Goldstone, R. (2001): "Crimes Against Humanity - Forgetting The Victims"; The 2001 Ernest Jones Lecture, The British Psychoanalytical Society & Institute of Psychoanalysis, Tuesday 25th September, 2001.
Mr Donald Campbell
MR DONALD CAMPBELL: My name is Don Campbell. As President of the British Psychoanalytical Society I would like to welcome you to the 25th Ernest Jones Lecture. However, before I introduce our speaker, Justice Richard Goldstone, I'd like to invite you to join me in a moment of silence, to remember the victims of the horrific terrorist attacks on the World Trade Centre, the Pentagon and the plane crash in Pennsylvania. (silence).
Psychoanalysts are familiar with the dynamics of forgetting. We are patients before we become qualified as psychoanalysts. As patients, we learn about forgetting as a way of defending against pain, guilt, trauma, and helplessness. When it comes to understanding the powerful urge to forget - to forget the shameful, to forget the unacceptable, to forget the unthinkable, to forget the unimaginable within ourselves, our patients and our fellow man - we can learn from many sources. We need to take a multi-disciplinary approach to the understanding of forgetting, even though the understanding of the atrocities committed sometimes beggar the imagination. This is why we invited Justice Richard Goldstone to speak about Crimes against Humanity - Forgetting the Victims. In 1991, when violent incidents threatened the peaceful, fair and orderly transition to majority rule in South Africa, political, church and civic groups came together to set up a standing commission of enquiry regarding the prevention of public violence and intimidation.
Richard Goldstone, who was at that time a judge of the Supreme Court of South Africa, was the unanimous choice of all groups to lead that commission. Investigations, by what came to be known as the Goldstone Commission, uncovered the role of the police in fomenting and organising violence between members of the Inkatha Freedom Party and the African National Congress, which in turn led to subsequent investigations of the Truth and Reconciliation Commission. Justice Goldstone has served as the Chief Prosecutor for the United Nations international criminal tribunals of the former Yugoslavia and Rwanda, and is now completing his report on investigations into atrocities committed in Kosovo.
His book, For Humanity - Reflections of a War Crimes Investigator, was published in 1998. He is an honorary bencher at the Inner Temple, an honorary fellow of St John's College Cambridge, a foreign member of the American Academy of Arts and Sciences, an honorary member of the Bar of the City of New York and a judge of the new Constitutional Court in South Africa, and he still finds time to be a patron of the South African Psychoanalysis Trust. Richard Goldstone will be talking to us first and then we'll be able to open the floor for questions and a discussion period following his talk. It is a great pleasure and privilege to welcome Justice Richard Goldstone, who will address Crimes against Humanity - Forgetting the Victims.
Justice Goldstone: Mr Chairman, Your Excellency the South African High Commissioner, my Lords, Ladies and Gentlemen, it is a great privilege to have been invited to deliver the Ernest Jones Lecture, the first of which was given in 1946 in the name of one the most eminent members of the British psychoanalytical Society. At the cost of stating the very obvious, I am absolutely a lay person when it comes to matters concerning psychoanalysis. I hope at the end of the evening I am not diagnosed with some serious malady by the many members who are present here!
In talking about Forgetting the Victims, I want to begin with the context. It is a fact that as human beings we have regard and concern for those nearest and dearest and closest to us rather than people who are far away from us. Whether within our own micro-society, our own countries, our own continent and so forth, or whether it is religion, colour or language that keeps us together, we have a natural closeness, empathy and sensitivity for things that happen to those whom we hold close and near.
In relation to Forgetting the Victims, this becomes very clear when making comparisons between different massive crimes. It is unpleasant to make comparisons of this kind. However, we need to take notice of the reaction in western countries to the terrible massacre in September of 1995 of over 8,000 innocent Muslim boys and men who were slaughtered in cold blood outside Srebrenica by members of the Bosnian Serb Army on the orders of General Mladic. There were no great lines waiting to lay wreaths or to mourn those victims in London or Washington or Paris. And, this happened, after all, in Europe. If you compare that to the outpouring of grief and mourning and recognition that we have witnessed and been going through in the last two weeks following 11th September, you have a stark illustration of the point I am making. And I don’t make this point with any intent to be critical. These are facts we have to face; we have to learn to live with them and learn from them. It does not mean that something should not or cannot be done to try and bring some balance into our reactions to these kinds of tragedies.
A similar illustration of my point is the way the International Criminal Tribunal for the former Yugoslavia was established by the Security Council of the United Nations in 1993. The common belief amongst international lawyers and politicians prior to 1993 was that the only way in which the international community could establish an international criminal court would be by treaty. Countries would have voluntarily to agree to join a club, to set up an international criminal court. There was the mini-model of Nuremberg where the four victorious powers got together, and in effect, said “what we can do alone we can do together” - clearly the victorious powers were entitled to put Nazi war criminals on trial. So they combined the jurisdiction of their courts and established a multi-national tribunal. By extrapolation, it was thought that was the way to set up a permanent international criminal court with jurisdiction over all the countries of the world.
In May 1993 the Security Council, to the amazement of many seasoned lawyers, decided it had the power to set up an international criminal tribunal for the former Yugoslavia. Now it didn’t do that in the case of Cambodia where, more than 20 years before, Pol Pot committed an even worse genocide. It didn’t do it in respect of Iraq, where Saddam Hussein had committed genocide against the Kurdish people; but it did it in the case of the former Yugoslavia. Why? I would suggest - and I don’t say it happily as an African - that the Security Council acted in the case of the former Yugoslavia for a number of reasons. First, there was a geo-political reason. The Cold War had come to an end in 1989 and Russia and China were prepared to agree to set up an international court, which they would not have done before; the principle didn’t frighten them as it would have in the days of the Soviet Union. Of course, the former Yugoslavia was a fairly weak Central European country, unimportant from a strategic point of view. If the major Western European countries wanted a tribunal, well, let them have it. That was one reason. However, there were more important reasons. There was ethnic cleansing. Photographs were published around the world, particularly on television, of emaciated men behind barbed wire fences that were reminiscent of the concentration camps of the Holocaust. Here it was, happening in Europe, where Europeans thought it would never happen again. Then for many people it was happening in their own middle if not back yards; it was that close. Sarajevo is less than an hour’s flight from Venice. People with fair skins and blue eyes and blonde hair were committing these terrible crimes against other people who looked similar in appearance - similar in appearance to the majority of us in this audience here tonight.
