Léo Matarasso
in Marxisme, démocratie et droit des peuples, Hommage à Lelio Basso, Franco Angeli, Milano, 1979
The London meeting of November 1966 is sometimes referred to as the first session of the Tribunal. It is preferable to call it the constituent session and to refer to the sessions in Stockholm (2-10 May 1967) and Copenhagen (actually Roskilde, 20 November-1 December 1967) as the first and second sessions.
From its inception, the Tribunal was faced with a number of questions:
What was the nature of the institution thus created? Would it function as a tribunal passing judgment on the facts submitted to it or as a commission of inquiry designed to shed light on those facts? If it was a tribunal, where did it get its legitimacy? If it was to pass judgment, according to what criteria was it to do so? In other words, what was the applicable law? How would the Tribunal be composed? What would be the rules of procedure, the rules of evidence? Would there be an indictment? Who would defend or at least present the views of the United States Government? Should the Tribunal’s jurisdiction be limited to crimes attributable to the United States or should it be extended to complicit governments? Should the Tribunal’s jurisdiction be limited to events in Vietnam or should it be extended to American actions in Cambodia and Laos? Once the crimes had been established, should the culprits be named? If so, could individuals be convicted – and possibly the most responsible, the President of the United States of America? On the other hand, was it not necessary to answer in advance to the critics who would not fail to claim, on the one hand, that the Tribunal was composed of judges who were already convinced, and, on the other hand, that the Tribunal should also be concerned about the way the war was conducted by the Vietnamese? Finally, was the Russell Tribunal to be limited to the trial of American crimes in Vietnam or could it take up or be seized of other international crimes?
The Declaration of 15 November 1966 provides only partial answers to these questions.
Further responses will be forthcoming as the Tribunal is set up, operates and makes decisions.
1. On the nature of the Tribunal
On the very nature of the Tribunal, Bertrand Russell in his appeal entitled “To the Human Conscience” wrote: “… the International Tribunal will function as a Commission of Inquiry… An imitation judgment would not serve the needs of the Tribunal. The Tribunal will, therefore, be much more an international commission of inquiry which, like a grand jury, will have sufficient prima facie evidence to investigate the crimes it believes to have been committed.
However, the declaration of 15 November 1966 states: “We have agreed to meet at the invitation of Lord Bertrand Russell to examine these facts carefully and to confront them with the rules of law which govern them”.
She added: “We see ourselves as a Tribunal which, although it does not have the power to impose sanctions, will have to answer the following questions, among others… If the Tribunal finds that any or all of these crimes have been committed, it will be up to the Tribunal to determine who is responsible for them.
So, from the outset, the men and women gathered in London wanted to see themselves as a Tribunal and not as a Commission. From the outset, they announced that they would render a judgment.
2. Response to the preliminary criticism
The best answers to the two main preliminary objections (judges convinced in advance and refusal to judge the Vietnamese) were given by Jean-Paul Sartre, who had just been elected President of the Tribunal, in an interview with the Nouvel Observateur dated 30 November 1966.
He did not dispute that the judges of the Russell Tribunal were all declared opponents of American policy in Vietnam, but that did not mean that things should happen, as an English journalist had claimed, like in “Alice in Wonderland”: first condemnation and then trial. Indeed, it is not a question of pronouncing sanctions that the Tribunal is powerless to enforce, but “to study all the existing documents on the Vietnam War, to call all possible witnesses (American and Vietnamese) and to determine, in all conscience, whether certain actions fall under the laws I have mentioned” (in fact, it is the applicable international law).
As for the reproach of not judging the Vietnamese at the same time as the Americans, Sartre answers peremptorily: “I refuse to put on the same level the action of a group of poor peasants, hunted down, obliged to make reign in their ranks an iron discipline and that of an immense army supported by an over-industrialized country of 200 million inhabitants. And then, it is not the Vietnamese who invaded America and rain a deluge of fire on a foreign people”.
3. On “legitimacy”
Once the nature of the undertaking, namely a Tribunal confronting the facts and the law and delivering a judgment, had been clarified, and once these preliminary objections had been answered, the problem arose of the “legitimacy” of this curious Tribunal without official investiture and without any power.
