Transcript: R.J. Goldstone on War Crimes and Peace | Feb 17, 2001

A slate with two Doric columns reads "Justice Richard J. Goldstone. Constitutional Court of South Africa. 'The enduring legacy of the Holocaust.'"

[applause]

Richard Goldston stands behind a wooden lectern on a stage and addresses an unseen audience. He's in his sixties, clean-shaven, with receding gray hair. He's wearing a gray suit, white shirt, and spotted red tie.

He says IT IS TRULY A GREAT
PRIVILEGE AND HONOUR, AND
ALSO A PLEASURE, TO HAVE
BEEN INVITED TO DELIVER THIS
LECTURE AND TO BE PART OF
THIS CONFERENCE TO MARK THE
ELECTION OF DEAN MARRUS AS
THE FIRST INCUMBENT OF THIS
IMPORTANT NEW CHAIR
IN HOLOCAUST STUDIES.

A caption appears on screen. It reads "Justice Richard J. Goldstone. Constitutional Court of South Africa. 'The enduring legacy of the Holocaust.'"

Richard continues ONE OF THE THINGS I'VE
LEARNED IN DEALING WITH
VICTIMS, HAVING COME INTO
CONTACT WITH VICTIMS IN MY
OWN COUNTRY OVER MANY YEARS,
AND MANY VICTIMS OF THE EVIL
APARTHEID SYSTEM, WITH
VICTIMS IN THE FORMER
YUGOSLAVIA, AND VICTIMS OF
RWANDA, IS THE EXTENT TO
WHICH THEY AND THEIR
INTERESTS ARE IGNORED.
WHEN POLITICIANS TALK ABOUT
INTERNATIONAL CRIMINAL
COURTS, WHEN POLITICIANS
CONSIDER AND REFUSE TO
ARREST INDICTED WAR
CRIMINALS, THE VICTIMS
SOMEHOW SEEM TO
DROP OFF THE AGENDA.
I MENTION THAT IN OPENING
THIS ADDRESS ON THE TOPIC OF
THE ENDURING LEGACY OF THE
HOLOCAUST BECAUSE THIS IS AN
APPROPRIATE TOPIC TO
INAUGURATE THIS IMPORTANT CHAIR.
I'VE ALWAYS RESISTED
STRONGLY MAKING COMPARISONS...
COMPARISONS BETWEEN
GENOCIDES, COMPARISONS
BETWEEN EVIL EVILNESS,
COMPARISONS WHICH DEMEAN,
FRUSTRATE AND CAUSE ANGER TO
VICTIMS, BECAUSE VICTIMS OF
ANY GENOCIDE, VICTIMS OF ANY
SERIOUS HUMAN RIGHTS ABUSES
ARE UNIQUE IN THEMSELVES AND
IT SEEMS TO ME IT SERVES
LITTLE PURPOSE TO MAKE
INVIDIOUS COMPARISONS.
BUT THE HOLOCAUST HAS HAD
AN ENDURING LEGACY AND IT'S
BECOMING MORE AND MORE
IMPORTANT AND MORE AND MORE
OBVIOUS AS UNFORTUNATELY THE
WORLD, THE INTERNATIONAL
COMMUNITY, HAS TO ENDURE
SUCCESSIVE GENOCIDES AND
SUCCESSIVE SITUATIONS OF SERIOUS
HUMAN RIGHTS VIOLATIONS.
IT'S INTERESTING TO DRAW THE
HISTORIC PARALLEL AND TO
HAVE A LOOK AT THE WAY IN
WHICH INTERNATIONAL HUMAN
RIGHTS LAW HAS CHANGED IN
CONSEQUENCE OF THE HOLOCAUST.
PRIOR TO THE HOLOCAUST,
HUMAN RIGHTS WERE STRICTLY
A DOMESTIC AFFAIR.
IN INTERNATIONAL LAW, THE
WAY COUNTRIES, THE WAY
NATIONS TREATED THEIR
CITIZENS, THE WAY NATIONS
ABUSED THE HUMAN RIGHTS OF
THEIR CITIZEN, WAS THEIR
INTERNAL AFFAIR, THEIR
PRIVATE CONCERN AND WAS NOT
THE SUBJECT OF INTERNATIONAL
LAW AND WAS NOT THE BUSINESS
OF ANY OTHER NATION, LET ALONE
THE INTERNATIONAL COMMUNITY.
I KNOW WHEN I WAS A STUDENT
IN SOUTH AFRICA, SOUTH
AFRICA COULD WITH SOME
JUSTIFICATION, AND
SUCCESSFULLY, ARGUE IN THE
INTERNATIONAL COURT IN THE
HAGUE, IN THE SECURITY
COUNCIL, IN THE GENERAL
ASSEMBLY OF THE UNITED
NATIONS, THAT THE APARTHEID
SYSTEM HAD NOTHING TO DO WITH
THE INTERNATIONAL COMMUNITY.
RACIAL OPPRESSION AND RACIAL
DISCRIMINATION IN SOUTH
AFRICA WAS AN INTERNAL
AFFAIR OF A SOVEREIGN STATE
AND WAS NOT THE BUSINESS
OF ANY OTHER GOVERNMENT.
THAT BEGAN TO CHANGE
IMMEDIATELY AT THE END OF
THE SECOND WORLD WAR.
THE HOLOCAUST SO SHOCKED THE
CONSCIENCE OF DECENT PEOPLE
ALL AROUND THE WORLD THAT IT
WAS REALIZED THAT IT WAS NO
LONGER ACCEPTABLE TO HAVE
THIS SOVEREIGNTY, NATIONAL
SOVEREIGNTY, ACT AS A
BARRIER TO THE CRITICISM AND
INVESTIGATION AND ACTION
WHERE THE HUMAN RIGHTS OF
CITIZENS OF ANY COUNTRY WERE
IGNORED AND WERE VIOLATED.
