Background
Justice Goldstone, welcome to Berkeley.
Thank you very much.
How long has your family lived in South Africa?
Both my parents were born in South Africa, and one grandparent was born there
and the other three came as very small children.
So several generations. And what led you to decide to
become a lawyer?
I wanted to be a lawyer as long as I can remember, and I think my maternal
grandfather played a role in that. He retired fairly young and when I was small we
lived in the same apartment building as my grandparents, so I spent a lot of time
with him.
Was he a lawyer?
No, no he wasn't. He was in business but he was a graduate of Cambridge
University in England, so he'd studied the humanities and he was a great lover of
English literature. He taught me all sorts of things like typing and playing chess
and learning to read. I think he somehow saw that a law profession was something
that I should pursue.
It's a profession that works a lot with words and
language.
It was interesting because there were no lawyers in the immediate family.
But it must have been important that South Africa had
an established judicial system in the Anglo-Saxon
tradition. The first part of your career was actually
in corporate law and intellectual property, and not the
humanitarian law that you finally wound up in.
That's correct. It was really a 100 percent commercial practice.
But before you went into law, you tasted politics a
little as a student leader at the university. What sort
of experiences did you have there that might have
affected you?
They were very exciting experiences. We were coming up against security police
and being followed and listened to on telephones. And our lives were generally
made very difficult, but as young students I suppose that added to the excitement
of being a student leader.
It was at the university that you came to understand
the implications of the Apartheid system. Where there
particular forms that that took?
It was really making friends, for the first time in my life, across the color line. And
it's those sort of personal friendships that brought home to me the unacceptability
and indecency
of racial oppression. When I went home to a comfortable home, my black peers
had to go to segregated, enforced segregated, townships. Some of them had to
study by candlelight or paraffin light. And they lived there not because they
wanted to but because they had to. They had to carry their I.D.s, their "passes" as
they were called, in their pockets. I didn't. If they left them at home they were
liable to end up in a police station. It was all of those personal experiences that
really began to build up in me a feeling of frustration and even hate for the system
that we were living in.
In experiences with your grandfather and in college,
what philosophers, legal scholars, or writers most
influenced you?
Well really I've always loved reading biographies, and I'm sure I was influenced
by biographies, particularly of people from the United States. I've always been
more interested in the United States, from a legal - historical point of view,
because of the race problems here. And when I was a university student I came
into contact, for fairly long periods, with the sort of people who were visiting. As a
student leader I came into contact with Clark Kerr. I remember spending four days
in the Kruger Game Park with him, at the heart of the problems in the '60s here.
And similarly with Father Theodore Hesburgh of Notre Dame University. Those
friendships were maintained and certainly influenced me as well.
And I think at some point in the '60s, after his
brother had been assassinated, Robert Kennedy focused
on South Africa.
That's right. I was a young member of the Johannesburg bar. In fact he came and
spoke to us in our tearoom in Johannesburg.
And what sort of impact did that have?
Well if anything, to be frank, it had a fairly negative influence. I was disappointed
at the showmanship side of it. I was amazed at how his aides fanned out amongst
the audience of lawyers to find out who was who and then sent him messages so
that he'd say the appropriate thing. It was anything but spontaneous. That was our
first insight into the sort of mega-politics that goes on.
So in addition to your grandfather, who would you say
were important mentors as your career has evolved over
the years?
I think at university it was really more friends than any paternal or maternal figure.
My mother has played a very important role in my life in many ways, and
certainly from a point of view of encouragement in difficult decisions during my
life. But when I started practice I was very fortunate in having found a chambers
in an office next to one of the leaders of the Johannesburg bar. He was a tax
specialist. But he really became a sort of surrogate father to me in my career. He
was a man called David Gould.
What in your background most sensitized you to the
issues raised by international humanitarian law, which
we will talk about in a few minutes?
The whole subject of international humanitarian law began to interest me fairly
late. I'd say from the beginning of the '80s, and it was furthered considerably by
the intervention of the United States' legal community and administrations in
deciding to influence South African lawyers and particularly judges in the whole
internationalization of human rights. So I really feel a great debt of gratitude to the
people who were involved in the foundations, Ford, Carnegie, Aspen, and the
United States Information Agency that enabled these things to happen.