Could ordinary citizens arrogate to themselves the right to administer justice?
The debate on this point took an unexpected turn following a letter from General De Gaulle to Jean-Paul Sartre on 19 April 1967. While the first session was to be held in Paris from 25 April to 5 May 1967 and a room in the Intercontinental Hotel had been rented for the purpose, it was learned that members and collaborators of the Tribunal from abroad were not obtaining visas to enter France. Jean-Paul Sartre therefore wrote to General De Gaulle on behalf of Vladimir Dedijer, who had been appointed President of the Sessions and who had just been refused a visa to enter France. In his reply of April 19, 1967, De Gaulle, after stressing that nothing prohibited in France (where “the pen and speech are free”) to criticize the policy of the United States in Vietnam and that “there could be no question of keeping on the sidelines individuals whose theses are, moreover, on this subject, close to the official position of the French Republic”, added: “It is not a question of the right of assembly, nor of freedom of expression, but of the duty, all the more imperative for France since it has, in substance, taken the side that we know, to see to it that a state, with which it is in contact, and which, despite all differences, remains a state of peace. It is a matter of great concern to France that it has basically taken the position that a State with which it has relations, and which, despite all differences, remains its traditional friend, should not be the object, on its territory, of a procedure which is outside the scope of international law and practice. Now, such seems to be the case with the action which Lord Russell and his friends are undertaking, since they intend to give a judicial appearance to their investigations and the appearance of a verdict to their conclusions. I shall not teach you that all justice, in its principle and in its execution, belongs to the state alone. Without questioning the motives which inspire Lord Russell and his friends, I must observe that they are not invested with any power, nor charged with any international mandate, and that they cannot therefore perform any act of justice.
Accordingly, the French government was obliged to object to the planned meeting being held on its territory.
To this peremptory questioning of the “legitimacy” of the Tribunal, Jean-Paul Sartre replied with an article in the weekly Le Nouvel Observateur dated April 26, 1967. He simply recalled that the Russell Tribunal was not a substitute for any existing tribunal, that if there was an international law, there was no tribunal to apply it.
Indeed, in the name of what can we prohibit ordinary citizens who have not received a mandate from anyone to meet to examine the accusations made against a state, to verify whether or not they are founded and to declare them contrary to international law?
In the absence of any official international jurisdiction, the only possible recourse is to public opinion. This recourse is strengthened insofar as public opinion is convinced that the behaviour of the state concerned is not only morally and politically reprehensible but also constitutes illegal behaviour.
4. The jurisdiction of the Tribunal
The jurisdiction of the Tribunal was very precisely defined by the five questions posed in the Declaration of 15 November 1966, the actual Charter of the Tribunal: “(1) Was there aggression within the meaning of international law on the part of the Government of the United States of America (and the Governments of Australia, New Zealand and South Korea)? (2) Did the United States armies use or experiment with new weapons or with weapons prohibited by the laws of war (gases, special chemicals, etc.)? 3) Were there, and on what scale, bombings of purely civilian targets and, more particularly, of hospitals, schools, sanatoriums, dams, etc.? 4) Were Vietnamese prisoners subjected to inhumane treatment prohibited by the laws of war, including torture or mutilation? Have there been unjustified reprisals against the civilian population, in particular the execution of hostages? 5) Have there been forced labor camps, deportations of the population or other acts tending to exterminate the population which could be legally characterized as acts of genocide?
However, the Tribunal has been led to extend its jurisdiction in two directions: that of complicit states and that of victim states. The London Declaration listed only the governments of Australia, New Zealand and South Korea as accomplices of the United States. The Stockholm judgment of May 10, 1967, after finding these three countries guilty of complicity of the United States in the aggression against Vietnam, decided that the question of whether Thailand and perhaps other countries were accomplices in the acts of which the United States was accused would be examined at the next session. Indeed, the Roskilde judgment of 1 December 1967 extended complicity in the aggression to the Governments of Thailand, the Philippines and Japan.
