I. Peoples’ Tribunals in Asia Since 1967

Although the original Russell Tribunal eventually secured permission to hold hearings in Stockholm and Roskilde (outside Copenhagen), away from the major metropolitan centres of Europe (London and Paris), the focus of its deliberations was the ongoing US war in Vietnam. It might therefore be considered the first of the peoples’ tribunals dealing with Asia. Inspired by the Russell Tribunals, the Permanent Peoples’ Tribunal, based in Rome, was established in 1979 as a standing institution intended to provide a forum for claims to be considered that were excluded by the formal international system.Footnote ¹² In 1981 it held a hearing in Lisbon on the Indonesian occupation of East Timor,Footnote ¹³ and a hearing in Strasbourg in 1992 on the Chinese occupation of Tibet.Footnote ¹⁴ In relation to the Philippines, the Permanent Peoples’ Tribunal held hearings on the Filipino and Bangsa Moro people in 1980 in Antwerp,Footnote ¹⁵ and again, on human rights violations under President Gloria Arroyo's administration in 2007 in The Hague.Footnote ¹⁶ In addition to considering the actions of states, the Permanent Peoples’ Tribunal held hearings on the activities of transnational corporations, such as its hearings on the 1984 Bhopal disaster, held in New Haven and Bangkok in 1991, Bhopal in 1992,Footnote ¹⁷ and London in 1994,Footnote ¹⁸ and on the agrochemical industry held in Bangalore, India, in 2011.Footnote ¹⁹ The Dublin Tribunal on Sri Lanka was organized in 2010 under the auspices of the Permanent Peoples’ Tribunal and is the focus of our final case-study.

Apart from the Permanent Peoples’ Tribunal hearings, there have also been a series of independent peoples’ tribunals, both national and international.Footnote ²⁰ One of the better-known independent peoples’ tribunals is the Women's International War Crimes Tribunal for the Trial of Japan's Military Sexual Slavery (The Tokyo Women's Tribunal), which heard testimony of survivors of the “comfort women” system in 2000.Footnote ²¹ It is our first case-study. World Courts of Women, initiated by the Asian Women's Human Rights Council and El Taller, based in Tunisia, have also held hearings in Pakistan, Japan, India, Bangladesh, Nepal, and China.Footnote ²² The Independent Peoples’ Tribunal to judge the G7 (Tokyo, 1993), the International Criminal Tribunal for Afghanistan (Tokyo, 2004), and the International Peoples’ Tribunal on Human Rights and Justice in Indian-administered Kashmir are other examples.Footnote ²³ The Independent Peoples’ Tribunal on the World Bank in India in 2007 forms the second case-study here.

At first sight it may appear curious that many of the tribunals focusing on situations in Asia were organized primarily by those from the global North and were heard by panels dominated by Europeans and Latin Americans. Part of that is due to the historical development of the institutions, part also reflects the audience that was to be addressed. The first Russell Tribunal, over which French philosopher Jean-Paul Sartre presided, focused on the issue of American war crimes and the crime of aggression in Vietnam. In his preface to the proceedings of that hearing, editor John Duffett writes: “So this book is not for the Vietnamese, they have shown that they do not need it. It is for the people of the world, not least Americans, who suffer oppression, injustice and servitude.”Footnote ²⁴

Holding hearings in Europe no doubt prevented fuller participation by members of the Asian communities directly affected by the issues considered by the tribunal. But in many cases, due precisely to the issues under consideration by the tribunals, hearings could not have proceeded in the places which were the subject of the hearings. It was not practicable, for example, to hold the hearings relating to Tibet in China, or those relating to East Timor in that territory. Even holding a hearing on East Timor in Lisbon in 1981 was highly controversial due to the criticism levelled at the former colonial power Portugal for failing to facilitate the exercise of the right to self-determination of the Timorese people.Footnote ²⁵ The stimulus for the holding of such tribunals focusing on country or regional situations has come in general from affected groups in the countries concerned (or their representatives abroad), often seeking to take advantage of existing institutional structures and procedures for organizing such tribunals.