So it was an elevating of the consciousness of the
judicial profession.
And also importantly being able to see how the law could be used proactively in
an inventive sort of way.
A Judge under Apartheid
Tell us a little about your philosophy of the law's
role in society, in a changing society like South
Africa.
I think that really one has to start with the individual.
Anybody who has been victimized, whether it's in a national situation by being
robbed or raped, to huge, massive crimes like genocide, it really is a natural
human cry in every human being on every continent: when you've been victimized,
you want justice. If you don't know who's responsible for what's happened to you,
what's befallen you, you want to know. Even if one boils it down to a hit and run, I
think the worst thing for the victim is not knowing who is responsible for what
happened. So I think as one progresses into the international field this becomes
more and more important. And I have no doubt from my experience that where
those cries are unheeded, that causes cycles of violence, cycles of unhappiness in
areas particularly like the former Yugoslavia and Rwanda where there's never
been justice. There's this anger that builds up from generation to generation.
What then are the foundations for making this process
possible? A respect for authority, first of all?
To make it possible one needs a system that makes it possible. Clearly if there's no
respect for a system it's not going to work, so legitimacy is important. That's the
importance, in my view, of democracy, because democracies have a legitimacy in
virtually all countries where people are fortunate to have a democratic form of
government.
Let's talk a little about what it was like being a
lawyer and then a judge in South Africa. There was an
immense contradiction. On the one hand you had a
functioning Anglo-Saxon legal system, while at the same
time and place was an Apartheid regime. Tell us a
little about that tension for you as a judge operating
in that system.
Many years ago Allan Drury wrote a book about South Africa which he called A
Very Strange Society. And I think it's a very apt description of South African
society because it was a strange mix of a democratic system for the white minority,
and all that that means (regular elections, changes of government at the polls, a
truly independent judiciary). But side by side with that, increasingly oppressive
racist laws for victimizing black people, not only since Apartheid but for many,
many decades before the Apartheid system was introduced after 1948. So there
was this duality. As we've mentioned, my practice at the bar was a commercial
experience. I didn't come into daily contact in my practice with the Apartheid laws,
but obviously they were there for anybody with eyes and ears to see and listen to.
So I'm not suggesting that as a South African citizen I wasn't. But in my practice it
became more relevant, and became very relevant in fact, when I became a judge.
At play was a belief by the practitioners of Apartheid
that they were in a very civilized system. Is that a
fair statement?
Absolutely. And you know it's really part of this whole problem.
One of the things I've learned in the difficult jobs that I've had in the last five years
is that you can't have racial oppression, you can't have crimes against humanity,
and you certainly can't have genocide without dehumanizing the victims. And in
South Africa, blacks were seen as lesser mortals, and that was the sort of moral
justification that made it much easier for ordinary white people to accept the
system, especially if one added to that a terrible fear of what would happen to
them if there was a black government. That they'd be driven into the sea and that
they would, in fact, be treated in a way that they were treating the black majority.
So as a judge you, in a way, had to walk a fine line -use the system and at the same time draw on the best
precedents of the Anglo-Saxon tradition to, in a way,
teach the system about the implications of what it was
doing.
Well, the bench provided an important and visible platform to draw attention of
ordinary South Africans to the injustices of the Apartheid system. Very
fundamentally importantly -- the United States again -- United States lawyers and
money had been responsible for setting up a legal resources center in South Africa
in 1979. And that was a public interest law firm that began to get more and more
support, I'm happy to say, from within the country, financially and otherwise from
the legal profession. The Legal Resources Center brought cases to court on behalf,
almost exclusively, of black groups who were being victimized by Apartheid. And
they prepared their cases very well, they chose their cases very well. And they had
some signal successes which alleviated the plight of literally millions of black
South Africans.
Let's talk about a particular case for which you are
well known for your decision related to the group areas
law. Tell us a little about that law and what its
implications were for the blacks of South Africa.
Well, the law was promulgated in 1950, the Group Areas Act, and that was the
legislation that made it a criminal offense for anybody of a wrong color to live in
an area that was designated for the sole occupation, residence, or business of
another. In effect this meant that black South Africans were kept out of some 87
percent of the country. It was a criminal offense for them to own land, to live or
own a business in white-designated areas. Part of the figment of Apartheid: it was
equally an offense, by the same token, for a white person to live in a black area.
