Transcript, Ceremonial Address of Justice Richard J. Goldstone at John Shattuck Inauguration

It was with great delight that I accepted the invitation to deliver this address at the inauguration of John Shattuck as the fourth president and rector of the Central European University. Apart from the distinct honor in having been chosen to speak at this ceremony I am so happy to be able to celebrate this event with John and his outstanding and supportive wife, Ellen.

My friendship with John goes back to my days as the first Chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. It took the Security Council fourteen months to reach agreement on the appointment of the Chief Prosecutor and during that period the credibility of the tribunal had all but disappeared. Without the active support of the administration of President Bill Clinton, the institution would not have become both vibrant and successful. That support came from then United States Permanent Representative to the United Nations, Ambassador Madeleine Albright and the Assistant Secretary of State for Democracy, Human Rights and Labor, John Shattuck.

Since those heady days when the first ever truly international criminal tribunals were established, John and I have met in many cities around the world – in Kigali at an international fundraising meeting for the Rwanda Tribunal, or in Salzburg when John was the United States Ambassador to the Czech Republic and in Boston when John served as the President of the John F. Kennedy Library. I also had the privilege and enjoyment of sharing classes with John when he taught courses on diplomacy at the Fletcher School of Law and Diplomacy of Tufts University outside Boston. There, at John’s invitation, I was able to witness his outstanding teaching talent and I envied the students who were benefiting so much from it. It is all of those experiences and talent that will serve John so well in this new position leading the Central European University. What a splendid decision this University took when it decided to invite John Shattuck to become its President and Rector.

I also have a connection with this University. In April, 2000, the members of the Kosovo Commission, established by the Prime Minister of Swede, Goran Persson, met on this campus where it held both business meetings and participated in a lively seminar with experts from the region. The work of that Commission helped pave the way to the recognition of the doctrine now called the “responsibility to protect.” I recall during that visit being taken on a tour of your impressive library with its unusual holdings of documents relating to the international war crimes tribunals.

Allow me now to turn to the topic of this address – Towards an International Rule of Law. It is now generally recognized that democracy depends not only on regular fair elections but rather on respect for the rule of law. We should not forget that Hitler, Milosevic and Mugabe came to power in consequence of elections that were held to be free and fair. It was the subversion of the rule of law that led to their oppressive regimes. I need not use time today to discuss the rule of law in its domestic setting. We can all agree, I am certain, that at the core of the doctrine lies the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary and an independent legal profession, equality before the law and due process. If any of those principles is compromised, the consequences for democracy are devastating and destructive.

How do those principles apply at the international level? The first and most obvious difference is that there is no international legislature and no international executive. There is, however, a fast-growing international judiciary. Is this a paradox? Not really. Although there is no international legislature, there are certainly international laws. Their sources are primarily international treaties and customary international law. They are based upon the voluntary agreement of sovereign nations. The absence of an international legislature makes law-making a little cumbersome and time-consuming but that is an inevitable consequence of sovereignty.

Notwithstanding these differences and difficulties, there is certainly no shortage of international laws that touch on many aspects of our lives. These laws are universally respected and applied. There are the laws that control civil aviation over-flying national air space, laws relating to posts and telecommunications, the law of the sea and international trade. And, of course, the rapid growth of literally hundreds of treaties on international criminal law – drug trafficking, trafficking in people, extradition, refugees, war crimes and terrorism. And more and more courts are being established to implement these laws – the Law of the Sea Tribunal, the Appellate Body of the World Trade Organization, the International Criminal Court, the ad hoc Tribunals for the former Yugoslavia and Rwanda, the mixed tribunals for Sierra Leone, Cambodia and Lebanon. Then there are regional courts such as the European Court of Justice, the European Court of Human Rights, the African Court of Justice and the African Union Court of Human and Peoples Rights, the Inter-American Court of Human Rights. And, then there are too many sub-regional courts to mention.

