The following Lecture was delivered by Justice R.J. Goldstone at New York Law School on April 15, 1998. Justice Goldstone is a member of the Constitutional Court of South Africa and the former Chief Prosecutor of the War Crimes Tribunals for Rwanda and the former Yugoslavia. The Discussants were Professors Ruti G. Teitel and Stephen J. Ellmann of New York Law School. The complete text of this Lecture, including questions and answers from the audience which have been omitted in this text, will appear in fully annotated form in the New York Law School Journal of Human Rights during the 1998-99 academic year. To order this symposium issue please call (212) 431-2112.

Justice R.J. Goldstone: It is a privilege for me to be invited to deliver the 1998 Otto L. Walter Lecture. It is also a great honor that Dr. Walter, for whom this Lecture is named, is with us today.

It is useful to look back at the end of a century in the life of a nation, or indeed in the life of the world. It is a good thing to pause and take a step back and see where we have come from, where we are, and, at great risk of even talking of, where we are going. It is useful because living from day to day one loses the wood for the trees; one is dealing with the problems of the day or the week or the month, and one doesn't focus on the whole picture. 

I must confess to being an optimist. I look on the bright side of things whenever I can. One couldn't have survived apartheid in South Africa if one weren't an optimist. If one looks where international human rights have come from in the century that is quickly coming to an end, there is great reason for optimism and rejoicing, although one must tinge that optimism with apprehension at the slowness of the pace.

At the beginning of this century international human rights had no relevancy. Between the two great wars, the League of Nations was focused on governments not individuals. It was only in light of the Holocaust that the accent shifted to individuals, and for the first time individuals became the subject of international law and specifically international human rights law. A huge step was the recognition in Nuremburg of crimes against all of humanity, not just an individual or a nation. For the first time, international jurisdiction was recognized. Countries recognized that it was not only the right, but indeed the duty, of governments everywhere to punish crimes against humanity, even where there was no direct connection with the nation whose courts were involved. Another important development was that even heads of state could be the subject-matter of criminal prosecution. It was also recognized that following superior orders was not a legitimate defense to these crimes. This vivid recognition of international jurisdiction was unthinkable before World War II.

The recognition of universal jurisdiction had very important consequences almost immediately. The fact that individuals are the subjects of international law was recognized in the United Nations Charter. That was taken further in the Universal Declaration of Human Rights. It was recognized in developments in the Law of War and in the Genocide Convention. Governments were required to bring perpetrators of grave crimes to book regardless of where those crimes were committed. The obligation went even further. If a country was unwilling to prosecute a suspect within its borders, its government was required to extradite the suspect to a country willing to prosecute. In the Apartheid Convention of the early 1970's, which defined apartheid as a crime against humanity, jurisdiction was conferred on all parties to the Convention to charge and to try people guilty of the international crime of apartheid.

In the Genocide Convention of 1948, it was assumed that there would be an International Criminal Court. In the Convention on Apartheid there is also a reference to such a court. The rational expectation was that when you have established international jurisdiction there would be an International Court in addition to national courts. And it is a sad commentary on the 20th century, as we reach its end, that the international community is still only at the point of discussing a treaty for the establishment of an International Criminal Court.

Another important development has been the narrowing of the difference in the manner in which civilians are entitled to be protected during international armed conflicts and internal civil conflicts. Again, there can be no decent person who would suggest that innocent civilians should receive greater protection because a conflict happens to be international. And yet there is a tremendous resistance on the part of governments to recognize that in internal conflicts civilians should be given the protection provided in the case of international conflicts. Of course there is a reason for this which bears directly on the resistance of governments to the establishment of an International Criminal Court, and that is the question of sovereignty. Governments guard sovereignty with a tremendous vigor which is beyond rational debate in many cases.

Governments object to the Law of War applying to civil wars, because their attitude is that no one has a right to tell us how to deal with our own terrorists, nobody has the right to tell us how to deal with our own insurrections, our own people who are demonstrating against even the worst oppression that governments can bring to their own people. I grew up in a country where the government every day objected to what it considered interference in the internal affairs of South Africa by the international community. The international community no longer accepts the specious argument that a government can abuse its own people, even torturing and murdering them, without interference by the international community. That is a tremendous advance. In this sense, at the end of the century, it is important to recognize that we are living in a different world from the one at the beginning of the century.