THE IMMEDIATE EFFECT OF THIS
WAS OF COURSE THE NUREMBERG
TRIALS, AND IN THE MANY
CRITICISMS THERE HAVE BEEN
OF THE NUREMBERG TRIALS ONE
SHOULD HESITATE TO MAKE
CRITICISMS WITHOUT
CONSIDERING THE TIMES IN
WHICH THEY TOOK PLACE.
IT WAS A GREAT STEP FORWARD
IN THE HUMAN RIGHTS ARENA
THAT INDEED THERE WAS A TRIAL
AT ALL OF THE NAZI LEADERS.
CHURCHILL AND STALIN, NOT
MANY YEARS BEFORE 1945,
WERE AGAINST A TRIAL AT
ALL AND WERE IN FAVOUR
OF SUMMARY EXECUTION.
THAT WAS A HUGE STEP FORWARD
IN THIS FIELD, THAT MAINLY
THE UNITED STATES' VIEW OF
THE SECRETARY FOR DEFENCE,
HENRY STIMSON PREVAILED.
IT WAS HE ABOVE ALL AT THAT
TIME WHO FOUGHT FOR A TRIAL
FOR THE NAZI LEADERS.
THE IMPORTANCE IN THE
CONTEXT THAT WE'RE TALKING
ABOUT THIS EVENING WAS THE
LEGAL INVENTION... AND IT WAS
THAT... OF CRIMES
AGAINST HUMANITY.
THE IDEA THAT SOME CRIMES
ARE SO HUGE, ARE SO
SHOCKING, THAT THEY ARE NOT
CRIMES ONLY AGAINST THE
IMMEDIATE VICTIMS, THEY ARE
NOT CRIMES ONLY AGAINST THE
PEOPLE OF THE NATION WHERE
THEY ARE PERPETRATED,
BUT THEY ARE TRULY CRIMES
AGAINST ALL OF HUMANKIND.
AND THE COROLLARY IS THAT
PEOPLE WHO COMMIT THOSE
SORTS OF CRIMES CAN BE
BROUGHT TO JUSTICE IN
ANY COUNTRY BY ANY
REPRESENTATIVES OF THE
HUMAN RACE WHERE THEY MAY BE,
EVEN THOUGH THERE MAY BE NO
DIRECT CONNECTION BETWEEN
THE COURSE OF THE COUNTRY
WHERE THEY'RE BROUGHT TO
TRIAL AND THE COUNTRY WHERE
THE CRIMES WERE PERPETRATED.
THAT WAS THE IDEA OF CRIMES
AGAINST HUMANITY, AND IT WAS
THE BIRTH OF THE IDEA OF
UNIVERSAL JURISDICTION IN
THE CRIMINAL FIELD.
BECAUSE BEFORE THAT,
NATIONAL COURTS ONLY COULD
TRY CRIMINALS FOR CRIMES
COMMITTED WITHIN THEIR
JURISDICTION, IN THEIR COUNTRIES
WITH VERY FEW EXCEPTIONS.
GOING BACK FURTHER INTO THE
HISTORY ONE FOUND SIMILAR
RULES FOR PIRACY, FOR
OBVIOUS REASONS, BECAUSE
PIRATES COMMITTED THEIR
CRIMES OUTSIDE THE
JURISDICTION OF ANY STATE.
THE HOLOCAUST, TOO, INSPIRED
DIRECTLY THE DRAFTERS OF THE
UNITED NATIONS' CHARTER AND
THE UNIVERSAL DECLARATION OF
HUMAN RIGHTS WHICH WERE
CONSIDERED AND PASSED
UNANIMOUSLY BY A SMALL
UNITED NATIONS THEN
IMMEDIATELY AFTER
WORLD WAR TWO.
THE IDEA OF UNIVERSAL
JURISDICTION, HOWEVER, WAS
TAKEN UP IN 1949 WHEN
THE NEW REVISED GENEVA
CONVENTIONS OF THAT
YEAR WERE AGREED TO.
THE GENEVA CONVENTIONS WHICH
HAD BEEN RATIFIED BY... FOR
ALL PRACTICAL PURPOSES...
EVERY COUNTRY OF THE WORLD,
THE GENEVA CONVENTIONS ALSO
HAD TO INVENT NEW CRIMES AND
THE REASONS FOR THE
NECESSITY TO INVENT NEW
CRIMES, CRIMES
AGAINST HUMANITY.
IN THE CASE OF THE GENEVA
CONVENTIONS, THE GRAVE
BREACH PROVISIONS.
THE REASON WAS THAT THE LAW
BEFORE THEN WAS INADEQUATE
TO DEAL WITH CRIMES OF THE
MAGNITUDE OF THOSE COMMITTED
IN THE HOLOCAUST.
AND IN GENEVA IN 1949, GRAVE
BREACHES WERE DEFINED AND
INCLUDED THE MOST
SERIOUS OF ALL CRIMES.
AND UNIVERSAL JURISDICTION
WAS APPLIED TO THEM BECAUSE
THE GENEVA CONVENTIONS
PROVIDE THAT ANY COUNTRY
RATIFYING THOSE CONVENTIONS
IS OBLIGED TO INVESTIGATE,
PROSECUTE AND PUNISH ANY
PERSON WHO COMMITS A GRAVE
BREACH OF THE GENEVA
CONVENTIONS NO MATTER WHERE.
IF AN ALLEGED PERPETRATOR OF
THE GRAVE BREACH PROVISIONS
FINDS HIMSELF OR HERSELF IN
CANADA FOR HAVING COMMITTED
OFFENCES UNDER THE GENEVA
CONVENTIONS IN RWANDA, THE
CANADIAN GOVERNMENT AND
THE CANADIAN COURTS HAVE
JURISDICTION AND A LEGAL
DUTY UNDER INTERNATIONAL LAW
TO BRING SUCH A
PERSON TO JUSTICE.
SOMETHING NEW.
THAT WAS NEVER THE POSITION
BEFORE THE HOLOCAUST.
