Public Lecture - 28 May 2015 - Sarajevo BiH - Gallery 11/07/95

Punishment and justice: ICTY (International Criminal Tribunal for the former Yugoslavia)

Richard Goldstone

the first chief prosecutor of the Hague Tribunal


When we saw on television about the massacre, about the genocide at Srebrenica, we decided immediately that we should get out a second indictment against Karadzic and Mladic. We had a lot of information, we knew what Karadzic's position was, and we were already receiving information and photographs of what had happened at Srebrenica. So we were in a position to move quickly. The frustrating part was that it took over thirteen years before Karadzic and Mladic were arrested and came before the court, but by that time more and more evidence were collected, the US information became important, intercepted phone calls between Karadzic and Milosevic for example, other witnesses had emerged, so the case became stronger. In some ways, the case is much stronger now than it would have been twenty years ago. It's not to the advantage of Karadzic and Mladic. Of course it's frustrating for the victims, that they had to wait so long for justice, and my heart goes out to them for the frustration and the injustice of the wait. But I certainly hope that those victims who are still there – and I was in Srebrenica a few years ago and I know how much this means to the mothers of Srebrenica – I hope that the justice that is now being done will still be meaningful for the survivors and for the victims.

It's a huge responsibility for any prosecutor to sign an indictment of war crimes, to accuse someone of being a war criminal, particularly genocide or crimes against humanity. It’s a terrible indictment to make against somebody and I have no doubt that all prosecutors feel that responsibility as a very heavy responsibility. And I was certainly not prepared to sign any indictments unless I was satisfied that there was sufficient available evidence to bring to a trial in the events of the arrest of the person who was charged for the war crimes. But at the same time, a prosecutor has a responsibility, primarily to the victims, to ensure that appropriate indictments are brought out and that steps are taken to arrest an alleged war criminal. One has to weigh all of these responsibilities in an appropriate way.

The preconditions to indict somebody with the crime of genocide is obviously evidence to prove the special intent that the person had to destroy a group of people, in whole or in part. The question we had to look at was whether this applied in the Srebrenica situation. The intention there was not to destroy all of the Bosniaks in Bosnia and Herzegovina. The intention was to destroy over 8.000 innocent men and boys in the enclave of Srebrenica. But we came to the conclusion, and the courts, both the ICTY and the International Court of Justice have supported our decision, that a decision to destroy a group of that size in an enclave, in the village of Srebrenica, constituted an act of genocide and that the necessary intention was there.

The most important aspect of this is the victims. In my view, the only important customers of justice, if I can put it that way, whether it’s domestic justice or international justice, are the victims. They are entitled to full justice and to see that the people who are responsible for their victimisation, for the terrible things that were done to them, are brought to trial. That’s also an important form of acknowledgment. They want a public acknowledgement, not only from their own people, in this case in Bosnia and Herzegovina, but they want the world to know what happened. They know what happened, but they want everybody else to understand also what happened. Obviously, the more serious the crime, the more important it is to bring that acknowledgement.

It’s very difficult to generalise. Every victim behaves and reacts differently and in different countries there are different reactions. In the former Yugoslavia, the reactions to the ICTY have not been the same in Serbia, in Croatia and in Bosnia and Herzegovina. The victors, as it were, have a different attitude to the losers. So I don’t like to generalise. I think that every situation has to be dealt with differently, with sensitivity and with as much information as possible of what goes on. There’s no doubt, from what I’ve read and also from what I’ve experienced on my visit three years ago to the former Yugoslavia, that the work of the ICTY and particularly the big cases against Milosevic, who unfortunately didn’t survive to see the end of his trial, but now the ongoing trials of Mladic and Karadzic, and those of Perišić and other people who have been brought before the court, has had a meaningful effect on the victims. They have received the acknowledgement through the evidence of hundreds of witnesses. What happened has been proven. History books will now record accurately the terrible war crimes that were committed in the former Yugoslavia. And the same, of course, is proven in Rwanda. The people of Rwanda now have their proof. If one visits the Genocide Memorial in Kigali, one sees there the importance of the work of the ICTR. On sees also, and that’s important, a special room devoted to the war crimes committed in other places, including the former Yugoslavia and, of course, during the Holocaust.