Moreover, some of the tribunal hearings were part of international solidarity movements that drew attention to the complicity of the West in abuses in Asia. For example, the Permanent Peoples’ Tribunal in its session in Brussels in 1998 focused on both workers’ rights in the garment industry and consumers’ rights to information about the production methods of the garments they purchased.Footnote ²⁶ The more recent hearings relating to the position of Asian garment workers held in Sri Lanka (2011), Cambodia (2012), and India (2012) were organized in conjunction with the Asian Floor Wage Campaign to put pressure on global brands such as Gap, H&M, Adidas, Next, and Walmart.Footnote ²⁷ Further, international peoples’ tribunals have provided the opportunity for witnesses, such as Vietnamese civilians who had been injured by US attacks, to give testimony on behalf of themselves and others who might otherwise not have had this opportunity.Footnote ²⁸

Conversely, unofficial tribunals have held hearings in Asia examining the international legality of the conduct of Western leaders. An example is the Kuala Lumpur War Crimes Commission, which found former US President George W. Bush and former UK Prime Minister Tony Blair guilty of crimes against peace for pursuing the 2003 war in Iraq.Footnote ²⁹ A similar tribunal was organized by Japanese peace activists in relation to the use of force by the US against Afghanistan in 2001.Footnote ³⁰ These examples demonstrate an interest in international peoples’ tribunals on the part of Asian activists, independent of Western organizers.

In addition to these functions, an important dimension of some international peoples’ tribunals has been that of memorialization and correcting (or at least completing) the historical record.Footnote ³¹ Among the leading examples is the Tokyo Women's Tribunal, to which we now turn.

II. The Tokyo Women's Tribunal, 2000

The Women's International War Crimes Tribunal for the Trial of Japan's Military Sexual Slavery (the Tokyo Women's Tribunal), is probably the best-known international peoples’ tribunal in Asia. Whereas the original Russell Tribunal on the war in Vietnam modelled itself on the International Military Tribunal at Nuremberg, the Tokyo Women's Tribunal was established in 2000 to address charges of rape and sexual slavery which were not prosecuted at the International Military Tribunal for the Far East (the IMTFE or Tokyo Trial) held from 1946 to 1948,Footnote ³² despite evidence being available on which indictments could have been based.Footnote ³³ The Tokyo Women's Tribunal, then, explicitly invites comparison with the official Tokyo Trial.

The Judgment of the Tokyo Women's Tribunal states:

The Tokyo Women's Tribunal was a type of “time machine”, based on the legal fiction that it was a continuation of the Tokyo Trials.Footnote ³⁵ The Tribunal looked back to the past to fill a gap in the official historical record. This was an explicit aim of the Tribunal. Research published after the IMTFE proceedings demonstrates that prosecutors at the Tokyo Trials had introduced evidence relating to the comfort women system, targeting principally Asian women in the countries under Japanese occupation.Footnote ³⁶ However, by looking back, the Tokyo Women's Tribunal differed from most other international peoples’ tribunals, which seek to pre-empt official judgments or shame governments into initiating official investigations. In choosing a specifically legal format, “to expose the acts or omissions of the accused to the court of public opinion”, the Tribunal nevertheless recognized the similarities between its project and those of “scholars and historians, case studies, human rights reports, symposia, documentary films and other civil society initiatives that publicise historical facts in the absence of any official judicial or legal process”.Footnote ³⁷ The Tokyo Women's Tribunal also engaged in memorialization, with some of the documents used in evidence being included in the collection of the Women's Active Museum on War and Peace in Tokyo.Footnote ³⁸

The Tokyo Women's Tribunal also sought to fill a contemporary gap in providing justice for the elderly survivors of the comfort women system. The Tribunal saw itself as restoring dignity to victims in place of the shame, fear, and regret which they continued to experience decades after the events that had caused this.Footnote ³⁹ Indicting Emperor Hirohito and the Japanese state for the comfort women system was not possible at the domestic level in Japan, as cases filed by Korean survivors had shown. The Tokyo Women's Tribunal used the international model of the Russell Tribunal as it knew “it could hardly expect Japanese Courts to prosecute the perpetrators”.Footnote ⁴⁰ The circumstances which helped give rise to the Tribunal included the increasing attention that was being given to issues of sexual violence during armed conflict, and efforts to create a permanent international criminal tribunal as a means of eliminating impunity for such crimes. Reports of widespread sexual violence in the wars in Yugoslavia prompted elderly survivors of the military sexual slavery system to break their long silence. Negotiations for the International Criminal Court provided impetus for the transnational networking that led to the establishment of the Tribunal.Footnote ⁴¹ The final Judgment of the Tribunal was delivered in The Hague, in a reference to the soon-to-be-established International Criminal Court.