THE GENEVA CONVENTIONS GO ON
TO PROVIDE THAT IF A COUNTRY
IS UNWILLING OR UNABLE TO
BRING SUCH A PERSON TO
JUSTICE BECAUSE ITS LAWS
MAKE NO PROVISION OR
POLITICALLY IT'S NOT
PREPARED TO DO SO, IT HAS
NONETHELESS THE OBLIGATION
TO HAND THAT PERSON OVER TO
A STATE THAT IS PREPARED TO
BRING THAT PERSON TO JUSTICE
BEFORE ITS COURTS.
THAT IDEA, THE CONCEPT OF
UNIVERSAL JURISDICTION, HAS
BECOME MORE COMMON.
FROM A SOUTH AFRICAN
PERSPECTIVE IT'S INTERESTING
THAT IT FOUND ITS NEXT
APPEARANCE IN THE 1973
INTERNATIONAL CONVENTION
DECLARING APARTHEID TO BE A
CRIME AGAINST HUMANITY.
AND THE CONVENTION PROVIDED
THAT ANY PERSON GUILTY OF
THE CRIME OF APARTHEID
WAS TO BE INVESTIGATED,
PROSECUTED AND PUNISHED BY
THE COURTS OF ANY COUNTRY IN
WHICH THAT PERSON
MAY BE FOUND.
THE APARTHEID CONVENTION WAS
PASSED BY A HUGE MAJORITY IN
THE GENERAL ASSEMBLY.
A NUMBER OF WESTERN
COUNTRIES ABSTAINED,
BUT THERE WERE VERY FEW VOTES
AGAINST THE CONVENTION.
ONE OF THE NOTABLE VOTES
AGAINST IT, NEEDLESS TO SAY,
COMING FROM SOUTH AFRICA.
IT'S A MATTER FOR REGRET, I
BELIEVE, THAT THE APARTHEID
CONVENTION WAS NOT RATIFIED BY
ANY IMPORTANT WESTERN NATION.
TOO MANY WESTERN NATIONS
DIDN'T FEEL STRONGLY ABOUT
RACIAL OPPRESSION IN SOUTH
AFRICA, AND PERHAPS MORE
IMPORTANTLY, TOO MANY
WESTERN NATIONS CONSIDERED
THEIR TRADE LINKS WITH SOUTH
AFRICA TOO IMPORTANT TO IMPERIL.
BUT ONE CAN IMAGINE THE
AFFECT ON SOUTH AFRICA AND
ON THE APARTHEID SYSTEM IF
SOUTH AFRICAN AMBASSADORS
AND SOUTH AFRICAN
BUSINESSMEN AND WOMEN WERE
ARRESTED IN WESTERN COUNTRIES
FOR THE CRIME OF APARTHEID.
I HAVE NO DOUBT THAT
APARTHEID WOULD HAVE DIED AT
LEAST A DECADE BEFORE IT DID
HAD THAT CONVENTION AND THE
UNIVERSAL JURISDICTION IT
CONFERRED BEEN TAKEN SERIOUSLY.
THE CONTRARY HAPPENED.
RED CARPETS WERE LAID OUT
FOR MANY LEADERS FROM SOUTH
AFRICA, PARTICULARLY WHITE
LEADERS BUT ALSO SOME OF OUR
BLACK LEADERS WHO WERE
PREPARED TO ASSIST IN THE
IMPLEMENTATION OF THE
APARTHEID SYSTEM.
THE SAME UNIVERSAL
JURISDICTION IS TO BE FOUND
IN THE TORTURE CONVENTION OF
1984, THE CONVENTION WHICH
LED TO THE SUCCESSFUL ARREST
OF GENERAL PINOCHET IN LONDON.
NOT MANY YEARS BEFORE
PINOCHET WAS ARRESTED, IT
WOULD HAVE BEEN CONSIDERED
ALMOST RIDICULOUS BY
INTERNATIONAL LAWYERS THAT
FOR CRIMES COMMITTED
20 YEARS BEFORE IN LATIN
AMERICA A FORMER HEAD OF
STATE COULD BE ARRESTED IN
LONDON AT THE REQUEST OF
A SPANISH PROSECUTOR.
BUT YOU CAN SEE THE EFFECT
EVEN IN NATIONAL LAW OF THIS
CONCEPT OF UNIVERSAL
JURISDICTION.
THESE INROADS INTO
SOVEREIGNTY... BECAUSE THAT'S
WHAT UNIVERSAL
JURISDICTION IS.
IT'S CONFERRING JURISDICTION
OVER CITIZENS OF FOREIGN
STATES FOR CRIMES COMMITTED
ANYWHERE AND INCLUDING THE
JURISDICTION, INCLUDING
CRIMES COMMITTED WITHIN THE
JURISDICTION OF THOSE
FOREIGN STATES.
THE GENOCIDE CONVENTION
OF 1948 DID NOT CREATE
UNIVERSAL JURISDICTION.
CUSTOMARY INTERNATIONAL LAW
SINCE THEN AS GENERALLY
ACCEPTED HAS CONFERRED
UNIVERSAL JURISDICTION IN
RESPECT OF GENOCIDE BUT
THAT'S NOT BECAUSE OF ANY
BLACK LETTER LAW.
IT'S NOT BECAUSE OF ANY
EXPRESS PROVISION IN THE
GENOCIDE CONVENTION.
WHAT THE GENOCIDE CONVENTION
DID, HOWEVER, WAS ASSUME,
ALBEIT IT PREMATURELY
BY HALF A CENTURY...
THE GENOCIDE CONVENTION ASSUMED
THAT THERE WOULD BE AN
INTERNATIONAL CRIMINAL CODE.
THERE'S EXPRESS REFERENCE IN
THAT CONVENTION TO PEOPLE
BEING BROUGHT BEFORE
NATIONAL COURTS AND AN
INTERNATIONAL COURT
HAVING JURISDICTION.
ALAS, IT WAS PREMATURE.
THE NEXT MOVE IN THAT
AREA, OF COURSE, WAS THE
ESTABLISHMENT BY THE
SECURITY COUNCIL OF THE
UNITED NATIONS OF THE
INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE
FORMER YUGOSLAVIA.
