The IBA held a live webcast interview on Thursday 6 May with Justice Richard Goldstone, previously a South African Constitutional Court judge, former chief prosecutor of the United Nations International Criminal Tribunal for Rwanda and the former Yugoslavia, and past IBA Human Rights Institute (IBAHRI) Co-Chair. Justice Goldstone has been involved in human rights interventions and missions in almost all parts of the world. He is currently Chair of the IBA Task Force on International Terrorism and Co-Chair of the IBA Rule of Law Action Group.
The interview addressed subjects including reactions to the Gaza report, international terrorism; international justice in Africa; the ICC; and the achievements of and future challenges for the IBAHRI.
TB Todd Benjamin (interviewer)
RG Richard Goldstone
TB Welcome to this IBA webcast. I'm Todd Benjamin and I'm talking to Richard Goldstone, one of the pre-eminent figures in international criminal justice and human rights. Throughout his career he has not been afraid to take on tough tasks, from investigating state security forces under the apartheid regime in South Africa to prosecuting war criminals in former Yugoslavia and Rwanda to the so-called Goldstone Report on alleged human rights violations in the Gaza conflict in which evidence appears to have established both Israel and Hamas committing war crimes. It was a hugely controversial report and Judge Goldstone does not want to talk about it, although we've had several questions which have been submitted relating to this report. First of all, why don’t you want to talk about it?
RG The report has been out now for some seven months. Firstly, it speaks for itself. I wish more people had read it, and really, I think I've said all that I want to say about it for the time being.
TB Yet the controversy continues to dog you. Why do you think it does, because there have been some horrific personal attacks made on you, you know, people calling you a horrible human being, traitor to Israel, so on and so forth.
RG Right, and it’s continuing. There's a huge new attack being made on me this week in Israel in a major newspaper suggesting that I was complicit with the apartheid regime, that I sentenced people to death, and taking out of context and misrepresenting things that I did in an effort to discredit me, you know. What I've said to somebody is I wish the Israeli government had spent half of its venom and work on cooperating with the Commission than it has in criticising it.
TB But why did you even decide to take on the role? You're a committed Zionist. You knew it was going to be very controversial. The Commission itself, the way it was established, was very uneven in its approach. It only wanted Israel to be investigated. You decided that both sides needed to be investigated. Why would you take on that kind of headache?
RG Well, for a few reasons. Firstly, I refused initially to take on the mission because of the one-sided mandate that was being offered and I thought that was the end of it, but to cut a long story short, the president of the Human Rights Council, the Nigerian ambassador to Geneva agreed to a mandate I wrote, which was clearly an even-handed mandate, and that made it possible for me to do it.
Secondly, I thought that being given an even-handed mandate was a unique opportunity for the Israeli government to present its case and to cooperate with the UN investigation, and thirdly I feel it would have been really hypocritical to have agreed in the past to investigate serious crimes in my own country, in the former Yugoslavia, in Rwanda, and simply because I'm Jewish, to refuse to investigate alleged war crimes in the Middle East.
TB But a lot of these personal attacks, because they feel that you are a traitor to Israel, which I know you're not, in fact, you are this committed Zionist, they seem to suggest that you can't be a Jew and have a balanced view.
RG Well, this is what pains me, and it’s not a general view. There are many Jews in Israel and outside Israel who support what I did, and I get daily very warm supportive e-mails, so I certainly wouldn’t generalise about attitudes within the Jewish community.
I've got no doubt the majority object strongly and feel anger for what I did but I think it’s misplaced because I don’t believe that as a Jew I have no right publicly to castigate what the Israeli government or the Israeli army might or might not do, and I stress that because the criticism isn’t of Israel, isn’t of the State of Israel. It’s a criticism of what their government and army did in the Gaza War.
TB But the thing that personally I find most galling about this entire episode is that there were Jews who basically were strongly protesting your right to attend your grandson’s Bar Mitzvah. Now in the end you’ve found a way to find compromise, so to speak, and you were able to attend that event, but for it to go to those lengths, what does this really say about people in general?
RG Well certainly, and if one’s being specific here it shows that the strength of feeling amongst many members of the Jewish community in South Africa and elsewhere, that any Jew who criticises what the Israeli government does in public is being a traitor to Israel and to Jews everywhere, and I don’t accept that.
TB Now you’ve taken on tough tasks, not only of course with this Goldstone Report on Gaza, but throughout your career, be it South Africa or former Yugoslavia or Rwanda. What has been your guiding principle and approach in these various tasks?
RG Well, my guiding principle firstly is to have regard to victims of serious human rights violations. They need justice, and by justice I really mean a public official acknowledgment. That was the value, and it needn’t be through prosecution. I think the Truth and Reconciliation Commission in South Africa brought acknowledgment to millions of black South Africans who suffered under the apartheid system.
