Where do we go from here? New and emerging issues in the prosecution of war crimes and acts of terrorism: a panel discussion - International Justice, War Crimes, and Terrorism: The U.S. Record - Panel Discussion

Social Research, Winter, 2002 by Theodor Meron, Richard J. Goldstone, Aryeh Neier, Kenneth Anderson, Patricia M. Wald, Michael Walzer

THEODOR MERON: Let me start with Justice Goldstone. What were the problems you encountered in the infancy of The Hague tribunal, and which you believe have been largely solved?

RICHARD GOLDSTONE: I think the main problem that has been solved relates to the very credibility and justification for setting up the Yugoslavia tribunal. When I arrived on August 15, 1994, the tribunal had been written off, throughout the democratic world and the undemocratic world, especially by the media--and understandably so. Human rights activists had thrown up their hands in frustration at the political disregard for the victims for whom the tribunal had been set up. I am referring to the political games that were being played in the Security Council, and to a lesser extent in the Secretariat itself. In particular, there was the 15-month delay in appointing a prosecutor--that was a huge problem the tribunal faced. The judges themselves had been appointed the previous September. So they had been there for some eight months, feeling ridiculous, as they candidly told me. Having fashioned the rules of procedure and evidence, they were waiting for trials to begin. But there were not any investigations, even in the assembly line. So there was anger and frustration.

That is now a thing of the past. No institution is perfect, and there certainly have been other serious problems with regard to the running of both tribunals. However, they are now up and running and respected and doing important work. The change is a very significant one.

MERON: May I continue? We are friends, and therefore I can ask these questions. What do you think was the major mistake you made as a prosecutor?

GOLDSTONE: Absolutely none. That's an easy one.

MERON: Is there anything you would have done a different way?

GOLDSTONE: I don't think so. I was fortunate in having wonderful advisers and colleagues. From day one I made it a point of consulting widely, particularly with the NGO community, and Aryeh Neier in particular was a valued mentor and adviser. They were not single-person decisions. But they were decisions taken carefully, because they were difficult decisions. I really can't think of anything significant that could have been done differently.

MERON: Would you now, with hindsight, indict people like Dusan Tadic, or wait for more prominent criminals?

GOLDSTONE: In this regard, I must with respect disagree with something that Judge Wald said yesterday. She spoke about the inappropriateness and unhappiness of indicting low-level people. There were two reasons for it, and they were both, in my view, unavoidable. One is unfortunate and one is not. The unfortunate one was that when I arrived in The Hague, I was informed that I would have to appear in November, three months after I arrived, before the budget committee of the United Nations: the Advisory Committee on Administrative and Budgetary Questions. Knowledgeable UN insiders advised me that the future financing of the tribunal would depend entirely on whether we were given an adequate budget. And I was advised that if we didn't have an indictment out by November 1994, that would not happen--we would be without adequate funding. And that was a serious concern. Obviously I would not have countenanced signing an indictment if there was not adequate available evidence to justify it. But the only person against whom, by the beginning of November, we had evidence that justified an indictment was a man called Nicolic. In the constellation of war criminals in Bosnia, Nicolic was a small fish, as the newspapers liked to call him. But, in order for the tribunal to survive, we decided that it was necessary to issue that indictment.

I have always conceded that Nicolic was a most inappropriate first indictee of the first international criminal court. It would have been lovely to start off with an indictment against Bosnian Serb leader Karadzic or Bosnian Serb General Mladic, or somebody at that level. But at that point of time there just was not even the beginnings of a case then against them.

We then continued with a number of other small fish. That was a very deliberate policy. If you examine the Nuremberg record, you will be surprised--as I was the first time I read it--how little witness evidence there was. The bulk of the evidence was documentary. The Nuremberg prosecutors were blessed with smoking guns galore. They had to weed out which guns to use. The documents carefully recorded in the hand and above the signature of many of the accused what they did.

We had no such gift. At the Yugoslavia tribunal there was no documentary proof; there were no smoking guns. And we had to build up circumstantial cases. The witnesses we could get to--and there were hundreds of thousands of them, over 300,000 Muslim refugees in Germany alone--could only give us evidence against the people who victimized them: camp guards, camp commanders. They didn't know who gave the orders for their victimization.

MERON: They did not know the senior people.