INTERNATIONAL LAWYERS WERE
SURPRISED THAT SUCH A COURT
COULD OR WOULD BE ESTABLISHED
BY THE SECURITY COUNCIL.
IT WAS GENERALLY ACCEPTED
THROUGHOUT THE WORLD THAT
THE ONLY WAY TO CREATE AN
INTERNATIONAL CRIMINAL CODE
WOULD BE BY TREATY.
NATIONS WOULD HAVE TO AGREE
TO SUCH A COURT BEING
CREATED BY AN
EXPRESS TREATY.
THE SECURITY COUNCIL,
HOWEVER, ACTING WITH UNUSUAL
EFFICIENCY AND AGREEMENT IN
THE AFTERMATH OF THE COLD
WAR, THE COMING TO AN
END OF THE COLD WAR.
IN 1993, THERE WERE A WINDOW
OF OPPORTUNITY AND THE
SECURITY COUNCIL COULD VOTE
UNANIMOUSLY TO SET UP AN
INTERNATIONAL CRIMINAL CODE.
DURING THE COLD WAR IT WOULD
HAVE BEEN UNTHINKABLE.
THE RUSSIAN... THE SOVIET
UNION WOULD NEVER HAVE
AGREED TO IT AND CHINA
WOULDN'T HAVE AGREED TO IT.
BUT BECAUSE OF THE SHOCKING
EVENTS IN THE FORMER
YUGOSLAVIA AND BOSNIA, DEATH
CAMPS REMINISCENT OF THE
HOLOCAUST LED THE MAJOR
WESTERN POWERS TO PRESSURE
THE SECURITY COUNCIL
INTO SETTING UP THIS
INTERNATIONAL
CRIMINAL TRIBUNAL.
ITS LEGALITY WAS TESTED,
INTERESTINGLY ENOUGH, BY THE
TRIBUNAL ITSELF BECAUSE
TADEUSZ, THE FIRST ACCUSED
BEFORE THE TRIBUNAL, ARGUED
IN A PRELIMINARY APPLICATION
THAT THE COURT... THAT THE
TRIBUNAL WAS NOT LAWFUL
BECAUSE THE SECURITY COUNCIL
HAD NO POWER TO CREATE IT.
THAT WAS REJECTED ON THE
BASIS THAT THE SECURITY
COUNCIL ACTING UNDER CHAPTER
7 OF THE UNITED NATIONS'
CHARTER HAD THE POWER TO USE
MILITARY FORCE AND TO APPLY
COMPULSORY SANCTIONS, AND IF
IT HAD THOSE POWERS, IT HAD
THE LESSER POWERS.
THE COURT HELD AND THE
SECURITY COUNCIL WAS
ADVISED, IT HAD THE
LESSER POWER TO SET UP
AN INTERNATIONAL COURT.
THE SECURITY COUNCIL,
HOWEVER, WAS ADVISED BY THE
SECRETARY GENERAL, BOUTROS
BOUTROS-GHALI, CORRECTLY,
THAT IT WASN'T
A LEGISLATURE.
THE SECURITY COUNCIL HAD NO
POWER AT ALL TO CREATE LAW,
AND FOR THAT REASON IT WAS
ADVISED, AND ACTED ON THAT
ADVICE, THAT THE TRIBUNAL
IT WAS SETTING UP WOULD BE
GIVEN JURISDICTION ONLY
TO TRY OFFENCES THAT WERE
GENERALLY AND WIDELY AND
UNIVERSALLY ACCEPTED BY THE
INTERNATIONAL COMMUNITY.
AND, AGAIN, IT WAS A LEGACY
OF THE HOLOCAUST THAT HELPED
FRAME THE JURISDICTION OF
THE YUGOSLAVIA TRIBUNAL AND
LATER THE RWANDA TRIBUNAL.
IT WAS GIVEN FOUR AREAS OF
JURISDICTION IN RESPECT OF
THE CRIMINAL OFFENCES.
FIRSTLY, THE CUSTOMARY LAW
OF WAR GOING BACK TO THE
19th CENTURY HAGUE
CONVENTIONS, BUT THEN IT WAS
GIVEN THE JURISDICTION
TO TRY PEOPLE FOR CRIMES
AGAINST HUMANITY, AS DEFINED
FOR NUREMBERG AND AS
ADUMBRATED IN THE JUDGMENTS
THAT WERE HANDED DOWN AT THE
NUREMBERG TRIBUNAL.
CUSTOMARY LAWS OF WAR,
GENOCIDE, GRAVE BREACH
PROVISIONS OF THE GENEVA
CONVENTIONS... THESE
UNIVERSAL GRAVE BREACHES
WERE ALSO INCLUDED WITHIN THE
JURISDICTION OF THE TRIBUNAL AND
THE FOURTH LIMB WAS GENOCIDE.
THE DEFINITION OF
GENOCIDE CONTAINED
IN THE GENOCIDE CONVENTION.
SO YOU CAN SEE APART FROM
THE CUSTOMARY LAWS GOING
BACK TO THE HAGUE
CONVENTIONS, THE POWERS OF
THE TRIBUNAL HAD THEIR
ORIGIN IN THE LAWS THAT WERE
EFFECTIVELY INVENTED TO DEAL
WITH CRIMES OF THE MAGNITUDE
THAT WERE COMMITTED
IN THE HOLOCAUST.
THE SUCCESSES OF THE TWO
UNITED NATIONS WAR CRIMES
TRIBUNALS LED IN DUE COURSE
IN 1998 TO THE INTERNATIONAL
DIPLOMATIC CONFERENCE WHICH
WAS HELD IN ROME IN JUNE AND
JULY OF 1998 TO DISCUSS A
TREATY TO SET UP A PERMANENT
INTERNATIONAL CRIMINAL CODE.
THAT WOULDN'T HAVE HAPPENED BUT
FOR A NUMBER OF CIRCUMSTANCES.
THE FIRST AND MOST IMPORTANT
WAS THE LEVEL OF SUCCESS OF
THE AD HOC TRIBUNALS FOR
THE FORMER YUGOSLAVIA
AND RWANDA.
