'The crisis in the implementation of international law'.

• Position: International Law in Crisis - Discussion

PROFESSOR MICHAEL SCHARF: Good afternoon, everybody. Wow! We have quite a crowd in here. Hopefully, we are not violating the fire marshal's law. I know the overflow room is also full. Welcome back to our conference, "International Law in Crisis."

It is my extreme pleasure to introduce to you today's luncheon speaker. Many of you came to this conference because you were interested in what he has to say. We have a record crowd at this conference.

We had 190 preregistered people, which is way more than we usually get, and we also have probably about a thousand people watching us live and another 10,000 will watch it in archive.

Let me start by telling you about Richard Goldstone's career and then about his special relationship with this institution as part of my introduction.

Richard Goldstone was a pioneer in fighting Apartheid and the Goldstone Commission (1) the first commission that bears his name was one of the most important institutions that helped dismantle Apartheid in South Africa.

When the Yugoslavia tribunal was formed and I was working at the State Department as Attorney Adviser for U.N. Affairs they were struggling to find somebody that could be acceptable to the whole international community, to be the first prosecutor of an international tribunal since Nuremberg.

It took them fourteen months and dozens of candidates before they all settled on a consensus on Justice Richard Goldstone.

At the time, Richard had just been appointed to the Constitutional Court. (2) It was like our Supreme Court, and so he had to ask for a leave of absence, which Nelson Mandela gladly gave him. I am sure there were some tough negotiations, but it was similar to when Robert Jackson took a leave of absence from our Supreme Court to be the first prosecutor of the Nuremberg Tribunal. (3)

When Richard created the Yugoslavia tribunal, and I used that word intentionally because he was the founding father, he was the one who took a tribunal that most people thought was just put together as a Band-Aid or just some kind of propaganda tool to show the West was doing something when it refused to put ground forces or air forces to stop the atrocities in Bosnia.

Nobody really thought it was going to succeed. Nobody thought that the top ten people that Eagleberger had identified as the worst culprits would ever see justice. (4) And yet, over the years, especially because of the dint of Richard Goldstone's personality and his politics and his fundraising and everything he did to create this little institution and turn it into a huge tribunal that dwarfed Nuremberg, they got Milosevic, the leader of Serbia. (5) They got Mladic, the main general. (6) They got Karadzic. (7)

In fact, of all the indictees, every single one has now been arrested and brought to justice in The Hague. (8) Nobody would have thought that would happen, and that' s because of Richard Goldstone.

Now, when Richard left the tribunal back on the Constitutional Court, he took on a series of other important work. He worked on the issue of Kosovo's status, and he worked, of course, as the dean mentioned this morning, on the very controversial Goldstone Commission report. (9)

For the law school, however, he had played also a very special role. I met Richard 19 years ago at a conference in Syracuse, Sicily, and we established what became a very active academic consortium--that is based and headquartered here at Case Western Reserve--where we do work for all of the international tribunals. (10)

We started working for the Yugoslavia tribunal when it expanded to the Rwanda Tribunal. (11) We also expanded when David Crane (12) became the chief prosecutor for the special court of Sierra Leone. (13) Richard suggested you might want to have Professor Scharf and his students help you out as well. So we took on that; same thing with Cambodian Tribunal and the Special Tribunal for Lebanon.

In addition, one of our favorite alumni--who is profiled in the upcoming "In Brief," which is our alumni magazine--Chris Rassi, started his career as Justice Goldstone's law clerk at the Constitutional Court in South Africa (14) as did an alumni or as did both an alumni and a colleague who is now down at Cleveland State, who also has invited Richard to speak there this afternoon. And he will be, after he leaves here, Cleveland gets a double dose of Richard.

Now, from the tribunal work we did, we ultimately, together with the Public International Law and Policy Group, our program doing this work for tribunals, were nominated for a Nobel Peace Prize, (15) and it has brought a lot of good attention to the work we do. It also has really helped build up this program.

