Norb Ehrenfreund and the International Criminal Court

By Dan Lawton

In 1939 an American teenager, Norb Ehrenfreund, came home from school to find his mother in tears. She sat on the sofa, clutching several envelopes. Norb asked her what was wrong. Too choked up to answer, she handed the envelopes to him. They were unopened letters she had sent to her father (Norb's grandfather) in Czechoslovakia. The grandfather was a letter-writer; he would not have moved without telling his family in America about it. Someone had stamped and returned the letters after a long period of silence. The stamp read, "ADDRESS UNKNOWN." Afterward, the family frantically tried to find out what had happened. Ultimately the Red Cross reported the ominous news to them: the German Army was occupying that part of Czechoslovakia, and it refused to give out any information concerning the grandfather's whereabouts. The family never heard from Norb's grandfather again. Years later they learned the Nazis had murdered him at Treblinka.

Norb enlisted in the U.S. Army. He served as an artillery officer in Patton's Third Army, seeing combat in France, Germany and Austria. He won a Bronze Star. His regiment helped liberate victims of a Nazi death camp. After leaving the Army, Norb worked as a correspondent for The Stars and Stripes, covering the Nuremberg war crimes trials. In 2007, he published "The Nuremberg Legacy: How the Nazi War Crimes Trials Changed the Course of History" (Palgrave Macmillan 2007). Today he is 91 years old and lives in San Diego. He is one of the most gentle, humble and nice people you will ever meet.

Norb's book describes the Nuremberg war crimes trials, at which he had a front-row seat. The book ends with troubling questions about whether the trials' legacy can survive today, given the U.S.' refusal to participate in the International Criminal Court established in 2002. The ICC, a creature of its founding treaty, the Rome Statute, is a permanent tribunal set up to adjudicate crimes against humanity. The idea is to deter war and atrocities and remind potential war criminals they could face serious consequences for their crimes. So far, 121 nations are parties to the ICC, but not the U.S. (thanks to the Bush administration's refusal to join the court). Fellow members of the sorry club that refuses to join the ICC are these great protectors of human rights: Cuba, North Korea, Libya, Saudi Arabia, Turkmenistan, and Somalia.

As a boy, I was trained to believe our country was a beacon of virtue to the world - a "shining city on a hill," as Ronald Reagan rhapsodized to his giddy fans. Later, I learned the U.S. was more of a mixed bag. I read accounts suggesting that American officials and, sometimes, military personnel, were no less capable of war crimes than our enemies. Tales of episodes like the My Lai massacre in Vietnam, though portrayed as aberrational by the Army at the time, have now emerged as ordinary. See N. Turse, "Kill Anything that Moves: The Real American War in Vietnam" (Metropolitan Books 2013). Cases like the "kill team" case in Afghanistan, the Haditha killings (in which U.S. Marines killed 24 unarmed Iraqi civilians in 2005) and the Abu Ghraib prison scandal have shown Americans' capacity for war crimes more recently. The utter lack of U.S. accountability to the victims or to the international community for these disgraceful events has deepened contempt for America abroad, and understandably so.

Yet for every story of American atrocity, there are many more instances of selfless American work abroad in the name of human rights and the rule of law. "Noble" is a good adjective for this work. The best civilian example I can think of today is Robert O'Brien. Robert, a private bar lawyer based in Los Angeles, co-chairs the U.S. State Department's public-private partnership for justice reform in Afghanistan. Robert goes to Afghanistan and helps create low-cost, high-impact retraining projects for prosecutors, defense lawyers, women judges and others. The goal is a legal system in which all Afghans recognize a set of clearly defined and universally accepted laws. For his efforts, Robert recently received the Erwin Chemerinsky "Defender of the Constitution Award." I have a photograph of Robert, taken in Kabul, Afghanistan, in 2008. In the photo, Robert is wearing something I have never had to put on. It is a bulletproof vest.

To be sure, the idea that George W. Bush or Henry Kissinger ought to sit in the dock far from our shores is hard for some Americans to swallow. But, if an American commits a war crime, what honest basis is there to spare him from the same scrutiny as any other war criminal, so long as the procedural safeguards of the tribunal are fair? Some would sidestep the question and argue that we are well able to prosecute war crimes right here at home. They point to the Uniform Code of Military Justice, which makes war crimes punishable by U.S. military courts martial. But that is a cop-out. No one who has studied My Lai or Haditha can take seriously U.S. military justice as a substitute for real justice, given the outcomes in those cases. William Calley, the second lieutenant convicted of ordering the murders of over 340 Vietnamese civilians in 1968, served two years of house arrest in his quarters. (Now 69 years old, he remains at large today, living quietly in Atlanta.) As for the Marines who killed 24 unarmed Iraqi civilians in Haditha - including women, children and a man in a wheelchair - six had their charges dropped, a seventh was acquitted, and the eighth, staff sergeant Frank Wuterich, agreed to a plea deal allowing him to avoid any prison time. (Wuterich admitted having told his men to "shoot first and ask questions later" after a roadside bombing of his convoy.) To the Vietnamese and Iraqi families of the dead, such results cannot be anything other than a macabre joke - a sign that we Americans have one standard for ourselves, and another for everyone else. This is the opposite of what the rule of law is. And that is the evenhanded application of universal rules to everyone, irrespective of their nationality or station.

Sometimes it's too late to do the right thing. But in this instance, perhaps it isn't too late. The Obama administration has created a working relationship between the U.S. and the ICC, though we still have yet to ratify the Rome Statute or join the ICC as a party. This is a small but encouraging first step. In its wake, I hope Norb Ehrenfreund is still around to see the day when the U.S. formally joins the ICC. On that day, we will show our friends and enemies alike that America means the rule of law to apply to ourselves as well as to everybody else. Only then will we be able to honestly represent ourselves to the world as what we have long claimed to be - a model of the rule of law, and a protector of human rights. It is what we were at Nuremberg in 1945 - and what we can be again. In the meantime, it is exactly what Norb Ehrenfreund and Robert O'Brien, two great American citizen-lawyers, represent in their deeds as well as their words.

Dan Lawton is the principal of Lawton Law Firm in San Diego. He practices intellectual property litigation and appellate law. He is an adjunct professor of law at Thomas Jefferson School of Law.

<!-- Norb Ehrenfreund and the International Criminal Court -->