WITH ALL THE CRITICISMS, AND
JUSTIFIABLE CRITICISMS, OF
THOSE TWO INSTITUTIONS, THE
DELAYS, THE BUREAUCRATIC
INCOMPETENCE, THE FAILURE TO
ARREST THE MOST IMPORTANT
WAR CRIMINALS,
NOTWITHSTANDING THOSE
PROBLEMS AND THOSE NEGATIVE
ASPECTS OF THOSE TRIBUNALS,
THERE WERE IMPORTANT
SUCCESSES.
THE MOST IMPORTANT IN MY
OPINION OF THOSE SUCCESSES
WAS THE DEMONSTRATION TO THE
INTERNATIONAL COMMUNITY THAT
AN INTERNATIONAL CRIMINAL
COURT COULD WORK, THAT FAIR
TRIALS COULD BE PUT ON
BY INTERNATIONAL JUDGES,
INTERNATIONAL PROSECUTORS,
THAT INTERNATIONAL
INVESTIGATORS COULD
EFFICIENTLY INVESTIGATE.
NONE OF THAT WAS A GIVEN
BEFORE THE INTERNATIONAL
CRIMINAL TRIBUNAL
BEGAN THEIR WORK.
THEY ALSO SUCCEEDED VERY
IMPORTANTLY IN ADVANCING
THE LAW.
HUMANITARIAN LAW THAT'S NOW
CALLED THE OLD LAW OF WAR
WAS A WONDERFUL BODY OF LAW
MAINLY TO THE GREAT CREDIT
OF THE INTERNATIONAL
COMMITTEE OF THE RED CROSS
IN GENEVA.
OVER A CENTURY AND MORE, THE
ICRC PLODDED DOGGEDLY TO
IMPROVE AND REWRITE
THE LAW OF WAR.
THE GENEVA CONVENTIONS,
EARLIER THE HAGUE
CONVENTIONS, AND THEY DID SO
IN THE ATMOSPHERE THAT THOSE
LAWS WERE HONOURED IN THEIR
BREACH AND THERE WAS NO
COURT IN THE WORLD THAT
COULD APPLY THEM OR DID
APPLY THEM.
NATIONAL COURTS DIDN'T
TRY WAR CRIMINALS.
THEY WERE UNFORTUNATELY
REGARDED USUALLY AS HEROES
IN THEIR COUNTRIES, NOT AS
VILLAINS, NOT AS CRIMINALS.
AND THE ICRC CONTINUED... AS
I SAY TO YOU, IT'S GREAT
CREDIT BECAUSE WHAT COULD
BE MORE FRUSTRATING THAN
PUTTING THAT SORT OF EFFORT
INTO WRITING LAWS THAT WERE
NOT BEING APPLIED
THE EFFECT OF THE TWO UNITED
NATIONS TRIBUNALS WAS FOR
THE FIRST TIME ON A PROPER
BASIS TO START IMPLEMENTING
HUMANITARIAN LAW.
AND THEY'VE ADVANCED
HUMANITARIAN LAW IN TWO
IMPORTANT RESPECTS
AMONGST OTHERS.
THE ONE IS NARROWING THE
GAP BETWEEN THE LAW OF WAR,
HUMANITARIAN LAW IN RELATION
TO INTERNATIONAL ARMED
CONFLICT ON THE ONE HAND,
AND INTERNAL ARMED CONFLICT
OR CIVIL WAR ON THE OTHER.
BECAUSE TRADITIONALLY... AND
AGAIN IT WAS SOVEREIGNTY.
TRADITIONALLY, CIVILIANS,
INNOCENT CIVILIANS, WERE
ENTITLED TO GREATER
PROTECTION IN WARTIME IF IT
WAS AN INTERNATIONAL WAR
THAN IF IT WAS A CIVIL WAR.
WHAT COULD BE MORE ARBITRARY
OR RIDICULOUS THAN AN IDEA
THAT INNOCENT CIVILIANS WERE
ENTITLED TO LESS PROTECTION
IN THE CASE OF A CIVIL WAR?
BUT THE REASON OF COURSE
WAS THAT NATIONS WERE NOT
PREPARED TO HAVE THE GENEVA
CONVENTIONS APPLY IN THEIR
PLENITUDE TO CIVIL WARS.
GOVERNMENT SAID THE WAY WE
DEAL WITH FREEDOM FIGHTERS,
THE WAY WE DEAL WITH
TERRORISTS IS OUR BUSINESS.
IT'S OUR SOVEREIGN RIGHT
TO DECIDE HOW TO DEAL
WITH TERRORISTS.
AND IF WE KILL THEM IN
BREACH OF THE PROVISIONS OF
THE GENEVA CONVENTIONS,
THAT'S OUR BUSINESS.
AND WE'RE NOT PREPARED TO
AGREE TO A TREATY WHICH WILL
RESTRICT OUR RIGHTS IN
RESPECT OF CIVIL WARS.
THE EFFECTS, PARTICULARLY OF
THE YUGOSLAVIA TRIBUNAL...
BECAUSE THERE THERE WAS
INTERNATIONAL AND CIVIL WAR
GOING ON SIMULTANEOUSLY...
AND THAT WAS THE DECISION OF
THE JUDGES IN THE TRIBUNAL...
THE EFFECT OF JUDGMENTS IN
TADEUSZ AND OTHER TRIALS HAS
BEEN TO NARROW VIRTUALLY OUT
OF EXISTENCE THIS
DISTINCTION BETWEEN
INTERNATIONAL ARMED CONFLICT
AND INTERNAL ARMED CONFLICT,
AND THAT'S A GOOD THING.
THE OTHER IMPORTANT AREA
WHERE THE LAW HAS BEEN
ADVANCED IS IN RELATION
TO GENDER-RELATED CRIME.
HUMANITARIAN LAW, THE LAWS
OF WAR, WERE WRITTEN BY MEN
FOR MEN, AND THERE'S AN
ABSENCE OF A REFERENCE TO
RAPE, TO SYSTEMATIC MASS
RAPE, AS A WAR CRIME.