TB But you once wrote, you know, whether there are convictions or whether there are acquittals on war crimes trials will not be the yardstick. The measure will be the fairness of the proceedings.
TB But isn’t there a difference between fairness and justice, especially for the victims of war crimes?
RG Well, I don't believe you can have justice that isn’t fair. It’s not justice. I think justice includes inevitably, really at the core, that the procedure is a fair and just one.
TB But there are times, for instance you talked about the Truth and Reconciliation Commission in South Africa. Now my understanding was basically if former members of the apartheid regime came forth, or some people who are on the other side, from the ANC, came forth, talked about what they had done, you know, there could be possible prosecution, but by coming forth and trying to have reconciliation they could also avoid prosecution.
RG That’s correct.
TB Is that justice?
RG Well, it’s a form of justice. It’s not complete justice. In an ideal society all criminals should be investigated, prosecuted, and if found guilty, punished. That’s what most victims want, but sometimes the political situation or the practical, factual situation is such that you can't do that. Take Rwanda. There must have been a minimum of 300,000 murderers. No country can hold trials for 300,000 murderers, so there has to be some sort of compromise.
In South Africa in two-and-a-half years of the Truth and Reconciliation Commission, I heard evidence from well over 20,000 victims. Trials could never do that, so the compromise was amnesty only in return for public admitted full admission of the crime committed, and that is a form of justice for the victims because it’s the way they get acknowledgement.
TB But in all due respect, what sort of precedent does that set because it’s like moral hazard? Basically, you can commit heinous crimes and possibly not have to face punishment.
RG Well you know, the world moves on. I think the attitudes to amnesties have changed in the last 15 years since the Truth and Reconciliation Commission. Whether a country would get away with a Truth and Reconciliation Commission on the basis that South Africa held it now into the second decade of the 21st century is a matter for doubt, because with the International Criminal Court up and running I think the attitude of most members of the international community, with some unfortunate notable exceptions, is that people committing heinous crimes such as genocide and crimes against humanity shouldn’t have any amnesty at all. There should be trial and punishment.
TB Even though there is the ICC, and we'll talk about that court later, it certainly doesn’t seem to be stopping people from committing those crimes.
RG Well you know that’s impossible to prove one way or the other. I don't know how one proves the negative. One has to write a counter history, and there could well have been worse crimes committed without the International Criminal Court and without international criminal justice, and certainly there's some anecdotal evidence of that.
TB You mentioned what you thought was the outcome of the Truth and Reconciliation Commission in South Africa and I guess the pragmatism of basically convicting so many people who had done acts of aggression, but given that, do you feel that there should be instances outside of South Africa where you have a fragile new democracy, war crimes have been committed but in a sense the war criminal is not convicted or prosecuted because it could upset that fragile new democracy?
RG Well you know, I have difficulty in accepting that scenario. I really believe that people who commit serious war crimes at the level that you and I are discussing should not get impunity. I think they should be pursued from a criminal justice point of view.
TB Now the International Criminal Tribunal in former Yugoslavia is supposed to wrap up its cases by the end of this year.
RG No. Well, that’s not going to happen.
TB Yes, that’s what I was going to say.
RG We are now talking about 2013 at least.
TB So they’ve extended it, which obviously you have to agree with because otherwise it would send the wrong message in terms of fair trials.
RG Well, apart from that they're dealing with... so far the most important alleged criminal before them, Radovan Karadzic.
TB Yes, but he's been using a lot of delaying tactics and maybe that was part of his strategy.
RG It’s one of the reasons that the end has to be extended.
TB Okay, you just mentioned him. Milosevic died. Another big fish, so to speak, has yet to be caught. How much success do you really think there has been?
RG I think there has been tremendous success and I think events in the former Yugoslavia have established that. I think the fact that the guns have remained silent since the Dayton Agreement in 1995 has a lot to do with the work of the International Criminal Tribunal for the former Yugoslavia. I think it’s helped people reconcile and crucially important, it’s established the facts of what happened in the wars that began in 1991, so I think there has been tremendous success for the people, for the victims, and there's also been tremendous success for the international community because the law used, humanitarian law, the law relating to armed conflict, has been developed and has moved on considerably.
TB Now, we want to encourage questions during this live webcast, anything but the Gaza Report, because you said you wanted to stay away from that because you have been dealing with it for the past six months, so if any of those listening want to submit questions I know you're very welcome to answer them, but let me ask you while we're waiting for some of those – on Rwanda, do you think that the ICTR has been one-sided in its decision not to indict the RPF members?
