International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2014 Issue

Global Judicial PERSPECTIVe

Response to Op-Ed by Thabo Mbeki and Mahmood Mamdani on International Criminal Justice

Richard J. Goldstone

By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor

On February 5 2014, the New York Times published an op-ed by the former President of South Africa, Thabo Mbeki and Columbia University Professor Mahmood Mamdani. I was disappointed to read that they place in issue the mission, relevance and importance of international criminal justice and call in aid the success of the South African Truth and Reconciliation Commission and South Africa’s transition to democracy. They suggest that “Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.” Surprisingly they hold up the South African “complex set of negotiations” as “the clearest alternative to the Nuremberg model”. They add that “Because criminal trials are driven by a winner-take-all logic – you are either innocent or guilty – those found guilty and punished as perpetrators are denied a life in the new political order.”

I would suggest that the approach of Mbeki and Mamdani is founded upon unhelpful and confusing generalizations. They state that the South African model is the preferred “alternative to the Nuremberg model”. They say that after World War II, there was “a time and place” for courts in Germany.” Presumably they are referring to domestic courts and not to the Nuremberg Court. They refer to the South African process having been “punctuated with many a bloody confrontation, like the assassination of the popular South African Communist Party leader, Chris Hani, the eventual outcome decriminalized the alleged perpetrators and incorporated them in the new political order. Yesterday’s mortal enemies became mere adversaries.” Surely Mbeki and Momdani cannot believe that the Nazi leaders who were prosecuted and convicted at Nuremberg should have been forgiven and allowed to play a role in the post-Nazi German government. They cannot believe that the assassins of Chris Hani should have been forgiven. Indeed, they were prosecuted and sentenced by a South African court to life in prison. Their applications for parole, with every justification, have been consistently and strenuously opposed by the African National Congress.

In this confusion, it is difficult to understand the basis upon which Mbeki and Momdani oppose the mission of the International Criminal Court. I would suggest that their most important error is to regard international criminal justice as an alternative to political reform. In South Africa the truth and reconciliation process was accompanied by prosecutions of Apartheid criminals – they included a former Minister of Defense (who was acquitted) and a former police killer and torturer (who was convicted and imprisoned). Indeed, I would suggest that the South African government should have paid greater regard to the recommendations of the Truth and Reconciliation Commission and instituted further prosecutions against Apartheid criminals. That was, after all, the “stick” which encouraged some to seek amnesties accompanied by full confessions.


Prosecutions and truth commissions are both tools of transitional justice. They can be effectively used separately or together. As already indicated they were both used in South Africa’s transition. So, too, in Sierra Leone. Rwanda, on the other hand, opted for trials, both formal and the so-called “Gacaca” system. The International Criminal Tribunal for Rwanda (of which I was the first Chief Prosecutor) was initially opposed by the Government of Rwanda. However, a visit to the Genocide Center in the Rwanda capital, Kigali, will demonstrate how crucial was the work of the Rwanda Tribunal in proving the careful planning that preceded the bloody and efficient murder of some 800 000 innocent Rwandans in 1994. It is much to the credit of the Government of Rwanda that it substantially cooperated and supported the work of the Tribunal.  It is widely recognized that the South African model of truth and reconciliation cannot simply be exported to other countries. It would not have worked in Rwanda and, I would suggest, it will not work in Syria. In the face of huge criminality there can be no substitute for appropriate criminal justice mechanisms.

It is unfortunately the reality that massive crimes usually implicate massive numbers of perpetrators. It is for that reason that international criminal courts seek, as best they can, to concentrate on bringing to justice the leaders who were primarily responsible for the commission of those crimes. In situations where domestic courts are unable or unwilling to mount their own prosecutions, the International Criminal Court can proceed against only a handful of those leaders. However, those prosecutions, whether domestic or international, are calculated to furnish important acknowledgment to many victims and allow them to bring at least partial closure to their deep trauma.

I question the motives of some African leaders who are opposing the work of the International Criminal Court. I would suggest that their primary motive is to protect themselves and that they are not acting in the best interests of their people and ignore the cries for acknowledgment from the victims of their crimes. Support for this view is to be found in the nearly unanimous support for International Criminal Court prosecutions by civil society organizations in the effected nations and especially those that represent the victims.

On March 30, 2014 at the University of Pretoria, the Deputy President of South Africa, Kgalema Motlanthe stated that the African Court of Human and People’s Rights should have its jurisdiction extended to cover crimes of genocide, crimes against humanity and war crimes. He added that “Such a court will be able to refer matters to the ICC in cases where it experiences innate limitations or where, in the context of its relationship with the ICC, it is ideal to do so in the interests of justice." I fully support this. Such a development would be fully in line with the complementarity system under which the International Criminal Court functions. Regretfully, it is highly likely that the political will or the resources will be found by the African Union to implement the suggested extension of the jurisdiction of the African Court. The burden will continue to be borne by some domestic courts and the International Criminal Court. It is not helpful to cast doubt on the credibility of international criminal justice and, by doing so, deprive the victims of massive crimes of the justice to which they are undoubtedly entitled.

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with assistance from the American Society of International Law.

Editor: James G. Apple.
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