What the Security Council was prepared to do for a European situation, it hadn’t been prepared to do in similar situations in Africa or Asia. For similar reasons, NATO was prepared at the cost of many billions of dollars, to carry on a 78-day military campaign because of the way in which the human rights of Albanians in Kosovo were being violated.
This was something that had never happened before and it wasn’t dreamed of in the case of Rwanda. Indeed, the very opposite happened in the case of Rwanda. There, the few thousand United Nations troops were pulled out when the genocide began, a genocide in which well over 800,000 people were killed as recently as 1994. No military action was taken to prevent further atrocities. The approach was that this was happening far away in Africa, an area that most people did not understand well, and about which people in the West did not care too much. People in the West were not sure where Rwanda was and felt “There is nothing we can do; these things happen in Africa, after all.”
Similar steps were not taken even in the case of Srebrenica, but with Kosovo the politics and the emotions of the time in 1999 drove NATO to commit itself really to a very serious war. And it was a war, notwithstanding the secretary General of NATO objecting quite strongly, in a meeting that I held with him in relation to the Kosovo Commission, to it being called a war. There is this sort of double-speak that enables distinctions without a difference to be made.
Now, these steps that were taken - establishing the Yugoslavia Tribunal and NATO bombing in Kosovo because of human rights violations - were clearly intended to assist the victims. The NATO campaign in Kosovo was genuinely humanitarian in the sense that it was motivated solely with regard to the manner in which the human rights of the Kosovar Albanians were being violated. Hundreds of thousands were being driven from their homes; over a million became displaced persons or refugees in neighbouring countries; many thousands were killed. Many of their women were raped and assaulted.
There is this selectivity in relation to victims - depending on where they are, on what they look like and on how close they are to the major powers. You can be absolutely certain that an international criminal tribunal would not have been set up for Rwanda, if Rwanda had happened before Yugoslavia. The precedent of the Yugoslavia Tribunal enabled the Security Council to say - well, here is the precedent, Rwanda has requested an international tribunal, let’s go along with it.
I will now talk for a few minutes about the Yugoslavia Tribunal, before coming back to the Rwanda Tribunal, in order to concentrate on another point: that the attention span in relation even to the victims in Bosnia and Kosovo was very limited, another illustration of Forgetting the Victims.
This is illustrated by the delays in making the Yugoslavia Tribunal operational. The tribunal was set up in May 1993 by a unanimous resolution of the Security Council. It referred in appropriate terms to the serious violations of the rights of the Muslim population of Bosnia and how that had become a threat to international peace and security. That finding was, of course, the key to the Security Council using the peremptory powers under Chapter VII of the UN Charter to establish the tribunal as a peacekeeping mechanism. I know, from first-hand accounts from many people, how that resolution of the Security Council buoyed the hopes of the victims. They felt that it was important that the international community was recognising “our victim-hood” and doing something about it. But what happened? The judges were appointed within three or four months. Then there was haggling in the Security Council for no less than fifteen months before a Chief Prosecutor could be agreed on. Eight nominees were vetoed for purely political reasons. Russia vetoed five of them apparently because they came from NATO countries. The United Kingdom vetoed someone it didn’t like from the United States and the United States then, in return, vetoed a nominee from Scotland! Then they found the Attorney General of India, Soli Sorabjee, who would have made an outstanding Prosecutor. He was nominated by the Secretary-General. Unfortunately, however, Pakistan had a non-permanent seat on the Security Council and there was no way that Pakistan was going to have an Indian in that position.
It was then in desperation that the United Nations turned to South Africa. They decided that if they could find a South African whom Nelson Mandela - then recently inaugurated as President of our country - supported, it would be difficult for any member of the Security Council to veto them. That is how I came to be appointed. I knew nothing about humanitarian law. I had never prosecuted. I knew nothing about the former Yugoslavia. But for my wife, who fancied living in The Hague for a couple of years, I wouldn’t have taken the position!
Imagine for a moment the effect on the victims of that fifteen months delay in the appointment of the Prosecutor. It meant, of course, a delay of fifteen months before investigations even began. When I arrived in The Hague, there were eleven extremely angry, frustrated and embarrassed judges who felt foolish. The French judge told me he couldn’t go to his club in Paris any longer because people laughed at him. Here he was, drawing a substantial salary from the United Nations and there were no prosecutions even in the pipeline. Again, I invite you put yourself in the position of the victims who were clambering for justice who during those fifteen months lost complete faith and confidence in the international criminal tribunal.
And then when I arrived in The Hague in the middle of August 1994, there was no money for the Tribunal to do its work. Insiders at the United Nations informed me that if I didn’t have the first indictment out by that November, we would get no money. Why November? Because in November the so-called ASABQ, the Budget Committee of the United Nations met. I was told if I didn’t show I could get out indictments, I wasn’t going to get a budget. So, in order for the Tribunal to survive, we had to get out an indictment if we could. We scraped around and found a fairly small fish called Dragan Nikolic. He was the only person by November against whom I felt confident as a prosecutor that there was sufficient evidence to justify indicting as a war criminal. It was a serious, serious document for any prosecutor to sign. However, my point here is that Nikolic was an inappropriate first defendant of the first ever international criminal tribunal. But there really was no alternative.
I had assumed, naively as it turned out, that when I went to The Hague, having been appointed by unanimous decision of the Security Council to do a job, there would be money and resources to enable me to do that job. I was invited to visit New York to be briefed and to meet the Secretary General en route to The Hague. I was told by telephone from New York that I should buy my air ticket in Johannesburg and I would be re-paid when I got to New York. I did so. When I arrived in New York there was no money to pay my air ticket. They said “we are terribly sorry, but if you won’t mind waiting a few weeks when you get to The Hague, there will be money”. In fact, when I got to The Hague I found that the salaries of the few people who were already working had not been paid for some months because there was no money allocated to the Tribunal. And this again, I suggest, is really playing with the deepest feelings of victims - taking these steps, buoying and raising expectations and not meeting them. I could spend hours talking about the bureaucratic hurdles and the insensitivity of some of the officials at the United Nations Headquarters. There were exceptions and their support and encouragement was crucial.
