GOLDSTONE Richard
Pseudonym: D10
Cases: Case 001
Category: Expert
Background and Role
Richard Joseph Goldstone was a visiting professor of law at Fordham University at the time of the trial. Formerly, he was a judge and justice at a number of South African courts, Chief Prosecutor at the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, and Chancellor of the University of Witwatersrand in Johannesburg.
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He testified as an expert in Case 001 on legal factors relevant to determining Duch’s sentence.
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Goldstone previously was a visiting professor of law at universities in the United States,
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also holding positions in a number of national and international organisations.
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He chaired a high-level group of international experts in Valencia to draft a Declaration of Human Duties and Responsibilities, and the International Independent Inquiry on Kosovo.
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He was a co-chair of the Human Rights Institute of the International Bar Association and the International Task Force on Terrorism.
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At the time of the trial, he was leading the United Nations fact-finding mission in Gaza.
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Determining the Sentence
Three important aspects should be considered when determining the sentence: (i) the nature of the crime; (ii) the interests of victims, which must be reflected in any sentence by a criminal court; and (iii) the interests of society.
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Courts should assess these three factors in balance, though it is often difficult as they are frequently in conflict with one another.
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While the crimes in Case 001 are of an “extremely serious nature”,
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it is difficult to determine the sentence for this kind of mass crime.
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It is impossible to correlate between the number of deaths and the length of imprisonment as no one lives long enough to pay their debt to victims of mass crimes and to society.
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As for the more general interests of society, an open and sincere admission of guilt which is accompanied by a genuine apology to the victims and expressions of remorse should be given due attention.
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There is no difference from a moral or jurisprudential point of view between common law and civil law systems in relation to the effect and importance of an admission of guilt.
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Acceptance of Guilt and Responsibility
There are three important aspects of an acceptance of guilt and responsibility: (i) the importance for the victims; (ii) the need to put a stop to fabricated denials that usually accompany all serious human rights violations; and (iii) the need of an acknowledgement of guilt that could influence other guilty individuals to come forward before the court to admit their guilt and responsibility.
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Drawing from his experience from South Africa, Goldstone pointed out that public acknowledgement of the gravity of crimes by an official source is important for the victims.
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In many cases, victims were able to begin their closure and healing in consequence of a public acknowledgement of what happened.
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According to Goldstone, an acceptance of guilt is an essential element in ending fabricated denial.
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He gave an example of the Erdemovic case from the International Criminal Tribunal for the former Yugoslavia where the accused gave a full confession of his crimes in Srebrenica.
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The effect of Erdemovic’s evidence pointing to the occurrence of a massacre put an end to the Bosnian-Serb army’s and government from denying these events as fabrication on the part of western nations.
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Lastly, an acknowledgement of guilt could influence others to come before the tribunal and similarly admit their responsibility by setting an example for others to follow.
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While noting that he was unable to give an opinion in relation to the nature of the admission or confession made by Duch and how it relates to the actual crimes with which he was charged, Goldstone submitted that it is important to take into consideration the genuineness and specificity of the confession.
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Mitigation and Reconciliation
Goldstone identified five factors that a sentencing court must consider: (i) the facts of each case; (ii) the nature of crimes charged; (iii) the nature of crimes in respect of which admissions were made; (iv) the terms of the admissions; and (v) the genuineness of remorse.
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Any question of mitigation must be “secondary to the seriousness of the crimes committed and the interest of the victims”.
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National reconciliation, on the other hand, depends on the specific acceptance of the confession and remorse by the direct victims, as well as the effect of those expressions on society.
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