One of the principal criticisms levelled at peoples’ tribunals is that they are biased, either in their general outlook and perspective or in relation to their views on the specific issues that are to be considered by the tribunal in question. In this respect, international peoples’ tribunals are often contrasted with official courts and tribunals, whose judges are assumed to be independent and neutral.Footnote ⁴² Yet the asserted or assumed neutrality, independence, and lack of (systemic) “bias” of international judicial or quasi-judicial institutions is not an unproblematic concept in theoretical or practical terms.Footnote ⁴³ This is especially, though not only, the case in relation to war crimes trials, conducted by both ad hoc and permanent criminal tribunals. War crimes trials risk criticism for being political, rather than legal, and reveal anxieties about becoming mere show trials.Footnote ⁴⁴ The credibility of the Tokyo Trial was severely undermined by the adherence of its judges to national political positions against their former enemy, Japan, in addition to specific prejudgments made by four of the judges.Footnote ⁴⁵ All the judges and nearly all the prosecutors were men.Footnote ⁴⁶ By contrast, the Tokyo Women's Tribunal is unusual in that female judges outnumbered their male counterparts and it was designed to have judicial representation from all continents. A former Indian Supreme Court judge was unable to attend due to illness; hence the Tribunal ultimately lacked an Asian judge.Footnote ⁴⁷

The Tokyo Women's Tribunal was at the more formal and legal end of the spectrum of international peoples’ tribunals. The prosecutors decided to frame the indictment “so that the specific charges would be addressed as if this [the Tribunal] were a continuation of the International Military Tribunal for the Far East”.Footnote ⁴⁸ This legal fiction would avoid the decision being attacked on basis of amnesties, statutes of limitations, and other legal obstacles.Footnote ⁴⁹ The survivors of the comfort women system sought legal redress; yet the risks of law not being capable of producing the resolution they desired were clear to the organizers, who tried to prepare witnesses for the possibility that the Tribunal's Judgment would not fulfil their expectations. Despite the length and legalism of its Judgment, the Tokyo Women's Tribunal was criticized as not meeting certain legal requirements. For example, Amnesty International refused to participate on the basis that its legal framework did not meet due process requirements for a fair trial (in regard to prosecution in absentia of defendants who had been invited but had declined to appear, and in prosecuting the deceased Emperor Hirohito).Footnote ⁵⁰

The Tokyo Women's Tribunal also played a key role in developing transnational activist networks of Asian women. For example, country prosecutors from South and North Korea presented a joint indictment, China co-operated with Taiwan, and Korean and Japanese women took “joint action against a ‘common enemy’, Japanese male sex tourists”.Footnote ⁵¹ The Tribunal as event became a focal point for a group of socially marginalized women, “one of the few times a group of non-western, regionally based non-government organisations predominantly headed by women were able to gain the attention of the international community and the world's media on an issue of importance to them”.Footnote ⁵²

III. The Independent Peoples’ Tribunal on the World Bank in India, 2007

In 2007, the Independent Peoples’ Tribunal on the World Bank in India convened in New Delhi. Its four days of hearings were the culmination of two years of organizing by over forty civil society groups.Footnote ⁵³ Although titled the Tribunal on the “World Bank in India”, the Tribunal also considered the failure of the Indian government to protest World Bank policies due to the “revolving door” phenomenon, whereby, it argued, Indian government officials were unable to exercise sufficient independence to make decisions in India's national interest, due to the lure of a lucrative World Bank appointment. The Tribunal also “indicted” the global neoliberal economic system, an indication of its anti-globalization politics shared by many peoples’ tribunals. Hence, this case included the full range of defendants in peoples’ tribunal hearings, namely, states, international organizations, and the economic “system”. The Tribunal organizers invited the defendants, the Washington and Delhi offices of the World Bank, to participate in the proceedings. The Bank originally accepted the invitation but later declined to attend, saying the panel had already reached its conclusions. The New Delhi office sent a representative to collect evidence each day from the Tribunal and posted a response on its website at end of the hearings.Footnote ⁵⁴