But of course that wasn't of any practical significance. The legislation provided
that if any person was found guilty by a judge of living in the wrong area, that
judge may grant an eviction order. And hundreds of thousands of blacks were
evicted by the lower criminal courts, the Magistrates Courts as they're called,
between 1950 and 1981, when the Govander case came before me in an appeal in
the Transvaal Supreme Court, in which I then sat. It was a case brought by the
Legal Resources Center. Mrs. Govander pleaded guilty, she was living in a white
area, a sort of lower middle class white area, and had a legal lease rental
agreement with her landlord. And presumably some neighbor complained that
there were Asians living in that area. So she was charged criminally with living
there. She pleaded guilty, but she begged the magistrate through her lawyer to
suspend the eviction order. She knew there'd be an eviction order. She asked the
magistrate to suspend it until she could get alternative accommodation. She laid
evidence that she'd been on a waiting list for accommodation in an Indian area for
seven years and that there was unlikely to be accommodation for another ten years.
The magistrate took pity on her and he granted the eviction order but he suspended
it for one year. And they came on appeal asking for a further suspension, either
indefinitely until she had alternative accommodation, or for ten years. And it
seemed to me that there was really an inherent illogic and irrationality of using a
law that was intended to get people out to keep them in.
What we decided was that the magistrates from 1950 to 1981, for over 30 years,
had been wrongly granting eviction orders at all. The law said they "may" grant
them, not "must" or "shall" and therefore they had a discretion. And we said there
had to be a completely separate hearing after a conviction, and only at the instance
of somebody with an interest, not automatically by the prosecutor, and that the
magistrate was to have a full hearing and take into account all relevant
considerations. And the key one was alternative accommodation. So we simply set
aside the eviction order completely, and that was the last time anybody was
charged under that Act. I didn't know it, I can't claim any great prescience, but
what soon emerged is that the government was charging people, the state was
bringing these criminal cases in order to get people out, not to punish them. And
once they were stymied by this judgment, once they were stymied in getting them
out, they stopped criminalizing it.
So there was a nice interplay of the spirit and the
letter of the law, to bring out an irrational element
of the system.
Right. And that's one of the numerous examples of Apartheid laws that were
irrational. Another important one was, hundreds of thousands of black South
African (mainly) men were separated from their families because if they wanted
work in a white city, and those were all the major cities, if they wanted work in
Johannesburg or Capetown, they would need a permit to allow them to come in.
And the law was interpreted as disallowing their spouses to join them. And this
gave rise, as you can imagine, to the most terrible social problems -- illegitimate
children, duel households, prostitution. The most terrible family problems. And
the Legal Resources Center again challenged that law and said that the people, the
administrators of the law, had misinterpreted their rights and they really had no
right to refuse spouses a permit to join their husbands or wives. And that
succeeded, it went right through to our highest court. And the Legal Resources
Center attitude was upheld. And it meant the hundreds of thousands of families
were able to reunite in the country.
Another way that the law became an effective tool, and
you used it in your role as a judge, was by presenting
yourself at prisons and so on to examine the facilities.
Tell us about what you were trying to do there.
Well, South African judges, in terms of our prison statutes, have the right to visit
prisons at all hours of the day or night unannounced, which is a very healthy
system. But again, part of the strange society: it was, in a way, inconsistent with
the quasi-police state that South Africa in many ways was. But judges were
allowed to do that. Unfortunately not many judges regarded this as a duty. When I
started on the bench I realized it was important. And I realized too, that, to their
credit, the prison administrators welcomed these visits, because the prisons in
South Africa had a tremendous turn for the better in the '70s and even more so in
the '80s, and the prison administrators responsible for those improvements wanted
people to come and see what they were doing. So I didn't really have to force or
foist myself on the prison administrators during these visits, but I went. And that
became known, and when we had tens of thousands of people in detention without
trial during the three states of emergency from '85 to '89, I was asked, in fact by
the government, by then-President Botha, to visit the detainees. That surprised
everybody. But again it was his way of reassuring the international community
that these people in detention were not getting beaten up and were not being illtreated. And too I think it was a subtle way of telling the police not to beat them
up. And what was new there, incidentally, was the power that was given to me to
visit people in police cells. Now that had never been allowed. The right of judges
to visit prisons, as I say, went back many decades, but we were precluded from
visiting police cells. But in those three years I visited thousands, many thousands,
of detainees in some 27 prison facilities and 40 or 50 police cells.