I turn now to talk about the attitude of the military. When the United Nations forces arrived in the former Yugoslavia, I assumed instinctively that those forces, who that had the power legally to do so, would go out and arrest people we indicted, especially Karadzic and Mladic. And again, it must have meant a great deal to so many victims when we issued indictments against those two Bosnian Serb leaders on charges of genocide which included the murder of tens of thousands of people in Bosnia and Herzogovina, and the rape of thousands of women. Many people had starved and many more had been tortured in the terrible death camps such as those in Prijedor. But of course those arrests were not made and still have not been made. Whether it was in Washington DC or in London or in Paris or in Bonn, the military commanders were not prepared to risk a single life to go and arrest these criminals.
One sees the difference in relation to attitudes held towards Bin Laden. As truly awful as events on the 11th September in America are, they do not compare with the crimes committed on the people of Bosnia.
The exhumation of mass graves was crucially important work – both for our investigations and for the survivors. Some months after the massacres outside Srebrenica, we received information from Dragan Erdemovic, a former member of the Bosnian Serb Army. Eventually he came to The Hague, spilled the beans, and told us that he had been involved in executing more than seventy men and boys. They were shot in the back of the head. He could tell us with great accuracy where the mass grave was situated. Because we could pinpoint it, we were able to obtain relevant photographic material from the United States Government – the photographs that Madeleine Allbright, when she was Ambassador at the United Nations, later handed to the press corps when she met them in Srebrenica. These photographs, taken from miles up in the sky, show in graphic detail the people lined up next to an open grave. A photograph taken on the following day shows that the grave had been covered up. The Bosnian Serb Army had denied the massacres and the existence of that mass grave. The importance of exhuming the bodies speaks for itself.
We feared that some or all of the mass graves had been booby-trapped. It would have been a fairly obvious thing for the Serb forces to do. I was not prepared to send in the forensic experts and excavation teams – physicians for human rights, wonderful doctors and their assistants with bulldozers - without having the mass graves certified as safe. I went personally to speak to Admiral Leighton Smith, who was the head of the United Nations Forces (UNPROFOR). I begged him to use the sophisticated equipment they had with them to check the gravesites and see they had not been booby-trapped. He was not prepared to do it. He said “This is mission-creep. It’s not our job and it’s dangerous. There could be land-mines, we’re not going to do it.” Who eventually did the work for us? People for Human Rights, a Norwegian NGO, who came with sniffer dogs. There weren’t booby-traps as it happened, but they were prepared to risk their lives in a situation where the best armed and best equipped troops in the world were not allowed to go. I then requested that the UN forces protect the grave sites at night when the workers and physicians were resting. We were concerned that they would be tampered with in the dark. Again we were told: “It’s not our job, this is mission-creep.” We were told that there were over-flights and that they would watch from the skies. That was just not sufficient or satisfactory and again we had to get volunteers to sit up at night to watch the mass graves. Yet again, I ask you to imagine the anguish of the victims when they became aware of this attitude. They were buoyed and had their expectations raised. They were entitled to believe these things would be done. In my naiveté, I did. I have no doubt that they did too. Imagine how they felt when they read in their newspapers or heard on television that this was the attitude of one of the best equipped armies of the world. When a job is done in a half-hearted fashion, it is playing with the victims.
With the Rwanda tribunal again there was an absence of money. Although the Rwanda Government had requested the Security Council to establish the ICTR, when the details of the tribunal were made known, the Government was disenchanted and said they did not wish to have it. The Rwandans thought they would be given some international but internal criminal justice system to replace their own destroyed infrastructure. Over ninety percent of their judges had been murdered. Over ninety percent of their prosecutors had been murdered. There wasn’t a window left in any of the court or government buildings. The Security Council established the Tribunal in the face of opposition from the Rwanda Government. The Security Council had little option. The Tribunal could hardly have held trials in Kigali, the capital of Rwanda, with hundreds of thousands of people baying for the blood of those accused with committing genocide. Who would have protected the defence counsel and who would have protected the judges who might acquit them? What Rwanda received from the Security Council was an international tribunal sitting in a neighbouring country, Tanzania. As a sop, it was agreed that the Office of the Prosecutor would be set up in Kigali. And they decided that as Prosecutor of the Yugoslavia Tribunal, I was also to be the Prosecutor for the Rwanda Tribunal.
I regarded it to be essential, if I was to succeed in opening a functioning office in Kigali, to travel there as soon as possible to open a dialogue with the appropriate officials at the highest level in the Rwanda Government and to get their co-operation in a very difficult situation. I called the Legal Office of the United Nations in New York and said that I thought it was urgent for me to go to Rwanda. The response was: “All in good order, all in good time, there’s no rush.” And I said, “I think there is a rush.” I was told that first a team had to go from headquarters in New York. I asked, “When are you going?” and they responded, “Well, we haven’t thought about it really.” This was the last week of November, a week after the Security Council resolution. I phoned a week later and I said, “When are you going?” and they replied, “Well it won’t be this year, it’ll be probably January or February.” I said, “Well I’m going next week.” And I was immediately asked where the money was coming from for my trip. I asked, “What do you mean?” and they said “Well, no money has yet been allocated for the Rwanda Tribunal and there is no money yet in the trust fund established by the Secretary General. There is no money for you to make your trip.” So I said seriously, “Can I raise the money?” The man I was talking to thought I was joking and he said, “Do what you like.”
The next day, as it happened, I had a meeting with Swiss Foreign Minister Cotti, who had requested a briefing on the progress of the Yugoslavia Tribunal. In the course of our discussion, over a cup of coffee in his office in Berne, he said, “What’s happening with Rwanda?” I told him the story I have just related and he immediately said to his assistant, “Go now, immediately while we are talking, and pay a hundred thousand Swiss francs into the Secretary-General’s trust fund.” He turned to me and he said, “Now you’ve got the funds to go to Rwanda.” So I went with three senior members of my Office to Kigali. I was able to open a fruitful dialogue with the President and senior ministers in Kigali. In the result, they were very helpful and really gave us all the assistance that we could have expected in setting up our office. When I returned to The Hague I found a nasty note from New York to say that it was unacceptable for senior members of the United Nations to raise funds from member states. I had great pleasure pointing out that Switzerland is not a member state! Once again, I ask you to put yourself in the place of victims who are treated in this sort of fashion.
