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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

03 Dec 1996: Goldstone, Richard

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POM. Judge, you've just come back from spending twelve, eighteen months?

RG. Twenty-seven.

POM. Twenty-seven months being the Chief Prosecutor into war crimes in Bosnia and I've read your many statements on it and the lack of will on the part of the western powers, particularly the United States, to take decisive action to try to bring to justice some of the individuals named in your indictments. One, I would like you to talk about the experience in general and, two, to talk about it in the context of the investigations you carried out here while you were chairman of the Goldstone Commission, and three, perhaps to talk about if one can make comparisons between different levels of violence done to human beings, and fourth, this whole notion that surfaced here with the Truth & Reconciliation Commission of there being moral equivalents between different forms of violence whether it was against apartheid or pro-apartheid.

RG. Well obviously the period I've spent away from South Africa has given me a very valuable opportunity of gaining some objectivity in relation to South Africa that wouldn't have been possible had I been here all of the time. It's also enabled me to see on a more global canvas the whole question of egregious war crimes and egregious human rights violations. One thing I'm left in no doubt about, not that I had much before I went I might add, is that forgetting about a past of serious human rights violations is a recipe for cycles of violence. I have little doubt that had criminals, and they are criminals, been brought to book over the centuries in a region like Yugoslavia there wouldn't have been the bloody history that that area has experienced. A similar comment would apply to Rwanda in respect of which Tribunal I was also the Chief Prosecutor from November 1994 until I left in September this year, when calls for revenge, and that's a very human reaction to atrocities, when calls for revenge go unheeded and unrequited then one lays a foundation for people to take the law into their own hands, to build up hate and most important of all probably to ascribe collective rather than individual guilt, to ascribe guilt to a people or an ethnic or religious group rather than to criminals who come from that group and who are responsible.

. I think it was a lesson of Nuremberg that individual Nazi leaders were charged and found guilty at Nuremberg and some of them executed or sentenced to very lengthy terms of imprisonment, but for that I have no doubt that the German people themselves would have had greater difficulty in coming to terms with what their leaders did in the second world war. One sees a group of criminals in the dock at Nuremberg, not representatives of the German people, and for that reason I firmly believe that the biggest beneficiaries of the Nuremberg trials were the German people themselves. So I'm left in no doubt that if one forgets about or pretends to forget about or brushes under the rug these past abuses, not only is there the cancer in the society but it's there to be used by evil politicians who capitalise on that sort history of hate as so many have done. Again I need go no further than the former Yugoslavia and Rwanda. The other thing, and that's fairly obvious, is that without demonising or dehumanising the victim group these terrible atrocities wouldn't be committed. It's only when that dehumanising process, especially when it's added to a fear of being killed or overrun or economically repressed by reason of the activities of another group, it's only when these things come together that one has these huge human rights abuses.

. Turning to South Africa there can be no question that 300 years of oppression and particularly almost 50 years of apartheid wouldn't and couldn't have happened but for the white ruling group regarding black South Africans as being less worthy, as being on a lower level than whites and all of the propaganda of the apartheid government was directed towards that direction. That justified inferior schooling, inferior hospitals, inferior living conditions, depriving 80% of the people of South Africa from the land, from any land save a very small portion of the country. What's necessary in order to successfully deal with the past, in my opinion, is to expose the truth because truth is fundamental to all justice and indeed I have no doubt is a form of justice in itself.

. Whether that truth is exposed in criminal trials or in a Truth Commission I don't believe is important in this context. What is definitive in my view to justify the Truth Commission route, which involved granting indemnities or amnesties, are the views of the vast majority of the victims. In South Africa the Truth Commission was agreed to by a democratically elected parliament in which by far the majority party, the African National Congress with just over 60% support in the whole country agreed, as did all of the other leaders other than the Inkatha Freedom Party, that a Truth Commission was the right route and obviously excluding the right wing white parties who were hardly represented in parliament.

. Obviously it's highly unlikely that in areas like Rwanda and Yugoslavia that the victims would go for indemnity. It may be, especially in Rwanda, that they will be forced to because there doesn't seem to be a sensible alternative having regard especially to the fact that it's now 2½ years since the genocide and the courts in Rwanda are still not operating. Clearly if they are not operating the work of an international tribunal is not going to be sufficient, it only has two courts and it's only going to skim the surface of the leaders. So this is a problem which is being worked out at this very moment in Rwanda.

. Sorry, you wanted me to deal with the comparative guilt?

