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Why is institutional reform so vital to the processes of transitional justice?
In the aftermath of genocide or mass violence, the role played by institutions—the justice system, the police force, the armed forces, etc.—is critical to the success of transitional justice efforts within a society. Key institutions can be enormously helpful in promoting reconciliation and positive change, but they can also be huge obstacles in the road to peace and rebuilding. Often, these very institutions promoted—or at least silently allowed—some of the atrocities that had occurred. The crucial act of reforming these institutions must come from forces outside the institutions as well as from within. In this reading, we see one man's courageous efforts to work from within to try to reform apartheid's unjust justice system. |
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 Justice Richard Goldstone refers to it as perhaps the most difficult decision of his professional career. When he was invited to become a judge on the Transvaal High Court in 1980, Justice Goldstone knew that he would not only leave behind a successful corporate practice, but he was also going to be defending South Africa’s laws. And the laws of South Africa in 1980 were based on apartheid.
Justice Goldstone reflects on his choice:
The moral problems of joining the South African judiciary were manifest. Its members were obliged, by their oaths of office, to enforce the laws of the land. This was a great concern to me. I decided, however, that I could play a more active role in efforts to ameliorate those laws by accepting the appointment rather than by continuing to pursue a lucrative commercial career.1
Only two years into his appointment, Justice Goldstone delivered a decision in a case that would begin to dismantle some of apartheid’s most inhumane legislation, the Group Areas Act. As Justice Goldstone explains, the act
empowered the government to decree that certain areas of South Africa were to be reserved for the exclusive use of people of one or another color. It was a criminal offense for a person of the “wrong” color to reside or own property in such a group area. The most desirable areas were set aside for whites,and the least desirable for blacks. Some areas were set aside for Asians, and some areas for “coloreds” (people of mixed descent).2
The case involved a woman by the name of Mrs. Govender. She was Asian and lived with her family in a rented house in Johannesburg in an area reserved for whites. Mrs. Govender pleaded guilty and was sentenced to a fine of less than ten dollars or fifteen days in prison. She was also ordered to move out of her house. Mrs. Govender’s attorney was able to convince the magistrate that the eviction be held off for nine months while Mrs. Govender found accommodations for her family. Accommodations were scarce for Asians in Johannesburg, and Mrs. Govender and her family might conceivably wait a decade for housing.
The case came to Justice Goldstone on appeal. At first he thought that he could not help Mrs. Govender, but as he considered the wording of the act, a possibility emerged. In comparing the revised Group Areas Act of 1966 to that of the original Act in 1950, Justice Goldstone noticed a significant variation. Where the 1950 version had stated that the court “shall” make an order for ejecting a person who violates the act, the revised version states that the court “may” make an order. The small but important distinction was enough of a legal loophole for Justice Goldstone to exploit. By pointing out that enforcement of the law was not mandatory, but rather at the discretion of the court, he used the political climate of the times to render the act ineffective. He wrote, “Little could I have imagined that this opinion would bring to an immediate stop all prosecutions under the Group Areas Act....In consequence, substantial areas of the larger cities of South Africa became ‘mixed’ in the years that followed the Govender decision.”3
After this landmark decision, Justice Goldstone continued working from within the system to dismantle the oppressive legislation of apartheid. He chose to become involved in the rights of prisoners. One of the most important things he did was to convince police and prison officials to have a more humane attitude toward the detainees. Justice Goldstone also had the opportunity to play a key role in exposing the role of political violence in South Africa. He was named the chairperson of the Standing Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation. The group and its work soon became known as the Goldstone Commission.
By 1992, in the heat of the negotiation period, Justice Goldstone issued the Commission’s first report that focused on political violence in the black township of Tembisa outside of Johannesburg. It began with crucial historical context that framed the culture of political violence in South Africa, including the three hundred-year history of racial oppression, police enforcement of apartheid laws after 1948, the gross disparity of wealth in South Africa, and the rivalry between the African National Congress and the Inkatha Freedom Party.4 The Commission’s reports would not only have an immediate impact on exposing political violence in South Africa in the early 1990s, they would also be used as crucial evidence by the Truth and Reconciliation Commission and within its final reports.
In 1994, Justice Goldstone was appointed to South Africa’s first Constitutional Court. Almost immediately, Justice Goldstone took a leave of absence from the post to work for two years as chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. Justice Goldstone’s work for the tribunals set a foundation for establishing their credibility as mechanisms for seeking justice on an international level. This work also helped expedite the creation of an International Criminal Court, strengthened international humanitarian law, and helped to create a shared language for addressing human rights abuses in a legal setting internationally. Following his return to South Africa in 1996, Justice Goldstone assumed his post on the Constitutional Court.
Justice Goldstone has been the recipient of many honors and awards, including the MacArthur Award for International Justice, given by the John D. and Catherine T. MacArthur Foundation, in 2008. He has also written many articles and the forwards to several books, including Harvard Law Professor Martha Minow's "Between Vengeance and Forgiveness: Facing History After Genocide," which is referred to in the overview of this module.5 Both Minow's book and Justice Goldstone's forward have deeply informed the work Facing History has done on foundational issues of justice and judgment. In 2004, after an influential career as a judge and as a prosecutor, Justice Goldstone retired. He now teaches in law schools around the world.
Connections for the Classroom...
- Justice Goldstone’s 1980 decision to accept a position as a judge on the Transvaal High Court helps us to reflect on some key moral dilemmas, and it illuminates some of the historical issues that helped to dismantle apartheid. By choosing to become a judge, Justice Goldstone had a unique opportunity to challenge apartheid. But was this choice a risk? Do people within authoritarian regimes often get to choose protest? Why do you think Justice Goldstone was able to? Is it possible to fight within a corrupt system?
- In the history of human rights and social justice, there are examples of positive change happening from within a system, as well as from forces outside a system. In this reading, Justice Goldstone was effective in causing positive social change by working within the judicial system. Can you think of examples from around the world of both instances: internal reform and external change? Compare your examples. What negative and positive consequences do you associate with change from within a system versus change from outside a system?
- When Justice Goldstone is asked why he made choices in his life to combat injustices he witnessed, he responds,
The answer requires me to go back to my student days at the University of the Witwatersrand. There I had the opportunity to meet blacks among my fellow students and developed a deep sense of the injustice they were forced to endure in their daily lives. When I returned to a comfortable home in a white suburb, those students went to the squalor of the black townships. Because many of their homes had no electricity, they had no option but to study at night by the poor illumination of parafin lamps or, in some cases, candles. Within months of my first year's study, my sense of shame and injustice caused me to become active in student organizations.6
We all have at one time or another witnessed injustice in the world. We do not always take action. What factors hold us back, or lead us to action? Why do you think Justice Goldstone chose to take action; to devote much of his professional life to fighting prejudice and an oppressive system? What do his words say about the power of personal connections and community?
1 For Humanity: Reflections of a War Crimes Investigator, by Richard J. Goldstone (Yale University Press, New Haven, Connecticut), 2000, p. 5.
2 Ibid., p. 6.
3 Ibid., p. 8.
4 For Humanity: Reflections of a War Crimes Investigator, by Richard J Goldstone (Yale University Press, New Haven), 2000, p.
7.
5 Richard Goldstone. Source.
6 Goldstone, p. 3.
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