[Last update: 23 September 2001]

Some Thoughts in What Can Be Done

by Ben Ferencz
Annotated by doug foxvog
Monday, September 17, 2001
[Original at: http://members.aol.com/benferen/thought.htm.
Some typos were corrected as annotations were inserted.]

Dear Friends:

Perhaps some of the tears have dried and people can begin to think rationally about the horrors of the past week and what we can do to prevent the recurrence of such tragedies. As one who has witnessed such atrocities and who has looked into the unrepentant eyes of mass killers, please allow me to share some thoughts that I hope may help move us toward a less violent world where all may live in peace and human dignity. The basis thrust of my thinking is that we should try to rely more on law than war.

Hijacking passenger planes and deliberately and intentionally smashing them into large buildings, thereby causing the death of thousands of innocent civilians, is clearly a crime against humanity. With origins going back to antiquity, the judicial punishment of such crimes at the Nuremberg trials after the first world war was affirmed by the United Nations and many courts since that time. The United States played a leading role in establishing that as a universally binding legal principle.

Any person, without regard to nationality or the capacity in which he acted, is deemed to have committed the crime if he was a principle or accessory or took a consenting part therein
[Correct]
or was connected with any organization or group connected with the commission of the crime.
[This is far too broad. Connection with a group does not imply support for everything that group does. The second "connected with" is undefined. Certainly American Airlines is "connected with" the hijacking of an AA flight. Every stockholder of AA is "connected with" AA, as is every employee and frequent flier card carrier. The language used must be carefully selected. Why would a lawyer use such inexact language?]
Under common principle of criminal law, anyone who aids or abets a crime, before or after its commission, thereby becomes an accessory to the crime and is liable to punishment. The United States should draw up an indictment against Osama Bin Laden and all of the terrorist groups known to the FBI, alleging the commission of crimes against humanity, details of which should be specified.

[Indictments traditionally are against individuals, not organizations.
Why should the US draw up indictments against individuals whose acts are not on US soil and whose victims are not US citizens? Such a task could be delegated to a UN body, to whom the FBI and other national police forces can turn over their evidence.
"Crime against humanity" is a very specific term, which includes some instances of, but is far narrower than, "terrorism".
All indictments must specify details of the charges, why is that even mentioned?]

United Nations Security Council Resolution 1368 of 12 September 2001 called upon all States urgently to bring to justice the pereptrators and organizers of these terrorist attacks and stressed that those responsible for aiding or harboring the perpetartors would be held accountable. The US indictments should be submitted to the governments of Afghanistan, Sudan, Pakistan, Iraq, Iran, Libya, and any other nations where such terrorist groups may be operating.

[US indictments could only be passed to nations with which we have diplomatic relations and extradition treaties. These should be UN indictments.]

The US should request that all persons believed to be connected with the crimes should be held for interrogation by US officials.

[Nice that this is a request, not demand. Such requests should name the persons involved and state the reason for suspicion. The initial request should be for the local government to interrogate the suspects. We could request that US officials be invited along to witness the interrogation and to make suggestions on the lines of inqury or even specific questions. For nations with which we do not have extradition treaties, the replacement of US personnel with UN personnel should be acceptable.]

A 10-day time limit should be adequate.

[Suspects might not be able to be found and picked up within 10 days if they had reason to believe that they might be suspects. There is an implied threat here.].

The Security Council, acting pursuant to its UN Charter authority, should be called upon to create an international military force (as envisaged by the Charter) to help carry out the SC mandate.

[Military force is not necessary for requesting that nations hold certain suspects for questioning.]

The force can be composed of volunteers from NATO or other nations, similar to the force used in the Gulf War.

[A UN force should be composed of forces from all nations, with no nation's troops having a higher percentage of the force than twice its percentage of the world population. The UN should be able to requisition military equipment from nations based on the percentage of the world's arms budget being spent by each nation.

Should, as expected, Afghanistan refuse or fail to cooperate, the United States should withdraw its recognition of the government in power and recognize the opposition groups as the legitimate government.

[This is the current state of affairs. It is hard to believe that an ex-Nuremburg prosecutor would make such a factual blunder.]

[Note that we have just moved away from an analysis based on international law and every state acting under international law, to suggestions that one state ignore international law and strive to overthrow the government of another state. This made me wonder if a second author chimed in at this point. I checked and this article is posted on a site that has been associated with the former chief prosecutor at Nuremburg.]

Economic and military aid should be provided to the opposition to help them gain power over their country. The US can also use economic sanctions as a persuasive carrot and stick to obtain cooperation from all nations.
[The mindset in this paragraph is of the US bullying every country in the world to get its way.]

[We get back to international law below.]
In the, unfortunate, absence of any permanent international criminal court, the Security Council, following its own precedents, can quickly set up an ad hoc international criminal tribunal to try the accused - as was done with US support- for the crimes against humanity committed in Yugoslavia and Rwanda. The trials should be absolutely fair.

[The next two lines have no bearing on international law and show distrust of a UN jail. A number of original Nuremburg defendents were placed in a UN jail.]

I would have no objection to fair trials in the US but the world would doubt that it would be possible under the prevaling circumstances. If found guilty, the defendants could be incarcerated in the US - and we could throw away the key!

I have experienced the horrors of war and I cannot bear to see the destruction and the pained eyes of those digging in the ruins or the helpless relatives refusing to accept what they know is now inevitable. I have flashbacks of riding over the ruins of St. Lo in Normandy where the sky was black with American bombers and the earth rocked as a French city was reduced to rubble. I smell the smoke of Wurzburg burning when we dropped incendiary bombs that burned every house to the ground, leaving only ghostly walls standing. I recall the emaciated corpses at Buchenwald and Mauthausen and a host of other charnel houses. And I remember Berlin when the Russians got through it. I see my remorseless Nuremberg defendants who killed over a million people, including the murder of 33, 771 innocent men woman and children at Babi Yar on Sept. 29 and 30, 1941 - the Jewish High Holy Days. All this may help explain the trauma that drives me to try to prevent war.

[Yet he is calling for war!]

We must try to understand the causes of the violence and try to diminish the hatreds that encourage people to kill or be killed for their particular cause. That requires new thinking, a willingness to compromise, compassion and tolerance, a greater respect for the goals set down in the UN Charter and infinite patience. I am now approaching 82 and I have not given up hope.

[How does a call for a 10 day ultimatum square with a call for infinite patience?]

To those of all faiths, I extend my best wishes for peace and happiness.

Sincerely,
Ben


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