Allow me to return to Kosovo and to talk about the Albanian victims of ethnic cleansing there. When the NATO troops arrived, they were greeted with garlands of flowers and treated as heroes and saviours. They had freed the Albanians of Kosovo and made it possible for them to return to their homes. Regrettably but inevitably, there were revenge attacks by the Albanians against the Serb and Roma minorities. Such attacks should clearly have been anticipated but no steps were taken to protect the minorities. If the Serb forces put a million people out of their homes and raped their women and killed their men, could one reasonably anticipate that they would return home and hold out the hand of friendship? There were horrible revenge attacks on Serb and Roma and other minorities. The sympathy of the Western democracies dissipated almost overnight. The Kosovo Albanians were seen, as it were, to be letting down their Western saviours. I am not for a minute attempting to justify the attacks by the returning Albanians. There is no way one can justify murdering innocent people. But what’s happened since then? Milosevic has been ousted and sent to The Hague for trial and the Kosovo Albanians, for who there was bombing for seventy-eight days, have dropped off the agenda of the international community. It’s as if their victimisation had never happened. Kostunica is now in power as President of Yugoslavia and he was welcomed as a great democrat. Some Western leaders could not understand why these Albanians, who’d been driven from their homes not too many months before, are not prepared now to accept rule from Belgrade. I would suggest that to expect the Albanian majority in Kosovo to forget their terrible victimisation is quite unrealistic and unfair. And of course Kostunica has not turned out to be the great democrat that he was instantly assumed to be. He’s an ultra-nationalist and the United States should not really have been surprised at the statement he issued at the end of last week in which he is reported to have said that the person responsible for the World Trade Centre attack was President Clinton. It was his fault because he had helped the Albanians and it was from them that Bin Laden was receiving assistance!
Coming closer to my home in South Africa, one also finds victims being forgotten. The Truth and Reconciliation Commission produced evidence that really shocked many South Africans. It didn’t tell many black South Africans what they didn’t know. They knew about their victimisation, they knew about the murders and the tortures and all the other things that were done during the Apartheid era. Many South African didn’t know because they closed their eyes to it or, in most cases, they were not particularly concerned. But the Truth and Reconciliation Commission brought it home, graphically, on television and daily broadcasts, and the denials stopped. In my opinion, the greatest gift of our Truth and Reconciliation Commission is that it has made denials of those human rights violations almost impossible. It’s really very few people on the extreme fringes of South African society who would today try and deny the things that happened during the Apartheid era. But how quickly has been forgotten the indignities that were visited on the black majority in South Africa. Here I am not talking about torture or serious human rights violations, but the way a people’s dignity, absolute dignity, was violated every day by the oppressive Apartheid laws. The wonderful goodwill which marked the first years of the Mandela presidency, began to dissipate. In the second year of the life of the Truth and Reconciliation Commission I began to hear South Africans at dinner parties saying, “It’s enough now of opening wounds.” And I would ask, “Whose wounds are you talking about? Are they your wounds?” “No.” was the obvious response. “Well how can you speak for people whose wounds they are and how do you know that they have ever closed? Why are you talking about opening them?” Not too many months ago I was making this point on a panel I shared with the great Chilean playwright, Ariel Dorfmann. He disagreed strongly with this criticism. “The way you talk about s” he said “ignores that they too are victims, and their attitudes and their wanting to forget is the evidence of their victim-hood. They were also victims of Apartheid. They also have to work through this.”
Well, I’m not sure they’re working through it too well, quite frankly. I was involved recently in setting up an initiative that was started by some Truth and Reconciliation Commission commissioners. Together with other anti-apartheid activists, they started what they called a ‘Home for All’ campaign. It was directed at s. There was a statement that South Africans were asked to subscribe to, expressing their regret, (and it was carefully worded, it was not an apology), for what happened during the Apartheid era and offering their abilities and their expertise to assist the victims of Apartheid. I assumed that the campaign would be widely accepted and would not become the subject of controversy. What was the result? The official opposition in our Parliament, the Democratic Alliance strongly opposed the initiative. “It’s enough apologising” they said, “It’s enough going on our bended knees”. This was less than seven years after the end of Apartheid. President Mbeke, when he opened Parliament referred, with praise, to this initiative. Black South Africans welcomed it. But, much to my regret, it has not been a success.
Again, just ignoring the victims. They quickly drop off the agenda. One sees it in the United States, in the attitude to African-Americans. There is a refusal to acknowledge the state of victimisation that is an inheritance of slavery. It’s the acknowledgement that’s important. In Australia Prime Minister Michael Howard has refused to apologise for what Australians did, not too long ago. In 1972 and 1973, Aboriginal children were forcibly taken from their parents to cut down their growth rate. The children were given to families. One cannot begin to imagine the feelings of the parents and of that group. Howard’s excuse for not apologising – really quite an immoral excuse, I would suggest – was that by apologising he would attract claims against his Government. Imagine a Prime Minister refusing to apologise because he feared claims that, by his own definition, should be brought by these people. So again, the victims were being completely ignored.
I suggest this is a fertile field for psychologists and psychiatrists. Important work has been done in this area by Professor Volkan Vamik, Professor of Psychiatry and Director of the Centre for Study of Mind and Human Interaction at the University of Virginia. He said in an article he recently sent me, “ to be most effective in the psychoanalytical examination of large-group processes, and to apply certain psychoanalytic insights appropriately to international or to inter-ethnic issues, we must become involved in inter-disciplinary work, we must gain first-hand experience with many cultures, and we must work through, as much as possible, our own prejudices.” He also points out that when psychoanalysts have worked with diplomats, the latter demand short, simple and quick solutions. That’s the diplomatic culture. This goes against the training and thinking of psychoanalysts. He said at the same time, psychoanalysts have little experience of the constraints within which diplomats and politicians act.
