A Dogged UN Judge Propels 'the Real Trial of the Century'

BOSNIAN Serb prison camp chief Dragan Nikolic is nowhere to be found. But that does not matter to Richard Goldstone, chief prosecutor in the Yugoslav war crimes tribunal.

Last Friday, the tribunal issued an international arrest warrant for Mr. Nikolic, who allegedly directed the beating to death of prisoners with baseball bats at the Susica prison camp in Bosnia and told his terrorized inmates, "I am God here."

It was the first of about 42 arrest warrants that, in the coming months, Judge Goldstone will oversee. They will include, in the spring, warrants for Bosnian Serb leaders Radovan Karadzic and Gen. Ratko Mladic, who Goldstone indicted last July for "crimes against humanity."

As the first international tribunal since Nuremberg hits full stride this month, the South African chief prosecutor, a confidante of President Nelson Mandela, is emerging as the man who made it happen.

In the past year since taking charge, Goldstone has made the tribunal part of the political equation in settling the bloodiest war in Europe since World War II.

But prosecuting Bosnian Serb leaders in an area where American troops may soon be headed - and when Americans are leading sensitive negotiations - makes some US diplomats edgy.

No immunity given for peace

Last week, President Clinton tried to quiet a brewing controversy over whether Assistant Secretary of State Richard Holbrooke, in his talks on Bosnia with Serb President Slobodan Milosevic, indirectly signaled that Mr. Karadzic and General Mladic would get immunity from war crimes. "These indictments are not negotiable," Mr. Clinton said in a speech before 8,000 students at the University of Connecticut. "Those accused of war crimes ... must be held accountable."

For his part, Goldstone refuses to allow political developments to sway what he says is the cause of justice.

"Our job is to investigate and indict," he told the Monitor in an interview, "and I will continue to do that. Negotiations are not a factor in our work."

Such statements reflect the South African's dogged efforts, and what colleagues call his "rare" sense of justice. "As long as Goldstone is in that building, the tribunal will continue," says Thomas Warrick, an expert on international law and war crimes. at Pierson, Semmes, and Bemmis, a Washington law firm. "He's shown that he won't be pushed around...."

Both the logistics of the tribunal's investigations into Bosnia and Rwanda, and the historical precedent it represents, are daunting. With the O.J. Simpson trial in mind, American Lawyer magazine called the tribunal "the real trial of the century."

The tribunal is investigating 40,000 to 250,000 deaths in the former Yugoslavia, a region the size of New England. Refugee-witnesses are scattered from Pakistan to the Philippines. Legal scholars say the tribunal also tests whether the 170 nations that signed the 1949 Geneva Conventions will ever enforce that agreement's oft-cited international legal norms. If not in Bosnia and Rwanda, they say, then where?

Goldstone's historic role

A modest, serious man who earned a place in South African history as head of a controversial commission investigating police brutality against blacks, Goldstone now stands on the international stage fully aware of his historic role at The Hague.

He argues that capturing war criminals isn't of primary importance. What matters more, he says, is that "the truth be told, and the story set straight. "Most victims in the criminal-justice system know who did it. So they don't need knowledge. They have that. Victims want what they have gone through to be acknowledged by society. Otherwise, they carry with them tremendous anger and resentment that causes cycles of violence," Goldstone says, as he sits in his office in a quiet Dutch suburb, where he works 12-hour days.

"You can't have real reconciliation without justice," he continues. "Basic to all forms of justice, and to me the heart of it, is an acknowledgement of what happened. In a war like this, that's part of the healing process."

The real test both for Goldstone and the tribunal, say international lawyers, is whether those who ordered the crimes will be indicted. "For history's sake, it is important to get the leaders," Goldstone says. "The higher up you go to prosecute crimes, the more that sense of justice radiates out into the general population."

Since the Bosnian Serbs who are indicted have not turned themselves in, Goldstone is invoking "Rule 61," which describes the conditions for an international arrest warrant under the tribunal's charter.

The Rule 61 process is a complicated one. Two sets of tribunal judges must confirm an indictment, request an arrest, and inform the Security Council of it. Karadzic and Mladic would become international fugitives under Rule 61, for example, not because they have been found guilty, but because they did not answer a warrant.

Moreover, a state in violation of the warrant that knowingly harbors international fugitives can be placed under a variety of sanctions. "That is the ultimate test of the Security Council's earnestness with regard to international law," Goldstone says.

Such bold and independent steps have earned Goldstone admirers, but also some enemies among UN officials who would prefer their chief prosecutor take his cues from headquarters in New York.

In fact, the choice of prosecutor was the main issue in the politics of the tribunal for 16 months. The United States first backed De Paul University law professor Cherif Bassiouni, an expert on war crimes who had assembled a team of lawyers and compiled some 65,000 pages of material with 6,000 eyewitness accounts. The British opposed Mr. Bassiouni, worried that his Muslim background might prejudice him. Meanwhile, evidence dried up and witnesses disappeared.

The Security Council bickered and the tribunal nearly capsized before Goldstone, who had been on an earlier short list, eventually became available in 1994. "It's funny how it worked," one American official says. "They were relieved to get rid of Cherif Bassiouni, who they thought would be uncontrollable, only to get the even more uncontrollable Richard Goldstone."

Fast learner

His learning curve has been steep. Only weeks after Goldstone arrived, he was handed war crimes in Rwanda. A commercial lawyer by training, he has hammered out the status of rape as a war crime, dealt with legal definitions of "genocide," and fought to establish that Bosnian atrocities were prosecutable.

"Goldstone stepped into an extremely technical area of law, stepped into Yugoslav political complexities, stepped into a tribunal that had no money," says Stephanie Grant of the Lawyer's Committee for Human Rights in New York, "and he has been remarkable in his balancing act."

Earlier this month, the South African won a major victory when the tribunal president, Antonio Cassese, ruled that the offenses in Bosnia were so grievous, "shock[ing] the very conscience of mankind," that it did not matter whether the conflict was a civil war or an international violation of borders. (European members of the Security Council say that the Bosnia conflict is a civil war, an argument that had it been accepted would have diminished the tribunal's claims under the Geneva Conventions.)

Intrigue over funding

Yet some tribunal watchers say the chief prosecutor will face deeper fiscal and political waters as he goes forward. UN Secretary-General Boutros-Boutros Ghali has threatened Goldstone's budget - which both the US Congress and the White House support - to pressure the US to ante up the $1.2 billion it owes to the UN.

Most recently, concern about the tribunal's clout has been raised in light of the peace deal worked out between Mr. Holbrooke and President Milosevic (himself accused in 1992 of war crimes by then-US Secretary of State Lawrence Eagleburger). Washington insiders say the terms of Holbrooke's whirlwind diplomacy following the NATO bombing of Bosnian Serb positions are more evident by what they do not say. "Where in this complex of negotiations ... does Milosevic hand over indicted war criminals?" asks a former Bush administration official. "I don't see it."

Goldstone also intimates that should the tribunal not get "the support of the powers that created it," he would consider resigning: "Continuing would be incompatible with one's sense of justice," he says flatly.