RG You know, that’s a very difficult decision. I'm happy to say that it was an issue that didn’t arise during my term of office as chief prosecutor of the Rwanda tribunal. After I left office evidence was produced indicating that the RPF army, the army of the present government of Rwanda, committed huge revenge attacks involving possibly the deaths of over 10,000 innocent civilians, and clearly that is something that fell within the time period of the Rwanda tribunal, the calendar year of 1994, and could have been investigated.
Whether they should have was a very difficult decision for my successors, whether it was Louise Arbour or Carla Del Ponte or now Hassan Jallow. The problem is twofold. Firstly, if they had been investigated and had there been prosecutions it would have literally been the end of the tribunal because the Rwandan government would have broken off relationships with the tribunal and there would have been no witnesses. The witnesses had to come from Rwanda, but secondly the tribunal had been established to investigate the genocide of 1994. Whatever attacks were made by the RPF army were in revenge for the genocide and I believe it would have been really a diversion from the main purpose of the tribunal to have done that, so I'm sympathetic with the decision taken by prosecutors in the Rwanda tribunal not to pursue those cases.
TB You may be sympathetic and you may be answering in terms of the strict letter of the law, in terms of the mandate, but in a sense, if you talk about bringing people to justice or the idea of healing for the victims, doesn’t it undermine the credibility?
RG Of course. It will always be a question mark that will be there, but in the end one has to be pragmatic, one has to be serious, and one has to take what are sometimes unpopular decisions, but as I say, I'm sympathetic and understand the reasons for those decisions having been taken.
TB Now, like other international criminal courts, the ICTY and the ICTR have no police force, no enforcement mechanism. In your experience, is this a viable model for international criminal courts, and will the alternative, an international police force, ever be a political reality, and is this a role for the UN?
RG Let me start at the end. I don’t believe that in the next century there will be an international police force. The sovereignty of states simply makes it impossible. No government’s going to allow some international police force to come into their country and make arrests, so the politics and the reality are such that one must accept that international criminal courts, whether the ad hoc tribunals or the Sierra Leone or Cambodian court, and particularly the International Criminal Court, the ICC, for them to operate successfully they are absolutely dependant on the goodwill and cooperation of governments.
TB And also about the ICC, because we just touched on it, and we'll get back into it further. Now that the ICC has been established, what do you think will be the role of ad hoc tribunals in international criminal law?
RG I would be very surprised if there are going to be any more ad hoc tribunals. You know, when the Bush administration opposed the United Nations Security Council referring the Darfur situation in Sudan to the International Criminal Court because they were so opposed to the International Criminal Court, the United States was very keen on an ad hoc tribunal being set up for Darfur.
After all, secretary of state then, Colin Powell, had declared it to be a genocide so they wanted this investigated, but they didn’t want the ICC to do it, but the rest of the world effectively said you know, this is crazy. We've got an ICC up and running. Why must we go to the expense and have the delay in setting up a brand new tribunal when the ICC is there, and the result was the United States withdrew its veto.
TB Are there lessons that can be learned from all these ad hoc tribunals that the ICC can take on board?
RG Not only are there, but there are many being taken into account. The ICC is still a fledgling court, but if one looks at the law coming out of the chambers of the ICC one sees how much they rely and refer to the jurisprudence of the ad hoc tribunals, so obviously there's a tremendous amount to be learnt as far as the law is concerned, as far as indictments are concerned, and in many other ways.
TB As you all are aware there is an upcoming review conference for the ICC in Kampala and one of the issues to be discussed is whether the ICC should have jurisdiction over, quote, 'acts of aggression' that breach the UN Charter. Would this be a legitimate extension of the ICC’s authority?
RG Well it would clearly be a legitimate extension. It’s referred to in the Rome Statute. It was pushed out for seven years because nobody could agree on a definition of aggression. They still haven’t agreed on a definition of aggression and quite frankly, Todd, I would be quite relieved if they don’t.
RG As a former chief prosecutor I would have hated to have aggression on my plate in the former Yugoslavia or even in Rwanda. Who the aggressor is is really a political decision and not a legal decision, and there are sufficient huge crimes; genocide, crimes against humanity, war crimes, the great breaches of the Geneva Convention, in the arsenal of the prosecutor. I can see no important benefit from adding to that list a crime of aggression which, as I say, has very strong political overtones.
TB As you know from your Goldstone Report on Gaza. This is one of the questions that have been submitted. It’s from Justice Ali Nawaz Chauhan. He is a former international judge of the UN for the ICTY, and he’s a permanent judge of the Lahore High Court. His question for you is what is the future of the ICC when it is not a UN body and a superpower like the USA is not a signatory for the Rome Covenant?