AND THIS WAS A PROBLEM WHEN
WE BEGAN OUR WORK IN THE HAGUE.
THERE WERE REPORTS OF MASS
RAPES IN BOSNIA AND LATER IN
RWANDA AND ONE OF THE MORE
SUCCESSFUL EFFORTS ON THE
PART OF NON-GOVERNMENTAL
ORGANIZATIONS WAS THE
TREMENDOUS EFFORT THAT WAS
MADE AT THE BEGINNING OF THE
WORK OF THE YUGOSLAVIA
TRIBUNAL TO BRING TO THE
ATTENTION OF THE FIRST CHIEF
PROSECUTOR THE CONCERN,
PARTICULARLY OF WOMEN,
IN DEMOCRATIC COUNTRIES
PARTICULARLY, THEIR CONCERN
THAT SYSTEMATIC MASS RAPE
SHOULD BE ADEQUATELY
DEALT WITH.
AND I RECEIVED LITERALLY
THOUSANDS OF LETTERS WRITTEN
MAINLY BY WOMEN, BUT
NOT ONLY BY WOMEN.
WHAT IMPRESSED ME WAS THAT
VERY FEW OF THEM WERE
STANDARD FORM LETTERS.
THERE WERE SOME.
THERE WERE SOME PETITIONS.
BUT HUNDREDS AND HUNDREDS OF
LETTERS ARRIVED IN MY OFFICE
IN THE HAGUE SOON AFTER I
GOT THERE FROM WOMEN WHO
WERE SUFFICIENTLY CONCERNED
TO WRITE THEIR OWN
HANDWRITTEN LETTERS GIVING
VOICE TO THEIR CONCERN.
AND THAT HAD AN EFFECT.
I HAD AN EASILY TWISTABLE
ARM I NEED HARDLY ADD, BUT
STEPS WERE TAKEN IN OUR
OFFICE TO APPOINT A SPECIAL
INVESTIGATION TEAM, AND I
APPOINTED AN OUTSTANDING
AMERICAN LAWYER TO BE
CONCERNED ONLY WITH GENDER
RELATED CRIMES AND GENDER
ISSUES IN THE OFFICE OF THE
PROSECUTOR... INTERNAL
GENDER ISSUES.
AND THAT MADE A DIFFERENCE
AND WE HAD TO BE A LITTLE
INVENTIVE AND CHARGE
SYSTEMATIC MASS RAPE AS
INHUMANE TREATMENT OR IN
SOME CASES AS TORTURE.
AND THE RESULT IS THAT IN
THE TREATY OF ROME OF 1998,
GENDER RELATED CRIME HAS
FOR THE FIRST TIME IN THE
HISTORY OF HUMANITARIAN LAW
BEEN ADEQUATELY DEALT WITH.
IT'S DEALT WITH VERY FULLY
IN ALL ITS RESPECTS, WHETHER
IT'S ENFORCED PROSTITUTION,
ENFORCED PREGNANCY, ALL OF
THE OTHER HORRIBLE THINGS
THAT WERE DONE TO INNOCENT
WOMEN IN THE COURSE OF THE
COMMISSION OF GENOCIDES IN
THE FORMER YUGOSLAVIA AND
RWANDA AND REGRETTABLY IN
OTHER PLACES
BEFORE AND SINCE.
SO THESE SUCCESSES WERE
SUFFICIENT TO ENCOURAGE
IMPORTANT NATIONS TO
PUSH FOR A PERMANENT
INTERNATIONAL
CRIMINAL COURT.
THE MAJOR COUNTRY
RESPONSIBLE FOR PUSHING FOR
THE INTERNATIONAL CRIMINAL
COURT WAS OF COURSE THE
UNITED STATES OF AMERICA.
IT WAS THEIR PUSH THAT
ENABLED THE TWO UNITED
NATIONS TRIBUNALS TO
GET OFF THEIR FEET.
WITHOUT THE ASSISTANCE,
PARTICULARLY OF THE THEN
AMBASSADOR OF THE UNITED
STATES TO THE UNITED
NATIONS, MADELINE ALBRIGHT,
I CAN TELL YOU FROM MY OWN
EXPERIENCE THE YUGOSLAVIA
TRIBUNAL AND THE RWANDA
TRIBUNAL WOULD NOT HAVE
BEEN ABLE TO DO THEIR WORK.
IT'S AN IRONY THAT THE
UNITED STATES WAS ONE OF
SEVEN COUNTRIES TO VOTE
AGAINST THEIR OWN TREATY.
AN IRONY BECAUSE OF THE
WORK IT DID FOR THE AD HOC
TRIBUNALS, AND EVEN A
GREATER IRONY BECAUSE ITS
PUSH LED TO THE MEETINGS
BEING HELD IN ROME.
IT PLAYED THE MOST IMPORTANT
SINGLE ROLE OF ANY COUNTRY
IN PUSHING FORWARD.
BUT THERE'S THE STRANGE
DUALITY... I SUPPOSE
SCHIZOPHRENIA... IN THE
UNITED STATES BETWEEN
WANTING TO PUSH FOR HUMAN
RIGHTS, BUT REGARDING IT AS
AN EXPORT INDUSTRY AND
NOT A LOCAL INDUSTRY.
THE UNITED STATES STATE
DEPARTMENT PUTTING OUT YEAR
AFTER YEAR THIS WONDERFUL
VOLUME OF DEALING WITH THE
HUMAN RIGHTS RECORD OF
VIRTUALLY EVERY COUNTRY OF
THE WORLD.
ONLY ONE COUNTRY'S HUMAN
RIGHTS RECORD IS OMITTED
FROM THEIR REPORT, AND THAT'S
THE UNITED STATES OF AMERICA.
NOTWITHSTANDING THE FACT THE
SERIOUS ALLEGATIONS OF HUMAN
RIGHTS ABUSE ARE MADE EVERY
YEAR IN THE UNITED STATES.