The Goldstone Commission
At the end of Apartheid when the transition began, a
dialog began between the various parties, the blacks,
the coloured community, and the white community. The
game changed and there was movement toward a new South
Africa. And at this moment in your country's history
you were named chairperson of the Commission of Inquiry
Regarding Public Violence and Intimidation, which came
to be known as the Goldstone Commission. Tell us your
mandate and what you set out and did.
The mandate was to investigate and to report on the causes of political violence
and intimidation which was plaguing the country. Some 20,000 people died in the
ten years before the release of Nelson Mandela, and it became even worse after his
release and after the un-banning of the liberation organizations, the African
National Congress and others. This is the reason that the commission was
established as part of a peace accord which was brokered in September 1991. And
my four co-commissioners and I were chosen with the concurrence of all the
political parties. There was unanimity on the identity, so there was that
consultation, without which at that point I wouldn't have become involved. I only
agreed to do it, and then reluctantly, because it was a very difficult mandate. But
we were given very wide powers, some powers which I'm happy to say are now
unconstitutional in our country. But as chairperson of that commission I had the
power to order my own staff, my own investigators, to search and seize anywhere
in South Africa. Now that's a very extraordinary power in any country. But it
became a vitally important power because using those powers we were able to at
least lift the veil on some of the third force activity, some of the security force
activities, which were still going on in the '90s notwithstanding the negotiation
process. But we held 142 public inquiries into specific instances of violence,
assassination of Chris Hani, the shooting in Bisho. We also had theme
investigations into matters such as the rule that should apply, at that time, with
regard to mass marches and demonstrations which were occurring on a daily basis.
And later a similar inquiry into ways of reducing the potential for violence and
intimidation in the first democratic election in April 1994.
But very importantly, when there would be an incident,
a hearing would be convened and people would be able to
publicly air their perception of what happened, and
then your investigators could go to work.
It was done quickly. In the important cases that I mentioned, within less than a
week there was the beginning of a public inquiry with public evidence; the media
present, including television. And that clearly helped calm the nation. I think if
people know that steps are being taken to investigate and to get the truth and to
make the truth public, the tendency for revenge, for taking the law into one's own
hands, is reduced considerably.
And the most important revelation came toward the end
of the commission. Let's talk a little about what was
uncovered. A disaffected policeman came forward and had
some things to tell you. What exactly did he tell the
commission? I believe you actually were meeting
secretly with him? Tell us a little about that.
Well he was terrified for his life, literally, and for good reason. I mean, he was
putting himself at tremendous risk. He became disaffected; one of the reasons was
one of his colleagues in all probability was murdered by one of the people in his
group. It was made to look like a suicide. He was a member of a notorious unit
called Volkplass, which committed many, many murders. This has now been
proved in the trial against its then leader, Colonel Eugene deKock. But this man, a
man called Klopper, came to me and told me some of the things, made revelations
with regard to the people involved. These allegations I don't think came as a great
surprise to most thinking South African because one knew this sort of thing was
happening. What was new was that it was still happening, after the deKlerk policy
was put into operation. He gave information which I was able, again by using
search and seizure powers and so on, to confirm. And other witnesses then literally
broke down under a non-public cross examination. We had, again, wide powers.
We didn't have to do everything in public. And we had subpoena powers. And this
led to evidence against the most senior members of the police force, the Deputy
Commissioner of Police and other senior generals in the police, having been
involved during this whole period in third force activities.
Which in essence was the selling of arms and engagement
in terrorist acts, working with the various factions
that were in society.
Correct.
And the fact that the government would allow this
revelation to happen must have been quite a blow for
democracy and the future of South Africa.