RG I'm very grateful for the question. Clearly the fact that the United States is not a member state is a huge disadvantage from the point of view of the International Criminal Court, and I say that especially in light of the fact that it was the huge support which the ICTY and ICTR received from the United States that made them as successful as they were.
Without the Unites States’ support they wouldn’t have existed and even after they were set up they wouldn’t have succeeded without the strongest support from the United States and especially from Secretary of State Madeleine Albright, and many of the arrests that were made in Croatia and in Serbia were only made because of huge political and economic pressure exerted by the United States, so nobody has to convince me of the importance of the United States in this area, but it’s changing. I think under the Obama administration there's much closer cooperation with the ICC.
I don’t believe that the United States is going to become a member in the foreseeable future, but it’s now publicly offering its support to the prosecutor in those cases that are consistent with the foreign policy of the United States and all of the cases now being investigated by the ICC, all in Africa, perhaps unfortunately but that’s the fact, are certainly consistent with the foreign policy of the United States and I think a lot of support is going to come and it probably is already coming from the Obama administration, so I think we're at a halfway stage of cooperation, but not full membership.
TB Another question here and this is from Guiseppe Visconte in Italy. Some have called for the withdrawal of the indictment of the president of Sudan. You were talking about Sudan just a few moments ago. What is your judgement of the situation?
RG Well, I would be strongly against withdrawing that arrest warrant. The policy of the Rome Treaty, and it’s been made very clear by the judges of the ICC, is to go for the most serious crimes and to go against the people highest in military or civilian control who appear to be responsible for them, and who more responsible for the terrible things that happened in Darfur than President al-Bashir? He’s the number one who should be arrested and I have no doubt that there's no hope of that being withdrawn.
TB Okay, this is a question from Joseph Devaraj. Do you feel there are any, quote, apartheid regimes in the world today, and where would you investigate human rights violations as a matter or urgency in the future? Great question.
RG Well you know, I think apartheid was very peculiar to South Africa. Clearly some aspects may be applicable in this country or that country, but I don’t like making that analogy particularly. Particularly I think one’s got to look at each particular country, each political system, and not use emotional descriptions for them.
The second question is there are war crimes calling out for investigation in many countries, but unfortunately the majority of the worst crimes are being committed in countries over which the International Criminal Court simply does not have jurisdiction.
TB You of course grew up in South Africa under the apartheid regime. Clearly it had a big impact on you. Do you think you would have had the same passion that you have for international criminal justice and human rights had you grown up somewhere else?
RG You know, it’s very difficult to say, but probably not. As a very young student I became angry and frustrated at the unfairness of the apartheid system of racial discrimination, and that’s the reason I got very actively involved in the anti-apartheid movement as a student, for which I suffered at the hands of the then security police in government.
TB But the interesting thing was from a very young age you wanted to be a barrister. You were a commercial lawyer until I think about the age of 41. Then you were asked to take a temporary position and then a permanent position on a court in South Africa, eventually becoming a High Court justice. Where did this passion from the law come from at such an early age?
RG Well, it certainly came from my first personal contact with black students who had to suffer the degradations and the terrible aspects of apartheid that as a white person I didn’t.
TB But you were a commercial lawyer at first.
RG Right, well, because that was my passion. I'd liked commercial law and quite frankly, I didn’t enjoy under the apartheid system and appearing in criminal court.
TB I have another question for you, and this is from Mrazi from Baker & McKenzie. Do you feel the ICC is going to be fatally weakened or even discredited in the eyes of the world’s public opinion by its inability to prosecute those leaders of countries that have a significant political, military, and economic weight, including of course the five permanent members of the Security Council and their allies?
RG Well of course, because partial justice is not perfect justice, and if the powerful and the wealthy are excluded, that does raise a question mark about the whole system, but certainly in my book some justice is better than none and I have no doubt that even the wealthy and the powerful nations are thinking twice before doing things they might have done without thinking before. I think all of the publicity given to humanitarian law, to the law of war, is having a marked effect on all countries, whether they're subject to the jurisdiction of the ICC or not.
TB Okay, let me ask you some questions about international terrorism specifically, because you’re Co-Chair of the IBA's Task Force on International Terrorism. What in your estimation is the biggest challenge facing fundamental rights protection today?
RG I think the biggest challenge is how to combat terrorism and protect the citizens of all countries, and they obviously deserve and have a right to demand that protection. It’s really to marry that protection with the protection of fundamental human rights.
TB But the two are often at conflict.
RG Well of course there's a conflict, and if there wasn’t there wouldn’t be the problem. The problem is finding some proportionality, and let me explain it this way. I think it’s crucially important for law enforcement officials to be given the most efficient, the most modern tools to prevent acts of terrorism, and if they unfortunately committed to apprehend the criminals involved, so they have to be armed.