As for the victim states, although the Declaration of 15 November 1966 referred only to Vietnam, the Tribunal did not hesitate to examine, during the first session, the violations of the sovereignty, neutrality and territorial integrity of Cambodia and to condemn such violations, and, during its second session, the aggression against the people of Laos and to condemn it.
5. On the applicable law
There is no doubt that for the initiators of the Russell Tribunal, the applicable law could only be existing positive international law and, more particularly, that which emerged from the Nuremberg Statute and Judgment. The November 1966 Declaration stated: “It appears that this war is being waged in defiance of international law and custom. Every day the world press, and particularly the American press, reports facts which, if proven, would amount to multiple violations of the principles established by the Nuremberg Tribunal and of the rules laid down by international conventions”.
In his interview of 30 November 1966, Jean-Paul Sartre said: “We will not invent any new legislation.
And, in fact, the Tribunal heard a general introductory report which, for the definition of the offences, referred to the now classic trilogy of the Statute of the Nuremberg Tribunal (article 6): crimes against peace, war crimes, crimes against humanity, to which was added the crime of genocide as defined by the International Convention of 9 December 1948.
With regard to crimes against peace, the introductory report recalled not only the general texts declaring the use of war illegal (the Briand-Kellog Pact of 27 August 1928, Article 2, § 3 and 4 of the United Nations Charter) but also the Nuremberg judgment and the unanimous resolution of the United Nations of 11 December 1946, which can be considered as having enshrined, in positive international law, the criminal nature of the use of war. But just as the Nuremberg Tribunal had set out and studied the specific agreements violated by Germany, the Tribunal studied with particular care the Geneva Accords of 1954 which had created a state of law in Vietnam whose violation had resulted in a state of war. The debates of the first session were to demonstrate, in the most vivid way, how the American aggression had taken the form of a successive violation of the various provisions of the Geneva agreements.
With regard to war crimes as such, the Russell Tribunal referred to the laws of war as they result from the Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1949. Specific reports were submitted to it on the provisions of these Conventions concerning prisoners of war and civilian populations.
Despite the Tribunal’s desire not to innovate and to apply what it considered to be the positive law, the problem arose as to whether that law was not evolving and whether it should not, in certain respects, be clarified. In this regard, the summary report of Lelio Basso at the Stockholm session contains a remarkable analysis of the concept of aggression. He stated, inter alia, that: “In order to determine the aggressor in the present case and to define, if necessary, the crimes committed, we cannot refer only to the Nuremberg judgment, because politics evolve, situations change and methods of action change, and the law must follow this evolution if it does not want to remain fixed on an outdated reality. Aggression is a typical example of these changes: as the universal conscience and international law unreservedly condemn direct armed aggression, the aggressor resorts to new, more subtle and more hidden forms. Vietnam is an example of this”.
6. Composition and organs of the Tribunal
At the London meeting, “Rules” of the Tribunal were adopted. They consisted of 12 articles divided into four sections: jurisdiction, composition, organs and operation.
As regards composition, article 2 listed the names of the 16 persons who had agreed to be members of the Tribunal, article 3 provided that the Tribunal could add new members accepted unanimously by the original 16, article 4 allowed each member to appoint a non-voting alternate, and article 5 required a quorum of at least half of the members for a plenary meeting to be valid.
The organs of the Tribunal were the Presidency, the Secretariat, the Executive Committee, the Technical Commissions and the Commissions of Inquiry.
While the rules concerning the composition of the Tribunal have not posed any particular problem, it cannot be said that the provisions of the rules on the organs of the Tribunal have always been fully complied with.
7. Procedure and rules of evidence
This issue was of great concern to the lay members of the Tribunal but was of secondary importance to the members of the Legal Committee.
They argued that procedural and evidentiary rules varied widely from country to country and that there were no international standards in this regard. They recalled Article 19 of the Nuremberg Statute: “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply, as far as possible, expeditious and informal procedures and shall admit any evidence which has evidential value”.
In fact, all the problems relating to the procedure were settled pragmatically. For example, there was the question of how the examination of witnesses should be conducted. According to the criminal procedure in the United States, witnesses are examined successively by the defence and the prosecution under the arbitration of the President who does not ask questions but decides on the admissibility of the questions asked. In French law, witnesses are questioned only by the President. It was decided that the witnesses would each give their evidence first, without being interrupted, and then any member of the Tribunal who wished to do so, would put questions to them. This produced an excellent result and very lively proceedings.