THE PROBLEM, OF COURSE, IS
THE DEFERRING, PARTICULARLY
BY THE CLINTON
ADMINISTRATION TO THE VIEWS
OF THE MILITARY, THE
PARANOIA OF THE PENTAGON
WITH REGARD TO THE
INTERNATIONAL CRIMINAL
COURT, ITS ASSUMPTION FOR
ABSOLUTELY NO REASON AT ALL
THAT PROSECUTORS IN THE
INTERNATIONAL CRIMINAL COURT
WILL BE POLITICALLY
DISHONEST, WILL BE
POLITICALLY BIASED, AND
WHAT'S MORE, THAT THE MANY
JUDGES WHO HAVE TO BE
APPOINTED BY A TWO-THIRDS
MAJORITY OF OVER 60 NATIONS
ARE GOING TO BE EQUALLY
DISHONEST AND BIASED AGAINST
THE UNITED STATES AND ARE
GOING TO CONSPIRE TO USE
THIS INTERNATIONAL CRIMINAL
COURT POLITICALLY AGAINST
ONE COUNTRY ONLY, THE UNITED
STATES OF AMERICA.
OF COURSE WHAT THEY DON'T
REALIZE IS THAT IT'S NOT
GOING TO HAPPEN BECAUSE THE
COUNTRIES INVOLVED WILL NOT
ALLOW IT TO HAPPEN.
IF THERE WAS A POLITICALLY
BIASED AND DISHONEST
PROSECUTOR AND JUDGES, THIS
WOULD BE AS UNACCEPTABLE AND
AS MUCH OF AN ANATHEMA TO
CANADA OR SOUTH AFRICA OR
FOR ANY WESTERN EUROPEAN
COUNTRY AS IT WOULD BE
TO THE UNITED STATES.
AND IF THAT HAPPENED THE COURT
WOULD DIE VERY, VERY QUICKLY.
IT WOULD NOT BE RESOURCED.
BUT, UNFORTUNATELY, THERE IS
THIS ATTITUDE WHICH LED THE
CLINTON ADMINISTRATION TO
VOTE AGAINST THEIR OWN
TREATY, BUT IN THE AFTERMATH
AND AFTER A HUGE PUSH BY
HUMAN RIGHTS ORGANIZATIONS
IN THE UNITED STATES,
PRESIDENT CLINTON, AS YOU
KNOW, IN THE LAST DAYS OF
HIS PRESIDENCY, IN FACT
SIGNED THE TREATY ON BEHALF
OF THE UNITED STATES MUCH
TO THE ANNOYANCE OF HIS
SUCCESSOR AND THE
REPUBLICAN LEADERSHIP.
AND WHAT WILL HAPPEN IS
NOT DIFFICULT TO GUESS.
THERE WILL CERTAINLY BE NO
SUPPORT IN ITS FIRST YEARS
FOR THE INTERNATIONAL
CRIMINAL COURT BECAUSE THAT
COURT IS GOING TO HAPPEN.
27 NATIONS HAVE
NOW RATIFIED.
137 HAVE SIGNED
THE TREATY.
THE TEMPO OF RATIFICATIONS
IS BUILDING UP AND MY GUESS
IS THAT IN THE NEXT 18 TO 24
MONTHS THE COURT WILL BE ABLE
TO DO ITS WORK WHEN 60 NATIONS
HAVE RATIFIED THE TREATY.
AND ITS JURISDICTION LIKE
THE UN AD HOC TRIBUNALS FOR
THE FORMER YUGOSLAVIA AND
RWANDA, THE JURISDICTION,
THE CRIMES WHICH THE
INTERNATIONAL CRIMINAL COURT
WILL HAVE JURISDICTION TO
CONSIDER... AND IT WILL ONLY
HAVE FORWARD-LOOKING
JURISDICTION NOT
BACKWARD-LOOKING.
BUT THE CRIMES IT WILL HAVE
WITHIN ITS JURISDICTION,
LIKE THE AD HOC UN
TRIBUNALS, WILL BE THE FOUR
AREAS THAT I MENTIONED,
THREE OF THE FOUR BEING
A DIRECT LEGACY OF
THE HOLOCAUST.
UNIVERSAL JURISDICTION, AS
I'VE INDICATED, HAS ALSO HAD
REMARKABLE CONSEQUENCES
IN NATIONAL LAW.
I'VE MENTIONED
GENERAL PINOCHET.
THERE WERE OTHERS.
ONE OF THEM RELATED TO
THE YUGOSLAVIA TRIBUNAL.
GENERAL TADEUSZ, THE SECOND
IN COMMAND OF THE BOSNIAN
SERB ARMY, REPUBLIC OF
SRPSKA ARMY, NOT MORE THAN
A YEAR AGO, WAS INVITED BY
THE OSCE TO A CONFERENCE TO
DISCUSS THE DATE AND ACCORDS
AND ITS IMPLEMENTATION AT
A MEETING IN VIENNA.
DURING ONE OF THE SESSIONS
ON THE SECOND DAY, A
MESSENGER CAME AND GAVE
GENERAL TADEUSZ A MESSAGE TO
SAY THERE WERE SOME PEOPLE
WHO WANTED TO SEE HIM
IN THE LOBBY.
HE WENT OUTSIDE AND THERE
WAS THE AUSTRIAN POLICE WERE
THERE TO ARREST HIM ON A
SECRET INDICTMENT THAT WAS
ISSUED BY THE PROSECUTOR,
THEN LOUISE ARBOUR.
AND HE WAS FLOWN
THAT DAY BY A UN FLIGHT
TO THE HAGUE WHERE HE
IS NOW AWAITING TRIAL.
AGAIN, YOU CAN SEE THE EFFECT
OF UNIVERSAL JURISDICTION.
HERE AN OFFICIAL, A FOREIGN
OFFICIAL, VISITING AS AN
OFFICIAL VISITOR IN AUSTRIA,
IS ARRESTED AT THE INSTANCE
OF AN INTERNATIONAL COURT.
IT'S BECOME UNSAFE BECAUSE
OF UNIVERSAL JURISDICTION
FOR FORMER AND PRESENT HUMAN
RIGHTS ABUSERS TO TRAVEL.
