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Top judge Richard Goldstone says the need to deter war crimes is greater than ever
Those who argue international criminal justice has had its day couldn’t be more wrong, according to respected judge Richard Goldstone.
The changing nature of war, rampant human rights violations and a rise in civilians bearing the brunt of conflicts mean it’s needed more than ever, he said in a lecture on the International Criminal Court (ICC) in Bangkok this week.
“The time for international criminal justice is not past. On the contrary, it is dawning,” Goldstone said at the event organised by the Red Cross. “The necessity of denying impunity for war criminals has never been greater.”
While we may no longer experience debilitating world wars, atrocities against innocent people have not diminished, he said.
And he should know - Justice Goldstone was one of several judges who worked to undermine apartheid and headed the Goldstone Commission investigations into political violence in South Africa. He was also the first chief prosecutor of the U.N. International Criminal Tribunal for the former Yugoslavia and for Rwanda.
Most recently, Goldstone - a Jewish white South African - was attacked by both Israeli and Palestinian sides over his namesake report for the U.N. Human Rights Council investigating humanitarian law violations during the short Gaza conflict that started in late 2008, and then again for subsequent backtracking.
CIVILIAN CASUALTIES RISING
Arguing the need to deter war crimes, Goldstone cited Mary Kaldor of the London School of Economics, who found that, at the beginning of the last century, there were eight to nine military casualties for every civilian casualty. In World War II, the ratio became one-to-one. During the past 30 years, the ratio has reversed: for every military casualty, there are around nine civilian casualties.
For many, this is a sign that in today’s wars, violations of humanitarian law and human rights are no longer side-effects but the core of armed conflicts, many of them internal.
“It’s an unfortunate comment on our modern world that the need (for international criminal justice) is growing,” Goldstone told a roundtable discussion after the lecture. “What has changed is that you have international justice mechanisms that can take note of these crimes that are being perpetrated within nations. That’s new.”
“In the late (19)40s and 50s to the 1960s, South Africa could get away with apartheid and say, ‘it’s none of your business’ to the rest of the world… That has changed,” he added.
Similarly, the creation of the Yugoslavia tribunal meant NATO forces bombing Serbia to protect innocent civilians in Kosovo had to “only choose military targets and not civilian targets”, he noted.
“It goes to the heart of what humanitarian law is all about: protection of civilians, consistent with military necessity,” he said.
TRANSITIONAL JUSTICE
Critics have slammed “transitional justice” in societies emerging from conflict - including amnesties, truth commissions and ICC trials - as bureaucratic, slow and weak. They say that, despite ICC arrest warrants, many suspects have continued to live freely for long periods, including ex-Bosnian Serb army head Ratko Mladic and Sudan’s president Omar Hassan al-Bashir.
Goldstone admitted transitional justice is not a perfect solution, but said political and moral compromises are needed to resolve festering grievances.
He also pointed to the practical realities of dealing with heinous crimes perpetrated by large numbers of people, as in Rwanda. “The genocide in Rwanda was carried out by killings on a face-to-face basis... Machetes and handguns were used to slaughter innocent women, children and men. No criminal justice system can deal with 300,000 murderers,” he said.
Similarly, if Nelson Mandela had insisted on the prosecution and imprisonment of all the perpetrators of apartheid, then President FW de Clerk wouldn’t have been interested in settlement.
Goldstone said too much is expected of the justice system when it’s just one tool available for dealing with war crimes. Prevention is much more important than punishment after the event, he argued.
PATCHY SUPPORT FOR ICC
In some parts of the world, the International Criminal Court is still seen as a Western construct - a puppet of the highly-political U.N. Security Council. Only 114 countries have ratified the Rome Statute of the ICC, including all of South America, nearly all of Europe and roughly half of Africa.
Only 15 Asian nations are parties to the statute. Thailand, which hosted the lecture, is not and neither is the United States.
This has led to what Goldstone called “political discrimination”, where countries like Libya are punished for abuses against civilians - “the first Kosovo example of a humanitarian intervention, whether we like it or not” - but not Syria, for example.
“The unfairness of all this is it’s not gonna happen in Syria,” the jurist said. “Libya had no big power supporting it. The Security Council were unanimous in using military intervention and referring (the) Gaddafis to the ICC.”
That’s why the ICC needs universal support, he argued.
“It’s only then that the political discrimination can be removed. But it’s not the reason for not having international criminal justice; it’s a reason for improving the system,” he said.
You can read Goldstone’s full speech here.
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