It would appear to be obvious that psychiatrists and psychologists would be able to provide most useful insights into questions concerning reconciliation, mourning processes, and the effects of being victimised. And much work has been done in these fields as I’ve discovered in reading for this lecture. According to Joseph Montville, storytelling is a central part of the process of reviving the mourning process, not only for the victims, but also for members of the aggressor group, and we have to look at both.
Turning again to the events two weeks ago in the United States, your chairman, Don Campbell. suggested to me that it might be important for psychoanalysts to study the hijackers and investigate from a psychoanalytical point of view what makes people like that tick. They are not, as many people like to believe insane or otherwise mentally disabled people. If one has regard to the careful planning that went into the attacks, one thing stand out clearly – the rationality that went into the planning. I would suggest that too little has been done in exploring the role of psychiatrists and psychologists in relation to questions of justice generally, and reconciliation in particular in the aftermath of grievous human rights violation. So in concluding, I would urge the British Psychoanalytical Society to give attention to this important role. For what I have heard of the work of Ernest Jones, he would have warmly supported such an initiative. Thank you.
ASSER MALIK, I’m a local GP here. I’m extremely pleased I came to this lecture and really it’s one of the best lectures of my life. Thank you very much for that. My question is whether the permanent International Criminal Court, when it begins to function, will be able really to go after the “big fish”. I can think of people like Henry Kissinger.
JUSTICE GOLDSTONE: Let me say a few things. The question becomes especially important in the light of the events of the last couple of weeks. An international criminal court has been talked about for over 50 years. If you look at the Genocide Convention of 1948, there’s reference to an International Criminal Court. But nothing happened. The major powers were not very interested. The work of the two UN Criminal Tribunals changed that. They were sufficiently successful to influence important members of the international community to move towards establishing an international criminal court. And ironically, the movement was led by the United States of America. Without that push from the United States, I can assure you from my own experience the Yugoslavia and Rwanda Tribunals would never have functioned. Madeleine Albright, in particular, played a crucial role and it was the political and economic and financial clout of the United States that got those tribunals up and running. It was US pressure that got the United Nations Secretary-General to call the meeting in Rome that approved the Statute for the International Criminal Court. Unfortunately, by the time the conference was under way the United States, turned 180 degrees and became the most outspoken opponent of the Rome Treaty. From my own observations and discussions in the United States, I have no doubt that the reason was the strong opposition to the court from the Pentagon. The military were just not prepared to have US troops subject to an international court. They thought that it was an excellent idea for others but not for themselves; they were the peacekeepers of the world and they were not going to send troops anywhere where they could become subject to the jurisdiction of such a court.
However, to the surprise and to the joy of many of us, 120 nations approved the Rome Treaty. Only 7 countries, including the United States, voted against it. The Treaty is there. It requires 60 nations to ratify it before it comes into force and the court will be able to operate. Thus far, 38 countries have ratified. We need another 22. 139 countries have now signed the Treaty, and I anticipate that within the next 12-18 months the required 60 countries will have ratified the Treaty.
The Court will not have any retrospective jurisdiction. It will have only jurisdiction over war crimes falling within its competence after the date the 60th country ratifies it. That was wise. Too many countries have skeletons in their cupboard and would not favour a court that would be able to investigate crimes committed in the past. Secondly, the Court will only have jurisdiction if the alleged war criminal is a national of a country that has ratified, or the war crime was committed on the territory of a country that has ratified the Treaty. So if one takes the case of Bin Laden, if the United States hasn’t ratified the treaty and Afghanistan also hasn’t ratified it, the International Criminal Court would have no jurisdiction over Bin Laden. I do hope that it is not naive to hope that the United States will now begin to see the advantage of having such a court. Few countries, and especially Islamic countries would consider extraditing Bin Laden for trial in New York. It would be difficult to convince a lot of people that he would receive a fair trial from a New York jury. In addition many countries would refuse to extradite someone to a country where he might face a death penalty. If there was an International Criminal Court and the United States had ratified the Rome Treaty, there would at least be a sporting chance of some countries being prepared to extradite a person such as Bin Laden to the Hague for trial before the International Criminal Court.
Without support from the United States, the International Criminal Court, when it starts, is going to be a weak court. The political and economic clout of the United States would be so important in ensuring that the orders of the Court are carried out.
My own hope, to use sporting terminology, is that in the field of an international rule of law there will be three divisions. The first division will be national courts to try their own nationals accused of war crimes. That would follow from the principle of complimentarity built into the Rome treaty. It precludes the International Criminal Court having jurisdiction where national courts investigate, in good faith, their own nationals who might be accused of committing war crimes. So. for example, if a member of the United States Army is accused of a war crime and it’s investigated by a United States military or civil court, regardless of the outcome, the International Court has no jurisdiction. It could only get jurisdiction if the Prosecutor was able to convince the judges that the United States did not act in good faith in respect of its investigations. Of course, the likelihood of that happening can all but be discounted. I have no doubt that if there was such an investigation, (as there was in the case of the massacre of civilians in Mai Lai), it would be an investigation in good faith. With complimentarity, countries will be virtually forced, in order to avoid the Criminal Court having jurisdiction, to investigate their own alleged war criminal. And that’s appropriate. That should be the first division. Countries that can’t do it, or won’t do it won’t be playing in the first division. Then, the second division would be the International Criminal Court itself, which will then have jurisdiction. The third division would be domestic courts exercising universal jurisdiction over alleged foreign war criminals. That is what is being done now by the Belgian courts. They convicted and imprisoned Rwandan nuns for war crimes committed in Rwanda and they are now investigating Ariel Sharon, the Prime Minister of Israel for war crimes allegedly committed by him in Palestinian refugee camps in Lebanon in 1982. That should be the last resort. It’s better than allowing impunity - it’s better than doing nothing. But it is not the most appropriate procedure. It’s too aberrational, too political. The problem with the Security Council is that it says no in the case of Cambodia, Mozambique, Iraq, and other places where terrible war crimes have been committed, but yes in the case of Yugoslavia and Rwanda. That’s a political way of deciding where international justice should be meted out.