The Tribunal's jury included “former justices of the Indian Supreme Court and high courts, writers, scientists, economists, religious leaders, social workers and former Indian government officials”.Footnote ⁵⁵ Unlike hearings of the Permanent Peoples’ Tribunal, where a majority of judges have been European and Latin American, all but three of the thirteen panellists were Indian. While most criminal law proceedings begin with charges and conclude with a verdict, the “findings” of the jury were delivered in the form of twenty-nine “charges”.Footnote ⁵⁶ These related to poverty, food security, macroeconomic policies, essential services such as water and health care, land use, the environment, governance and corruption, debt, and control of information. One of the panellists, Ramaswamy Iyer, former Indian government Secretary of Water Resources, included a Note of Qualification, like a separate opinion.Footnote ⁵⁷ While agreeing with the panel's charges, he considered that the jury's findings underplayed the responsibility of the government of India. The jury agreed that shutting down the World Bank would not solve the problem. The government of India is “equally culpable in each of the charges … because it conveniently uses ‘international obligations’ as an excuse to avoid people-centred policy directives”.Footnote ⁵⁸ Iyer argued that rather than “demonizing” the World Bank, what was required was to challenge the global dominance of neoliberal economic policies and call the government of India to account.Footnote ⁵⁹

Why convene a peoples’ tribunal to challenge the World Bank? After all, the World Bank has an Inspection Panel, established in 1993 in response to pressure from civil society groups in the wake of a number of “development disasters” funded by the Bank.Footnote ⁶⁰ The Inspection Panel's mandate is to consider “whether Management is following its own operational policies and procedures”.Footnote ⁶¹ Independent of management, the three-member Inspection Panel reports directly to the Bank's Board of Executive Directors. Inspection Panel members are not permitted to take up subsequent appointments with the Bank. Complaints may be made by phone, letter, online, or in person; those complaints which meet technical requirements will be registered; and the Inspection Panel then investigates the complaints, which may include site visits, and makes findings. Management has six weeks to respond to the findings, and then the Board of Executive Directors makes a decision on the complaint, based on the investigation by the Inspection Panel and Management's response.

While it is an official mechanism, the Inspection Panel is not a court of law. It is:

However, Inspection Panels cannot reconsider World Bank policies, only their implementation.Footnote ⁶³ Even where the World Bank Inspection Panel finds substantial breaches of Bank policy, the complainants may not receive adequate redress. The loan approved to fund a coal mining project in the Damodar Valley in Jharkhand, India, in 1997 is a case in point. The Inspection Panel described the project as “one of the most supervised World Bank projects ever” but nevertheless considered that the supervision team had “limited” knowledge of ground realities and their efforts to resolve problems had “virtually no impact on the ground”.Footnote ⁶⁴ The Independent Peoples’ Tribunal found that “in spite of the Bank's continued efforts, the issue ended up unresolved in the legal department of the central government”.Footnote ⁶⁵

Apart from the Inspection Panel, it is difficult to think of avenues provided by international law to challenge the actions of international financial institutions.Footnote ⁶⁶ These institutions cannot be brought before national courts or administrative redress mechanisms by affected individuals or groups because they generally enjoy immunity from suit under domestic law, and there are limited opportunities for civil society organizations to hold them to account through international procedures.Footnote ⁶⁷ As a result, international peoples’ tribunals have provided a forum in which these issues can be raised and deliberated upon. The World Bank and the International Monetary Fund (IMF) have been the focus of examination by the Rome-based Permanent Peoples’ Tribunal on two occasions, in Berlin in 1988 and in Madrid in 1994. The Berlin hearing found that:

