In the waning days of his administration, President Bill Clinton decided that the United States should sign a United Nations treaty setting up an international criminal court that would prosecute war crimes, and thereby kept alive a faint chance that the U.S. Senate will eventually ratify the treaty.
When plans for such a court were drawn up in 1998 in Rome, 120 nations approved it. The United States was one of seven countries voting against it - joining China, Iraq, Israel, Libya, Qatar and Yemen. Washington's objections center on the possibility of American soldiers being liable to prosecution by a politically motivated international tribunal.
The treaty has no more dedicated supporter than Richard J. Goldstone, a justice on South Africa's Constitutional Court, who was the first chief prosecutor of the United Nations tribunal that investigated war crimes committed in the former Yugoslavia and in Rwanda.
In South Africa, Goldstone was not a political activist when he was named a judge in 1980. In 1982, however, he handed down a carefully drawn opinion that essentially ended enforcement of the law that required residential segregation, undermining one of the foundations of apartheid.
A decade later he was named head of what became known as the Goldstone Commission, trusted by all political factions in South Africa in its investigation of the violence that vexed the transition to democracy. In 1994, he began a two-year term as prosecutor in The Hague.
Goldstone, 61, was at Georgetown University last week to discuss a report he helped write on Kosovo, taking time out to discuss the proposed international court. Though Clinton signed the treaty before a Dec. 31 deadline, the Bush administration has said it has no intention of seeking ratification by the Senate. Sun staff writer Michael Hill spoke with Goldstone in Washington, and an edited version of their conversation follows:
Though it was not an action by an international criminal court, do you think the recent verdict in the trial of those accused in the Pan Am 103 bombing - the Lockerbie case - teaches us anything about international tribunals?
First, it demonstrates what the U.N. tribunals have already demonstrated - that international courts can work. And I think it demonstrates the necessity for a permanent international court.
People are complaining, particularly the victims, that it was the small fry that were put on trial - one acquitted and one convicted - and that it is really the people behind them that should be brought to trial. The only hope of mounting that sort of investigation is by having an international court and international investigators.
Hopefully, the rule of law will become stronger over the years and international investigators, through the power of political and economic muscle being exerted on these rogue states, will get access to them. It was only economic and political sanctions against Libya that persuaded them to give up these two. So we have a long way to go, but we are moving in that direction.
But could such a court operate on a practical level, getting the necessary cooperation?
I think it would operate on this basis - it would be in the interest of all states, even rogue states, to submit to the jurisdiction of the court in respect to the most serious crimes, and those are the only crimes that would be in the jurisdiction of the court.
It is debatable whether a Lockerbie type of action would be within the jurisdiction of the court at all; whether it is a war crime or not is not a simple matter. Certainly my hope is that the longer you have this first international criminal court working and proving its worth, its jurisdiction would increase.
Some Caribbean countries wanted the court to have jurisdiction over the international drug trade. Others wanted it involved in economic crimes, money laundering. It was difficult enough to get countries to come on board for the worst of war crimes. There would have been even greater objections than those you had from the United States, for example, if the jurisdiction was going to be any wider.
What do you think of the U.S. objections?
Unfortunately, they are in line with U.S. objections that go back decades. The fact that it took 40 years for the U.S. to ratify the genocide convention; the fact that the U.S. has still not ratified the convention on the rights of children, one of only two countries in the world, along with Somalia - at least Somalia has a good excuse, they haven't got a government - these are all concerns about sovereignty.
This is really an outmoded concern because the United States itself does not hesitate to invade the sovereignty of other nations when it thinks that is necessary. The military intervention in Kosovo is the best possible example, an intervention in what was clearly events in the province of a sovereign state. I have little doubt that this will change in a country like the United States.
The general public, civil society and human rights organizations are going to form the core of pressure groups to bring about that change.
Do the U.S. objections have any merit?
I don't think so, because if that court acts as the United States fears and singles out the U.S. for inappropriate prosecution, it is going to die very quickly because that would not be acceptable to the United Kingdom or any other Western European state or to South Africa, for that matter. Its life would be very limited.
I think if you are going to get permanent peace in troubled areas of the world, you need justice. You are not going to get people putting aside their calls for revenge until you get some sort of justice. So it is in the long-term interest of the individual states and the international community that these bodies should prosper.
Has the credibility of the court been damaged by its inability to get many of those charged arrested, particularly the big names like Slobodan Milosevic and Radovan Karadzic?
The problem of arrests is not as serious as it was. It used to be well under half of those indicted, now it is well over half, the result mainly of United States pressure. To get the rest will require political will and countries realizing it is in their self-interest. Look at [Yugoslav President Vojislav] Kostunica's attitude to handing over Milosevic. Right now he is obviously judging public reaction in Yugoslavia. I don't think he would lose any sleep if Milosevic was sent to The Hague, but it's a political issue. In Rwanda, the main number of those indicted are either on trial or awaiting trial.
People are waiting too long to go on trial. The delays are unfortunate. In some cases, that is due to the complexity of the investigation but there have been well-documented inefficiencies. The trials are taking too long. As far as arrests, it was a slow start, but it is improving.
Some of the big fish haven't been arrested, but there are other successes. And at least these big names have been indicted which makes them international pariahs. Milosevic and Karadzic can't travel so they really cannot be in leadership positions in a globalizing world.
Does your experience on the war crimes tribunal, and observing the work of the Truth and Reconciliation Commission in South Africa, lead you to believe that an important factor in such a court's work is simply acknowledging to the victims that crimes were committed, whether or not it is able to mete out justice to the perpetrators?
Absolutely. One of the major successes in Rwanda and in Yugoslavia at the beginning was the importance of acknowledgment being given.
When I was prosecutor in 1995 and 1996, I was very impressed with witnesses we got from Tuzla [Bosnia] - men, women, elderly people, young people. They arrived a disparate, unhappy group, bickering among themselves.
After giving evidence, they went back a cohesive, happier group, who felt that they had spoken not just for themselves, but for other victims. And they had been a part of an important endeavor, acknowledged publicly by an official organization.
That's why in South Africa it was important that the Truth Commission was not just some media interview, it was an official body recording evidence, recording a collective history. In my book, the most important benefit from the South African Truth Commission is the common history that my grandchildren are being taught and that black children are being taught. But for the Truth Commission, we would have had a black history and a white history.