MARCO CHIESA, British Psychoanalytical Society (this contribution has been summarised): In the West we are very good at identifying and condemning atrocities committed particularly by our enemies but we have a kind of selective amnesia in acknowledging those atrocities which are committed by the West, specifically the US bombardments of Vietnam, Laos and Cambodia, which left between three and four million people dead, the vast majority of them civilians. And it is still occurring although it is not reported by the West. There is a plane in Northern Laos where unexploded bomblets are killing 5,000 and maiming a further 15,000 civilians each year. We fail to acknowledge our wrongs whilst expecting other nations to recognise their own guilt.
JUSTICE GOLDSTONE: I think that’s what I was talking about. You’ve given another example.
JONATHAN SKLAR, British Psychoanalytical Society: Thank you very much for your most impressive paper this evening. It can be heard on many levels, and in some ways it could be about how awful politics, bureaucracy, the not giving of money is, in these higher circles. But, one can also think psychologically about it – that there’s a projection onto the Prosecutor and your officers, of silence and hostility. Do it, but don’t really do it. We believe in the genocide but we don’t really to believe in it. We really want to know but please do not let us know anything about it at all. In other words, an enormous amount of ambivalence. And it was set up clearly for you to fail and you failed to fail, which was really how wonderful your talk really was. The organisation needed people of your calibre to speak up. Now it’s interesting in the dyad of victim and victimiser that victims are meant to be silent and the victimisers are meant to forget and somehow, in your story, you were not the silent victim that was dealing with, of course, the forgetful institutions; you were active and vocal and so you were not left in the passive silent position that you were meant to be in, of the victim. You fought against it and victims must have been very, very pleased for your courage. Now, why should nasty thoughts have to be so evacuated? I think it’s because thinking about these nasty things inevitably leads to feeling nasty thoughts about human relationships, and that, when we get down to it, it is personally very, very painful. And when it’s a thousand miles away, as you began your lecture, it doesn’t touch us, but if we have to think and feel it, of course it touches us. So, the task is, psychologically, that we need to continue to feel pain in each of us in order to think about continuing to help the victims. Thank you very much.
JUSTICE GOLDSTONE: I’m grateful for that intervention. May I make one comment and that is to inject a note of optimism. Notwithstanding the negative aspects to which you referred and to which I gave attention in what I have said, there has been tremendous advance. The fact that the Security Council has set up international criminal tribunals and that 139 countries have signed the Rome Treaty and that war criminals are being hunted by national courts are all hopeful developments. The Pinochet case opened the floodgates, not only in Europe. The former dictator of Ethiopa, Mengistu, was most inappropriately given diplomatic immunity and asylum in Zimbabwe. He recently came to Johannesburg for medical treatment. Human Rights Watch in New York came to hear about it and raised a hue and cry. The South African Government wasn’t too quick off the mark, and Mengistu beat a hasty retreat back to Zimbabwe where he had to make do with Zimbabwe health care. Then, the former president of Indonesia, Suharto, similarly had to cancel medical treatment in Germany because he heard that there might be a warrant waiting for his arrest in Frankfurt. There are other reported and anecdotal cases of former oppressive leaders having to have their medical treatment at home, and also to have their vacations there! So there has been important movement in the direction of bringing to an end a culture of impunity.
ROBIN STOTT: I’m the Chairman of a health professional organisation which seeks to promote health through social and environmental justice. It may be of interest to colleagues that our Annual General Meeting in April next year will be entitled “The Terrorist Mentality”, but the question I want to ask is where do war crimes begin and start? For instance, has somebody who is conducting an arms business, who illegitimately sells arms to Sierra Leone or wherever, committed a war crime?
JUSTICE GOLDSTONE: War crimes are generally well-defined in humanitarian law. They are crimes that are committed in war against innocent civilians or non-belligerents such as prisoners of war. In addition there are the crimes of genocide and crimes against humanity, whether or not committed during a war. People who supply arms knowing that they are going to be used for the commission of war crimes could well be charged with the commission of war crimes. They would in effect be aiding and abetting and conspiring in their commission. But of course, arms dealers, whether they’re countries or individuals, don’t ask too many questions. They’d rather not know and regard it as a commercial matter.
IDA SILVER: I’m from ANGOLA. I would like to say that I’m very happy to be here and hear your speech. My question is how can we ever trust an international tribunal with all these conflicting interests that you have pointed out, and particularly when they are so selective in which countries they prosecute. I’ve always had this impression that, you know, if it’s something happening in Africa, then, they’re all black – let them kill themselves; if it’s in some Arab country, all Arabs can kill themselves as well. I would rather have a tribunal, an African tribunal, where all countries in Africa would prosecute whatever country committed war crimes. I feel that would avoid people challenging the legitimacy of whatever tribunal is in place. What is your opinion on that?
JUSTICE GOLDSTONE: You know, I think there are two levels. Certainly Africa’s moving, I’m happy to say, in the direction of having an African Court of Human Rights along the model of the European Court and the American Court, and of course we need that. We need a Human Rights Court that has jurisdiction to make orders against governments that violate the human rights of their citizens. But when it comes to war crimes I believe it is more appropriate to have an international court to enforce international law. In that area there’s no difference between war crimes committed in Africa and war crimes committed in Europe or Asia or anywhere else. When it comes to human rights violations it might be another matter. It works effectively that violations are dealt with on a regional basis where courts can take into account aspects such as cultural and local customs especially with regard to punishment.
MICHAEL BREARLEY of the British Psychoanalytical Society: I want to ask if in your opinion it would have made a difference to the efficacy of the Truth Commission in South Africa had it been possible for it to be set up as a criminal court, and what the comparison is between those two types of investigation?
JUSTICE GOLDSTONE: Well, you know, there’ve been about two dozen truth commissions around the world - in Latin America, some African countries and Central Europe. No two have been the same, and I don’t believe that the South African model is easily transportable or exportable. What made it unique was using a process of discrete amnesties in return for full confessions. The South African Truth Commission was not the result of any moral driving force but rather it was a hard- headed, pragmatic, political compromise. If the African National Congress of Nelson Mandela had had its way, there would have been Nuremburg-style trials for the Apartheid leaders, and particularly for the army and police generals. If De Klerk would have had his way, there would have been blanket amnesties. If the ANC had insisted on Nuremburg-style trials, De Klerk would not have gone along with it. It was amazing enough he was prepared to give up power. If, in addition to giving up power, he had faced life in prison, it would have been a little bit too much to expect his co-operation. On the other hand, the ANC wasn’t prepared to countenance blanket amnesties; they wanted some form of justice. So, the Truth and Reconciliation Commission was very much a political compromise. It had a moral justification in that the victims, generally speaking, went along with it. It was appointed by the first democratic parliament in South Africa, which in a very real sense represented the victims of Apartheid. There was a form of justice – perpetrators who sought amnesty were required to admit their evil deeds in the full glare of publicity. That is a form of punishment. And, from the perspective of the victims there was a form of justice in that the authors of their misfortune were required, in public, to confess their deeds.