The Berlin Tribunal recommended that the General Assembly request an advisory opinion from the International Court of Justice on whether the IMF and World Bank policies were in breach of Articles 1 and 3 of the UN Charter, and whether “it is appropriate that within the UN system different specialised organizations implement contradictory policies”.Footnote ⁶⁹ It also suggested that UN specialized agencies, such as the International Labour Organization, Food and Agriculture Organization, UNESCO, and the World Health Organization, request an advisory opinion on whether Member States of these agencies are obliged to implement the structural adjustment policies of the IMF that violate the objectives of the agencies.Footnote ⁷⁰ The Madrid Tribunal in 1994 repeated these concerns, urging the General Assembly to request advisory opinions from the International Court of Justice on whether the World Bank and IMF had breached their own internal rules, the status of their constitutions vis-à-vis those of other UN specialized agencies and the UN Charter, and economic and social rights which constitute general principles of international law.Footnote ⁷¹ Hence, international peoples’ tribunals clearly refer to existing principles of international law and aim to influence how official institutions, such as the International Court of Justice, interpret foundational documents of international law, such as the Charter of the United Nations. At the same time, the fact that nothing came of the recommendations in relation to advisory opinions demonstrates the political limits of such tribunals.

IV. The Dublin Tribunal On Sri Lanka, 2010

Peoples’ tribunals are sometimes established even where there is an “official” forum for investigating the very same situation that the peoples’ tribunal is set up to examine. This was the case in January 2010, when the Permanent Peoples’ Tribunal held a hearing on the Sri Lankan civil war in Dublin, Ireland (the Dublin Tribunal).Footnote ⁷² Six months later, in June 2010, the UN Secretary-General convened a panel of experts to examine allegations that the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) had committed war crimes and crimes against humanity, particularly in the closing months of the civil war in 2009.Footnote ⁷³ The Dublin Tribunal panel of ten eminent persons included a former UN Assistant Secretary-General, Denis Halliday, a former Chief Justice of the High Court of Delhi and former UN Special Rapporteur on the right to adequate housing, Rajindar Sachar, and human rights defender Mary Lawlor, along with a genocide scholar, a Buddhist peace campaigner, a writer, and a medical doctor. The UN Secretary-General's panel of experts comprised former Attorney-General of Indonesia, Marzuki Darusman, a professor of international law, Steven Ratner, and human rights lawyer and former Member of the South African Truth and Reconciliation Commission, Yasmin Sooka. It is interesting to compare how the two panels of experts, the official UN one and the peoples’ tribunal, differed, in particular the extent to which they saw the civil war in Sri Lanka as being governed by the same rules of international law and whether they reached similar conclusions in applying international law to the situation.

The request for a peoples’ tribunal on Sri Lanka came from the Irish Forum for Peace in Sri Lanka.Footnote ⁷⁴ It requested the Tribunal to investigate war crimes and crimes against humanity by the government of Sri Lanka in the period from 2006 to 2009, particularly between January and May 2009. For example, the Tribunal was tasked with investigating whether the government had bombed civilian houses, hospitals, and “safety zones”, leading to the deaths of civilians, doctors, and aid workers; deprived Tamils of access to food, water, and health facilities; and committed torture, rape, and sexual abuse.Footnote ⁷⁵ The Dublin Tribunal did not investigate crimes by the LTTE, as it argued that:

Such an explanation may not be especially persuasive in the context of a civil war, where the prosecution of alleged offenders on the non-government (losing) side can be fraught with legal and political problems. A failure to investigate violations of international humanitarian law by non-state actors such as the LTTE risks fuelling criticism that peoples’ tribunals are biased and their adoption of the tribunal format is unbalanced. However, the lack of resources available to undertake inquiries into the culpability of both sides to the conflict must also be considered, as peoples’ tribunals are typically organized by activists who must raise the funds to hold the tribunal. While a focus on the alleged violations by one party does not of itself mean that a fair and considered examination cannot take place, the failure to consider the other side tends to feed public perceptions that a tribunal is on a mission and biased against the party whose actions are scrutinized.Footnote ⁷⁷

The Dublin Tribunal found that war crimes had been committed by the Sri Lankan government, its security forces, and aligned paramilitary forces.Footnote ⁷⁸ These included serious violations of common Article 3 of the Geneva Conventions and various crimes codified in Article 8 of the Rome Statute.Footnote ⁷⁹ It also found evidence that the Sri Lankan government was responsible for crimes against humanity codified in the Rome Statute,Footnote ⁸⁰ but held that there was not enough evidence to decide on the issue of genocide.Footnote ⁸¹ The Tribunal noted that the civil war was “a war without witnesses”, as journalists murdered by unknown assassins were amongst its early victims, and this was “something which appeared to serve the agenda of the Government by silencing critical opinion”.Footnote ⁸² The Sri Lankan government condemned the Dublin Tribunal's findings as politically motivated, “irresponsibly distorting events” and posing “a serious threat to the country's stability”.Footnote ⁸³