It is common sense, really, that the international community has a stake in how governments treat their own citizens. Borders are porous. When governments violate fundamental human rights on a massive scale this affects the international community directly. It particularly affects the countries in the area concerned. In the case of the former Yugoslavia, there are refugees throughout Europe, 300,000 in Germany alone. In the case of Rwanda, many millions of people, in a country with a population of only 7 million people, were displaced causing instability in the Great Lakes region of Central Africa and causing a revolution in Zaire. Look at the price our neighbors paid in economic terms for apartheid in South Africa. Thankfully, the international community wasn't prepared to put up with apartheid, and it applied sanctions. These sanctions played an important role in bringing apartheid to an end, but they hurt our neighbors more than they hurt South Africa because our neighbors depended on the economy of South Africa for their economic well-being. To their credit these countries welcomed sanctions. Thus, on what rational basis would anyone say that what South Africa did was of no concern to its neighbors or to the continent or the international community? 

In a talk from a legal platform in New York, it should be recognized that the legal community in this country played a fundamental role in bringing down apartheid and in ensuring that what replaced it is a constitutional, democratic and open society. The American legal community played a very important role in ensuring that this happened. As a result of these efforts, South African lawyers learned the significance of the internationalization of human rights. American lawyers and resources were used to set up the Legal Resources Center in South Africa. The American legal fraternity was responsible for setting up Lawyers for Human Rights. These were important contributions that launched a tremendous movement in the late 1970s. It was late in the history of apartheid, but it was important, and I have no doubt that but for these developments South African respect for judicial processes would have died. It encouraged black lawyers to work against the oppressive system.

Of course, this could not have happened fifty years ago. Then the attitude would have been that this has nothing to do with you. It is our internal affair. Don't come and get involved with stirring up black lawyers and getting them active in matters that are of no concern even to them.

This is the good news. The international community does in fact interfere with the internal affairs of a country when serious violations of human rights are involved. We have a long way to go, however, especially if we recognize, as we must, that even with all these developments in international human rights law, notwithstanding that, human rights are abused more today than at any time in history. It's a paradox. We have improvements in law. Yet we have more violations of that law. There are of course, numerous reasons, including increased population, unemployment, scarcity of water, and new developments in technology. Unfortunately, it has become much easier than it was twenty or thirty years ago for evil politicians using modern technology to violate human rights. Even in a country like Rwanda, not a sophisticated country by any standard, there can be no doubt that many hundred thousands of people could not have been killed in the genocide of 1994 without the use of the radio which allowed the evil leaders of Rwanda to organize a genocide which, with tremendous efficiency, killed some 800,000 people in three months in hand-to-hand, eyeball-to-eyeball murders. In the propaganda that was used in the former Yugoslavia, television played a very important role in activating people in their hatreds.

So at the end of the century we have to take stock. We have, as I've said, a wonderful body of law available to be used, but unfortunately very little political will to use it in fact. One can only get pessimistic and frustrated at some of the debate about the establishment of a permanent International Criminal Court. In the United States, the Administration and, more particularly, the Senate is objecting to an independent Court with an independent prosecutor. The United States argues that it doesn't want its military people to be carted off under some international legal system to some international court for some alleged violation conducted under international peacekeeping operations somewhere or other. Of course, if that is the attitude of the United States, why shouldn't that be the attitude of every other member of the United Nations? It seems to me it doesn't lie in the mouth of any country to say that because we have such wonderful military courts, only those military courts should charge our citizens. Then on what basis can such a country dictate to other countries that they should make their citizens subject to international jurisdiction? There has to be greater confidence in the international community and in the institutions it establishes.

The jurisdiction of an International Criminal Court should not be made subject to the veto of the Security Council. On what basis can that be justified? Yet it is being seriously debated. One of the problems with the United Nations Ad Hoc Tribunals was that they were perceived as acts of discrimination, particularly in the former Yugoslavia, as an act of discrimination against Yugoslavia. Why wasn't there a court for Pol Pot in Cambodia and one for Saddam Hussein in Iraq, they ask? These leaders committed equally grievous humanitarian violations. Why Yugoslavia? And that is a valid complaint, unless these Ad Hoc Tribunals are a first step toward a permanent court.