Law enforcement officials have to be suitably armed, whether it’s listening in to telephone conversations into tapping the internet, all of the things that need to be done, and I accept they need to be done, but at the same time there has to be a protection of the innocent, of people whose privacy shouldn’t be invaded, and that’s where the conflict arises.
TB Well, do you feel there are any very egregious cases where states have used counter terrorism as a pretext to unlawfully restrict certain freedoms? You know, a lot of criticism about Guantanamo for instance.
RG Well, Guantanamo is the obvious one. I think it’s accepted by the United States. All of the administrations relevant, the Bush administration, now the Obama administration in particular, have accepted that some people were picked up in this so-called war against terrorism and put in Guantanamo who in fact shouldn’t have been picked up and shouldn’t have been kept there for many years and have since been released, and I admire president Obama for recognising this problem and for doing something about it.
TB Now throughout history states have shown themselves willing to use force against non state actors, often claiming that their actions consist of nothing more than self defence. Do you think international law has come to accept this?
RG Well, it’s not a question of accepting it. I think certainly international humanitarian law is well able to cope with it. I think the fundamental principle of humanitarian law is the so-called principle of distinction, that one has to distinguish between belligerence, between terrorists on the one hand, and innocent civilians, non belligerence, on the other.
That’s the principle of distinction and what goes with it is the principle of proportionality; that one kills or injures the minimum number of innocent civilians consistent with a justifiable military target. Those principles are fundamental to humanitarian law and they apply and can be applied with regard to offensive action against terrorists.
TB Well, obviously both terrorism and counter-terrorism have emerged, if I can use that word, as threats to human rights. Does international law hold the state designers of these measures and the architects of terrorism to the same standards of accountability for fundamental rights breaches?
RG Yes absolutely. The protection of civilians is fundamental. This is why in the Gaza Report we found that serious war crimes and possibly crimes against humanity had been committed, including Hamas who have fired very imprecise rough rockets and mortars into Israel and caused the trauma to millions of people in Southern Israel and have caused deaths and a huge number of injuries, so that standard has been applied to them in the same way as it has been applied to the alleged unnecessary killing and injuring of innocent civilians in Gaza by the Israel Defence Force.
TB Life is very complicated and it has become much more complicated since the terrorist attacks of the Twin Towers several years ago, that black day in September. Obviously that’s had a huge impact on how we approach terrorism, even though terrorism existed long before that. Do you think now that the Bush administration is no longer in power, and I think you alluded to this, that a much more even-handed approach is being taken?
RG Yes absolutely, I do, and I'm not sure I'd put it as even handed, but I think a more appropriate response is being taken recognising the conflict that you and I have been talking about.
TB You're currently also the chairperson of the IBA’s Human Rights Institute Task Force on International Terrorism which we've just been talking about, you know. What impact do you hope the task force will have?
RG Well, the IBA is bringing out a book that the Task Force is overlooking the writing of which I hope will be useful to practitioners, to students, to members of the general public, because it’s being written for a wide audience in helping explain the relationship between the law on one side, human rights on the other side and explaining, suggesting reforms and credible acts a government should take to deal with this in an appropriate manner.
TB Now as you mentioned you are writing a book of course, or the Task Force rather is writing a book, and the title is Terrorism and International Law: Accountability, Remedies, and Reform. Why that particular title?
RG Well, because those are what the book fundamentally deals with. Finally reform. There will be recommendations made, particularly to governments, but it’s teeming with accountability because that’s crucial. If people in high places aren’t held accountable for alleged crimes then lawlessness is really aided.
TB Now I know you don’t want to talk about what recommendations you'll make because it is a work in progress, but let me ask you in a broader context, what are some of your major concerns right now in terms of governments and accountability?
RG Well, the major concern is really the one we were talking about and that is this trying to deal with the combating of terrorism on the one hand and protection of human rights on the other, and finding some proportionality that will not hobble governments in this fight against terrorism.
TB That’s a very tall order. Could you kind of expand on what you really believe proportionality means?
RG Well, let me give you one aspect. I think it’s very important. I talked earlier about giving law enforcement authorities powers, very wide powers, that can be used to invade privacy. What's crucially important is that there should be oversight over them. If officials are given powers they should know somebody is watching them, and when I say somebody I don’t necessarily mean the courts. I mean an appropriate, independent department, officials who will check and see that what they're doing, the purposes for which they're using those powers are for the reasons that they were given to them. It’s very crucially important. If officials are given powers and there's no check on them, no oversight on them, you and I know they are going to be abused.
TB And that certainly was the allegations during the Bush administration despite having the justice department, so one has to presume that you have an independent judiciary that is in that position.