There are opinions and orders coming from these courts in their hundreds. What is important is that the majority of them are honored – they are either complied with or enforced. The number of international and regional judges has grown exponentially. And, I need hardly add, that the legal profession has responded to what has become a growth industry.

In this context, the absence of an international executive power can be troublesome. It makes the implementation of some international laws more difficult as their enforcement is subject to the goodwill and cooperation of governments. However, as the world contracts governments recognize more frequently the importance of reciprocity with regard to international law and order. For this reason compliance and cooperation is growing.

The rapid growth of international law has left little time for the consideration of the rule of law at this supra-national level. Is the international judiciary truly independent? How are international judges appointed? Is there equality before the laws implemented by these courts? Is due process recognized and implemented in trials and hearings before these courts? Is there an independent international bar?

The report card to date is a mixed one. There is much work to be done on improving the method of appointing the judges of many of these courts. Merit and not political expediency should be the rule. Oftentimes it is not. In some of the courts the judges might well be independent but a system of reappointment might well produce the fear of political expediency in some of their decisions. They are dependent on their government for reappointment and that is likely to affect the fact or at least the perception of an absence of independence.

There is no time today to consider these complex and interesting questions in depth. There is a plethora of issues here for students of the law and political science. And, where better to follow these inquiries than at the Central European University. It has students from over 100 countries and faculty from over 30 countries. It places an emphasis on democracy and international human rights. And, it now has a President and Rector who has devoted his career to creating a better world for its entire people and who has recognized that the law should be used to that end.

I would like to spend what time I have left to turn to the importance of international justice and its contribution to the international rule of law. The starting point is impunity for war criminals. It is clearly inconsistent with an international rule of law to grant impunity to those who commit international war crimes.

In South Africa, the former Apartheid leaders of a white minority claimed blanket amnesties as the price for giving up power. For obvious reasons they wanted impunity. It was more than sufficient, they could claim, with some justification, to expect them to hand over power to a black majority that had been oppressed by cruel racial oppression for almost 350 years. To expect them in addition to face Nuremberg style trials and face prison sentences was just too much to demand of them. They argued that there was no advantage in looking backward. There was too great and expensive an agenda in building a new democratic South Africa. They, of course, were well aware of those awful crimes that had been committed in the enforcement of the Apartheid laws. Some of them came to light in the investigations I conducted during the last three years of Apartheid.

Fortunately, Nelson Mandela and his colleagues were not prepared to go the route of national amnesia. They were not prepared to sweep those past violations under the rug. The victims of Apartheid demanded acknowledgement and our new leaders knew that there would be no peaceful transition without it. The result was the Truth and Reconciliation Commission and discrete amnesties in return for full confessions. The outcome was a huge outpouring of evidence from over 21 000 victims and applications for amnesty from over 7000 who claimed they were perpetrators. That evidence established beyond any question, and to the embarrassment of most white South Africans, what happened during those dark and evil years. The result is that today South Africa has a single history of the serious and many human rights violations that were committed in those bad years. That augurs well for the future.

A comparable outcome has resulted from the work of the United Nations ad hoc criminal tribunal for the former Yugoslavia. The testimony of hundreds of witnesses has laid bare the crimes that accompanied terrible wars of the early 1990s and the egregious war crimes committed against thousands of innocent children, women and men. There, too, the testimony of hundreds of witnesses put an end to the false denials that were so common in the aftermath of the criminality of evil leaders and their followers. Allow me to give you just one illustration. A member of the Bosnian Serb Army, Drazan Erdemovic, was one of the members of an assassination squad outside Srebrenica in July 1995. The massacre of over 8000 civilians, men and boys, was strenuously denied by the Bosnian Serb Army. Then, in early 1996, for personal reasons, Erdemovic decided to tell his story to an American TV network, ABC. A journalist and cameraman flew to Serbia and interviewed him some kilometers outside Belgrade. He admitted to having shot more than 70 innocent civilians. He had objected to this role but his own life and those of his family were threatened by his commander and he proceeded with his ghastly role under that duress. He also gave the journalist a map of the precise location of the mass grave of those who were murdered.