Oh, undoubtedly. I must say that when I was appointed I'd sat on two previous
judicial commissions of inquiry. One into a suicide of the boyfriend of the
Mandelas' daughter, and the other was into the shooting by South African police
into a crowd of 50,000 marchers. I think the government knew that I wasn't going
to be party to a cover-up and that anything I found would be made public, even
though it had to be made public, under the law, through the president. But I never
had any serious opposition -- probably more because the powers knew that it
wouldn't work -- but in fact it was a fairly good, cooperative relationship that I was
able to build not only with the government but obviously also with the African
National Congress.
The Truth and Reconciliation Commission
In the new South Africa there has been established a
Truth and Reconciliation Commission. Tell us about that
body and what you think it's achieving for South Africa.
I think the first point that must be recognized is that the Truth and Reconciliation
Commission was, in fact, a political compromise rather than a moral agreement. It
was a compromise between two poles. The African National Congress, if it had its
way, would have liked Nuremberg-style trials of Apartheid leaders. On the other
hand, the former Apartheid leaders, the then government, wouldn't have agreed to
a settlement, wouldn't have handed over, if they knew they were going to then face
trials and possible imprisonment for life. The former government wanted blanket
indemnity. So those were the two very contradictory poles. The compromise was
to have a Truth and Reconciliation Commission where there was a trade-off. For
truth you would get an indemnity, subject to certain conditions. The conditions are
important. There had to be a political motive for the crime, for the human rights
violation (and they go back to 1960). And secondly, there had to be a
proportionality. That's a difficult area because, by any decent person's lights, to
murder somebody is not proportionate to anything. But the context is that reality
had to be recognized.
So the Truth Commission has had, I think, tremendous success. There have been
thousands of applications for indemnity. One of the conditions for the indemnity is
full disclosure. If the commission's not satisfied that there's been full disclosure
then there can be no indemnity. A lot of information, the sort of information that
began to come out during my commission days, has now accelerated apace and
more and more information is coming out -- the identity of people who murdered
anti-Apartheid activists, and I saw in The New York Times this morning a report
that Archbishop Tutu announced that, as Chairperson of the Truth Commission,
he's issued subpoenas against two leading African National Congress activists to
come and say who gave them their instructions, and in particular a man called
Robert MacBride, who was indemnified before the Truth Commission by the
previous government as part of the political horse trading that was going on then.
But he let off a bomb in a pub, in a bar on the beach front in Durban that killed a
number of innocent people. So the Truth Commission is looking at all human
rights violations committed by whomever.
You wrote recently, in an Aspen publication, "When
serious human rights violations have occurred, they
must be responded to in a way that will engender a
sense of justice and which will enable the victims to
heal, reconcile, and to move forward with building a
peaceful future." And that's really what the Truth
Commission is trying to do.
Indeed. Absolutely. And you know, like anything of importance in life, whether
it's one's personal life or the life of a nation, it's not all in one direction. For every
important situation, there's a cost. The cost of the Truth Commission is denying
justice to some people who are demanding it. And that's difficult. The murderers
of Steve Biko, the policemen who were responsible for beating him to death in the
'80s, have now come forward asking for an indemnity. The Biko family want them
prosecuted. They want them punished. They want them imprisoned. But if the
Truth Commission grants them indemnity they won't get that. So there is a cost to
victims. My own view is that the Biko family, but for the Truth Commission,
wouldn't know who these people were anyway. So it's not a choice between
prosecution and truth. It's a compromise between truth and nothing. And I think
it's in that light that the Truth Commission's successes must be judged.
The International Tribunal
Let us move on now to your last major international
role as chief prosecutor for the International Tribunal
for Rwanda and the former Yugoslavia. What were the
precedents for the establishment of that body and what
was its mandate?
