By Babak Emad
Introduction
A non-state court is known as people’s tribunal which is established by citizens. This article intends to discuss briefly what the people’s tribunals are and to review their common features and differences with emphasis on Iran Tribunal. People’s tribunals are established because people cannot seek justice from local courts in countries where people’s rights are disregarded, where people are suppressed and massacre ed because such courts are attached to the establishment of power and collaborate with it in its criminal acts. International courts, like the International Court of Justice, do not have legal jurisdiction to try the crimes committed prior to 2002 because their time scope is limited only to crimes committed after the year 2002, or the crimes related to violation of people’s (human) rights. Because of geopolitical competition, balance of power, economic and political interests and the imperialistic nature of super powers and their open and secret support of dictatorial regimes, it is not possible to establish international courts to try the violations of people’s rights and their suppression and massacre .
In seeking justice, people who have lost faith in formal courts, are compelled to either forget about justice altogether or to find non-official and creative choices not contaminated with political whims. One such example of creative response is the initiative of the people’s court of Iran that has become known as Iran International People’s Tribunal. This tribunal is an initiative taken by the people and has been created by taking inspiration from the justice-seeking struggles of “the Khavaran Mothers,”[1] the mothers who in the first decade after the “Islamic”[2] revolution had lost their children in the mass executions.
People’s Tribunals
From the 1930s at least 60 people’s courts have been established outside the governmental, state and international structures. The structure and workings of these courts, which have dealt with many cases of violations of international law, Human Rights, genocide, war crimes, crimes against humanity, violence against women, violence against workers and journalists, racial violence, killing of opponents and political prisoners, environmental destruction, etc. are different from each other.
In 1933, when Hitler tried to hold Communists responsible for setting fire to the German Parliament, a group of European and American lawyers established a court and proved their innocence, ultimately leading to their freedom. It was the first non-state court that was established and became known as the citizens’ court. This court was the pioneer of courts that became known as the citizens’ courts and then people’s tribunals, with various records of subsequent efforts, including the tribunals on American war in Vietnam, sexual slavery in Japan, dictatorships of Latin America, Palestine, massacre of political prisoners in Iran, genocide of the Rohingyas, etc.
People’s (Romanian) Court of Bucharest and Northern Transylvania
“Peoples (Romanian) Court of Bucharest and Northern Transylvania” was the first court set up by the first government of Romania after the World War II overseen by the Allied Control Commission for the trial of war criminals. This court was set up under an agreement by and between the Government of Romania and the Allies Command. The Government of Romania under the terms of this agreement undertook to cooperate in the arrest and trial of war criminals. This court was in fact not a non-state court; it was called the people’s court because the government had initiated a general mobilization of people for the arrest of war criminals.
The Russell Tribunal
“The Russell Tribunal” was the first non-state court that became known as the people’s tribunal. “The Russell Tribunal” was set up in November 1966 and held two hearings in Stockholm, Sweden, and Roskilde, Denmark, in the year 1967. Two famous leftist philosophers, Bertrand Russell and Jean-Paul Sartre, together with Lelio Basso, Simone de Beauvoir, Vladimir Dedijer, Ralph Schoenman, Isaax Deutscher and several others, set up this tribunal to investigate the crimes committed by USA in Vietnam. This tribunal was established one year after the defeat of the French forces in Vietnam and the creation of South and North Vietnam. This tribunal was also known as the International War Crimes Tribunal. Bertrand Russell constituted a panel consisting of outstanding personalities, including philosophers, intellectuals, politicians, writers and lawyers to hear testimony on the United States’ interventions in Vietnam and to determine whether international crimes were committed by it or not. This panel concluded, based on international law, that the United States and its allies had committed war crimes and genocide in Vietnam, that the United States’ Government and its Armed Forces had unintentionally bombed non-military targets, including hospitals, schools, residential houses, dams, historical and cultural buildings, etc., that the Governments of Australia, New Zealand, South Korea, the Philippines, Thailand and Japan had, in violation of the international law, cooperated with the United States in its acts of aggression in Vietnam and Laos.
The Russell Tribunal set up other tribunals too in the subsequent years, including in 1973 in Rome to investigate the crimes committed by the military dictators in Argentina and Brazil, in 1974-76 in Rome to try the crimes committed by the military government of Pinochet in Chile, in 1978 to investigate the Human Rights situation in Germany, in 1973 to investigate the threat against the indigenous Indian tribes in the United States, in 2004 for Iraq and in 2009 – 2012 for Palestine.