IT'S BAD NEWS FOR
THEIR TRAVEL AGENTS.
THEY'RE VACATIONING AT HOME.
IT'S BAD NEWS FOR FOREIGN
DOCTORS BECAUSE THEY'RE
GETTING THEIR MEDICAL
TREATMENT AT HOME, TOO.
THERE WERE REPORTS THAT
FORMER PRESIDENT SUHARTO
CANCELLED MEDICAL TREATMENT
IN GERMANY BECAUSE HE HAD
BEEN TOLD THAT THERE
WAS A WARRANT OF ARREST.
A SECRET WARRANT HAD BEEN ISSUED
FOR HIS ARREST IN GERMANY.
WHEN FORMER PRESIDENT OF
ETHIOPIA, MENGISTU, CAME FOR
AN OPERATION AND MEDICAL
TREATMENT IN SOUTH AFRICA,
THERE WAS A
HUGE HUE AND CRY.
HUMAN RIGHTS WATCH IN
NEW YORK PUBLICIZED IT.
AND BEFORE THE SOUTH AFRICAN
AUTHORITIES... WHO DIDN'T ACT
TOO QUICKLY I MIGHT
ADD, TO MY REGRET.
BUT, NEVERTHELESS, MENGISTU
WENT VERY QUICKLY BACK TO
ZIMBABWE WHICH HAVE QUITE
INAPPROPRIATELY GIVEN
HIM ASYLUM.
THERE HAVE BEEN
OTHER EXAMPLES.
ONE OF THE MOST INTERESTING
IN VERY RECENT WEEKS WAS THE
FRENCH PUBLIC TRANSPORT
OFFICIAL WHO APPARENTLY TOOK
PLEASURE IN ENGAGING YOUNG
TEENAGE PROSTITUTES IN THAILAND.
AND MANY OF YOU MIGHT HAVE READ
OF HIS RECENT ARREST IN PARIS.
UNFORTUNATELY FOR HIM, HE
GOT FRIENDLY WITH SOMEBODY
FROM ENGLAND WHO HAD A
SIMILAR PROCLIVITY FOR
EXTREMELY YOUNG GIRLS OF
11 AND 12 AND HIS ENGLISH
FRIEND VIDEOTAPED THE FRENCH
OFFICIAL IN THAILAND.
AND HE SENT A COPY OF THE
VIDEO TO HIS FRENCH FRIEND
AND HE KEPT ONE HIMSELF.
WELL MANY YEARS LATER, THE
ENGLISHMAN'S HOME WAS RAIDED
BY THE ENGLISH POLICE WHO
WERE INVESTIGATING OTHER
SEXUAL OFFENCES
INVOLVING CHILDREN.
THEY FOUND THIS TAPE AND SENT
IT TO THE FRENCH OFFICIALS.
THE FRENCH PROSECUTOR
INVESTIGATED IT AND FRANCE,
INTERESTINGLY ENOUGH,
REGARDS CRIMES DEALING WITH
CHILD PROSTITUTION AND CHILD
PORNOGRAPHY AS UNIVERSAL
CRIMES HAVING EXTRA
TERRITORIAL JURISDICTION.
AND ANY FRENCH CITIZEN
COMMITTING THAT CRIME
ANYWHERE IN THE WORLD IS
AMENABLE TO JUSTICE IN FRANCE.
THE FRENCH OFFICIAL WAS
SENTENCED TO SEVEN YEARS
IMPRISONMENT A
VERY FEW WEEKS AGO.
SO INTERNATIONAL BORDERS ARE
BECOMING FAR MORE POROUS AND
FOR THAT REASON, AS I SAY,
IT'S BECOME DANGEROUS FOR
THESE PEOPLE TO TRAVEL
OUTSIDE COUNTRIES WHERE THEY
HAVE THE PROTECTION
OF THEIR OWN REGIMES.
IF THIS LEGACY OF THE
HOLOCAUST IS TO BE
ADEQUATELY REALIZED, WE NEED
AN ACTIVE AND AN EFFICIENT
INTERNATIONAL CRIMINAL COURT
WHICH WILL ACT AGAINST ALL
WAR CRIMINALS WHEREVER THEY
MAY BE AND REGARDLESS OF THE
POWER OR IMPORTANCE OF THE
NATIONS WHOSE LEADERS MAKE
THEMSELVES GUILTY
OF SUCH CRIMES.
LEAVING IT TO THE SECURITY
COUNCIL IS A VERY POOR
SECOND BEST.
ONE KNOWS THE SECURITY
COUNCIL WILL NEVER EVER SET
UP AN INTERNATIONAL WAR
CRIMES TRIBUNAL WHICH
INVOLVES CRIMES COMMITTED BY
ANY OF THE PERMANENT MEMBERS
BECAUSE THEY WILL VETO IT,
AND FURTHER AGAINST ANY
COUNTRIES CONSIDERED
IMPORTANT FOR WHATEVER
REASON BY ANY OF THE
PERMANENT MEMBERS.
AND WE NEED, IN SHORT,
A RULE OF LAW FOR THE
INTERNATIONAL COMMUNITY.
A RULE OF LAW THAT WILL
APPLY EQUALLY AND EVENLY AND
FAIRLY TO ALL NATIONS OF THE
WORLD, THE MOST POWERFUL
AND THE MOST WEAK.
THUS I WOULD SUGGEST THAT
THE LEGACY OF THE HOLOCAUST IS
THE IMPRESSIVE RESPONSE
OF INTERNATIONAL LAW.
WHETHER ITS PROMISE IS TO BE
ADEQUATELY FULFILLED STILL
REMAINS VERY MUCH
IN THE BALANCE.

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Big Ideas, TVONTARIO, Box 200, Station Q, Toronto, Ontario, Canada. M4T 2T1.

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Executive Producer, Doug Grant.

A production of TVOntario. Copyright 2001, The Ontario Educational Communications Authority.

Watch: R.J. Goldstone on War Crimes and Peace