Richard Goldstone: The Opinio Juris Interview

Opinio Juris is pleased to publish the first in an ongoing series of blog interviews with preeminent practioners, scholars and jurists in international law. We are honored that our first interview is with Justice Richard Goldstone. Justice Goldstone’s stepped down last year as a Justice of the Constitutional Court of South Africa, on which served from its establishment in 1994 until 2003. He was Chief Prosecutor for the International Criminal Tribunals for Former Yugoslavia and Rwanda from 1994-1996. From 1991 – 1994, he served as Chairperson of the South African Commission of Inquiry regarding Public Violence and Intimidation, which came to be known as the Goldstone Commission and which played a key role in the transition from apartheid to democracy. Since April 2004, he has served as a member of the UN Secretary General’s Committee To Investigate the Iraq Oil-for-Food Program. He has been a visiting professor of law at NYU, Fordham and Harvard.

International Criminal Tribunals for Former Yugoslavia and Rwanda

OJ: You were the first prosecutor at the ICTY with joint responsibility for the ICTR, the first truly international criminal tribunals with jurisdiction to prosecute war crimes and crimes against humanity. Looking back over the past ten years of the ICTY and ICTR, what have been the greatest achievements and successes of those courts?

RG: In my opinion the greatest success of both tribunals has been to put an end to the denials that were so widespread before they were established. The evidence of hundreds of witnesses in both The Hague and Arusha has established a history that will be taught in those regions in the future. This, I would suggest, lessens the prospects for a repetition of the egregious violations of human rights that accompanied the events that were investigated.

OJ: What have been the biggest disappointments?

RG: The greatest disappointment has been the failure to arrest Karadzic and Mladic and send them for trial in The Hague.

OJ: What is your assessment of the Milosevic trial?

RG: From a forensic point of view, the trial has been impressive in the evidence presented by the Prosecution. My criticism relates to the excessive leniency shown to Milosovic by the judges during the prosecution case. He was allowed to demean the court and the judges and to use the trial as a platform to propagate his nationalistic politics and play to his supporters at home. The judges only too late began to curb his misuse of his right to defend himself.

OJ: Will the ICTY be deemed a failure of Milosevic is not convicted?

RG: If Milosovic is not convicted, an unlikely event, I do not believe that is relevant to the reputation of the ICTY. Indeed, it would demonstrate the fairness of the proceedings.

International Criminal Prosecutions

OJ: The ICTY and ICTR set the groundwork for the creation of the International Criminal Court. You have been a strong supporter of the ICC since before the ratification of the Rome Treaty. Many rationales have been laid out for the existence of an ICC, among them ending impunity for war criminals, deterrence of future crimes, permitting closure for victims. Those opposing the court have expressed concerns about selective or politically motivated prosecutions and also interference with amnesties and peace processes necessary to settle armed conflicts. What do you see as the most important rationales for the court? How do you respond to the critics?

RG: The main rationale for the ICC is the end of impunity for war criminals. That is in the interests of all democratic nations. The United States has led the movement to establish the UN ad hoc tribunals for the former Yugoslavia and Rwanda and indeed also for the ICC. Its main objection to the latter is the US inability to have a veto over the investigations of the ICC. It wished the Security Council to hold the sole trigger to commence investigations. When that was rejected by the overwhelming number of nations in Rome, it turned its back on the ICC.

OJ: What is your assessment of their current work?

RG: It is still too early to judge the current work of the ICC.

OJ: Is it a coincidence that the only referrals to date have been on questions relating to conflicts in Africa?

RG: I suppose it is a coincidence that the first four cases have come from Africa. It is a good thing, however, that Africa leads the number of nations having ratified with 27 compared to 25 from Europe.

OJ: The ICC Prosecutor is currently being pressured by Ugandan NGOs to suspend its investigation of Ugandan rebels during pending peace negotiations? Do you think that the ICC Prosecutor should have the ability, once a referral has been made, to grant guarantees of non-prosecution to aid in the completion of a peace settlement? If not, how would you advise the ICC prosecutor to act here?

RG: With regard to the Uganda prosecution, in my view the Prosecutor should not become part of the political process. If a suspension of the prosecution is considered desirable for peace negotiations to proceed, then the Security Council should be approached to make such an order – it is entitled to do so under Article 16 of the Rome Statute.

OJ: The United States, of course, is not a party to the ICC statute. How does the absence of the US affect the ICC? Can it be a success without the US?

RG: Without the support of the US, the ICC is obviously weakened. It was the economic and political clout of the US that assisted the ICTY and ICRT is so many material respects. I do believe, however, that the ICC will be able to succeed without that support. It is my sincere hope that in the not too-distant future the US will lead the Assembly of States Parties.

Use of Foreign and Comparative law in US constitutional cases

OJ: There is a great deal of controversy in the US today over the use of foreign case law and international law sources in the interpretation of US constitutional law. Justice Kennedy’s reference to the European Charter of Human Rights and discussion of European laws in Lawrence v. Texas and to several international human rights treaties and to foreign practice on the question of the juvenile death penalty in Roper v. Simmons come to mind. In both cases, Justice Scalia dissenting, marshalling arguments that what foreign parliaments and courts do is of no moment to US interpretation of the US Constitution. When you were on the Constitutional Court of South Africa, that Court cited to foreign and international sources of quite often; indeed, the South African Constitution explicitly permits reliance on international and comparative sources. What do you make of the debate in the US?

RG: The debate on the use of foreign law in the US Supreme Court is linked directly to the “originalist” philosophy associated with Justice Scalia. His real objection is to modern law rather than to foreign law.

OJ: Should it make a difference if a constitution explicitly incorporates international law into its text, like the South African and other constitutions do, versus the U.S. Constitution?

The use of foreign law by the South African Constitutional Court has been of great assistance. For a new constitutional state, without any precedents, the position is very different from that in an older democracy such as the United States. So, the debate is a very different one.

Legal Studies and Practice

OJ: You have had an impressive career in law, public service and more recently legal academia. What has been your favorite job to date? How would you advise students interested in a career in public international law approach their studies?

RG: My favorite job to date has been sitting as a Justice of the Constitutional Court of South Africa. A close second has been teaching in US law schools during the past 18 months.
I have enjoyed in particular teaching international humanitarian law. Together with other aspects of international law it has become of daily relevance. I would certainly advise students who are not required to study international law to elect to do so. Our world is contracting rapidly and few areas of the law have not become trans-national.