My own fear is that at the meeting being held in Rome a very few weeks from now, the debate is going to go along in this direction. There are, however, a number of countries which are calling for a truly independent court with an independent prosecutor who will be accountable to the treaty members. My understanding is that the attitude of the mightier countries, including the United States, is that the prosecutor should not be able to investigate any case that is taken on by the Security Council under Chapter 7 of the United Nations Charter. This will, in effect, give the major powers a veto. Here again we are confronted with the paradox, that the worse the war crime, the more likely it will be for the Security Council to take jurisdiction, and the less power the international prosecutor will have. It really seems to me to be a contradiction in terms.

I say the following advisedly, as a person who believes absolutely in the necessity of an International Criminal Court. I'd rather not have one, than have a weak court that will bring disrepute on the whole endeavor. It would be a tragedy if the international community goes ahead without the full support of the United States. An International Criminal Court without the support of the United States is going to be a weak court. One can only hope that public opinion in this country is going to play a role in indicating to the legislators, to the Administration, that the American people recognize that it is in their own self-interest to bring war criminals to account before a credible court. It is the only deterrent against war crimes. Potential war criminals must know that there is a likelihood that they will be brought to justice. Until now no war criminals have had to confront the risk of punishment. There was no international court where they could be tried. War criminals knew that as long as they were safe within their own countries, they were safe in all countries.

One can't deny the problems relating to the protection of national sovereignty. However, we must not forget that where self-interest is recognized, there is a record of international conventions working. One only has to cite areas such as telecommunications and aviation agreements which are respected by all nations. It is in the self-interest of all to do so. If you don't deliver my letters, I won't deliver yours. I believe self-interest dictates that war crimes and human rights violations be brought to a stop sooner rather than later. Humanitarian aid is not enough. It comes after the event, and the cost to the United States is tremendous. Again, let me emphasize that we need to recognize where self-interest lies.

We must recall the manner in which the Tribunals for Rwanda and Yugoslavia have conducted themselves. Their record can be judged according to any standard as having produced fair procedures. The Tribunals have acted with respect for the sovereign rights of the nations involved. No investigation has gone into any country without that country's consent. The actions of the Ad Hoc Tribunals should encourage us and engender confidence in the salutary role that a permanent International Criminal Court would play in supporting the law of nations.

I would like to take the opportunity before this distinguished audience to make a plea for pressure to be put on the leaders of this country to see to it that the permanent International Criminal Court that must come about sooner or later is a Court that we can be proud of.

Professor Stephen J. Ellmann: It's an honor to be on this panel with Justice Goldstone whose role in South Africa and in the world is exemplary of both what a single person can do and of an odd but not novel fact, which is that there are times when grotesque oppression breeds tremendously creative responses. It is also appropriate to be gathered here in a week when many of us are celebrating redemption and new hope. There is indeed new hope as Justice Goldstone has said.

I find nothing to quarrel with in what Justice Goldstone has said, but I want to briefly talk about another lesson borne out of the creativity of the struggle in South Africa, the lesson embodied in the amnesty granted for past wrongs in South Africa. How does this lesson intersect with the lessons about the need for an International Criminal Court? 

I want to agree with Justice Goldstone that the rise of international human rights law has been a tremendous human achievement in this century. I also want to agree with his remarks that the conversion of human rights law from general principles to enforceable norms is essential. Finally, I want to agree with Justice Goldstone's remarks that a permanent International Criminal Court would be a tremendous achievement in the conversion of "good talk" into "good action." 

And yet, what international criminal courts, like domestic courts, do is prosecute and punish. The draft statute for the International Criminal Court that I have seen includes some language about the possibility of pardons after conviction and sentencing, but there is no reason to doubt that pardons are not a central policy choice. So I want to talk about South Africa where pardons have come to seem to be an essential part of policy. I, of course, talk about this as an American, and I hope Justice Goldstone will speak to these developments himself. 
Let me turn to what his colleagues on the Constitutional Court (Justice Goldstone did not himself sit on the Court in this particular case) have said in the case in which that court was called upon to decide whether the amnesty process in South Africa was constitutional under the South African Constitution, a constitution which guarantees all victims access to courts. That, of course, is precisely what an amnesty denies. 

