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Richard Goldstone
Ed Stourton interviews Judge Richard Goldstone
31st july 2003 - New College, Oxford
STOURTON: Can you talk a bit about the Nuremberg Trials first because it's difficult for us to remember now but those were or the idea behind them was quite revolutionary at the time wasn't it?
GOLDSTONE: It was indeed. It was the first that there'd been war criminals put on trial and it really was the beginning of the whole saga that's gone on that really died for almost half a century and became prolific again with the setting up of the United Nations International tribunals.
STOURTON: What was the philosophy behind it at that stage?
GOLDSTONE: Well the big debate was between Winston Churchill on the one hand who wanted to simply line up the Nazi war leaders and execute them and there was lots of precedence for that. Stalin, obviously, would have gone along with that without any difficulty. The French were a bit ambivalent but it was the Americans, interestingly, who were insistent on having a fair trial with fairer trial as possible under the circumstances and Churchill was convinced and that's how … that's how it all came about.
STOURTON: Was it fair, do you think?
GOLDSTONE: Well I think it's unfair to judge how I feel - unfair by today's standards. One has to put oneself back in time and certainly if you compare what happened to a summary execution it was hugely more fair than that. But in other standards, no not really. There was a gross inequality of arms. The Victorious powers had huge resources. There armies covered Germany, had access to documents, to witnesses. The accused Nazi leaders had a lawyer - though certainly not the quality of resources that one expects by today's standards and which the United Nations have strived to set up in the Yugoslav Tribunal.
STOURTON: Was it a healthy thing to do, do you think?
GOLDSTONE: Oh absolutely. I think it set a standard although it was correctly viewed as victors justice and the judges acted independently and there were, of course, acquittals of fairly senior people. But it set the whole pattern. Without Nuremberg we wouldn't have international criminal justice the way it is now.
STOURTON: I think there was an attempt in 1948, I think, to establish some kind of permanent criminal court.
GOLDSTONE: Well it was assumed in 1948 and the beginning of the history of the United Nations that there would indeed be an international criminal court and one sees a reference to one in the Genocide Convention in 1948. It talks about jurisdiction in domestic and international court having jurisdiction. But really soon the Cold War intervened and Russia, in particular, would not have gone along with an international court and it sort of was shelved. Though there were various attempts between 1950 ish and the 80's to draft a statute for a permanent international criminal court but it all to nought.
STOURTON: Because there were some pretty appalling human rights violations during those year… Saddam Hussein himself. And it was the the Cold War that killed it was it?
GOLDSTONE: Oh yes.
STOURTON: But what about the sense that States were enviable and their sovereignty couldn't be infringed on. Was that a fact did you think?
GOLDSTONE: Well it was certainly a factor but that had already begun to break down to an extent. The Geneva Conventions created universal jurisdiction for people committing grave breaches. The Apartheid Convention created universal jurisdiction and the anti-Apartheid campaign was, of course, clearly an interference in the domestic affairs of South Africa. And that led the way. So, there's been a breaking down of strict theories of Sovereignty for gross violations of human rights. So, certainly, that played a role.
STOURTON: What changed with the former Yugoslavia and Rwanda?
GOLDSTONE: Well, this was the first ever international criminal court. Nuremberg was multi-national - it wasn't international. It was, obviously, staffed by judges and lawyers and other people from the four victorious powers but the Yugoslavia tribunal was staffed by independent judges from countries having nothing to do with the former Yugoslavia. And, certainly, in my opinion, the two great achievements of the Yugoslavia and the Rwanda tribunals are firstly that they are established for the first time and it was by no means a given or accepted - that established that an international tribunal could put on fair trials. That it could get judges from different systems, prosecutors from different systems and have a fair trial. I've neither read nor heard any serious allegation of unfairness in the proceedings of either of the UN tribunals. That was an achievement people tend to take for granted now but it wasn't taken for granted in 1993. The second great achievement is the advance in humanitarian rule in the law of war and that shouldn't surprise anyone. The law hadn't been used. It had never been implemented and it was paper law in rhetoric. It was studied in some military colleges not in law schools. And that's changed. The law has been developed because it's being used. The judges have interpreted it. They've extended it and it's now being taught in, probably, a majority of law schools around the world.
STOURTON: What was it that changed politically that made it possible to have those tribunals?
GOLDSTONE: Well I think there were a number of factors. The first was undoubtedly the end of the Cold War. The Berlin wall had fallen and in 1993 when the Yugoslavia tribunal was set up by the Security Council, Russia and China were prepared to go along with it and it was a unanimous decision of the Security Council to set it up. Secondly, there was the - I suppose what's loosely referred to, as a CNN factor. The video photographs that were beamed around the world of emaciated men with there bones sticking out of their skin that reminded people of scenes from the Nazi concentration camps. Thirdly, it was in Europe - very important. When these things happened in Africa or in Asia the European powers and United States and Canadians didn't get as excited about it.
