Creating space for writing alternative histories through peoples’ tribunals

The first peoples’ tribunal, the International War Crimes Tribunals – otherwise referred to as the Bertrand Russell Tribunal or Stockholm Tribunal – was established in 1967 with a defined mandate to address the United States’ complicity in the Vietnam war. They were an innovation intended to address the accountability gap that existed due to the failure or unwillingness of states to discharge their obligation to investigate and prosecute crimes committed within their territories and those carried out by its nationals outside its geographical boundaries. The idea was to not wait for the state.

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The Bertrand Russell Tribunal became the inspiration for successive peoples’ tribunals, addressing victims of civil, political and socio-economic rights generally, or specifically directed at women victims known as a women’s court or tribunal. The first women’s court, the International Tribunal on Crimes against Women, held in Belgium in March 1976 addressed everything from torture and rape to pornography and forced sterilisation. In 1979, the Italian jurist Lelio Basso established the Permanent Peoples’ Tribunal modelled after the Russell Tribunals. It has held 47 sessions to date across the globe on issues ranging from human rights in Asia to the 2003 war in Iraq. Other examples of specific women’s tribunals include: the Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery 2000, otherwise known as the Tokyo Women’s Tribunal; the Guatemalan Courts of Conscience 2010; and the Women’s Court Sarajevo in 2015. Are peoples’ tribunals a meaningful alternative space for survivors of sexual violence in conflict to speak about their experiences of violence and reparation needs? Maybe.

Form and Process

Peoples’ tribunals have an array of goals. They seek to dislodge years of state silences over gross violations of human rights, censure or denounce perpetrators of such violations, and/or substitute (in)action of the state in the name of the people. The form and structure of peoples’ tribunals that have been established have, to a great degree, been dependent on mimicking the majesty of courts. The Tokyo Women’s Tribunal, for instance, was convened to attribute symbolic responsibility for Japanese war crimes committed in the Asia Pacific during the second world war and was framed as a continuation of the International Military Tribunal for the Far East (IMTFE). The tribunal adopted legal and formalistic trappings to complete the effect. The proceedings, language used, and description of parties bore close resemblance to formal legal proceedings. The Women’s Court in Sarajevo was less formalistic and legalistic in nature. In addition to the testimonies of female survivors from across the region, expert testimonies provided additional context and insight. Drama, poetry, and street performance from women were also featured. A third, hybrid form incorporates elements of both, as adopted by the Iran Peoples’ Tribunal in the form of a two-stage process. The first stage was modeled after a truth and reconciliation commission and provided space for witnesses to tell their stories outside the confines of legal proceedings. The second stage, however, was more formal in structure because it entailed the making of summations on legal issues under international law.

Peoples’ tribunals, generally or whether addressing issues specific to women, often share a common set of criticisms directed at them. Chief amongst these is the question of legitimacy. As civil society initiatives, they lack the legal status conferred by either national or international law. Consequently, the decisions, judgments or recommendations are symbolic and cannot be enforced. These are the same criticisms often levelled at international human rights ‘soft law’. Yet despite the limits on its status as an institution, peoples’ tribunals from the very beginning have all applied relevant national and international law to the issues within the scope of the respective tribunal’s mandate. Paradoxically, another criticism is that the tribunals are too legalistic and liberal. They reproduce the very pitfalls of trials that survivors’ organisations seek to address, a criticism we take seriously here.

Peoples’ tribunals as a mechanism for knowledge production

The premise that peoples’ tribunals can serve as a tool for knowledge production is at the heart of their function. But what form does that knowledge take? Are they open to the same critique of conventional legal processes and mechanisms, in that they are essentially western and liberal centred? Are they sufficiently localised? In response to some of the above questions, it is apt to draw attention to some specific examples of peoples’ tribunals.

The women’s courts that have emerged in Tokyo, Sarajevo and Guatemala have had significant input from local, national and regional human rights organisations. They have at time been forced to convene far away from the venue of the commission of the crimes, particularly when the states involved are hostile to the tribunal process. This has not taken away from the local ownership of the process.

Since a key feature of peoples’ tribunals is the receipt of testimonies from direct victims or their relatives, they receive a trove of oral and documentary evidence from witnesses. In certain cases, the proceedings and participation of victims and witnesses break decades of silence on crimes, as in the case of the Iranian Peoples’ Tribunal. They can also draw attention or generate awareness on crimes that are already known, but have for too long remained in the shadow such as the case of the so called ‘comfort women’ (military sexual slavery) that took place in Asia during the second world war.

Several commentators in their work lend credence to the knowledge production role of peoples’ tribunals. Craig Borowiak (2008), in alluding to the strength of peoples’ tribunals, emphasises their knowledge production role. He notes that their “strength is not their capacity to unearth new evidence (although they do this also), but rather their ability to collect and present evidence (much of which is already public) in an unofficial display of public judgment”. Further, Simm and Byrnes (2014) identified two outcomes of peoples’ tribunals which seemingly confirm their knowledge production function. These are the ability of peoples’ tribunals to engage in memorialisation, and to complement historical records from objects, personal effects, documents and oral evidence presented by participants before such proceedings. In relation to the Tokyo Women’s Tribunal, the authors pointing to the fact that documents from the tribunal form part of the collection of the Women’s Active Museum on War and Peace in Tokyo and are accessible for use by members of the public.

Peoples’ tribunals also provide a significant space for victims and witnesses to tell their story, which results in an acknowledgment of the wrong done to them and a documentation of the events for historical and record purposes. The significance of this space free from the strictures and confines of regular court proceedings cannot be overstated. Even where a mechanism exists to address violations, the often strict rules of procedure and participation prevent many victims from participating in the legal process. Those who are included are made to tell their story within legally acceptable rules of procedure and evidence. The case of the former Yugoslavia is a typical example. Despite the establishment of the International Criminal Tribunal for the former Yugoslavia and national prosecutions in states making up the former Yugoslavia, the conveners of the Women’s Court in Sarajevo chose to establish a peoples’ tribunal with significant participation from victims across the former Yugoslavia.

Given the limited number of prosecutions at both national and international level for various crimes, it is safe to say that peoples’ tribunals will remain a fixture in our legal and political landscape for the foreseeable future and an important space for gender justice.

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