Well there were no precedents for its establishment. The only time there'd been
multinational war crimes tribunals were obviously at Nuremberg and Tokyo. But
those were tribunals set up by the four major victor nations to try the leaders of the
vanquished Nazi regime. So there was a theoretical or perceptual analogy or
precedent for it, but the ad hoc tribunal for the former Yugoslavia was the first
truly international war crimes tribunal ever in many ways. Firstly the fact that it
was set up by a unanimous Security Council representing the whole world. Every
nation of the world is represented in the United Nations; the Security Council
acted and the General Assembly participated. And there was no dissent. It's
important to realize too that at Nuremberg there was not a multinational
prosecution. Justice Robert Jackson only worked with American lawyers and
investigators. Sir Hartley Shorecross only worked with the British. And so for the
French and the Russians. And they each dealt with a different part of the
prosecution. In The Hague, when I left in September, we had 180 people in the
prosecutor's office from 40 nations, all working together on a multinational,
international prosecution, making new law, making new precedents, new
admissibility of evidence, indictments that had never looked like any indictments
from any particular country. So really that was, I think, the main part of the
excitement: being involved in something that had never been attempted before.
And it has succeeded.
Did the justices have to agree about what would
constitute a criminal act?
No. The Security Council statute set out the jurisdiction and defined the crimes.
Obviously within those definitions there was room for interpretation, and from
some of the cases the judges of that tribunal, from eleven countries, have already
created important precedents, have moved forward international humanitarian law,
the law of all, considerably. But the offenses, what was criminal, was determined
by the Security Council.
As you took the assignment, one of the first things
that you had to do was a political task, that of
securing the budget for your own staff. Tell us a
little about that experience.
Well, the United Nations has been for some years, as is well known, an insolvent
organization, mainly, unfortunately, as a result of the United States not paying its
dues and being indebted some $1.5 billion. There simply isn't enough money to
resource all of the United Nations agencies. When I went to The Hague I didn't
know that there was not yet a budget, and that budgets have to be considered by
the Budget Committee of the General Assembly, the ACABQ as it's called, and
one has to justify every dollar, every cent, indeed, that one gets. So that was a
huge diplomatic battle to see that we got sufficient to do our work, knowing that
every dollar we got was a dollar less for some other important United Nations
agency. This was the political situation, the factual situation, into which I was
placed.
And you had to work out relationships with all of the
different organizations that were on the ground in
Bosnia: the International Red Cross, the High
Commissioner for Refugees, IFOR (the UN force)....
And governments. We had to get the cooperation of governments, otherwise we
couldn't have worked.
And what were you trying to achieve? A consensus about
the legitimate jurisdiction?
It was really a question of convincing governments and international organizations
to comply with their international obligations. We weren't asking them to do
anything that they didn't, in law, have to do. But there's a large gap, in the
international community certainly, between what governments are obliged to do
by the law and what they do in fact.
And evidence gathering is an enormously difficult task
in a situation like that.
Well again, if one looks at Nuremberg, one's struck by the huge amount of
documentary evidence that was available to the prosecutors. If you look at the
Nuremberg record, the main Nuremberg trial and the subsequent trial, you'll find
that the great bulk of evidence was documentary, not eye witness, not human
beings giving evidence. We didn't have that luxury either in Yugoslavia or in
Rwanda. There were no documents that established guilt. Either they weren't
brought into existence or, more frequently, they'd been shredded or they weren't
available to us. So we had to rely more on human beings as witnesses. That's a
good thing, incidentally. I think it's a blessing in disguise because it meant that we
had to deal with individuals and present the evidence of individuals so voices of
victims were heard. Now that makes a much bigger impression on the public than
some cold document being handed up.
And this evidence had to be gathered under extremely
difficult conditions, especially the exhuming of grave
sites and so on.
Even more so the difficulty was sending investigators into a country that was a
war zone. On a number of occasions I had to withdraw investigators from parts of
Bosnia because there was a flare-up of hostilities. So that made it difficult not only
for the investigators, but also for witnesses. Witnesses were terrified, literally, for
their lives in situations, and many of them acted extremely bravely.
Why is this process of recording, taking account, and
making justice happen with regard to these crimes that
occurred in Bosnia and Rwanda so important?
Well it has a number of important aspects. One is to cut the cycle of violence. If
you visit Rwanda, if you visit Belgrade or Zagreb or Sarajevo as I did, you will be
struck by the manner in which so many people were involved in their own history.