POM. No, I want to go back first to did you learn anything that gave you greater insight into how a person or a group under the leadership of a person can systematically, like neighbour to neighbour, annihilate each other, people who were neighbours for years, twenty thirty years, whose families mixed and mingled, who overnight become enemies?

RG. It wasn't overnight. I think there was very careful fairly long term planning in Rwanda, very astute use of propaganda, radio particularly. On the radio were hours and hours of hate broadcasts, and instilling a tremendous fear in the Hutu population of being overrun and being killed by the Tsutsis and by Hutu who were, according to the propaganda, making themselves a party to support for the Tsutsis so when the genocide began in 1994 the first victims, according to all of the acceptable evidence, the first victims were not Hutu and not Tstusi, the victim according to most accounts was in fact the President of the Constitutional Court who was a Hutu and who was a moderate and who would have opposed this sort of mass murder. But it was basically fear, I think most people, the overwhelming number of people in any country anywhere in the world, if faced with a stark choice between killing and being killed will kill and that was the choice that was, as it were, instilled, or the belief that was instilled into the vast majority of Hutu in Rwanda. According to calculations some 300,000 ordinary people must have been involved in murdering their own people and Tsutsis and these are people who as you correctly say had lived, and demonstrated that they could live, as good neighbours and not only good neighbours but as good spouses because there was a lot of intermarriage and as you also correctly point out there have been instances recorded where spouses killed the other spouse because of that spouse's ethnic group.

POM. Is it that one individual in the community becomes the agent of inciting others to a level of collective hatred where the concept of communal responsibility goes out the door and it becomes something you're doing on behalf of your group, your community, rather than on behalf of yourself?

RG. Well it's a degree of fear. The case this week when in The Hague Tribunal Urdemovich(?) was sentenced to ten years imprisonment in a very difficult situation; here is a member of the Bosnian Serb army, happens to have been a Bosnian Croat but that's by the way. He, against his own instincts, because he didn't want to be involved, was forced by superior orders under extreme duress, he was threatened with his life, his wife and child's lives were threatened if he didn't join his fellow soldiers in shooting innocent Muslim men outside Srebrenica. Now that's a stark case where Urdemovich was faced with a clear choice and this the court accepted, he was faced with a clear choice of shooting over seventy innocent Muslims or being shot himself. Now I don't think any of us would like to be placed in that position and being given that choice. God knows how we would react in that sort of situation. So that's a specific example, but in Rwanda one has to multiply that sort of example by about 300,000 because this was the choice that people believed they had if they didn't kill, if they didn't wipe out all the Tsutsis they were going to wiped out themselves.

POM. So if you take that knowledge and what you learned of man's inhumanity to man and place it in the context of the violence and abuse of human rights that has occurred in South Africa, can one make the case that certain forms of violence are worse than others or that all forms of violence are morally neutral or that there is such a thing as a just struggle against oppression where in the last resort if every other avenue to alleviate oppression is denied you, that the turning to violence is morally justified?

RG. Well I think one's got to make a few distinctions because I think certainly in recent public discussion in South Africa and private discussion too there's a great deal of confusion and different issues are being confused. Issue number one is from the point of view of a victim, an innocent victim, a non-belligerent, an innocent civilian who is killed or injured, it's irrelevant what the cause is, whether it's a moral cause or a less moral cause or an immoral cause that has resulted in an innocent victim being prejudiced by a serious violation of that person's human rights, the wider moral aspect really doesn't come into it. So whether an innocent person was killed in Magoos Bar in Durban or an innocent victim was killed in a home in a cross-border road by the South African security forces in Botswana, from the innocent victim's point of view it really makes no difference. This is a wrong, it's a human rights violation and it's contrary certainly to humanitarian law which demands from all belligerents that innocent civilians should be protected. So it's a human rights violation and that's quite irrespective of what the cause is. That's one issue.

. When it comes to looking at the moral aspect as objectively as one can, obviously there can be no comparison between a state using it's own power and forces, security forces, to oppress and commit human rights violations on its people, on the very people that it was given power to protect. One can't compare the immorality of that to the situation where human rights abuses are committed by an oppressed liberation organisation attempting to free its people from the sort of oppression that they were living under during the apartheid years and indeed for centuries before that. The confusion comes about when these two separate issues are confused. From the point of view of the crime and from the point of view of the victim, as I said, it's not relevant. Murder is murder and if a victim is injured and is maimed and limbs are blown off it's really irrelevant from the subjective point of view whether the perpetrators were fighting for a greater or lesser moral cause. What has happened in South Africa, the confusion in current debate in South Africa, and I think it's really to an extent quite clever National Party propaganda to confuse these issues and to regard the relevance of the Truth Commission as applying equally from a moral point of view to any crimes committed by apartheid officials, police, on the one hand and human rights abuses committed by members of a liberation army and they are using what I refer to as a subjective point of view of the victim to justify and put on an equal level the human rights violations of the apartheid government on the one hand and the general position of the liberation movement on the other on the basis that we're fighting an equally moral war.