People’s Permanent Tribunal
Lelio Basso, one of the members of the jury of the Russell Tribunal on Vietnam, set up the “People’s Permanent Tribunal” in Bologna, Italy, in 1979 as the successor and follower of the experiment of the Russell Tribunal.
The “People’s Permanent Court” held a session on 22 September 2017 in Kuala Lumpur to investigate the massacre of Rohingya by the Army of Myanmar (former Burma). The People’s Permanent Court, after hearing the testimony of witnesses and experts, concluded that war crimes, crimes against humanity and genocide are committed in Myanmar. In a statement issued by this tribunal, the international community was asked to show its reaction against the mass murders of the Rohingya and their expulsions as soon as possible. In continuation of the Court’s statement, the International Criminal Court has been asked to open a file in relation to mass murders of the Rohingya based on the findings of that Court.
People’s Tribunal of Mexico
Tens of civil organizations of Mexico in a letter dated 21 October 2011, requested the People’s Permanent Court (the Lelio and Leslie Basso Foundation) to set up a court to investigate the situation of the native communities of Mexico who are fighting for a long time for their self-determination and legal pluralism. This court held its first session in June 2012 in Ciudad Juarez and its final session on 12 – 15 November 2014 in Mexico City, the capital of Mexico. The court investigated four instances of dirty war as the creator of violence, immunity from punishment, denial of justice, forced migration and displacement, misogyny and violence against women, violence against corn workers, nutritional sovereignty and independence, destruction of environment and people’s rights, misinformation, censorship and violence against journalists.
The mechanism of this court like the preceding courts held by the People’s Permanent Court, is to provoke public knowledge about the violation of people’s rights, to uphold the respect for international law and the fundamental rights of communities and individuals. A panel (panel of arbitrators) consisting of one judge, a number of university professors in various disciplines, one prosecutor, one clergy and one politician, run the court.
The people’s Permanent Court also held other courts including one in Berlin in 2010 to investigate the massacre of Tamils in Sri Lanka, in Burma in 2013, one session in Paris in 2018 to investigate the violations of international law by the Government and the Army of Turkey in relation to Kurds.
The Russell Tribunal on Palestine
This Tribunal was held in 2009 to investigate the violations of international law committed by Israel in the occupied territories. The mechanism and organization of this Tribunal is the same as the one that during the life of Russell investigated the war crimes committed by the United States and its allies in Vietnam. One jury consisting of outstanding international personalities, including philosophers, intellectuals, politicians, writes and lawyers, held sessions of the Russell Tribunal on Palestine. This Tribunal held several sessions in, respectively, March 2010 in Barcelona, in November 2010 in London, in November 2011 in Cape Town, in November 2012 in New York and in September 2013 in Brussels.
The Russell Tribunal on Palestine, in order to sum up the instances of violations of international law by Israel in the occupied territories of Palestine, as well the responsibility of international community and private sector in aiding and abetting Israel in the commission of violation of the rights of Palestinians, held its final session on 16-17 March 2013 in Brussels. The Tribunal concluded that Israel had violated international law and customary international law in relation to occupation of the Palestinian territories, the right of the people of Palestine to create their own country (right of self-determination), building of wall, approvals of the United Nations for leaving the occupied territories, creation of Israeli settelments in the occupied territories, expulsion of Palestinians from those regions, destruction and confiscation of homes of Palestinians, annexation of Jerusalem to Israeli territory, banning return of the Palestinian refugees to Palestine, collective punishment of Palestinians in Gaza, extensive arrests of Palestinians without charge, torture and harassment of Palestinian prisoners, etc. In continuation of this conclusion made by the Tribunal, it has been stated that some of these instances of violation of international law are considered as crminal crimes: war crimes, crimes against humanity and apartheid crimes.
