Goldstone, Richard

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Goldstone, Richard

[OCTOBER 26, 1938–]

South African jurist and advocate for international justice.

Widely recognized for his advocacy on behalf of international justice causes, particularly the establishment of the International Criminal Court, Richard J. Goldstone can be credited for helping to instill greater respect for the rule of law within the post–cold war international legal order. During a career spanning over four decades, his significant contributions include striking down one of the apartheid regime's most pernicious laws, chairing a commission to investigate the causes of political violence in the run-up to South Africa's first democratic elections, serving as prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), and helping to institutionalize the role of his country's first Constitutional Court.

Goldstone was born in Boksburg, South Africa, to Jewish parents, and grew up to be a politically active student leader at the University of Witwatersrand. After receiving his B.A. and LL.B. degrees (both cum laude), he was admitted to the Johannesburg Bar in 1963. He practiced as a commercial lawyer until his appointment to the Transvaal Provincial bench in 1980. Although only newly appointed, Goldstone wasted little time in ruling that police could not evict a black woman from her home in a white suburb unless they first provided her with alternative shelter. This was a landmark ruling that effectively halted prosecutions of blacks under the apartheid regime's segregated housing laws.

In the mid-1980s, in an effort to suppress the rising number of violent anti-apartheid protests, the government adopted some of the harshest security laws of its rule. Under these draconian laws, tens of thousands of protestors were detained in jails and police stations across the country, where they were at risk of being tortured. While Goldstone could do little to free them, he soon became well known for his habit of personally visiting prisoners and detainees. In his view, this practice served to reassure not only the prisoners, but also the administration, that someone was taking an active interest in their well-being. By doing so, Goldstone became a notable exception in a time when few white judges within the apartheid regime enjoyed the trust and respect of the black majority.

From 1990 to 1994, due to his reputation as an impartial and unimpeachable judge, Goldstone became the obvious choice to lead an independent commission to investigate the causes of public violence and intimidation, whenever such actions threatened to disrupt the then-ongoing constitutional negotiations. Under his leadership, the commission conducted 503 inquiries and triggered the initiation of sixteen prosecutions for crimes such as murder, conspiracy to commit murder, illegal possession of firearms, and failure to testify before the commission. In November 1992, in what became one of its most important investigations, the commission exposed a secret military-intelligence cell within the South African Defense Force that was working to sabotage the political legitimacy of the African National Congress, while posing as a legitimate business corporation. Due to these and other revelations, President DeKlerk later was forced to dismiss sixteen intelligence officers.

Notwithstanding the importance of some of its revelations, Goldstone believes the commission's greatest achievement to be the contribution it made to reducing the violence that threatened South Africa's fragile constitutional negotiations. In his view, the commission's role was not so much to ferret out secrets as it was to smooth the way for democracy. This point is illustrated by Goldstone's claim that one of his proudest achievements is the agreement he facilitated between the police and African National Congress (ANC) that all but eliminated violence during protest marches. Indeed, it is generally recognized that the Goldstone Commission's efforts were instrumental in enabling South Africa to peacefully hold its first-ever democratic elections in 1994. Shortly thereafter, with the inauguration of President Nelson Mandela and the ANC government, the commission transferred its files to a newly established National Truth and Reconciliation Commission.

At about the same time that a new multiethnic democracy was taking hold in South Africa, the United Nations Security Council acted under Chapter VII of the UN Charter to establish the world's first ad hoc international criminal tribunal. It did so not to prosecute the architects of apartheid, as some had previously predicted, but in response to reports of deliberate acts of ethnic cleansing and systematic rape in the conflict that ensued the breakup of the multiethnic state of Yugoslavia. After initially proceeding quickly with the election of a number of international judges, the creation of the International Criminal Tribunal for the Former Yugoslavia later stalled over the appointment of a suitable prosecutor. After many months of delay and one failed attempt to appoint a prosecutor, President Mandela finally asked Goldstone to take the job. Goldstone agreed to a two-year term as prosecutor, on the assurance that his appointment to the new South African Constitutional Court be held in abeyance during this time.

From the beginning, Goldstone clearly appreciated the legal, political, and historic significance of ensuring the success of the first truly international criminal court with jurisdiction over genocide, crimes against humanity, and war crimes. Critics of the idea of international justice predicted that the ICTY would fail due to a lack of political will on the part of those who had created it, and pointed to the absence of any accused before it as evidence of its impotence. As a result, by the time the first trial finally got under way, it was clear that the court proceedings would be as much about the feasibility of the idea of an international criminal court as they were about culpability of the accused. This challenge was made more difficult by the fact that the first accused to be tried, Dusan Tadic, was viewed by some as being only a minor actor. This view apparently was not shared by the ICTY, which convicted him of willingly participating in crimes against humanity.