Both the South African interim constitution, and now the final constitution, provide that there shall be an amnesty. Neither text specifies exactly what the amnesty shall be. The Constitutional Court of South Africa had before it not so much the question of whether there should be an amnesty, but rather whether the particular amnesty law was constitutional. The particulars of that law are that when the conditions for receiving amnesty are satisfied, then the recipient receives complete immunity from criminal or civil liability. The state itself is immunized from civil liability for the past wrong-doing of its agents. That's a thorough-going amnesty. And it's fair to say that it denies a lot of people at least the aspiration to go to court and get redress for the wrongs done to them. 

The Constitutional Court unanimously held that this was a constitutional decision by the South African legislature. The reasons were many. One was that what victims want even before they want justice is knowledge. The Constitutional Court then said that given the realities of the abuses of the past, finding out what happened may be impossible unless the perpetrators know that when they admit what they did, they will not be punished. Second was a very pragmatic view, that amnesty was the price of the transition. Finally, there was a more principled reason and one expressly articulated in the Constitution. Amnesty was in part a judgment that what was needed in South Africa was not more punishment, but instead reconciliation. Amnesty did not come for free. The government and individual victims do get something, although not jail time or money. 

You might say that only in a country emerging from its own nightmare of human rights abuses is there any reason to talk in these terms. But, in fact, the occasions for amnesty might extend also to international human rights abuses. I think of the possibility of two opposing parties who fall into a war of such savagery that neither side takes prisoners. No one is innocent of killing soldiers who have surrendered. That is a war crime. One might find that to forgive and move on is considered best in such a situation. Indeed, there are instances in the past where conflicting parties have decided to grant such amnesties. 

That leads to the question, is there a way to have an International Criminal Court without preventing countries that want amnesty rather than prosecution from getting just that? If the International Criminal Court existed at this moment then maybe the amnesties granted in South Africa would only be valid within South Africa's own borders. The International Criminal Court might require countries to either prosecute or extradite. 

It seems to me that, unless we want to reject the option of amnesty altogether, we need a way to accommodate amnesty when amnesty is the goal of the domestic or international parties. Now, how could we do that? Several conceivable approaches suggest themselves within what I gather to be the extremely complex subjects of negotiation concerning the statute for the International Criminal Court. One approach would be to require Security Council approval for any prosecution. Another approach would be to narrow the definition of indictable crimes to such a degree that such crimes could not be said to be a legitimate subject of amnesty. Finally, one might give great deference to the investigation and decisions of national courts in the country most affected. Any of these options might reduce the chance that an amnesty agreed upon by the immediate parties would be disrupted.

Nonetheless, each of these approaches seems to have its cost. And each of these options is really only a device for recognizing amnesty without actually explicitly doing so. 

Instead, I would propose a more direct approach. The statute of the International Criminal Court could direct the independent prosecutor not to institute proceedings where doing so would undercut an amnesty (1) that has been agreed to by the parties directly concerned; (2) that is not simply an element of a victor's peace; and (3) that appears to provide victims with some meaningful form of satisfaction and redress. Perhaps such a proposal would enable the two great impulses of modern human rights law -- punishment and reconciliation -- to exist simultaneously.

Professor Ruti G. Teitel: We are in debt to Justice Goldstone for the historical sweep and ethical force of his comments. I want to follow some of the thoughts that my colleague Steve Ellmann has begun regarding South Africa and to broaden them to include the narrative Justice Goldstone has put forward today. In Justice Goldstone's words, justice in this century is paradoxical. Let's think about how the narrative that Justice Goldstone has told actually involves two stories. One could be thought of as millennial and the other as anti-millennial. Let me see if I can unpack this a bit. 

The millennial vision suggests that the century actually has come to a culmination in a normative consensus. The anti-millennial vision that Justice Goldstone also alludes to is one that as this century comes to an end we are witnessing ever more violence, that perhaps we are on the brink of the dark ages. This stark vision compels us to prepare processes and structures that would allow us to deal with such negative forces. The paradox Justice Goldstone has introduced for us is then this stark vision contrasted with the abundance of international human rights law.