“The Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery”
This Tribunal is also known as the Tokyo Tribunal which, through the efforts of NGOs throughout Asia, was held for four days from 8 – 12 December 2000 in Tokyo. The purpose of this Tribunal was to investigate Japanese military’s sexual slavery during and before the World War II. The Government and the Army of Japan, in order to provide sexual services to its armed forces, had established centers known as Comfort Women’s Stations[3] in places where the Japanese Army was stationed. Most women who were sexually abused by the Japanese Army were from the occupied territories, including Korea, China and the Philippines. But women from Burma, Thailand, Vietnam, Malaya, Manchukuo, Taiwan, East Indies, Timor and New Guinea were also used for sexual services to Japan’s military men in occupied countries as well as in Japan, Indonesia, Malaya, Thailand, Burma, Hong Kong, Macao and Indochina. A small number of women from the Netherlands and Australia were also among them. It is estimated that 360,000 to 410,000 women were used by the Imperial Army of Japan for sexual slavery.
The Tribunal concluded that Japan had acted in the World War II against its own undertakings and agreements as well as its obligations against the international law, that Japan had violated international conventions, including the Hague Convention of 1907, the International Convention of 1921 for Preventing Trafficking in Women and Children, and the World Labour Organization Convention of 1930 concerning forced labour, that this government had violated the customary international law including the Slavery Convention of 1926 and the San Francisco Pact of 1951.
The Women’s Tribunal held the Emperor of Japan Hirohito and 8 high-ranking military and government officers liable for sexual slavery and rape as crimes against humanity. The Tribunal held Emperor Hirohito and General Yamashita, the Commander of the Imperial Army of Japan, liable for rape against the Mapanique women as crimes against humanity.
The Tribunal recommended to the Government of Japan to confirm its liability for creating the “comfort women’s stations,” to declare that this system violates the international law, to offer its apology and carry out its legal responsibility, to guarantee that this will never happen again, to pay compensation to the victims of those crimes and their heirs, to create a mechanism for research on the Army’s system of sexual slavery thereby provide access to people to its documentation. Likewise the Tribunal asked the Government of Japan to establish a fact-finding and reconciliation commission in consultation with the survivors for recording the historical sexual crimes during the war.
The People’s Tribunal of India on Human Rights and the Environment
This Tribunal is a replacement for the formal justice system in India which carries out investigations on many topics and recommends corrective measures and gives voice to harmed individuals. The People’s Tribunal of India, from the date of its inception on 5 June 1993, has carried out much investigation on the displacement of rural populations for creating dams or parks, evacuation of ghettoes, industrial pollution and state-sponsored violence and murders. This Tribunal investigates the violations of people’s rights and the environment. In fact this Tribunal plays the role of an investigative commission and publishes its findings together with its recommendations.
The People’s International Tribunal of Indonesia
This Tribunal held its sessions on 10 – 13 November 2015 in The Hague. This Tribunal is a people’s initiative. This Tribunal was organized by the survivors of the massacre of Communists by General Suharto supported by Indonesians in exile, a number of civil activists, lawyers, academicians and artists. This Tribunal was set up to investigate the culture of exemption from punishment for crimes against humanity in Indonesia in the years 1965-1966. It has been stated in the final report of this Tribunal that: “This Tribunal will have the format of a formal human rights court. It derives it moral authority from the voices of victims, and of national and international civil societies. The essential character of the Tribunal will be that of a Tribunal of inquiry.”
Following the failed military coup-de-etat by the supporters of General Sukarno on 30 September 1965, General Suharto took control of the Army and began his 30-year bloody presidency in Indonesia. He immediately blamed the Communist Party of Indonesia for this coup-de-etat and thus began the massacre of its leaders, members and supporters. 500,000 cadres, members, supporters and affiliates of the Communist Party and many ordinary people were arrested, tortured, executed or disappeared. It has been stated in the final report of the international panel of judges of this Tribunal that Indonesia committed crimes against humanity and must be held responsible for ten gross violations of human rights committed in 1965-1966, including murder, torture and genocide of cadres, members and supporters of the Communist Party and the supporters of Sukarno as well as the members of the National Party of Indonesia.