What is particular to South Africa is that we had an oppressed majority. If you look around the world, many areas of trouble have oppressed minorities. When a majority is oppressed and is then in a position of running the show, as in South Africa, there can be hope and confidence in the majority that you might not get with minorities whether in democratic countries or in dictatorships. I think one has to look at the economic, the political and the military – above all the military – situation in countries that have emerged from oppression to decide what sort of justice they can afford.
DON CAMPBELL of the British Psychoanalytical Society: I want to add something from your book that goes along with this point you are making. You recounted a conversation you had with Justice Albie Sachs, who had been talking with the ANC leadership who said if they looked at and acknowledged their offences, then what justification was there for a national amnesia? I thought that was a way of taking the initiative, in quite a political way, to make it impossible for anyone else to say “we’re not going to take a look at the atrocities we’ve committed”.
JUSTICE GOLDSTONE: Well, to put it in context, my colleague, Albie Sachs, was present at a meeting of the leadership of the African National Congress. The ANC had serious allegations made against it for violating the human rights of some of its own members who were regarded as sell-outs and spies. Some of their rights were very seriously violated. And the African National Congress, I believe to its great credit, voluntarily set up two commissions of inquiry. They uncovered much embarrassing evidence against senior members of the ANC. It was in that context that one of the leaders got up and said “if we’re going to do this in public and look at the violations we’ve committed, on what possible basis should we not investigate publicly the violations committed by the Apartheid regime?”
SUE .... : I’m a former teacher in Botswana, I’m British-born though coincidentally my father was one of Albie Sachs’ classmates! I have very close friends in Zimbabwe and friends who lost family in the Matabeleland genocide. I want to comment on what you were saying about the TRC. If anybody doubts the value of the TRC, look at Zimbabwe. Zimbabwe never did that. Mugabe a few years ago said if we looked at our history it would kill us, it would divide us, it would finish us off. I have worked in Zimbabwe with people who committed atrocities during the war. I won’t tell you the sort of things they were telling me at work at the office. It was the sort of thing they’d happily talk about in their office context, and yet they are able to deny it and their children are able to deny and they are able to talk about ‘why can’t people just get on?’ I wondered if you could comment on the difference between these two situations.
JUSTICE GOLDSTONE: Well I agree absolutely – if one looks again at the worst trouble spots in the world - Yugoslavia’s the prime example – there never was any form of justice, never any acknowledgement of the terrible human rights violations committed over centuries. In my travels around the former Yugoslavia, I’m given history lessons. I go to Belgrade and I get their history of Serb victimisation. I go to Zagreb and I get stories of Croatian victimisation; I go to Sarajevo and both Croats and Serbs tell me about the victimisation of Muslims. All of them regard themselves as victims but none of them recognise that they were also the perpetrators of serious human rights violations. A Truth Commission, I think, would make a lot of sense and do a great deal of good. The important point you make is that if these things aren’t acknowledged they become what I’ve referred to as the toxic fuel for future human rights violations and genocides. If you have that desire for revenge and hate simmering in your society, it’s very easy for evil politicians to use it to whip up hate and use that induce people to commit the most terrible acts. The victims are dehumanised. Where the full history is publicly recorded that fuel is taken away from people who otherwise would use it for evil purposes.
MICHAEL RUSTIN: I am from the University of East London. I want to come back to the point that was made by the previous questioner about perpetrators who go on denying. This comes back to the point that you made in your talk about whether perpetrators are to be understood as victims. That is a dimension to which psychoanalysis has something to contribute. Why is it that perpetrators seem to find it harder in some ways to get over what they’ve done than victims? In reading about the Truth and Reconciliation Commission in South Africa and seeing films about it, there were quite a number of very memorable moments where people who’d suffered terrible things, were able to forgive and get over it and seemed to be able to move on. There were very few cases of people who made what you might think of as full acknowledgements of what had happened of the kind that were fully convincing. I think that one of the reasons why some conflicts seem to be so intractable –Northern Ireland is an example, and Israel and the Palestinians are another – is not because of the extent of victimhood but because of what would be required of the perpetrators and those complicit with perpetration to move onto something else. It seems to me that the continuous going-on about what we have suffered is very frequently a kind of disguise and projection of the damage that’s been inflicted on other people, and I don’t think we have a very good way of thinking about that. I do think that the processes that you describe are one way of getting it into the public arena.
JUSTICE GOLDSTONE: Well, there’s little I can add. I agree and I would imagine that the psychoanalysts in the audience are far better placed than me to answer the question. Certainly perpetrators behave in the way that you are suggesting. I agree and that’s been the lesson to be learnt in all the countries to which we’ve been referring.
GEOFFREY ROBERTSON: I’m a lawyer. Victim’s justice can be as problematic in a way, as victor' justice, as you pointed out in your example of the prospect of Bin Laden being delivered to an emotionally involved New York jury for conviction and then, no doubt, electrocution. That prospect, horrifying though it is, is one that we might have, in the present situation, to come to terms with. Yet there is a court at present – the one you took such an important role in constructing – at The Hague, dealing with crimes against humanity committed in Rwanda and in ex-Yugoslavia. It’s a court that has a lot of prosecutors and investigators. It has Muslim judges, distinguished Muslim jurists; it has protocols that you developed for dealing with security and intelligence evidence and for GCHQ intercepts and the like. What would your comment be on the suggestion that the Security Council would be entitled to extend the remit of that court, given that we’re not going to get an International Criminal Court for a few years at least, were Bin Laden handed over or arrested by some stroke in the next few weeks. It might be able to solve the legal argument as to whether the terrorist atrocity of September 11th was a crime against humanity. Some lawyers say can that only be committed by states, but why not an organised terrorist gang when you have multiple murders, systematically and deliberately produced. Secondly, it would of course involve the question of whether the Hague Tribunal, if we can call it that - the existing International Criminal Court – would be capable of dealing within its existing capacity with Bin Laden. Whether having him share a cell with Slobidan Milosevic in The Hague would be a reality, given that there seems to be no other alternative at present for international criminal justice.