The similarity is the existence of a situation that can give rise to crimes of this magnitude. One needs a number of ingredients, two in particular. One needs to demonise the victim. You can’t treat people in that way, whether it was in the Holocaust, in South Africa during the Apartheid, in Bosnia or Rwanda, you can’t victimise and treat people like that if you think they are equal and at the same level. So they have to be demonised. In Rwanda they were called cockroaches. And in addition there is the aspect of fear. If you add demonisation to fear you get the recipe for genocide, other crimes against humanity and war crimes. It was the fear and the demonisation in Rwanda that led to genocide, it was the demonisation of Muslims in the former Yugoslavia in particular, and of Jews, Gipsies and Homosexuals in Nazi Germany that enabled people to be killed en masse. You need those two ingredients, but particularly the first one – the demonisation – and that is common to all the situations of genocide.

But again, it’s difficult to compare Rwanda and Bosnia. In Rwanda, I believe that the success of the ICTR in bringing cases and getting guilty verdicts against the leaders, assisted the post-genocide government in bringing about peace and equilibrium in their society. Rwanda, of course, has in the last decade become a financial and economic success. In addition, I believe that the work of the ICTR made it possible for Rwanda to use its own tribal system called Gacaca to bring closure and to help to bring an end to the genocide investigations. The Gacaca system, by international standards, was certainly not perfect, but it was a success to the extent that it got tens of thousands of people out of terrible prison conditions. Some human rights supporters criticise the Gacaca system, but I don’t criticise it because I don’t know a better alternative. If you could give me a better alternative, then I would say Rwanda shouldn’t have used the Gacaca system. But it was a question of people dying in prison because of bad conditions or dealing with them in a way that wasn’t acceptable to the people of Rwanda. But it was the work of ICTR in proving the guilt of the organisers of the genocide that certainly had assisted the society in Rwanda to move on in an almost impossible situation.

In the case of the former Yugoslavia it’s more complex. In the case of Rwanda we’re dealing with one country in a civil war situation. In the case of the former Yugoslavia we’re dealing, of course, with three post-independence countries, each with their own history, each with their own involvement and each one blaming the other. So it’s much more difficult in that situation. It’s the greatest shame and, in my view, a disappointment to me, that there has never been a truth and reconciliation commission in the former Yugoslavia. As a South African, from my experience of the huge success of the Truth and Reconciliation Commission in South Africa, the people and the victims in Bosnia and Herzegovina, in all the countries of the former Yugoslavia, would have benefited from forcing all people to, to quote Archbishop Desmond Tutu, look the monster in the eye, to realise what happened and to find out that there were victims and perpetrators on all sides and that there weren’t only guilty on one side and only victims on the other. And that truth is important for reconciliation and, it seems to me, it’s missing in the former Yugoslavia.

I think above all you need good leadership. I think in South Africa we were blessed to have Nelson Mandela. In Rwanda, I think that Paul Kagame has risen above the immediate concerns of his Tutsi people and he does take into account, it seems to me, the interests of all people in his country. The problem in the former Yugoslavia is that you still have Serb, Croat and Bosniak interests and history going back centuries to deal with. And again, I repeat, it’s for that reason that a truth and reconciliation commission would have been and maybe still would be a good idea.

The attitude of any international prosecutor should be, and I think it has been, to investigate and bring out indictments against the most guilty. And the most guilty are the people, the leaders, whether political or military, who organised, aided and abetted in the perpetration of these massive crimes, especially genocide and crimes against humanity. So that is the attitude, the attitude of prosecutors is to go for the most guilty. In the beginning, in the ICTY that wasn’t possible. The evidence we had in the beginning was against the so called smaller fish, but they were bricks in building up to indictments. We got there very quickly. It was within a year after I arrived as the first chief prosecutor, it was eleven months after that, that the first indictments were issued against Karadzic and Mladic.

Richard Goldstone, South Africa
Retired Justice of the Constitutional Court of South Africa and former first Chief Prosecutor of the ICTY-International Criminal Tribunal for Former Yugoslavia and ICTR- International Criminal Tribunal for Rwanda. Mr. Goldstone took up office as the ICTY’s first Chief Prosecutor in August 1994 while the conflict in both Croatia and Bosnia and Herzegovina was ongoing. He signed the ICTY’s first indictments, including those against Radovan Karadžić and Ratko Mladić(July 25, 1995, Case No. IT-95-5-I) for the Srebrenica genocide and other massive crimes committed in Bosnia and Herzegovina. “Radovan Karadzic and Ratko Mladic, from April 1992, in the territory of Republic of Bosnia and Herzegovina, by their acts and omissions, committed genocide” (Part I, Counts 1-2) He served until 31 September 1996, and after his service in two Tribunals, Justice Goldstone returned to the Constitutional Court of South Africa.