It happened in Europe and I think lastly international and national human rights groups had assumed an importance they didn't have and they were pushing governments and democracies to do something about the terrible things that were happening in the former Yugoslavia. And I think these four things came together and impelled the major European powers and the United States to do something.
STOURTON: It's interesting, you said, that the court was … the courts were established under chapter 7 of the United Nations Charter which is really about peace and security not about justice - that was … was that sort of creative law making - making a link between those two things?
GOLDSTONE: Oh yes. It was indeed and for that reason it came as a huge surprise to international humanitarian lawyers that a first ever international criminal court would come from the Security Council and not from a treaty. But the Security Council, I think, undoubtedly was well advised and … and acted on the basis that if it could send in an army to restore international peace and security, could impose compulsory sanctions, embargoes and all the rest of it the greater included the lesser and one of the lesser things was to set up an international criminal court.
STOURTON: Tell me about some of the difficulties you encountered when you first took on your job there.
GOLDSTONE: When I … I arrived 15 months after the tribunal had been established and there hadn't been a prosecutor, say, for three days in that period. The Security Council and the nomination of the Secretary General, Boutros Ghali, had appointed a Venezuelan Attorney General as the first prosecutor. He arrived late because he had to finish a prosecution against a former president of Venezuela and that meant he arrived in January of 1994 - some 8 months after the tribunal had been established. The judges had been there from September / October. And after he'd been there 3 days he informed the Secretary General that he was resigning to accept an offer to become the Minister of Home Affairs and Deputy Prime Minister of Venezuela. So the tribunal was now, again, without a prosecutor. By that time Russia, it appeared, had cooled down it's enthusiasm for the tribunal and under the statute the Secretary General had to nominate a prosecutor and the Security Council decided it's probably wise that there should be consensus on the appointment. And five of the nominees that the Secretary General put forward were vetoed by Russia presumably because they came from NATO countries. The UK then vetoed somebody from the United States who happened to be a Muslim. In retaliation Muslim members of the Security Council vetoed the UK nominee from Scotland and the Attorney General of India, Soli Sorabjee, was vetoed by Pakistan which had a non-permanency. So that took them through to June of '94 and by that time the media and many politicians had written off the tribunal - and if you couldn't get a prosecutor in 15 months what hope was there for the tribunal? And then a French judge who I met once suggested to the President of the tribunal, the Italian judge, Antonio Cassese, that Mandela had just been inaugurated as President of the first Democratic Government of South Africa and if they could find a South African who would have his approval it would have been very difficult in the middle of 1994 for any member of the Security Council to say no. And that's how I came to be approached as a last - literally a last desperate resource.
STOURTON: But initially you didn't have enough money did you?
GOLDSTONE: Well, initially when I arrived there was no money. There was a sort of few … few million dollars start up funds. We had no budget. And one of the first things I was informed when I was briefed on my appointment was that in November of 1994 - I began in August '94 - middle of August - I was told that by the beginning of November - at about the beginning of November, I would have to appear before the budget committee of the UN, as it's known by it's acronym, the ACABQ, and present a budget for the prosecutors office and, assisted by the registrar of the court, a budget for the registrar's office and for the judges. And, I was also told, incidentally, that it was unlikely we'd get much money if there wasn't a first indictment issued by then. And we were still at the beginning of our investigations but it was good advice which I took seriously and it explains why the first person to be indicted was a man called Dragan Nikolic. He was really quite a small fish in the sort of constellation of war criminals in the former Yugoslavia but he was, by November, the only person against who we had what was considered to be sufficient evidence to justify an indictment. And, had we had a wider choice, clearly he wouldn't have been … he wasn't the most suitable first ever person to be indicted by the first ever international criminal court. That it was the political necessity that drove us to that act.
STOURTON: But did you find difficulty, politically, in getting money out of the United Nations?
GOLDSTONE: Well it was because, particularly, because it wasn't … it wasn't an act of a will in the part of the United Nations - certainly the secretariat was very fully behind the … the tribunal. The problem was, at that time America was withholding it's dues from the United Nations, and the organisation was literally on the brink of insolvency. So every dollar we got was a dollar less for other important United Nations agency.
STOURTON: What about the difficulty of actually finding people and prosecutors in the sense of getting bodies to the Hague, particularly ----Mladic and Karadzic. Why don't you think they …….
GOLDSTONE: This was the huge disappointment. When I left in September of 1996 the trial was under way and Stankovic had been sent to the Hague. But that was about it. The prison was empty, we'd issued a number of indictments including, as you correctly point out, Karadzic and Mladic. But there was lack of clinical rule particularly in Washington to risk and injuries let alone deaths in going out and getting Karadzic and Mladic and could have in 1995 - they knew, we knew where Karadzic was. He was certainly protected by heavily armed body guards according to the information we received and there was a danger. You know, I accept that but the … the … the attitude I took was that people join armies and armies are sent to foreign shores to face those sorts of dangers and not to avoid them.