The People’s International Iran Tribunal
This Tribunal is a people’s initiative. It is a statement of legal plurality and is to fill the legal gap. It was set up by the families of political prisoners who executed in the 1980s, the survivors of the massacre of political prisoners in that decade, inspired by the justice-seeking demands of “the Khavaran Mothers,” and supported by lawyers, writers, poets, and activists for the rights of women, children, students, etc. This Tribunal received extensive support by the people, especially by the families of the executed in Iran and overseas. This Tribunal investigated the killings of political prisoners in the 1980s in Iran in two stages: a fact-finding commission in London on 18 – 22 June 2012, and sessions in The Hague on 25 -27 October 2012. This Tribunal was set up to investigate the killings of over 20,000 political prisoners in the 1980s, which is known as the bloody decade, the arrests and torture of tens of thousands of political activists, leaders, members and supporters of political organizations and parties, ethnic groups such as Kurds, Turkmen, the Baluchis, Arabs, followers of religions such as the Baha’is, sexual torture and rapes, rape of virgin girls, especially prior to their executions.
In the final judgement of the People’s International Iran Tribunal the judges unanimously declared that:
(I) The Islamic Republic of Iran has committed crimes against humanity in the 1980-1989 periods against its own citizens in violation of applicable international laws;
(II) The Islamic Republic of Iran bears absolute responsibility for the gross violations of human rights against its citizens under the International Covenant of Civil and Political Rights; and,
(III) Customary International law holds the Islamic Republic of Iran fully accountable for its systematic and widespread commission of crimes against humanity in Iran in the 1980-1989 period.
Similarities of People’s Tribunals
People’s tribunals have challenged governments’ monopoly on legal laws and their growing hegemony on the compilation of new standards of international law. Some of these tribunals, such as the People’s International Iran Tribunal, have gained access to certain procedures that previously did not exist, procedures such as the trial of a government in power and its trial for crimes against humanity through a legal-procedural process.
International law assigns duties and responsibilities to individuals and governments whereby the governments are under obligation to prevent commission of crimes by individuals within the area of their sovereignty and control. But the trial of a government/state for crimes against humanity is not clearly understood in international law and there is no precedent where local or international courts have tried a government for crimes against humanity. The judges of Iran Tribunal, by analyzing the international law and considering the International Court of Justice (ICJ) and the International Criminal Court and the functions and responsibilities of governments and their authorities for preventing the crimes of individuals and the institutions under their control, has gone farther than recognizing the individual criminal liability and has held the Islamic Republic of Iran as a government/state responsible for the extensive political executions of the 1980s. Thus the Iran Tribunal as a non-binding court of law has extended the scope of the international law and has clarified the responsibility of a government/state for the commission of criminal acts against humanity. It has been stated in Section 164 of the final judgment of the Iran Tribunal that:
In the present case, the control of the Islamic Republic of Iran over its agents, prosecutors, judges, prison officials, interrogators and other individuals involved in the commission of these crimes cannot be challenged. The Tribunal therefore holds that as a matter of international law, the Islamic Republic of Iran can be held responsible for crimes against humanity, committed at its behest by state officials and within the state establishments and prisons.
Another common feature of people’s tribunals is the creation of a forum and a place for the victims or their families who could bring forth their suppressed voice of justice-seeking and their protests against the injustices and oppressions committed against them to the attention of public opinion. People’s tribunals, in general, are forums that give voice to voiceless people.
People’s tribunals, in general, whether the ones like the Russell Tribunal, which were established by popular intellectuals, or those which were set up at the initiative of victims and their families, independent of any intervention and support by government or non-government institutions, such as the two People’s International Iran Tribunal and the People’s International Tribunal of Indonesia, help in empowering the masses of people in civil societies, and bring up people’s choices against the state choices for the enforcement of justice.
Informing the public opinion about the incidents of the past and the crimes committed is another feature shared by the people’s tribunals.
Differences between the People’s Tribunals
People’s tribunals have had nature, mechanisms and performances different from each other and have adopted different approaches to international law.
The Women’s Court of Tokyo, the Iran Tribunal and the Tribunal of Indonesia are the only people’s tribunals which have adopted legal-procedural approach in their investigations. Such people’s tribunals are technically known as the “non-binding courts of law.”
The Women’s International War Crimes Tribunal, Tokyo, despite the fact that it declares that Japan has violated the rules of international law, recognizes individuals, high officials of the Japanese Empire, including the Emperor and the Commander of the Japanese Army, as criminals for their crimes against humanity.
The People’s Tribunal of Indonesia tries the government, the Government of Indonesia at the time of Suharto, for the commission of crimes against humanity and recognizes it as a criminal. The judges of the Tribunal in their final report consider this Tribunal as a court of inquiry, something similar to the Iran Tribunal’s Fact-finding Commission.