TB But that’s not always that case.
RG It will, and if it isn’t the system is not going to work very well.
TB Okay. Do you think it’s desirable for the UN to set up an ad hoc tribunal that would specifically deal with terrorism?
RG In theory, yes. The big problem is that there's no agreement on what terrorism means. This is one of the issues that’s going to be dealt with in the book. The UN has been moving towards trying to get a definition of terrorism, but if they can find an acceptable definition I would certainly be in favour of a special court dealing with terrorism, because it’s a huge problem obviously for the world. We saw it again in recent days in Times Square. It’s ongoing and it’s going to be with us, so I certainly would support it because the ICC is not meant to and is not equipped to deal with it.
TB But on the other hand we can see how easily politicised the UN can become. I mean, its original mandate on Gaza certainly underscored that, so are you worried that if they had such an ad hoc tribunal that it could be very politicised?
RG You know, it’s all about politics. I've been teaching for the last seven years and one of the main topics I've been teaching is international criminal justice, and I tell my students in every single class if you don't understand the politics of international justice, go home. That’s what it’s all about, but it must be consistent with that politics to have even handedness, to have independent judges, to have independent investigators so it’s really, again, a question of using the politics in a good way and not a bad way.
TB The other major role you serve in the IBA is as Co-Chair of its Human Rights Institute. Are there any achievements that you're particularly proud of, because you’ve devoted so much of your life to international criminal justice and human rights?
RG Well, the Human Rights Institute, I think the IBA can be proud, and certainly I'm very proud to have played a role in it, but it’s been active in so many important ways. Firstly in helping developing countries and in difficult situations to set up an independent legal profession. The International Bar Association has been responsible for setting up a very impressive independent Bar Council in Afghanistan, a huge resource for a very troubled country.
The IBA has been very active in encouraging countries that still retain the death penalty to abandon it. I've been criticised this week for having been part of the apartheid system at a time when there was a death sentence, and it’s something that’s true. This was 25 years ago when there were many democracies that still had the death sentence, members of the Commonwealth and other countries, so again, the world moves on and the death sentence is being abandoned more and more, and the IBA is encouraging that, and it’s something I've always felt strongly was going in the right direction, and in addition, the International Bar Association Human Rights Institute sends letters to heads of state, many of them can be found on the website, complaining when lawyers are treated in a manner inconsistent with international standards, when they're prevented from appearing freely for their clients, when they're being interfered with, when they're being harassed, and that too I think is playing a very important role in protecting lawyers.
TB You know as a jurist you try and be very balanced and that really has sort of been your moniker throughout your career; being even handed. As you said, it’s always about politics on one level or another, be it investigating state security forces in South Africa during the apartheid regime, or the prosecutions you did in former Yugoslavia or Rwanda, or the Goldstone Report on Gaza. When you are actually doing these investigations, are you aware of the controversy that’s going to erupt as a result of what you may find?
RG Well, obviously I'm aware that there is going to be controversy. One can never anticipate the way this plays out. In South Africa for example I was criticised and in fact received serious death threats by white South Africans for investigating the South African security forces. That was unexpected. In the case of the Gaza Report I certainly didn’t expect the venomous ad hominem attacks that I've suffered and that my family has had to suffer, so certainly the way it has manifested itself has come as a surprise. That there would be criticism was obvious.
TB Why, despite these death threats, do you think that you never deviated?
RG Well, you know, if one accepts to do a job one has got to do it as well as one can. One has to live with oneself. I’m not sure I can give a better answer than that.
TB Okay. We've had some more questions here – what's the difference in definition between the terms terrorist and freedom fighter in the eyes of the ICC?
RG Well I'm afraid he’s going to have to wait for the book to come out because it’s one of the topics we're going to be discussing this week.
TB Well, as a journalist, let me just try and push you slightly on that. What are some of the areas that will be open for discussion?
RG Right. Well, obviously this is one of the reasons that there's no accepted definition of terrorism, because there are countries that want to excuse and have a different standard applied to freedom fighters and it’s a difficulty I have. I mean, it seems to me if one is protecting civilians in war one has to protect them in all situations, and not to exclude some rather than the others.
TB That’s very interesting, this difference between a terrorist and a freedom fighter because even in the media it has become quite politicised in terms of what you term someone during for instance the Gaza conflict, and you’ve mentioned that we need checks on the power of governments and their counter terrorism measures. What role in your estimation does the media have to play, and is it currently fulfilling this? And this is from Peter Marcos.