If we could focus on the millennial vision as a culmination of the normative human rights movement, then we begin with the genesis point that Justice Goldstone has given us, which is the post-war period and the response to the post-war period. If we begin the millennial account there at mid-century, then we can see the legacy of that period as a juridical response to atrocities in the form of the Nuremburg trials, the Universal Declaration of Human Rights, and the various international political covenants.

If we begin the story at that point, what we see is historical, normative continuity culminating in contemporary efforts to entrench and institutionalize this post-war juridical response. Now this particular conception of human rights violations, and of what ought to be the right response to human rights violations, I think of as a procedural model. In that model, the subject of law is the individual, and human rights are seen as protected by a court. The myth, of course, is to see the court as the Nuremburg Tribunal, and the sanction as criminal law. This explains the legacy of prosecution and punishment, and why the court's jurisdiction must be universal when the offenses are heinous. 

This perception of human rights also dovetails well with our own understandings of American constitutional law, which account in part for the support that human rights advocates and constitutional lawyers in the United States have given this model. In this country, we favor conceptions of rights and rights responses. 

The analogue to the World War II response was to domestic rights and particularly to domestic constitutional rights. Of course, in that post-war period, an attendant wave of constitutionalism, which Professor Henkin has written greatly about, helps to explain why the entrenchment of this model, this judicial analogy of constitutional rights on the domestic front, has been so pervasive. We continue to believe in this model even though the engendering circumstances have changed. The question is, to what extent do developments today reflect the normative sweep of this millennial view?

In the paradoxical view that Justice Goldstone gives us, there have been repeated genocides in this century. Thus, there has been a great failure of criminal justice. There has been no meaningful movement toward a criminal court and only recently toward ad hoc tribunals. So the normative consensus seems to be mixed, if we are looking at it from that perspective.

The question is: What will the new developments in international human rights law add from a normative point of view? One could say that in fact they add very little. We already have the norms in the Genocide Convention. Clearly, there is a need for some provision of an international tribunal which was not provided at the time. But how should we understand the institutionalization of the entrenchment of the Nuremberg model? 

Here, part of the sad undertone of Justice Goldstone's remarks, the paradox so to speak, could be liberated if we weren't so haunted by the myth of the success of the Nuremberg response which leads us to see developments today as a diminished narrative. This is our understanding even though it is clear that the political circumstances today are very different. We don't have an allied occupation and countries with zero sovereignty. What could the International Criminal Court rightly be asked to do in such changed circumstances? The Court could assert its authority in cases where countries are unwilling to exercise their sovereignty. It is clear that there already is language that suggests that in transitional circumstances, where countries lack the possibility of prosecution either because there is an absence of institutionalization or where the judiciary is compromised, the International Criminal Court would be able to step in. 

What can the Court do beyond this? Beyond this extraordinary role, which can be viewed as a transitional role, it can send a signal to nation states to act. This is a very unorthodox role for a Court. The Court could investigate and indict, thereby sending important signals about war criminals. This may be characterized as a symbolic or procedural approach to justice. What then if the Court actually ends up working very differently from what we traditionally conceive of as how a court should work? Would it serve a useful role in terms of the development of some minimal procedural fairness at the international level? 

What this approach would do is to underscore individual responsibility at a time when the structure of conflicts focuses on ethnicity and understandings of group responsibility. This also could help over time to develop legal systems at the national level that would be more compatible with democracy and liberalism. So the Court could play a role in developing a political consensus of a more enduring nature regarding international human rights norms.

The development of a political consensus has in fact already begun in the discussions of the development of a permanent International Criminal Court. I take this as one of the more salutary aspects of the changes in the discourse of human rights at the end of the century.

Justice Richard J. Goldstone: Let me respond briefly to the suggestion that has come from Professor Ellmann. It was put to me slightly differently at Yale University earlier this week. If there had been a permanent International Criminal Court in 1990, wouldn't that have prevented a peaceful settlement of apartheid in South Africa because such a court would have insisted on prosecution? It seems to me that this is mixing two different worlds, and that one must keep them apart. One should envision a world where there is an active Court and there are consequences as a result, and then separate that from the world we are living in today. And the Truth and Reconciliation Commission is existing in a world in which there is no such Court. 