The Secretary-General's panel of experts on accountability in Sri Lanka investigated allegations of breaches of international humanitarian law and international human rights law against the government and the LTTE. The panel found that if proven, these allegations:

In particular, it found credible allegations of serious violations by the government, namely: killing of civilians through widespread shelling, shelling of hospitals and humanitarian objects, denial of humanitarian assistance, human rights violations suffered by victims and survivors of the conflict, including both internally displaced persons and suspected LTTE cadres, and human rights violations outside the conflict zone, including against the media and other critics of the government.Footnote ⁸⁵ The UN panel of experts also found credible allegations of serious violations by the LTTE. These included using civilians as human buffers, killing civilians attempting to flee LTTE control, using military equipment in the proximity of civilians, forced recruitment of children, forced labour, and killing of civilians through suicide attacks.Footnote ⁸⁶

The panel of experts noted that “individual responsibility would entail liability for international crimes”. It defined accountability as “a broad process that addresses the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity”.Footnote ⁸⁷ It considered the government's notion of restorative justice “flawed”,Footnote ⁸⁸ and that its Lessons Learnt and Reconciliation Commission failed to satisfy “key international standards of independence and impartiality, as it is compromised by its composition and deep-seated conflicts of interests of some of its members”.Footnote ⁸⁹ The Sri Lankan government rejected the panel's report as “fundamentally flawed” and based on “patently biased” and unverified information.Footnote ⁹⁰ In general, Tamil groups in Sri Lanka and the diaspora welcomed the report.Footnote ⁹¹

How then did the findings of the panels of the Permanent Peoples’ Tribunal and the UN Secretary-General differ? Their membership was very similar, with both panels comprising eminent persons and experts in international law. The Peoples’ Tribunal was larger, and one of its members, Thai Buddhist monk Sulak Sivaraksa, appended a “personal appeal for peace” addressed to Sinhala Buddhists, like a separate opinion.Footnote ⁹² The Permanent Peoples’ Tribunal made findings of fact on the basis of the material put before it, though there appears to have been no formal defence or, it seems, any amicus curiae submission putting a Sri Lankan government position, the Sri Lankan government having declined an invitation to participate.Footnote ⁹³

The Report of the UN Secretary-General's panel of experts was a report, not a decision of a court. It did not purport to investigate the facts and was prevented from visiting the country to do so by the Sri Lankan government. The report was a legal analysis of credible allegations that recommended investigation of the facts. The Secretary-General had created the panel to insulate himself and create more leverage in the face of lack of support for a commission of inquiry. The aim of appointing a panel of independent experts was to give the report “credibility that even the most careful NGO report would lack in the eyes of many states and, more importantly, many Sri Lankans”.Footnote ⁹⁴ Panel member Steven Ratner referred to the panel's unusual mandate as “a blessing and a curse as the panel had to invent itself as it went along”.Footnote ⁹⁵

Both the Permanent Peoples’ Tribunal and the Secretary-General's panel referred to the same fields of international law, namely, international humanitarian law and international human rights law, to make remarkably similar findings against the government of Sri Lanka. The Secretary-General's panel also found credible allegations of violations committed by the LTTE, which the Permanent Peoples’ Tribunal did not investigate. The International Criminal Court would be an obvious judicial forum for investigation of the war crimes and crimes against humanity alleged, but Sri Lanka is not a party to the Rome Statute and the government appears unlikely to refer the situation to the International Criminal Court.Footnote ⁹⁶ There remains the possibility of referral by the Security Council,Footnote ⁹⁷ and the US and UK “left all options open” when the UN panel's report was released.Footnote ⁹⁸