As far as the evidence is concerned, it was all admitted. The Tribunal had at its disposal extraordinary written, photographic and even cinematographic documentation. It heard a great many witnesses from both parts of Vietnam, from the United States and from other countries. Reports were submitted to him either by the investigators he had sent on the spot, or by the most qualified and diverse experts: historians, jurists, military, scientists, etc… To all this were added exhibits, samples of weapons and products, accompanied by the results of experiments carried out on them.
8. The defence of the United States
The London Declaration of November 1966, echoing an idea contained in Bertrand Russell’s appeal, invited the United States government “to present or cause to be presented any relevant evidence and to instruct its officials or representatives to appear before us in support of its views.
Not surprisingly, there was no response to this invitation, although it was repeated several times during the sessions. However, Mr. Dean Rusk, then Secretary of the State Department, told the press that he had no intention of “playing games with a 94-year-old Englishman”, to which Jean-Paul Sartre gave a scathing reply at the opening of the session on 4 May 1967. All those who had listened the day before to the reports on the ball bombs and the systematic bombing of hospitals were indignant at the vulgarity of the only American response to the Tribunal’s invitation.
Despite this shortcoming, the United States’ arguments and views were always examined by the Tribunal. As an example, let us quote this sentence from the judgment that closed the Stockholm session: “The Tribunal was anxious to examine scrupulously the arguments put forward in official American documents to justify the legality of their intervention in Vietnam. Particular attention was paid to the document entitled ‘Legal Memorandum on the Legality of United States Participation in the Defence of Vietnam.”
9. The appointment of officials
The London Declaration, after listing the five questions to be answered by the Tribunal, added: “If the Tribunal finds that any or all of these crimes have been committed, it will be for the Tribunal to determine who bears responsibility for them.
The Tribunal should have applied Articles 7 and 8 of the Nuremberg Statute in its search for responsibility: the first provides that “the official position of the accused, either as Heads of State or as senior officials, shall not be considered … as an absolute excuse”, the second that “the fact that the accused acted in accordance with the instructions of his government shall not relieve him of his responsibility”.
This would have forced the Tribunal to look for individual responsibility, from the bottom up, and would have inevitably led to the conviction of Lyndon Johnson, then President of the United States of America.
Now, in France, the place originally intended as the seat of the Tribunal’s sessions, the law punishes, as a criminal offence, the simple offence of insulting a foreign head of state, and no doubt it is so in the legislation of several countries.
It was therefore agreed that no designation of natural persons found guilty of crimes would be made. This decision was in line with what had been said about the legitimacy of the Tribunal. Sartre, in his inaugural speech, stated: “We have the power neither to convict nor to acquit anyone. Therefore, there will be no public prosecutor. There will not even be an indictment as such.”
10. The continuation of the Russell Tribunal
The international impact of the Russell Tribunal, after its first session in Stockholm, was such that it received numerous requests from various countries to refer to it cases other than Vietnam.
Unanimously, minus one vote and one abstention, the Tribunal decided to limit its “activity to the Vietnam War until such time as aggression and genocide in Vietnam and neighbouring countries have been stopped”.
In fact, the Russell Tribunal as it had been constituted in London in November 1966 and as it had met in Stockholm and Copenhagen in 1967, was never to meet again. It was only several years later that Lelio Basso took the initiative of a second Russell Tribunal, absolutely distinct from the first one, dedicated to Latin America.
This brief overview of the various legal issues that confronted the Russell Tribunal shows that the questions were answered, mostly pragmatically, as they arose. Practice preceded theory.
However, the constant concern of the Tribunal has been to ensure a scrupulous examination of the facts and an irrefutable legal argument. This dual concern, even more than the authority of its founder and members, explains the profound influence of the Tribunal’s work.
in: Marxisme, démocratie et droit des peuples, Hommage à Lelio Basso, Franco Angeli, Milano, 1979