By Jon Schwarz

From The Intercept | Original Article

Benjamin Ferencz repeatedly said George W. Bush and his administration should be tried for the Iraq War.

Benjamin Ferencz died last week at the age of 103. Ferencz was the last surviving member of the team of prosecutors at the Nuremberg trials after World War II, which led to the convictions of many top Nazi officials and since been understood as the exemplar of justice for war crimes.

Ferencz served in the U.S. Army during the war and in its aftermath investigated the conditions at the Buchenwald, Mauthausen, and Dachau concentration camps. He spent the rest of his life advocating for the creation of an international criminal court and accountability for war criminals generally.

These facts appear in his obituaries. What’s missing from all of them in major outlets — including the New York Times, the Washington Post, the BBC, The Guardian, Reuters, and the Associated Press — is Ferencz’s belief that top members of the George W. Bush administration, including Bush himself, should have been tried for war crimes for the Iraq War.

This is not obscure, difficult-to-obtain information. In 2002, the Times published a letter to the editor from Ferencz stating that “a preemptive military strike [on Iraq] not authorized by the Security Council would clearly violate the UN Charter that legally binds all nations.” In December 2003, Ferencz said in an interview, “The invasion by the U.S. of Iraq, I think, would also qualify under the Nuremberg principles as a violation of international law. … If you’re going to have that kind of a factual situation as we have in Iraq, I think the first trial should be a trial which is absolutely fair and should include all the principle perpetrators and planners of the crimes which occurred.” Ferencz wrote the foreword to a 2009 book titled “George W. Bush, War Criminal?: The Bush Administration’s Liability for 269 War Crimes.” He also wrote the foreword for another book, “Blood on Our Hands: The American Invasion and Destruction of Iraq.”

Yet the Times published an almost-2,000 word obituary for Ferencz without mentioning this. It somehow includes the sentence, “Critics say the [International Criminal Court] has focused on prosecutions in Africa while American wars have not even been investigated,” without mentioning that one of the most vociferous critics of this was Ferencz.

The Post’s obituary for Ferencz is 1,500 words long and mentions that after Nuremberg, he “devoted much of the rest of his life to the cause of international justice.” It also quotes Ferencz at Nuremberg as saying, “Death was their tool and life their toy. If these men be immune, then law has lost its meaning, and man must live in fear.” But there’s nothing about Iraq.

The BBC informs us that “[i]n his later years, he became a professor of international law and campaigned for an international court that could prosecute the leaders of governments found to have committed war crimes, writing several books on the subject.” There’s no mention of Iraq and Bush.

Ferencz’s Iraq perspective also goes unmentioned in Reuters. The Guardian found space to tell us, “Guided by his motto, ‘Law, Not War,’ Ferencz was still giving television interviews last year – arguing that those responsible for atrocities in Ukraine must be brought to trial.” His words about Iraq do not appear anywhere.

CNN likewise mentions Ferencz’s words on Ukraine, but not Iraq. NPR said nothing about Iraq not once, but twice. The list continues with CBS, Bloomberg, the New York Daily News, the Guardian again, the Associated Press, UPI, the Jewish Telegraphic Agency, Le Monde, the New York Post, the Daily Mail, and the New York Sun.

Yahoo News does manage to say that Ferencz’s principles led him to “strongly criticize the George W. Bush administration for its wars in Afghanistan and Iraq, and for what he described as a refusal to abide by international norms.” However, there’s no information indicating that Ferencz thought Bush & Co. should be tried.

The media’s erasure of Ferencz’s views is especially distressing given his lifelong emphasis on the importance of remembering the past. In a speech just as the Iraq War commenced, Ferencz reminded the audience that the United Nations charter is “international law binding on all nations. We owe it to the memory of the dead to honor these commitments to peace.”

One thing worth remembering in this context are the famous opening remarks at Nuremberg by Robert Jackson, the chief justice:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

Sadly, by the end of Ferencz’s life, he understood why Jackson’s confidence was misplaced and might not be surprised by the glaring omissions in his obituaries. “No country that prefers to use its power rather than the rule of law will vote for the rule of law, it’s logical,” he said in a recent documentary. “There are some people who do not trust the rule of law, and they prefer to use military power to achieve their goals as they decide, when they decide. That’s led by the United States. … War will make mass murderers out of otherwise decent people. … It’s inevitable, whether they are Americans, or they’re Germans, or anybody else.”