Hatreds going back decades, in some cases in Yugoslavia, centuries. I was given
history lessons before every meeting began and told about the terrible things that
happened to Serbs at the Battle of Kosovo and, more recently, at the hands of the
Ustase who were collaborating with the Nazis in Serbia and Croatia. Justice has
never been done, nobody has ever been brought to accounts. So these were terrible
feelings of unrequited calls for justice, and anger, frustration. It brought home to
me the importance of breaking that cycle by making public at least what happened
now, so that the victims get their acknowledgment. It's important for their healing
process to be able to begin to put the past behind to the extent that they can. It's
important too to ensure that this sort of thing doesn't happen again. It's important
too to see that people who shouldn't be holding public positions are kicked out of
public positions. All of these. And there's the deterrence internationally which is
important.
Following Through on Tribunal Judgments
Are you disappointed in the cooperation that you
encountered from political leaders of countries as part
of this process?
Well disappointed mainly in respect of the big issue, and that's the arrest of people
indicted by the Yugoslav Tribunal. But I don't think that should mask the
important cooperation that we received from many governments. Many
governments in Europe, particularly from the United States, and in the Rwanda
situation from a number of African governments. There has been a tremendous
amount of cooperation. But obviously my major disappointment and frustration is
the lack of political will to cause the 70-odd people who have been indicted and
who remain free to be arrested.
The argument that one hears again and again, especially
before the Dayton Accords were reached, was that the
process of enforcing humanitarian law conflicted with
the peace process. What is your response to that?
Firstly, factually it didn't. I concede it may have. It's not difficult to conceive of
situations where the judicial process can retard a cease-fire or a peace agreement.
In fact in Dayton it made it possible. If Karadzic hadn't been indicted by our
tribunal before Dayton, he would have been at Dayton. And if he'd have gone to
Dayton, the Bosnians wouldn't have been there. They made it clear and they've
made it clear. Remember, Dayton was a couple of months after the terrible
massacres in Srebrenica. There's no way that the Bosnians would have sat down
with Karadzic. The fact that Karadzic was indicted meant he couldn't go there, it
meant the Bosnian Serbs had to agree to Milosevic representing them. And an
agreement was entered into, and there has been at least a formal peace in Bosnia
and Hercegovina since then. So it was factually incorrect.
From a philosophical and from a moral point of view, I don't believe that there's
any reason to prefer the political process and say that while the political process is
going on justice must be suspended. I think that's simply a way of ensuring that
any peace is not going to endure.
You must be disappointed in the enforcement powers that
the tribunal has had thus far in arresting the persons
indicted. Is this going to continue to hinder this
process however it goes forth?
Well it's inevitable. No international criminal tribunal can ever expect to be given
the power to go and arrest people. It's inconsistent with international law, and even
if it weren't, it's inconsistent with what governments will allow. No government's
going to allow foreign police to come into their sovereign territory, to invade their
sovereignty and go and arrest their citizens. Forget it, it's never going to happen.
So for an international tribunal to succeed it has to rely on the cooperation of
states. And that cooperation has been lacking, in the case of the Federal Republic
of Yugoslavia, Serbia, Montenegro, on the part of the Croatia, on the part of the
Bosnian Croats, on the part of the Bosnian Serbs. And what has frustrated us is
that the United Nations and the major Western powers have not put sufficient
pressure on those governments to arrest, have not had sufficient political will, in
the absence of them doing so, in giving instructions to the IFOR troops to go and
do it, which they legally may do.
We had Admiral Smith here two weeks ago in the very
seat you're sitting in and he made a great deal of the
manpower that would be required to actually go after
some of the war criminals.
How many? Did he put a figure on it?
I believe he said that it would require doubling the
force, actually, because in the case of Karadzic, Smith
argued that he lived in a nuclear bunker that was
within the French zone and included Italian troops. So
he turned it into a logistical issue and a question of
his mandate.
I get on quite well with Admiral Smith, but with due respect, that really boggles
credibility. Karadzic, according to uncontested evidence and according to eye
witnesses, attends political meetings in his headquarters in Pale in his office every
day. To suggest that the IFOR troops would have any difficulty in arresting him is
just nonsense. And that's not the reason that was given by the leaders in the United
States. Bill Perry didn't claim that as a reason for not arresting. What concerned
Secretary Perry and other leaders in the administration, and at the Pentagon and
the Chairman of the Joint Chiefs, Shalikashvili, what concerned them wasn't the
manpower or the danger in arrests. What concerned them was the aftermath of
arrests, the possibility of hostage taking and people being sniped at. And that's a
real concern, one can't dismiss it. But that's a very different thing from what you
told me Admiral Smith suggested. I must say he never suggested that to me in the
conversations I had with him, not remotely.