POM. Is there any context in which you can put levels of violence, like the apartheid regime was a repressive regime, was it a genocidal regime, was it designed to eradicate black cultures from society? Can one codify the severity of the standards in terms of the norms of justice that should be applied?

RG. I think of course one can looking at it again as objectively as one is able. I don't believe that what happened in Bosnia, what happened in Rwanda, as terrible and as bloody and as immoral and as horrific as those things were, I don't believe that they are on the same immoral level, the same level of turpitude as the Nazi holocaust. So there are clearly degrees. The Nazis set out to wipe out a people not only in their own country but in the whole world. This is as far as the human imagination can comprehend in respect of wiping out of people. In Rwanda I would say one comes fairly close to that because the Hutus clearly wanted to wipe out, and that was their intention in their genocide, to wipe out all members of the Tsutsis. It was a whole group within a country that was the object of the genocide. The situation in Bosnia was, of course, again going down the scale in my view because there there wasn't at the central core, there was never an intention to wipe out a people. Ethnic cleansing was designed to make areas ethnically pure. Genocide was clearly committed in the process but it was a different kind of genocide. It was to wipe out part of a people if they were in the way, it wasn't to wipe them out for ideological reasons as was the case with the Nazi holocaust. The idea was to get Muslims and Croats out of Serb controlled, or areas that the Serbs wanted to control. They included areas where Serbs were in a minority not in a majority and terrible atrocities were committed in furtherance of that policy.

. In South Africa it was again a very different situation. According to most definitions of genocide there can be no doubt that genocide was committed in the former Yugoslavia, in certain of the situations that unfortunately occurred and without any question, in my view, in Rwanda. But if one accepts most generally accepted definitions of genocide that crime wasn't committed in South Africa. I've recently read the book by Kader Asmal and his wife where they make out, not an unconvincing case, that a form of genocide was committed by the apartheid regime. I have difficulty in accepting that thesis. I think it's stretching genocide beyond it's normal - I don't accept that genocide as normally understood was committed in South Africa. It's a legal distinction because, again, looked at from the point of view of the victims, if close to a hundred people were murdered during police interrogation, Security Police interrogation, from their point of view whether you were one of a hundred who is wiped out in that situation or whether you are one of a million wiped out because of a different motive doesn't really make any difference to you the victim or to your family. But again looked at objectively there is all the world of difference as to that position. It's the same difference that there is in respect of one woman who happens to be raped by a soldier in an invasion force, on the one hand, and thousands of women who were raped as part of a systematic system of mass rape used as a war crime, used as a method of waging war. Again, subjectively looked at from the point of view of the individual woman it doesn't make any difference to her whether it was an isolated incident or whether she was one of a thousand. So I think one has got to keep this distinction very much in the forefront.

POM. Does the question of organisation or organisational intent come into play, for example?

RG. Absolutely.

POM. Say with the Nazis, with the war camps in fact the activity was to manufacture death, to do it efficiently and keep all systems going to feed the production line, so to speak, so that what emerged at the end of it was death, which is very different than groups of people turning on each other in mutual fear and annihilating each other.

RG. Right. I think you're making really - looking at it from a slightly different perspective but it's the same distinction that I've been trying to demonstrate.

POM. So if you apply that to South Africa where does South Africa lie? The question I'm trying to get at is that since I've come back, particularly this time, I've noticed that most whites see the TRC as being some kind of witch-hunt against them, that they are shocked by some of the revelations of the way bodies were blown up and dynamited and things like that and the wildness that went on and the unaccountability. There is the, "It really had nothing to do with us, we never knew this was going on and if it did go on of course we would never have approved of it." There is no sense of guilt, there is no sense of connection to what happened. There is no sense of remorse and there is almost a feeling of resentfulness as though the Truth Commission or the ANC is trying to pigeonhole them into a position and say, "Apologise for the grievous wrongs you did", whereas most of them don't believe they did grievous wrongs. That in turn has bred resentment among blacks who say, "We're not asking for an awful lot here, we don't want retribution, we don't want to take anything from you, we're merely asking that you acknowledge and accept that these things happened and happened in your name and that in that sense as a beneficiary of the system that practised this kind of brutality you were part of it because it was impossible not to know that part of it was going on."

