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.
International
Judicial Monitor