By: Richard A. Goldstone
(Originally posted on International Judicial Monitor)
During the first week of September 2015 present and former international chief prosecutors gathered at Lake Chautauqua, in upstate New York, for the ninth annual International Humanitarian Law Dialogs. As in former years the Dialogs were generously hosted at the Chautauqua Institution. We again enjoyed the camaraderie and friendship that has been a hallmark of these meetings. The prosecutors were joined by leading humanitarian law scholars from the United States and abroad. There were too many sponsors to name them all. They included the Robert H. Jackson Center, the American Society of International Law, the International Bar Association, the American Bar Association and a number of leading United States law schools.
This year’s proceedings marked the seventieth anniversary of the opening of the International Military Tribunal at Nuremberg and the 20th anniversary of the genocide committed at Srebrenica by troops under the command of Radovan Karadzic and Ratko Mladic. They are both presently on trial in The Hague before the International Criminal Tribunal for the former Yugoslavia. The participants also recognised the imminent closure of the International Criminal Tribunal for Rwanda that has now completed its mandate. They recognised the contribution that that tribunal has made to the development of International Humanitarian Law and to promoting peace, reconciliation and accountability for crimes committed in Rwanda. As the first Chief Prosecutor of that tribunal, I would add my admiration for the important cooperation that was forthcoming from the government of Rwanda. In that regard it should be recalled that the Government of Rwanda had opposed the establishment of the tribunal by the Security Council. That in no way inhibited the government from assisting the Office of the Prosecutor.
During the proceedings at Chautauqua the participants were acutely aware of the contribution that international criminal courts have made during the past twenty years to the development of international criminal law. For too long there had been no courts with jurisdiction to bring even the most egregious war criminals to justice. In consequence, international humanitarian law was hardly ever implemented. For too long there had been effective impunity for the most atrocious criminals.
However, there was no room for complacency in the Chautauqua discussions. In the unanimous statement that was issued by the prosecutors at the end off the proceedings, there was full recognition that too many states and international organisations fail to fulfil their obligations under treaties to which they are party. That failure was seen against the increasing upsurge of violence against civilians and especially the continued prevalence of sexual and gender-based violence. Too many groups continue to be targeted on the basis of their ethnicity, nationality, race and religion.
I came away from the Chautauqua Dialogs with the feeling that those responsible for the implementation of international justice are in too much of a defensive rather than an offensive mode. It needs to be emphasised that our world would be a lot worse off without international law in general and international humanitarian law in particular. In a contracting world we cannot afford to have states and individuals ignore their legal obligations and allow criminal conduct to go unpunished. Too many leaders and their people ignore their legal obligations and shamefully participate in corruption at the expense of their own people.
The principle objections to the implementation of international criminal justice come from those very people who should be held responsible for their crimes. There is no better illustration than that of President Omar al-Bashir of Sudan. He is wanted by the International Criminal Court on charges of genocide, crimes against humanity and war crimes. He is alleged to have been responsible for the deaths and rapes of hundreds of thousands of his people. It is beyond my comprehension how the African Union is prepared to protect al-Bashir and expects all of its member states to do likewise. It is highly regrettable that my own country, South Africa, failed to arrest him when he recently attended a high level meeting of the African Union in Johannesburg. To add insult to injury the South African government bundled him out of the country in violation of an order of the High Court to keep him in the country pending a decision on his arrest. Not only has South Africa undertaken obligations under the Rome Statute, it also has similar obligations under domestic law. Perhaps, the only saving grace is that the government has noted an appeal against the decision of the High Court and thus implicitly recognises the jurisdiction of the courts with respect to its conduct.
Too many leaders of democracies are sitting back and allowing these transgressions of international law to take place without demur. It is those governments that should take the lead in encouraging adherence to their legal obligations. I must confess that this may be rather hollow wish – the leader of Western democracies, the United States, is in stark violation of its own obligations by failing to investigate and prosecute serious violations of the United Nations Torture Convention as well as US domestic law to the same affect. In the face of last year’s startling Senate report containing detailed allegations of crimes committed by the National Intelligence Agency, it is a huge disappointment to international lawyers that President Obama has taken no action at all.