Crimes of War

December 21, 2001

Richard Goldstone
Justice, Constitutional Court of South Africa Visiting, Professor, NYU Law School, First Prosecutor at the International Tribunals for the Former Yugoslavia and Rwanda, Chair of the "Goldstone Commission," which investigated political violence in South Africa
Interviews and Introduction by Marguerite Feitlowitz

I have grave concerns about the Executive Order, which I believe represents a terrible threat to due process. Before I elaborate on my objections, let me say that if the United States wanted to put bin Laden or any of his colleagues on trial in the U.S., I don’t think there would be any serious opposition. The crimes were committed here, the majority of the victims were U.S. citizens, and so there is clearly jurisdiction for the case. The administration has offered two main justifications for not holding trials here: that the security of judges and juries would be in jeopardy; and that the U.S. has jurisdiction to hold trials in Afghanistan, Pakistan, or any other place for that matter. According to this Order, trials could even be held on a ship at sea, which is clearly inconsistent with the concept of fair trials in any democratic nation.

My own view is that if the trials are going to be held outside the United States, there is an overwhelming case to be made for an international tribunal created for that purpose by the Security Council. I am quite certain that the Security Council, if approached, would set up a Tribunal very quickly. I can’t imagine that there would be any opposition. The approach would have to come from the United States, which would be entitled to require that the Security Council appoint the judges, the prosecutor, and deputy prosecutor. The U.S. would have every right to exercise its veto in order to ensure that appropriate people are appointed. For understandable reasons, the United States would want more control over the tribunal than it thought necessary to exercise with respect to the Yugoslavia trials.

An international tribunal would better serve the interest of the victims, because it would further the coalition that Colin Powell skillfully put together. It would convince the whole international community, particularly the Islamic community, that the United States has a strong case. Many people out there doubt it. Not only because of political or religious considerations, but because nobody has seen the evidence. Until the evidence is disclosed and established on a fair basis, people are not going to accept it. And I think it’s absolutely crucial in the fight against terrorism that that be done.

In the long run, an international tribunal is likely to be more expedient than the military commission route, which even now is being challenged on constitutional grounds. There will be lawsuits in federal district courts, and presumably an appeal to the Supreme Court. All of that takes some months, even with the best work in the world.

The Order is an affront to due process on various levels. The Bush administration will decide which persons are to appear before the commissions, which officers will preside, and defense counsel must be approved by Donald Rumsfeld. I certainly understand the administration’s concern about the necessity for secure intelligence—and there are numerous ways to safeguard sensitive material--but even that is no excuse for denying defendants the right to select their own counsel. The restriction is beyond unusual; I must say I’ve never heard of such a thing. It was not a feature at Nuremberg or Tokyo. There is also no right of appeal. The commission will convict on the basis of a two-thirds majority, which is very unusual in a case with the death penalty. It is worth pointing out that there was no appeal against a death sentence at either Tokyo or Nuremberg, but the judges’ decision had to be unanimous.

The administration put together a coalition to communicate that Al Qaeda was a global threat and would be countered with multi-lateral force. I don’t believe that any other nation would cooperate with such a commission [as the Executive Order establishes], or extradite individuals for such a trial, especially if it could mean the death penalty. In Spain, Judge Baltasar Garzón has arrested nine individuals; I understand others have been arrested in Hamburg. Does the United States realize the danger of having separate trials in Madrid, in Hamburg, and Afghanistan? It will be a terrible mess, with inconsistent, indeed conflicting, rules of evidence, procedure, and standards of proof. You’ll have one commission giving the death penalty by majority vote, another which proscribes the ultimate punishment, others which doubtless will acquit. The ramifications are horrific.

The last point I would make is that the military commission route—especially if it ends in convictions and executions—will create martyrs, which for some will heighten the allure of the terrorist enterprise. Deterrence value will be lost, not least because the trials will enforce an `us vs. them’ mentality. It’s giving terrorists a gift on a plate. They want to destroy democratic nations, and what better way to do it than to have these nations destroy their own democratic institutions and fundamental principles.