Now, over the years, Richard has come, no matter how busy he was, and spoken at our conferences. He has been a Klatsky endowed lecturer, which is a human rights lecture. (16) He has spoken at major conferences we have had. Three years ago, maybe it is four now, he was selected to get the honorary degree from this university. So he is an alumnus of this university, and we are proud of him, no matter how controversial some people think his report is.

I will say this: as the dean suggested, we love controversy here because that's what an academic institution does, so last year we had a program that, unfortunately, Richard was not able to come to, where we debated for hours the Goldstone Commission report, and several of the panelists here have written articles, and these are available still, available out in the hall.

If you want to see the dissection of every dotted 'I' and crossed 'T' and everything in the Goldstone Commission report, we did that. So we don't shy away from critique here. But we didn't invite him today to talk about the Goldstone report.

Lots of stuff is going on in the world about international law and crisis. We have Gadhafi on the run. (17) We have got al-Bashir, who has been indicted by the ICC. (18) We have lots of major international criminals that need to be brought to justice.

And there is nobody in the world who knows that topic better than Richard Goldstone. We asked him to come here and talk about that. So his speech today will be about that. He would like his questions and answers to be on that subject.

After this, there is going to be another panel about the Middle Eastern crisis, and if we want to go back to talking about the Goldstone report, we can do that on that panel, but for this panel, we are focusing on this expertise that Richard Goldstone brings that nobody else really has in the world, and we are so happy to have him here.

Please join me in welcoming him.

[Applause.]

HON. RICHARD GOLDSTONE: Well, Michael, thank you very much for your very warm introduction. It is a great pleasure and privilege to be back at Case Western. I have made a number of visits here and spoken at similar seminars and other functions to which Michael has referred I would add that I have had a very warm relationship with Michael for almost two decades in which we have worked together in many areas of international humanitarian law.

I hope too many of you won't be disappointed that I am not going to talk about fact finding missions. I don't believe that they are directly relevant to the issue of whether international law is in crisis.

Let me say only this: the view I have just expressed is based on the fact that fact finding missions are not judicial; they are not quasi-judicial; they don't make the law. (19) They provide or may not provide, as the case may be, factual background and possibly even legal views, which are not binding on anybody, but may or may not be useful to political bodies or to legal bodies out there. (20)

We heard an excellent introduction to this conference yesterday evening, of all places at the Rock and Roll Hall of Fame. I must say I didn't envy David Crane talking in that atmosphere, but he overcame problems that I would have thought were impossible to overcome, and it was a very sober, somewhat pessimistic introduction to the topic.

He was wise to set that tone for a conference that is on "The Crisis of International Law." I am more optimistic. I don't believe I am a starry-eyed optimist, but I am an optimist, and that optimism has led me to decide to talk not about the crisis of international law, but rather the crisis in the implementation of international law.

I imagine that all of you, like me, were frustrated at not being able to attend all of today's panels because they have all been excellent and warrant congratulations to Michael and his colleagues on the organization of yet another outstanding conference with a gathering of outstanding people who are so well qualified to talk to the various topics that we have been feasting on today.

International law--far from being in crisis, is being relied upon and called in aid more frequently by international leaders than ever before. (21) The current relevance of international law could never have been anticipated but a few years ago.

The question, as I have already indicated, that we have to ask ourselves, is whether international law can fulfill the expectations of those relying upon it. Let me say, too, by word of warning, that too many people place too much of a load on the law. The law is but one tool, and in many respects an insignificant tool in the development of peace and security and economic sustainability. The law is a tool in that regard, but without the political will, without the necessary economic resources, it cannot be a magic wand that is going to cure the most serious problems that the world community is facing.

Allow me do two things: First, to point out the huge developments in various areas of international law; and second, when I have done that, to talk about its implementation.

And let me start with the area that I know best and to which Michael has referred, and that is international criminal law and, in particular, the International Criminal Court (ICC). When the International Criminal Court was agreed to in...