I hope that I am being neither naive nor unrealistic, but in a world where there is an effective judicial system, there should be and would be no room for granting amnesties to some of the worst criminals that one can imagine. It is unacceptable in any real terms that people who come before the South African Truth and Reconciliation Commission and admit to murdering people, blowing up bodies, cooking people alive, some of the terrible confessions that have been made before the Commission, that in any decent system such people should be considered for amnesty. Such people should be tried and punished. I have no doubt, and it was the answer I gave at Yale University, if there would have been such a Court, there would have been no need for a Truth and Reconciliation Commission in South Africa. 

If there had been an active and efficient prosecutor, he or she would have investigated the crimes committed in the name of apartheid, and if indictments had been issued by an International Court, apartheid would have come to an end a lot sooner than it did. If South African leaders couldn't have traveled, if South Africa couldn't have sent diplomats to foreign countries without fear of them being arrested and brought to an International Court, if South African businessmen who made themselves party to some of the worst features of apartheid had been indicted and not allowed to function in their international businesses in the international community, how long could the apartheid state have continued? And the leaders and people responsible for apartheid would have been brought to trial. There would have been no need for an amnesty. 

I don't think this is too much in the clouds. Indeed, I think it could happen. And if it happens in this hypothetical case, it will happen in the future under similar circumstances. In a decent society, victims are entitled to full justice, not just the sort of partial justice that happens with amnesty. This was the reason that some of the families went to the South African Constitutional Court to have the Commission declared unconstitutional. They wanted full justice, and who can deny them that right, having regard to what they suffered, and the victimization which they endured?

One has to envision a decent international community that is not talking about amnesty, a decent international community that is sending out a clear message. This is the end of impunity. This is the end of amnesties. If people commit these sorts of crimes, they are going to be punished.

In the interim it may be a different story. There may be some transitional period, some twilight era, when we may need the type of provision that Professor Ellmann talks about. But that is another matter.

(Editor's comments: The following exchange between Justice Goldstone and Professor Ellmann took place during the question and answer period. These remarks are included because they are a continuation of the main discussion.)

Professor Stephen J. Ellmann: When Justice Goldstone initially responded to my comments, he said that in a transitional period, there might be a need for a recognition of amnesty. That is an important point, but I want instead to pursue the long term perspective. If there had been an effective International Criminal Court in 1970, enforcing the international law against the crime of apartheid, I think South Africa's recent history would have been much brighter. I think that the end of apartheid would have come much sooner, and it would have been possible for victims to get retributive justice.

But taking that as the long term perspective, I want to briefly ask two questions. It seems to me that at the moment when the Court is effective, Justice Goldstone envisions, quite rightly, that then injustice, the sheer amount of injustice, the conspiratorial completeness of it in a society, will be diminished. There will be less of it. People will be scared to act this way. But in addition, the Tribunal will be able to render justice for those who are nonetheless victims. It will give the retributive justice that they seek. I want to raise two questions, one question about each half of that.

The first question is: When will the moment come when the amount of grotesque injustice becomes really small? We probably all, at least in our moments of pessimism, agree that that moment is probably a long way away. The second question is: When we do reach that moment, will it be the case that the remaining victims in those cases that nonetheless do arise all desire retributive justice? Now on this, it seems to me, we have to admit that some will and some won't. A provision in the statute of the International Criminal Court that provided for the acceptability of amnesty, but which would not compel amnesty, would seem to permit those victims, who by some process come to choose amnesty, to have their version of justice rather than another.

Justice Richard J. Goldstone: I think both questions are connected. The transitional period may be a hundred years, I don't know. I think it is a valuable suggestion that Professor Ellmann has put forward.

It seems to me that what justified the South African Truth and Reconciliation Commission, from a moral point of view, is that the decision to create it was taken by South Africa's first democratically elected legislature, a legislature that represents the victims of apartheid. Eighty percent of South Africans were victims to a greater or lesser extent, and most to a greater extent, of apartheid law. But it doesn't lie in the mouth of the perpetrator to decide whether there should be truth commissions, amnesties or not. The only people with a vote, as far as I'm concerned, are the victims as to how their victimization should be dealt with, whether they should insist on full justice or whether they are prepared to offer amnesty and the reconciliation that sometimes goes with it.