STOURTON: The biggest fish obviously is Milosevic himself. He was secured really by … through economic and diplomatic pressure, wasn't he? Do you think that's a legitimate way to use those kinds of tools?
GOLDSTONE: Absolutely. I've got no problem. I don't see why a powerful country shouldn't … shouldn't use economic and radical muscle to get people to act in terms of the law - of international law.
STOURTON: You don't think colours the justice, as it were? That it opens the accusation that it's victors justice?
GOLDSTONE: No. As long as they've been sent to courts which operate fairly and appropriately, you know, I … One has extradition's fairly frequently in countries around the world - nobody questions why a government is prepared to extradite one of it's citizens of the country because it's usually political and because of friendships and ties and money.
STOURTON: Do you think the logic of the successes that you say that the those two tribunals have secured is an international criminal court - as a permanent court?
GOLDSTONE: Well there's no question without the successes that I've referred to and without the generally favourable judgement of the international community has given to the ad hoc tribunals - the ICC is now up and running or about to … up and about to be running but that wouldn't have happened - there can be no question - it wouldn't have happened but for the two UN tribunals.
STOURTON: And do you think it's an extension of the same philosophy and it's suddenly here with us to stay?
GOLDSTONE: Well I think so, of course. The … the … the attitude of the United States towards the international criminal court is going to be a huge problem and it's going to weaken it. Whether it'll be fatal or not remains to be seen. I'm moderately optimistic - there are now 91 ratification's of the Rome Treaty. Money shouldn't be an object - the whole … every single European Union member has … has joined in but it's going to be a difficult road.
STOURTON: Do you think it's reasonable of the Americans to be worried about frivolous prosecutions?
GOLDSTONE: Absolutely not. You know, I think competent reliable judges have been appointed. The recently appointed prosecutor, Louis Ocampo is a well respected Argentinean prosecutor and he taught through most of last year at Harvard Law School. I've met him - he's certainly not a runaway prosecutor.
STOURTON: What about that link between the idea of justice and the idea of peace and security that was established at the time that the Yugoslavia and Rwanda courts were set up - do you think that will endure and become an important feature - both of the UN generally but particularly the court?
GOLDSTONE: Well I certainly hope so. I think the evidence is pretty conclusive that justice does help reconciliation and it does help in stopping cycles of violence. If you look at the really violent or many of the violent areas around the world there's hasn't been justice. It's certainly true of the Balkans where there've been centuries of human rights violations one against the other. Never any justice. Never anybody brought to book. And revenge and hatred developing and really providing the fuel - the toxic fuel - to fall for evil levers to use nationalism and that revenge and hatred to have another cycle of violence.
STOURTON: And what do you think the lesson … or the implications of your experiences are for what should happen in Iraq?
GOLDSTONE: Well I hesitate to talk about that because I don't know sufficiently about the people of Iraq and … and … and the history - and that's important. But, from what I do know and from what I've read - and it's quite a bit I suppose, the same thing would apply. You know, I'm all in favour of the remnants of Saddam Hussein's government and army being … being brought to trial. That's important for victims to get the acknowledgement of what happened. They know what happened to them but they want it recorded officially and they want that public acknowledgement. And, certainly, I would fully support some international criminal tribunal to investigate and put those people on trial. I'm against what seems to be the idea in some quarters of appointing Iraqi judges who obviously are not independent - not only because of the politics of the situation but there's never been a democracy in their life time in Iraq and one needs … one needs judges, one needs a court that will have absolute credibility with the victims.
STOURTON: What about the feeling in some quarters that the … the aggressors, I suppose you'd call them in this instance - the Americans and the British should face some kind of investigation into whether they've violated international law as well?
GOLDSTONE: Well you know, I haven't seen much evidence - and I'm judging by newspapers obviously as the source of information and radio and television - but I haven't seen serious allegations of war crimes having been committed in Iraq and certainly nothing that would be comparable to the terrible crime that was committed by the Saddam Hussein regime. But certainly if there have - I see in today's … in today's … I shouldn't talk about ….
STOURTON: No.
GOLDSTONE: One sees recent reports of Greek … of Greek lawyers having lodged a complaint against Prime Minister Blair and President Bush with the international criminal court alleging violations of international humanitarian law. Of course, the war itself isn't a war crime. Aggression is not one of the crimes on the … within the jurisdiction of the ICC so war crimes would relate to unjustifiable deaths and injuries caused to civilians. And as I … they may or may not be able to see that, I don't know.
STOURTON: Thank you.
End
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