RG Well, I think the media is crucial to justice. In my book the media and justice are two sides or the reverse sides of the same coin. Without good media reporting a lot of justice becomes meaningless. If the people out there, and particularly the victims, aren’t told what courts and tribunals are doing a lot of their work will be wasted, if not all of it, so I think the media is very important and it’s certainly improving. I think it’s crucially important for journalists to understand what is fairly complex law, the law of armed conflicts, humanitarian law, so I think they understand it and I think they have to report it accurately and not to use catch all phrases like terrorism and like aggression without understanding what they truly mean.
TB I want to ask you some questions about international justice in Africa where your roots are, you know, because transitional justice has been and will be a key issue in many African countries, for instance in Kenya. From your experiences in South Africa, what would you think is needed to give effect to transitional justice and what works best?
RG Well, you know Todd, I really don’t think one can generalise. I think one’s got to look at each country, and sometimes even at each region in a country, to be able to answer that question. There's no one recipe for all. I don’t believe that the South African style, a Truth and Reconciliation Commission, can simply be taken and replicated in any other country.
I think there are many tools of transitional justice. One is truth commissions. The other is prosecutions. The other is amnesties. And they're not inconsistent with each other. One can combine them, as happened in South Africa, and one’s got to use these tools in the most appropriate fashion applicable in the particular country or region one’s looking at.
TB Who do you think should be the arbitrator though, which is pursued?
RG Preferably the people themselves. That’s the first prize. Often they can't agree because there are differences and there has to be assistance from the international community, whether particular countries or the United Nations or a regional group like the African Union or the European Union bodies or the American Commission on Human Rights and so on, but preferably, the first prize, and we were lucky in South Africa, we were able ourselves to fashion these tools.
TB You say that it will differ from state to state, circumstance to circumstance in terms of the approach, but in states such as Zimbabwe there still is no sign that efforts of transitional justice have begun. How can a move from impunity to accountability begin, number one, and will the process be better served by international or domestic means?
RG Well, we are talking about a very tragic situation. I must say, when I was at the Johannesburg Bar I used to have cases in Zimbabwe, and it was then a great pleasure for me to leave the claustrophobia of apartheid South Africa and go to then a newly independent Zimbabwe. Wonderful country, wonderful people, and one has just simply seen it go downhill.
I was optimistic a year or so ago when there was a settlement reached and Morgan Tsvangirai became the prime minister of Zimbabwe, but things continue to slide because of the obdurate nature of Robert Mugabe who says one thing and does the opposite, and I don’t believe that without strong international assistance that any true solution is going to arise in the near future.
TB You know, if you look at leaders in Africa, they certainly have not been supportive of an international solution.
RG Right. No, that’s correct. You know, there’s still I think what one might call a post colonial syndrome. I think there's still resistance on the part of many people in Africa, and it would be unnatural if it wasn’t there, a feeling that after a really bloody colonial history that they now want to be left alone by the northern countries and do their own thing, but I just don’t think they’ve taken strong enough action with regard to Zimbabwe.
TB It’s very interesting that two countries that border each other have taken such different approaches.
RG Absolutely, and you know it all boils down to leadership. We were blessed in South Africa by having good leaders who people were prepared to follow in a good direction. Zimbabwe hasn’t had that.
TB Who in your estimation do you really admire as leaders, either historically or currently?
RG Well you know, clearly that’s an easy one because Nelson Mandela is certainly the hero of my life. His dignity, his forgiveness, and his leadership abilities. His people followed him along a very difficult path. Who would have believed that after 350 years of oppression there wouldn’t have been revenge taking over?
TB It’s 50 years since Sharpeville, 20 years since Nelson Mandela was released from prison. South Africa is going to host the World Cup this year. A lot of progress has been made, but on the other hand you know, others would argue that a lot of progress still needs to be made. What are your primary concerns right now as a South African citizen, and I don’t want you to comment as a former High Court justice because I know that you don’t want to take it from a political standpoint, but your main concerns?
RG Well, my main concerns are firstly the time it’s taking for the benefits of democracy to filter down to all of our people. There are many people in South Africa, black South Africans, who really haven’t benefitted from democracy and that’s a worry. The unemployment figure I saw has just risen again to over 24 per cent in South Africa. That’s a huge worry because if there are no benefits to people from a democratic form of government, what's in it for them, and that’s a concern, so it’s an economic concern.
At the same time millions of South Africans who were deprived of running water, of electricity, of roofs over their heads, have benefitted from the first decade and a half of a democracy in South Africa, so that’s on the positive side, and people are patient. I think if the line’s moving people are prepared to wait, and certainly the line’s moving in South Africa. The question is whether it’s fast enough, and these are huge problems, particularly in the present economic climate, but let me say this; if you’d have asked me in 1994, or if you had told me in 1994 that in 2010 South Africa would be where it is today I would say how wonderful that would be.