The journalist fortunately left the map at the US Embassy in Belgrade and then called her London office to say she was on her way back that evening with the video tape. She was met at the Belgrade Airport by Serb Security Police who confiscated the video film.

On arrival in London, the journalist called me in quite an emotional state. She understandably felt that she had placed the life of Erdemovic in jeopardy and asked whether I could assist in any way. I decided that the widest publicity to the event was the best way to protect his life and I obtained an order from the Tribunal requesting the Seb Government to transfer Erdemovic to The Hague as a potential defendant and witness to the events in Srebrenica. Fortunately for the Tribunal, Erdemovic was not a Serb national and in order to garner financial assistance from the United States, Milosevic, to our great surprise, decided to accede to the request and Erdemovic was flown to The Hague. The Serb Army continued to deny the massacre and ascribed the evidence of Erdemovic to US propaganda against Serbia.

We recovered the map the journalist had left at the US Embassy in Belgrade and that enabled us to send the coordinates to the United States Government. They sent us satellite photographs of the site of the massacre and they fully corroborated the version of Erdemovic. We had the grave exhumed and the forensic evidence provided further crucial corroboration of the evidence – the bodies were those of men and boys who had died in about the middle of 1995. All had their hands tied behind their backs and the cause of death was a single bullet wound to the head. That evidence effectively put an end to the false denials. It enabled the Tribunal to convict Erdemovic of crimes against humanity and formed the basis of subsequent findings of genocide against Bosnian Serb leaders. Also, in February 2007, the International Court of Justice followed the Tribunal in finding that Serbia could have prevented what it also held was genocide committed at Srebrenica. I need hardly tell you how important those events were for many thousands of members of the families of those murdered in the middle of 1992 outside Srebrenica. It brought them acknowledgement and closure. It allowed a large number of them to begin their own healing process. And, of course, it put an end to the false denials that had accompanied the massacre. And, only one week ago the trial of Radovan Karadzic began in The Hague. One of the charges against him is the genocide committed at Srebrenica. The evidence of Erdemovic will loom large at that trial.

In Rwanda, the genocide that resulted in the deaths of some 800 000 innocent people was described in minute detail in the evidence placed before the United Nations International Criminal Tribunal for Rwanda. There were also denials and they have stopped in light of the evidence again of hundreds of witnesses.

Absent these forms of justice – whether truth and reconciliation commissions or prosecutions before international criminal courts – the societies in question would today be very different and, I would suggest, they would be more violent societies. South Africans can now rebuild my country in the knowledge that white South Africans have a debt to pay for what was done by them or in their names. Although an enduring peace has not come to the states of the former Yugoslavia, the cannons have been silent for some 14 years. And, hopefully, cycles of violence have been stopped in Rwanda.

I have no doubt that some form of justice is essential in the Middle East if there is to be an enduring peace there.

In both the former Yugoslavia and Rwanda, attacks were made on the institutions designed to bring the truth to light. It was primarily the perpetrators who cast doubt on the processes of truth-making. They did what they could to prevent their establishment and having been established from fulfilling their mandates. That they did not succeed was due in no small measure to the role of John Shattuck. It was my good fortune to be able to work with him and, above all, to rely on his wise advice and important encouragement. For that I will always be deeply grateful to him. And, it was through his efforts and those of the Ambassador Albright that there is now a permanent International Criminal Court up and hard at work in The Hague. It now has the support of 110 nations including that of every member of the European Union. Its jurisdiction is making itself felt by many in capitals of countries accused of committing serious war crimes. It is the living proof that we no longer live in an age of impunity for war criminals.

I trust that you can understand how much pleasure and satisfaction it gives me to be speaking on this wonderful occasion today. Please join me in congratulating John Shattuck on this important and exciting new assignment and wishing him a successful and happy term of office.