Out of all “people’s tribunals” set up from the 1930s as non-state courts, and contrary to people’s tribunals established by intellectuals and NGOs for others, only two, the People’s International Tribunal of Iran and People’s International Tribunal of Indonesia, were entirely people’s projects and were organized from below by the ordinary people, people who were directly subjected to violence. These two tribunals, contrary to other tribunals, derive their authority from those who were directly subjected to violence and crimes.
In an article written by Payam Akhavan[4], head of the prosecution team of the Iran International People’s Tribunal, under the title of “Is Grassroots Justice a Viable alternative to Impunity? The Case of The Iran People´s,” he has reviewed the Iran Tribunal as an unprecedented initiative tribunal, set up by the victims.
He writes, in part, in this article: ‘The creation of people’s tribunal is nothing new but the case of the Iran Tribunal is unprecedented for certain reasons because it is the first people’s tribunal in the world that has been organized and established by those who were directly subject to violence. Contrary to cases such as the Vietnam War, about which a lot of information existed, the massacre of political prisoners in Iran was concealed by the Islamic Republic from the people of Iran and the world. The Iran Tribunal forced the Islamic Republic to admit to this massacre and brought it out of the back room of the Islamic Republic and placed it in public view of the people of Iran and the world. This required a reliable and objective approach for uncovering the truth and its analysis by essential and qualified jurists and the combination of an informal legal institution with irreproachable legitimacy in the eyes of the world. The most important feature that distinguishes this initiative from other people’s tribunals is the fact that it was established by ordinary people, not the elites and intellectuals and civil activists from far away. Thus its sponsors set up a fact-finding commission to uncover the facts and a tribunal to try the crimes committed in the 1980s. This tribunal has a fact-finding and fully legal (non-binding) approach and is unique.’
This tribunal is the first people’s tribunal which, in a legal-trial process, in light of fundamentals based on facts and legal backgrounds set forth in the Tribunal’s judgment, tried a government in power for its crimes against humanity and found it guilty and thereby extended the international law, by which only individuals could be tried for crimes against humanity, to governments.
For the purpose of setting up the Tribunal its organizers started a campaign which in its kind was unprecedented for the Iranians in exile. Because of the limited resources of the campaign and lack of sufficient and necessary resources, four essential conditions were necessary for the success of this project and for attaining its objectives:
1-Strong motivation for carrying out the work of this large and extensive project and the functions it had to perform. 2- Self-sacrifice. 3- Commitment to organize and create an extensive and comprehensive movement, while making efforts to set up and manage the Tribunal. 4- Full independence from any political or state affiliation, in addition to full financial independence of any government or local and international financial organization and institution for the furtherance of this project. It was concluded that the Tribunal must have a credit-worthy and independent legal procedure so that its credibility in divulging the facts of the events of 1980s could have a desirable effect on the public opinion.
One of the most important requirements for the continuation of the campaign work was to form a legal team consisting of specialized and experienced lawyers in the area of international law. In order to do so, the campaign selected a group of outstanding international and Iranian lawyers who are specialized not only in the principles and concepts of international law but also are fully informed about the mass killings of political prisoners in Iran and are willing to participate in this project on a pro bono basis.
It was decided to organize the Tribunal on the basis of a two-stage process: one centralized on fact-finding, and the other with a legal and decision-making nature. The Iran Tribunal in terms of extensiveness of the project and its procedural work, with about one hundred expert and eye-witnesses, is the largest people’s tribunal that has ever been held in history.
16 January 2018
[1] 1360(1981)-1367(1988)
[2] The uprising of Iranian people against the Shah was a social revolution before governments of USA, UK, France and West Germany decided in a meeting in January 1979 known as “Guadeloupe Conference”, to change the path of the revolution by supporting and imposing Islamic fundamentalists leading by Khomeini upon the revolution. https://en.wikipedia.org/wiki/Guadeloupe_Conference
[4] McGill University law professor Payam Akhavan teaches and researches in the areas of public international law, international criminal law. “. He has served as Chairman of the Global Conference on the Prevention of Genocide and with the United Nations in Cambodia, Guatemala, East Timor and Rwanda. He has also served as prosecutor of numerous international courts such as ICTY.