TB So you're surprised by how much progress has been made?
RG Absolutely. I think there’s been tremendous progress, and for me certainly it’s a great pleasure to be in South Africa and to live in South Africa and to be a citizen of South Africa.
TB But obviously there's still a lot of problems in South Africa from a standpoint of human rights abuses, and some critics believe that the ICC has had an unfair focus on Africa and its brief history. Do you agree?
RG I think it’s really the most unfair criticism of the ICC. The ICC has now got five cases before it. Only one, the last, Kenya, has been at the instance of the prosecutor, the prosecutor requesting it, and that only happened because of the intervention of Kofi Annan.
The other four cases, three of them were referred by African governments themselves and the fourth was referred by the Security Council of the United Nations, so how on earth can one blame the ICC for having chosen Africa when three of the cases came from African governments, one from the Security Council, and only one because of a commission of enquiry that recommended it, the Waki Commission in Kenya?
TB One final question on international justice in Africa here. There have been movements to give the African court of justice jurisdiction over international crimes. How will this fit with the jurisdiction of the ICC and is it desirable?
RG You know, I don’t think it would be a conflict at all. I think the closer to home the justice is done the better. The ideal would be for the court to sit in the country where the human rights violations took place, and that’s the whole idea of the International Criminal Court. Its whole basis is the so-called system of complimentarity where the ICC is a court of last resort, not first resort, so it’s completely consistent with the Rome Statute, firstly for countries to investigate and prosecute their own people, their own nationals, for serious war crimes, not the ICC. It’s only where they don't do it that the ICC can do it. It has no choice, so I can see absolutely no reason why there shouldn’t be regional criminal courts, whether it’s an African criminal court or Sub Saharan African criminal court. I think it will be a very desirable thing.
TB As a jurist with a lot of international experience and well known for your work in the international criminal justice system as well as in human rights, when you look back on your career, because you're 71 now and you're teaching, what for you stands out?
RG What for me stands out is South Africa’s transition. I didn’t believe that in my time there would be democracy in South Africa, a constitutional court that’s looked up to by jurists, certainly in the democracies around the world. I didn’t believe that I would be appointed to that court, and then certainly the high point in my career was my appointment by President Mandela to that court.
TB But do you think that’s because of your personal connection to South Africa, because you’ve also held very other, you know, high profile jobs as well?
RG You asked me the highlight. That for me was a highlight. I'm sure being a South African makes a difference. I'm being subjective and not objective.
TB And you know, given all you’ve seen, because you’ve presided over some of man’s worst behaviour in terms of having to prosecute it, would you say that... first of all, how have you kept your humanity, and secondly, do you think you're a pessimist or an optimist?
RG No, well firstly, that’s easy. I'm an optimist.
RG Well, I think one’s either born optimistic or pessimistic, but one thing I've always believed, if all human beings were pessimists we’d still all be living in caves. It’s optimists who get things done.
TB It’s also been said, though, that, you know, the optimists do change the world but the pessimists are usually right.
RG Well, I suppose it’s a good thing to have maybe 10 per cent of the world as pessimists just to hold the optimists back but I have no doubt that it’s optimistic people who get things done.
TB But it’s interesting, if you read books let's say about the holocaust or war crimes in general, one of the things that keeps cropping up, and this gets to be very personal, is, you know, why does man commit evil against man, and people like Thomas Buergenthal, the renowned jurist, has certainly examined this question as many others have, and I'm sure you’ve also asked yourself because when you’ve heard certain tales of war crimes, they are horrific. Have you come up with an answer to that question?
RG Well you know, I think there are two requirements for these sorts of crimes to be committed. The one is fear and the second is dehumanising the victim. I believe people who regard themselves as equal, equal in humanity and equal in every other way can't behave in that way to them, and secondly, where you add fear one gets this toxic mix that led the genocide in Rwanda, that led to the holocaust in the Second World War, but you need both of those ingredients.
TB You need both of those ingredients. Then what would be the best prevention?
RG The best prevention is education and tolerance and getting people to get to know each other. I think it’s the fear of the unknown that is really the basic problem.
TB And finally, you know, there was a huge controversy over the Goldstone Report into the Gaza conflict and you did pay a very high price personally. It was a very painful period for you because of the attacks not only on you, but on your family in South Africa. It looked like you may not have been able even to go to your grandson’s Bar Mitzvah, which in the end you were able to go to, but again, at a very high price before getting there. What do you want your personal legacy to be?
RG I'd like my personal legacy to be that I stood for justice, for upholding the rights of victims, for empathy with victims, and that I did my duty.
TB Richard Goldstone, thank you for joining us.
RG Thank you very much.