must be individual criminal liability for the crime of aggression, which so often paves the way for the commission of other serious crimes within the international law canon.  Indeed, he lobbied me when I served as the academic advisor to the US inter-agency delegation and was disappointed in my skepticism about adding the crime of aggression to the ICC’s jurisdiction given that the Court was still struggling to carry out its core mandate.

He took this fight to Rome in 1998, where he advocated for the inclusion of the crime of aggression in the Statute of the future International Criminal Court. However, states were unable to agree upon a consensus definition of the crime or a jurisdictional regime to govern its prosecution. And so, the assembled delegates included mention of the crime in Article 5 of the treaty but then delayed its full codification to a Review Conference to be held seven years hence.   

After years of debates, in which Ben’s voice was forcefully present, that Review Conference convened in 2010 in Kampala, Uganda, when states came together to adopt amendments to the Rome Statute to include a definition of the crime of aggression in Article 8bis and a jurisdictional regime in Articles 15bis and 15ter that excludes non-party states, whether as aggressors or as victims of aggression.   

Activation was delayed until 2017, on the 20^th anniversary of the adoption of the Rome Statute.  Since that time, 45 states—mostly from Europe and GRULAC—have ratified the amendments, subjecting themselves and their territories to ICC jurisdiction so long as the other relevant state has done the same, absent a Security Council referral. 

These developments stand as a testament to Ben’s unwavering belief in the power of law to deter conflict and foster peace. 

That is where things stood on February 24, 2024, when Russia launched its full-scale war of aggression against Ukraine, unleashing war crimes and crimes against humanity everywhere that Russia’s forces have been deployed. 

To date, a Core Group of over 40 countries, including the United States, have come out in support of a Special Tribunal on the Crime of Aggression against Ukraine.  And while there have been disagreements as to the best path forward, we remain committed to exploring various options to establish such a Court. The Core Group will be meeting again next month. A renewed sense of urgency has set in, with multiple global crises competing for international attention even as Russia’s war against Ukraine rages on.  In the meantime, prosecutors at the International Center for the Prosecution of the Crime of Aggression—including a senior international lawyer from the Department of Justice—are compiling the evidence necessary to launch cases before the future tribunal.  And states recently launched the Register of Damage for Ukraine (RD4U) in The Hague to allow those injured by Russia’s war of aggression to register tangible harm to be adjudicated before a future Claims Commission.

These undertakings stand as a testament to Ben’s long-fought battles to advance international justice. Indeed, Ben championed these efforts, even during his twilight, by continuing to speak and write about the imperative of holding Putin to account for launching a brutal and unprovoked war of aggression against Ukraine.  

His legacy is not just encompassed in these values and institutions, but rather extend to an ever-lasting call to action. He reminds us that building a world free from war is an ongoing struggle. We must continue to advocate for the peaceful resolution of conflict, for diplomacy and dialogue over violence, and for “putting humanity first”.

Let us honor Benjamin Ferencz by letting his unwavering pursuit of justice and his motto of “Law, Not War” inspire us to champion peace, not just through legal frameworks, but through education, diplomacy, and a collective commitment to advancing human dignity.

Thank you.