RG. Well I hope you're over-generalising.

POM. Yes. Of course.

RG. Because certainly most of the people I've come into contact with since my return certainly are, as you say, shocked at the revelations. I have found a large degree of support for the work of the Truth Commission. I have got no doubt that we would be in a far worse position without it. I have difficulty understanding how having regard to what's come out that the word 'witch-hunt' can still be used. Witch-hunt has the connotation that you're trying to pin blame on innocent people and it can hardly be said of the people who are being blamed in evidence before the Truth Commission and I think it's a good thing that people like De Kock were tried side by side with the Truth Commission.

POM. I would just quote there the last, I think it was the IDASA poll or the HSRC poll, I think it was the IDASA poll that 64% of whites were either indifferent to or thought that the Truth Commission was a witch-hunt.

RG. Well it's a form of guilt consciously or subconsciously.

POM. Used in denial.

RG. Most people who feel guilt want to forget about it and not want to be reminded of it. I suppose that's part of the reaction of many whites and of course there were degrees of participation, degrees of knowledge. Of course the majority of white South Africans weren't aware of the depths of depravity to which the security establishment went. There is no question about that. And how much of it various members of government knew is an open question because many of these things are done with nods and winks and don't tell me, and so it becomes a matter of degree from a factual and from a moral point of view. There is a cost to any important event in human life whether it's in one's personal life or in the life of a people or a nation, there is always a cost. The greater the advantage normally the greater the cost and the cost I believe of ensuring that there's a better basis for a peaceful future, the cost of that through the Truth Commission is alienating some whites and alienating some blacks because there are black victims as you know who came to this court complaining that the Truth Commission was unconstitutional because it was taking away fundamental rights to criminal justice and to civil damages, and in a very well reasoned judgement, I can say that because I wasn't a party to it, but the Deputy President of the court, Ishmael Mohammed, set out very articulately and in beautiful prose what the issues were. So there is always a down side but one has got to weigh up the alternatives and see what the bottom line produces.

POM. Before I came here I interviewed FW de Klerk and one of the questions that I raised with him was that in view of the allegations that had emerged during the De Kock trial and revelations at the TRC and the acknowledgement by people like General Johan van der Merwe that he was behind the blowing up of Khotso House and did so on the instructions of Adriaan Vlok who said he got the orders from PW Botha, my question to him was in view of this accumulation was he now more prepared to admit that Mandela had been right in the early nineties when they insisted all the time that there was an organised third force out there and FW de Klerk seemed never to satisfy Mandela that he was taking sufficient notice of it or doing sufficient things about it. And his defence was that every time it was brought to his attention that he did something about it, whether it was the Harms Commission or your commission. He said it wasn't until the final report of your commission that you actually came to the conclusion that there was a third force. You and I discussed it a number of times and your belief was that it was an isolated individual here or there, rogue elements that might have been guilty of something but there was certainly nothing, an organised third force as such. In view of your own commission's findings and what has come to light do you believe now that yes indeed there was an organised third force with a political agenda?

RG. Well there's no doubt about it, but I had no doubt about that at the time of my final report. Before that there was a great deal of ground for suspicion but there was no proof. I am sure I said to you at the time because I've always been of the view that our commission never told South Africans anything they didn't suspect. The importance of the commission establishing facts was the official acknowledgement of a third force and that's, I think, what had been frustrating Mandela. He knew in the sense that people know things even without proof and it was frustrating him that this wasn't acknowledged and I think that's really the importance of the Truth Commission. It's that acknowledgement, it's an official acknowledgement that people want.

POM. Do you think that De Klerk's defence of himself and his administration is an adequate defence?