During his two years as prosecutor, Goldstone came to be seen as both jurist and international statesman. He frequently visited foreign capitals, where he met with politicians, diplomats, and UN officials to secure their support for the work of the ICTY. These efforts, together with his public lectures and media appearances, gradually breathed life and vigor into what some regarded as an empty political gesture on the part of the UN Security Council. Yet, even as the ICTY struggled into life, it confronted perhaps its greatest threat—the possibility of a general amnesty for the perpetrators it was created to try. The prospect of such a promise arose during the U.S.–brokered peace negotiations on a military base in Dayton, Ohio.

Some commentators warned that the peace process would fail without the inclusion of an amnesty agreement. Goldstone immediately responded by traveling to Washington, D.C., to urge the U.S. president and secretary of state to resist any such demands. Simultaneously, others at the tribunal made it known that such an amnesty would not be a legal basis for the ICTY to stop indicting those against whom it had evidence, and that the only the UN Security Council had the power to halt the ICTY's efforts. In the end, no amnesty was included in the peace agreement.

While the conflict still raged in the former Yugoslavia, another tragedy was unfolding in the heart of Africa. In April 1994, President Juvenal Habyarimana of Rwanda was killed when unknown assailants shot down the plane that was carrying him back from peace negotiations in Tanzania. Reports immediately began to emerge of large-scale killings being perpetrated against the country's Tutsi minority. The killings continued for almost four months, while the UN debated whether or not to call the massacres a genocide. In the end, it was not the international community's intervention, but a military victory by the Tutsi-led Rwandan Patriotic Front, that ended the widespread and systematic killings. In what many regard as a belated and inadequate response, the UN Security Council again invoked Chapter VII of the UN Charter to establish yet another ad hoc international criminal tribunal, this time for Rwanda.

In an apparent attempt to ensure consistency between the two tribunals, the International Criminal Tribunal for Rwanda was made to share the same prosecutor and appeals chamber as the ICTY. As a result, Goldstone became an outspoken advocate on behalf of not only the two ad hoc tribunals, but also of a permanent international criminal court. In his view, the creation of ad hoc tribunals risked making international justice indefensibly selective unless these bodies were merely precursors to a permanent international criminal court.

Goldstone is the first to admit that the efforts of the ICTY and ICTR have not been flawless. For example, due to a seemingly endless refusal by North Atlantic Treaty Organisation forces operating in the former Yugoslavia to apprehend those whom the ICTY had indicted, the frustrated ICTY began holding ill-conceived Rule 61 indictment confirmation hearings, which effectively amounted to trials in absentia. Even without the problem of absent defendants, the Rwanda tribunal was plagued by a series of administrative missteps. Despite their shortcomings, the achievements and successes of the ad hoc tribunals, including the first-ever conviction of a former prime minister for genocide, paved the way for the adoption in 1998 of the Rome Statute, which established a permanent International Criminal Court (ICC). In this regard, it is also noteworthy that many of the precedents set by the ad hoc tribunals, particularly those regarding sexual violence and war crimes in internal conflict, are now codified in the ICC's statute.

After completing his two-year commitment as prosecutor for the ad hoc tribunals, Goldstone returned to South Africa to take up his seat on the still-nascent Constitutional Court. He served in that position for eight years, and participated in a number of precedent-setting decisions. Among these were decisions upholding the right of prisoners to vote, requiring the state not to extradite an accused without obtaining an assurance against the application of the death penalty, and overturning a state policy of not providing HIV treatment to pregnant mothers. He retired from the court in October 2003.

During his tenure on the Constitutional Court, Goldstone also participated in at least two international inquiries related to genocide and crimes against humanity. One of these was an international panel established in 1997 by the government of Argentina to monitor the inquiry into Nazi activities in that country since 1938. The inquiry was launched by the government in response to accusations that some of the Nazi gold looted from Jewish victims of the Holocaust might have been transferred to Argentina.

Two years later, Goldstone chaired the Independent International Commission on Kosovo, which investigated the events that led to NATO's military intervention in that region in March 1999. Established by the prime minister of Sweden, the commission was mandated to investigate and analyze the events that occurred in Kosovo in the decade since autonomy was withdrawn from it in 1989. After a yearlong investigation, one of the commission's primary conclusions was that the intervention was illegal but legitimate. According to the commission, "it was illegal because it did not receive prior approval from the United Nations Security Council. However, the . . . intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule."

BIBLIOGRAPHY

Goldstone, Richard J. (2000). For Humanity: Reflections of a War Crimes Investigator. New Haven, Conn.: Yale University Press.

Goldstone, Richard J. (2000). Kosovo: An Assessment in the Context of International Law. New York: Carnegenie Council on Ethics and International Affairs.

Garth Meintjes

Encyclopedia of Genocide and Crimes Against Humanity