JUSTICE GOLDSTONE: I don’t believe it would have the capacity. But that doesn’t mean the Security Council shouldn’t set up a special international criminal tribunal for a Bin Laden. The tribunal in The Hague does not have the capacity. There are only 3 courtrooms with too many accused people sitting in the Hague Prison waiting too long for their trials to begin. If Bin Laden is arrested, probably the best solution would be for the Security Council to establish another special tribunal. What frightens me terribly, is the prospect of the leading democracies in the world acting illegally. What hope is there for international law and for a rule of law in the international community, if Presidents of the United States order people to be assassinated? (APPLAUSE). All of the advances to which I have referred so optimistically would be dashed if the law’s going to be publicly and openly disregarded and violated by the ‘good’ countries.
CHRIS MAWSON of the British Psychoanalytical Society: There is a psychoanalytic concept that might be most relevant to what you’re saying – it is called the depressive position*. The depressive position is a concept invented originally with a narrow focus on the individual, but it possesses a wider range of usefulness with respect to the mental and ethical functioning of groups and institutions. I don’t think any psychoanalyst would think that there’d been very much evolution of the human race so that the depressive position was very noticeable in groups, organisations and especially in nations. I would see the initiatives that you’re trying to create as representing an attempt of mankind to bring a psychoanalytic understanding of truth and the depressive position a little bit more into our human affairs.
CHRISTINA NAVARETTE: I am from Chile. I would like to thank you very much for your most positive and honest lecture, and I truly believe that you are a just man. And I would like, perhaps in the name of some victims to thank you for your work. What I would like to say is that we have to be very careful when we speak about these issues and about the forgotten victims, because, whereas many of the victims have truly been victims of regimes, there are also survivors. Then you can really become a victim when your expectations and hopes are raised. When you think that you have achieved a position where something will be done, some justice will be done, and yet many times over, because of political interests, nationalistic interests – whatever - these expectations and hopes are not fulfilled. Then, the victims really become victims and they are betrayed and that is very, very dangerous for many people who have gone through that process. So we really must be very careful not to create expectations and then not fulfil them.
JUSTICE GOLDSTONE: That’s a wonderful note on which to end. Part of the problem is dealing with statistics and not being aware that there are real people behind the numbers. You know, it’s easy to say over 800,000 Rwandans were killed in the genocide. But one must have regard for the consequences - that in excess of 60,000 homes in Rwanda have as its eldest member of the family people under the age of 16. And you can imagine the traumatic after-effects of that sort of victimisation. When one thinks of the World Trade Centre one thinks of the 6000 people who lost their lives. But how many children and grandchildren and parents have become victims? It is in this area that I would suggest that the British Psychoanalytical Society can become involved. And, so too, ordinary citizens in the democracies should become involved. Without the outpouring of emotion and protest in the major democracies, there wouldn’t have been a UN tribunal for the former Yugoslavia. It was human rights movements, national and international, Amnesty International and Human Rights Watch and all the others – if they hadn’t really created a public demand, I don’t believe the tribunals would have been established by the Security Council. It’s my hope that the United States will join the International Criminal Court. I think the majority of Americans, if they were allowed to understand the situation, and perhaps the tragic events of two weeks ago will be relevant in this context, would want their government to lead the calls for international justice. Where there is a public groundswell in this sort of area, politicians do react. That’s a form of empowerment which people in democracies should not take for granted and should not waste.
DON CAMPBELL: You’ll have a chance in a moment to thank Richard again, but I wanted to thank the audience first of all, for contributing to a very sobering evening. I thought your questions enabled Richard to take further the points that he’d developed in his paper. I also wanted to thank some people from behind the scenes who’ve made all of this possible. Sheila Davies is the Chair of the Scientific Committee which is the committee responsible for this event – I want to thank her for her support and guidance. And I also particularly want to thank Sally Weintrobe whose vision it was to invite Richard to come to speak to us in the first place. Now, Sally is pointing to something that I ... behind me? Ah! (LAUGHTER FROM AUDIENCE). You know how when you’re in front of an audience and there’s something you’re not quite in the picture about - all evening I’ve been looking for some presents to give to Richard. They’ve been right behind me the whole time.
We want to give a special thanks to Justice Goldstone. What seems more important to victims than revenge is having their story told, having the truth come out, so that they, the survivors as well as the victims themselves, can know what really happened and the world can know what really happened. It is that kind of knowledge of one’s story that we as psychoanalysts believe can make one free. So I want to thank Richard for telling the story for us tonight. Hopefully we will take the story he told back with us to remind ourselves and our organisations and our political interests. Thank you very much Richard. To express our thanks we have two presents for you, Richard, and we also have a special present for you to take back to Ben. Ben is Richard’s one-month old grandson, who’s in North America. Richard left his grandson in order to come here, so this is a thank-you present “to Ben for lending us your grandfather”, from everyone at the British Psychoanalytical Society.
* Editor's Note: The depressive position is a concept (M. Klein) representing a shift in the emotional life of the individual or group. The new position centres around a painful recognition that one’s own hatred and intolerance are responsible for causing damage, and the damage caused is to something or someone loved and valued. If this realisation can be borne, the urge is to make attempts to repair the damage. Only in such a depressive orientation can we make sane judgements about the culpability of others. To paraphrase the British psychoanalyst Ronald Britton, when we can bear the pains of the depressive position there is an increased chance of telling the difference between a good person behaving badly and a bad person acting true to form. The emotional pain which arises inevitably in this position can be of such an unbearable kind and intensity that the individual, or collection of individuals, can retreat back into the more familiar pains and confusions of paranoia, denigration and violence.
Copyright © 2001 The British Psychoanalytical Society (incorporating the Institute of Psychoanalysis) London