Yes. In this discussion he was arguing that just the
logistical issues, the number of troops and so on, were
of paramount concern, and that in the end you would
have a loss of life and you might not actually catch
the individual that you were after.
Even if that was true, it wouldn't excuse not arresting the other 69 that are not
living in bunkers.
There he argued that identification was difficult.
Just factually that isn't correct. This sounds to me like ex post facto justification or
incorrect facts.
Conclusions
Long term, do you envision the possibility that the
international tribunal would become a permanent
institution?
Well it couldn't, but it's certainly, I hope, paving the way for one. The United
Nations is hard at work drafting a treaty and possibly calling an international
meeting this year or next to consider that treaty, to set up an international court.
But there can be no question of this tribunal becoming a permanent court. A
permanent court would have to be set up in a very different way.
Relate this experience that you've had with the
International Tribunal to your experience in South
Africa. What things stand out in your mind?
What stands out in my mind is the importance, in any situation like this, of
consulting people, listening to advisors. I think in my job in South Africa and in
The Hague and in Arusha [Tanzania] for the Rwanda Tribunal, that stands out. If
you want people to cooperate, and you can't do these things without cooperation,
you need to consult people and to convince them where their own self-interest lies.
I think that's a very important lesson I've learned.
As you've gone through all of this evidence, and
without asking you to bias yourself, has your view of
the nature of man changed as you've done this work at
the International Tribunal?
Well, ironically, I have more optimism and more respect for humanity than I had
before. And it is ironic because I've been investigating some of man's worst deeds
to fellow men and women. But I really learned, and this is the importance too of
doing justice and exposing the truth, is to avoid collective guilt. I've learned that
we're dealing with criminals, international criminals who order murders and rapes
and ethnic cleansing.
And use the instruments of government.
It's the heart of criminality. But fortunately the number of evil people in the world,
I have no doubt, is a small percentage. The majority of the people are decent, law-
abiding people who want the ordinary things that you and I want.
The media and the photojournalists and the reporters
were very important in bringing this to the attention
of the world, and also in your process of gathering
evidence. How do you account for the relative
indifference of the international community once the
pictures and the stories were out there?
Well it's really everybody's self interest. Governments are interested in their
politics. If you read the newspapers of every country of the world you'll read on
the front pages local stories. Even in today's New York Times there are important
international stories, but the main stories are local stories which affect people in
this country. And that's human nature. I don't say it in any sense critically. But this
explains that indifference and really the double standards that exist. What
governments would not countenance for a second in their country, they do
countenance because it happens in the international community outside of their
immediate area of concern.
What would you tell students is the best way to prepare
for the kind of work that you have done and that they
might anticipate doing?
I think that obviously one has to have the technical knowledge. One has to learn
about human rights law, international human rights law, in the case of war crimes
the law of war, international humanitarian law. So that goes without saying. But
for the rest really it's life experience in whatever field. In my field it's been in the
legal area, but I've spoken frequently with great admiration for what Physicians for
Human Rights manages to achieve, their tremendous, brave work and unbelievable
moral commitment to go into dangerous situations and uncover mass graves.
Why should they do it in far-off countries? They do it because of their humanity
and their recognition that crimes against humanity are what they are called.
They're crimes against all of humanity and we all should have an interest in trying
to see that this is stopped.
One final question. In listening to your discussion of
the work you've done in South Africa and in the
International Tribunal, I hear a very Büberian
philosophical underpinning, that is, to gather the
evidence, to listen, to let people tell their story of
what has happened to them and then to see that justice
is done. Is that a fair summation?
It's a very fair, and it's a very appropriate summary because one of the most
important areas is to let people talk, because they're talking not only for
themselves but for other people in their position. And then I've seen again and
again that that is the beginning, truly, of the healing process.
Justice Goldstone, thank you very much for taking this
time and talking with us about your life and the
important events that you've participated in.
Thank you very much.
And thank YOU very much for joining us for this
"Conversation with History."
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