The International Criminal Court might be conceived as the permanent successor to the International Military Tribunal at Nuremberg and hence render obsolete the need for peoples’ tribunals to stand in for, in Sartre's words, “an international tribunal which does not exist”.Footnote ⁹⁹ Yet the difficulty of establishing jurisdiction before the International Criminal Court, as with other international courts and tribunals, provides a reason for the continuing popularity of international peoples’ tribunals. In fact, the Peoples’ Tribunal on Sri Lanka plans to reconvene to investigate whether the Sri Lankan government is responsible for genocide on the basis of evidence that has become available since the Dublin Tribunal made its findings, including from a UN internal panel.Footnote ¹⁰⁰

V. Peoples’ Tribunals and Transnational Civil Society Activism

The three international peoples’ tribunals that have been examined in this paper provide an overview of the different types of issues, formats, and functions to be seen in the practice of peoples’ tribunals generally and in the Asian region. The emergence and continuing popularity of international peoples’ or citizens’ tribunals can be attributed in part to the still significant limitations in existing procedures for holding states and other actors to account for violation of international law standards and the many gaps in coverage, whether geographical, temporal, or substantive. In an era when the formal international mechanisms for challenging the action of states and other international actors have multiplied, peoples’ tribunals still have a role to play by filling gaps where there is no international procedure, or where procedures available in theory are not in fact available in practice. Of course, peoples’ tribunals come in various forms but they are distinctive insofar as they adopt “the juridical form, of a trial or commission, with the presentation of evidence through public testimonies followed by an analysis by a ‘jury’ (often termed a ‘jury of conscience’) or ‘panel of experts’ ”.Footnote ¹⁰¹

In his instructive analysis of citizens’ tribunals in the context of the World Tribunal on Iraq, which was held from 2003 to 2005 as part of an international civil society response to the Iraq war of 2003,Footnote ¹⁰² Craig Borowiak notes that:

International lawyer Richard Falk, who has participated in a number of such tribunals, writes in relation to the same Tribunal, in terms applicable to many:

Borowiak and Falk thus locate international peoples’ tribunals within a broader context of transnational activism by civil society actors, engaging in a form of “accountability politics”.Footnote ¹⁰⁵ Peoples’ tribunals seek to publicize injustice or human rights violations committed by states, international organizations, or powerful non-state actors, and to pressure those actors and others with power and influence to respond.Footnote ¹⁰⁶ There are many fora and ways in which transnational activists work and peoples’ tribunals “belong within the lexicon of transnational civil society activism committed to [the] cause” of promoting accountability for justice and violations of law.Footnote ¹⁰⁷

Thus, a primary role played by peoples’ tribunals is to highlight gaps in or non-functioning international accountability mechanisms. Where there is no available forum to which a grievance may be taken, a peoples’ tribunal, frequently held as part of the activities of a broader social movement, might be able to make an important symbolic and juridical statement that acknowledges and documents the existence of wrongs. That formal recording and acknowledgement of wrongs may in itself be an important and sufficient outcome, but there may be other results. These may include the provision of a resource and reference point that is useful in advocacy around an issue. Where there is an existing mechanism that has not been responsive, the contribution of a tribunal, once again, often in association with a broader movement, may be to force it to become more responsive and effective.Footnote ¹⁰⁸

A peoples’ tribunal may also directly link itself to an existing procedure, by collecting testimony and material that may be fed into an existing formal state-sanctioned procedure not just to trigger its operation but to substantively inform its deliberations with factual and other material.Footnote ¹⁰⁹ Thus, there may be a synergy between the work of a peoples’ tribunal and that of a state-sponsored tribunal or other redress mechanism. The proceedings of a tribunal and subsequent advocacy may also contribute to the development of new mechanisms.

In some cases, of course, there is no state-sponsored tribunal or other investigative mechanism. Where the complaint is against multiple states, a combination of international organizations and corporate actors, or the “international system”, there may be no forum where the particular grievances can be raised in a holistic manner, even if certain aspects can be addressed through existing formal international or national procedures.Footnote ¹¹⁰ Where existing positive international law is clear but inimical to the interests that are being advanced,Footnote ¹¹¹ a peoples’ tribunal provides an opportunity for the exploration of possible reforms to the law that will lead to more satisfactory rules. But even if there is an existing international forum, there may still be a purpose in holding a peoples’ tribunal. Restrictions on who may participate in, and the material that may be produced to, a formal tribunal may limit the extent to which the concerns of those subjected to violations of rights may be able to tell their story and have it acknowledged in a public forum.Footnote ¹¹² The important role that the organization and holding of peoples’ tribunals play in building solidarity and networks should also be recognized. The opportunity to advance other “law”—whether peoples’ law or indigenous law—may also exist only before a peoples’ tribunal.Footnote ¹¹³ Equally, the opportunity not just to deploy accepted law, but to expose its inadequacies and its role in reinforcing injustice or failing to regulate violations, may not be something that can be explored within the mandate of many state-sponsored courts or grievance determination processes.