RG. Adequate from whose point of view and by what standards? My own very strong belief is that De Klerk after 1990 was not aware that there was a systematic third force being organised within the police or the military. And I say that for one reason and I may be wrong, I say that because of the spontaneity with which he gave me full resources and full power to continue the investigation. Without that I couldn't have done it and it was the spontaneity more than the fact of it that impressed me. He didn't hesitate in encouraging me to proceed and especially at the end it meant huge resources, millions of rands to send witnesses for their protection to Denmark and England, the full support of the Intelligence Service to assist. All of those things were done without hesitation and it certainly left me with the impression, it just seemed to me that somebody who knew those things were going on would have behaved in a less spontaneous fashion. It wasn't the result, it was the way it was done which was what impressed me. Whether he should have known of course is another matter. As I said, the comparison that I have drawn, and I may have discussed this with you before, is a comparison I draw with an innocent spouse to a marriage that they want to continue where the most obvious evidence of an affair is ignored, the whole circle of friends and family know that an affair is on the go but the innocent husband or wife doesn't see the lipstick on the hanky and doesn't notice the late arrivals and funny telephone calls until it's at a very late stage. I think the human mind does get selective and if there's something you don't want to know you can blot it out.

POM. Would you agree with the Asmal's calling apartheid a crime against humanity or do you think that again is an overstatement?

RG. Oh no, I've got no doubt. I think the international community in the seventies passed the Anti-Apartheid Convention which defined apartheid as a crime against humanity and there's no question I think, by any decent standards apartheid was a crime against humanity as defined at Nuremberg. Its offences, including murder and torture, were directed against a civilian population and that's a definition of a crime against humanity.

POM. I don't get that feeling of acceptance, and maybe I'm mixing with the wrong people, among senior National Party officials and even academics who are and were against apartheid.

RG. But they were parties to that. There's no question the NP policy of apartheid was directed against a civilian population and very serious human rights abuses were committed in order to put into execution the apartheid policy. The mass removals of people, the racial oppression, racial segregation directed on grounds of race. By any decent international objective standards those were crimes against humanity.

POM. Then why the reluctance, when it comes down to the acknowledgement factor, if I read, or I didn't read because I heard it, the submissions the NP made to the Truth Commission?

RG. It was an attempt to justify it, it wasn't an apology.

POM. That's right.

RG. I agree absolutely, I was very disappointed when I read that.

POM. You can't apologise and then say, "Well I'm sorry but there are all these reasons why I shouldn't really be sorry, but."

RG. Absolutely, and "put yourself in my position" sort of thing.

POM. And if you saw things through the total onslaught thing, "We weren't fighting just the ANC we were fighting communism."

POM. In that sense while that attitude persists.

RG. But I don't believe anybody can expect a different reaction because it wouldn't be a human reaction. All of us try and justify what we do. It's just a human reaction. One doesn't want to admit immoral conduct especially on a massive scale. But that again I think is the importance of the Truth Commission and I think it's findings are going to be crucial to our future. I just hope, and I've got confidence having regard to the leaders of the Truth Commission, that these distinctions to which I've been referring and many others to which I probably haven't even thought are going to be made.

POM. So when elements in the white establishment say here we have all this emphasis on abuses that went on through the apartheid era which really weren't all that bad taken in the context of all the abuses that have gone on throughout Africa and nobody has been looking for peace commissions in Uganda or in Ethiopia or in Somalia or in any other places where millions of people are slaughtered, we're being held to a different standard?

RG. It just doesn't lie in their mouths. It's really the example I give if twenty murders are committed in Johannesburg today and the police happen to apprehend one of them it doesn't lie in his mouth to say, "You know this is very unfair, you haven't arrested the other nineteen, why me?" If people have committed serious human rights abuses they can't be heard to complain that they are being called to account.

POM. So have you any final insights into how this process is unfolding?

RG. Not really except that I think the lesson to be learnt from all of this and particularly from the two war crimes tribunals, Bosnia in Europe and Rwanda in Africa, such different societies, different cultures, there are two lessons, the one is that from a human point of view it's irrelevant where it happens. I really get very annoyed and upset when I hear cultural relativism being used to say well justice in Africa isn't the same as justice in Europe or justice in Asia. When it comes to human rights abuses people react in exactly the same way wherever they are and wherever they may come from. That's the one point.

. But the second is I think one must be very cognisant of the fact that these terrible things can happen anywhere, can happen to any people and they can be done by any people given the circumstances and I don't think that anybody should feel that they are beyond that sort of thing happening and I think we should all be very careful and certainly the lesson for South Africa, and it was a lesson that I talked about when I was installed as a Chancellor of the university last month, Witwatersrand University, we must be very cognisant of the fact that South Africa just, just avoided the sort of blood-bath that we've seen in Rwanda and Bosnia and we avoided it because of the wisdom and strength of our leaders. That's also something I think that's under-appreciated generally in the world and that there's a tremendous power for good or evil that leaders have. I don't think people appreciate just what leadership means.

POM. OK, I'll leave it there. Thank you.

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