Waging war on war crimes

SYLVAIN COMEAU | The past century has been marked by some of the worst human rights violations in history, but also by some of the most groundbreaking efforts to right these wrongs, Justice Richard Goldstone of the Constitutional Court of South Africa said at a conference on January 28.

Goldstone served as the Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda from 1994 to 1996.

"Human rights laws, genocide laws, laws relating to hate speech…are an attempt by humankind to stop the terrible slaughter of men, women and children which has marked this century," Goldstone said at the closing plenary of an international conference on "Hate, Genocide and Human Rights: Fifty Years Later", held at The Faculty of Law's Moot Court.

The conference commemorated the 50th anniversaries of the Universal Declaration of Human Rights, the Genocide Convention, and the sesquicentennial of McGill's Faculty of Law.

Goldstone went on to note that, while he is an optimist about the advance of human rights into the next century, "the law is invariably reactive rather than proactive. That is the nature of law; laws come after terrible things happen."

The Holocaust was a prime example. The horrors of that genocide prompted the world to add a new concept in international law.

"(The concept of) universal jurisdiction is a product of the Holocaust. Before the Second World War, there was no such thing. If you had told someone in 1940 or even 1948, that the House of Lords in England could be considering an extradition at the request of Spain, against the former head of state of Chile, for crimes committed in South America...they would have had you committed."

Universal jurisdiction was first implemented at the Nuremberg Trials, which prosecuted Nazi war criminals.

"It arose because, for the purpose of the Nuremberg Trials, the Allied Powers created a new offense: crimes against humanity. This was new; there had never been such an offense. Why a crime against humanity? Because the crimes committed in the Holocaust were so huge, so egregious, that they offended all of humankind, all people, wherever they may live. Thus, people anywhere in the world had the right to bring such people to justice, to try them, and, if they are found guilty, to punish them."

Another outcome of universal jurisdiction was the U.N. Convention on Torture.

"This is one of the conventions under which former General Pinochet is being sought for extradition by Spain. Spain is saying to England: we want you to extradite him for violations of the convention, a convention which Great Britain has ratified. The argument in the House of Lords is over whether the convention trumps any provisions relating to sovereign immunity in British extradition laws."

Goldstone noted that the world has seen over 100 wars since the end of World War II, most of them civil wars. The world has, during this period, been attempting to apply the same international law to civil war as to international wars.

"Why should innocent civilians be treated worse, or protected less, because they are victims of a civil war, rather than an international war? There is no rational reason for making such a distinction."

The distinction was upheld, traditionally, "because of self interest. Leaders of countries that put down insurrections wanted to treat their terrorists -- or freedom fighters, whatever you want to call them -- as they wish, and they didn't want the international community to look over their shoulders and criticize. "

Goldstone said that the war crime tribunals he worked on have challenged the national sovereignty doctrine, and its use by governments as a shield for their actions.

"The statutes of the two U.N. War Crimes tribunals were clearly founded on universal jurisdiction. The U.N. Security Council has used it to shape an international tribunal in the Hague, which has the right to try offences committed in the former Yugoslavia. And Rwandan war criminals are being tried in neighbouring Tanzania."

The Rwandan case in particular served to dismantle national sovereignty as a defence for war criminals.

"(The belief that national sovereignty takes precedence over international law) was whittled away because of the terrible things that people did to their own people in civil wars. This movement really came to a head with the Rwanda Tribunal, because Rwanda had a wholly civil war, unlike Yugoslavia, which involved different countries. Yet, the U.N. Security Council decided that it had jurisdiction (to prosecute war criminals)."

While such landmark international law provisions have had an impact on human rights violators, Goldstone also decried a number of missed opportunities to enforce human rights.

"Under The Apartheid Convention, the 1973 U.N. convention which declared Apartheid to be a crime against humanity, anyone guilty of being complicit in the crime of apartheid could be brought before the court of any country that ratified it.

"It's a great shame, in my view, that so few western nations did ratify it. Had they done so, and had they taken their international obligations seriously, there is no doubt that apartheid would have died many years before it did. If South African ambassadors and business leaders couldn't have travelled, for fear of being charged with the crime of apartheid, De Klerk's predecessors would have been forced to dismantle the system long before 1990."

Goldstone closed his lecture by offering answers to the thematic questions posed by the conference organizers: What Have We Learned? What Must We Do?

"Certainly, we must enforce international humanitarian laws," Goldstone said in response to the latter question. "And the sooner we have an international criminal court which can do that, the better."

Goldstone was referring to the Rome Treaty, which was signed by 160 nations last summer, and which will result in an International Criminal Court in the Hague. The Court will have a global agenda, empowered to bring war criminals to justice, and not be limited to a particular area, unlike the Yugoslavia and Rwandan Tribunals.

Goldstone also called on the media to more vigorously pursue its role as a watchdog.

"We need a media which will not allow governments to hide behind a smokescreen."

As to the first question, Goldstone said that recent history has taught the world that war crimes are not unique to the Nazis.

"The first thing we should have learned is that any people, anywhere are capable of committing the most terrible evil -- and also that any people, anywhere, are capable of doing good. No nation, no people, has a monopoly on good or evil.

"There was a fiction after World War II that there was something peculiar about the Germans that could allow them to commit the Holocaust. Nobody today can believe that for a moment. Given certain economic, political and historical circumstances, these atrocities can happen anywhere. And that should be a warning."

Judge Goldstone delivered the Raoul Wallenberg Lectureship in Human Rights. The conference was co-sponsored by the Faculty of Law and InterAmicus.