Whether the issue concerns disputes between peoples and a state, international organizations, or redress for historic wrongs, there may be no obvious official international dispute resolution mechanism under which these grievances can be considered holistically. For example, although the World Bank Inspection Panel represents an official complaints mechanism, it is limited to investigating whether World Bank policies have been properly applied, whereas the peoples’ tribunal on the World Bank in India was established to examine the substance of World Bank policies themselves. By interpreting and applying international law, often in cases where there is no access as a matter of law or fact to an official court, tribunal, or procedure, peoples’ tribunals sometimes influence official mechanisms at a domestic or international level to take up cases or issues more generally.

Many international peoples’ tribunals use orthodox analysis and accepted international legal standards to judge the activities of the impugned actors, though these standards may be supplemented by “peoples’ law” or by a critique of the adequacy of the existing standards.Footnote ¹¹⁴ The Tokyo Women's Tribunal and the Permanent Peoples’ Tribunal on Sri Lanka illustrate the first tendency of focusing primarily on applying the existing law. An example of an approach which supplements or challenges existing law is the Permanent Peoples’ Tribunal hearing on East Timor held in 1981, fourteen years before the decision of the International Court of Justice (the Court) was delivered in the Case Concerning East Timor.Footnote ¹¹⁵ An innovative feature of the Tribunal's analysis was its reference to the Universal Declaration of the Rights of Peoples, also known as the Algiers Declaration,Footnote ¹¹⁶ a foundational document of the Permanent Peoples’ Tribunal, to which the right of peoples to self-determination is fundamental.Footnote ¹¹⁷ That document was of considerable importance to the theoretical and political grounding of the Permanent Peoples’ Tribunal, in particular in its early stages, representing as it did a claim that peoples—and not just states—had a right to participate in the making of international law, and an articulation of the substantive rights of peoples to shape their societies and international law in a manner that was not yet accepted by international law. Such references have been less important in recent years, with the conventional sources of international law generally providing a sufficient basis for evaluating impugned actions. However, reliance on a peoples’ law outside a conventional framework has been appealed to, in conjunction with other positive law, in cases where particular international legal regimes are seen as oppressive and permitting violations of fundamental human rights and dignity. In this context, intellectual property law and world trade law have loomed large.

Both state-based and peoples’ tribunals operate on a spectrum of formality, which ranges from fact-finding functions of a small group of (non-legal) experts to a panel of around a dozen members, who are generally lawyers in official tribunals, but who in peoples’ tribunals comprise a mix of legal and non-legal experts and eminent persons. While the informal status of peoples’ tribunals is a defining characteristic of those bodies, it is not the only factor relevant to evaluating their activities and their legitimacy.Footnote ¹¹⁸ There are many state-sponsored adjudicatory or investigative bodies that display a range of characteristics similar to those shown by peoples’ tribunals and whose legitimacy is not once and for all determined by the state-based source of authority. For example, official mechanisms such as the World Bank Inspection Panel and the UN Secretary-General's Panel of Experts on Sri Lanka undertake what could be broadly considered investigatory roles, the Inspection Panel investigating whether the World Bank has complied with its own policies, and the Panel of Experts investigating whether there was a credible basis for allegations of war crimes and crimes against humanity that would justify further investigation. By contrast, the Tokyo Women's Tribunal's detailed and lengthy Judgment attempted to respond to the desire of the survivors of the comfort women system for legal redress, while also attempting to influence the development of the International Criminal Court.

While the entitlement of peoples’ tribunals to interpret international law has been challenged on the basis of their lack of state-endowed authority, advocates of peoples’ tribunals declare that their legitimacy is to be judged against the quality of their deliberations and analysis. From the perspective of international lawyers, both official and unofficial tribunals can be measured on this basis.