Léo Matarasso
in Cahier du GEMDEV n° 4 (Où en est le droit des peuples?), juin 1985
The first initiative in which I was involved was the development of the structure of the Russell Tribunal on US war crimes in Vietnam. There had been various attempts to form tribunals of opinion before, but they were somewhat informal and somewhat vague, and so I think the Russell Tribunal on American crimes in Vietnam was the first serious attempt to develop a credible tribunal of opinion that could be based on both serious findings of fact and sound legal argument. The Russell Tribunal on Vietnam was followed a few years later by a second Russell Tribunal on Latin America, which held three sessions and went much further in its analysis of the facts and in its legal analysis, since it pronounced condemnations not only against the dictatorial governments in place, but also against multinational corporations and against the policies of the United States.
And then, finally, in 1979, some of us took the initiative of setting up a Permanent Peoples’ Tribunal, made up of some 60 members, 11 of whom are chosen for each session. We thought it was necessary to ensure a permanent institution which, in the name of public opinion and without any State or governmental mandate, would pronounce on a certain number of situations. The Permanent Peoples’ Tribunal, as Edmond Jouve reminded us in his introduction, has already held twelve or thirteen sessions, ten of which have been published in the collection directed by E. Jouve at Berger Levrault and the session on the genocide of the Armenian people was recently published by Flammarion.
A number of questions arose for us at the beginning of the Russell Tribunal on Vietnam, and they were resolved rather pragmatically.
The first was whether to set up a fact-finding mission or a real tribunal that would compare the facts with the rules of law and issue a condemnation, although it had no power to impose sanctions. It is a moral, political and legal condemnation in the name of public opinion.
I was very insistent that the Vietnam tribunal should be a mere commission of inquiry and not arrogate to itself the title of a court, but in the end the majority of those who set up the tribunal agreed that it should function as a court and hand down convictions by weighing the facts against the law.
The second question was whether a court composed of preconceived judges could be credible.
Indeed, most of the judges who composed the Russell Tribunal, presided over by J.P. Sartre, assisted by L. Schwartz and V. Dedijer, were judges who were convinced of the reality of American crimes committed in Vietnam. This argument was somewhat similar to the one that had been advanced against the Nuremberg Tribunal after the last war, when it was said that it was the tribunal of the victors who judged the vanquished, and therefore, whose members were convinced in advance. The answer to this argument is that the fact that one is convinced of the justness of a case does not prevent one from scrupulously examining the facts in public sessions, with documents that are made public, and from confronting them with a law that is pre-existent to the fact; and it is in the manner in which the tribunal functioned in a serious manner, in an objective manner, that it found its credibility, even if it was composed of people who did not conceal their sympathy for the victim, that is to say, for the Vietnamese people
The third issue was one of legitimacy.
Is it legitimate for ordinary citizens without any mandate to arrogate to themselves the right to dispense justice; justice, it was said, is the privilege of the State; this problem took a certain practical turn when, in the framework of the Russell Tribunal on Vietnam which was to be held in Paris, members of the Tribunal were refused visas fifteen days before the beginning of the session. At that time, J.P. Sartre wrote a letter to President De Gaulle in which, astonished by this, he asked for visas to be issued. De Gaulle replied with a famous letter in which it was stated that, although he shared the opinions of those who were going to organise this Tribunal, he did not think that mere private individuals could arrogate to themselves the right to administer justice, which belonged to the State.
Sartre replied later in the “Nouvel Observateur” by saying that they would not pronounce any sanctions, that they were free men, and that they would note that certain facts had been committed, that they would confront them with the rules of law and that every citizen had the right to do so; but in spite of this, we had to urgently look for a fallback solution and we were able to hold the first session in Stockholm and the second in Copenhagen.
Another question for the members of the Russell Tribunal was what law should apply. Was the Russell Tribunal going to innovate, to create law itself? A tribunal cannot create law; it can only create jurisprudence, which is, admittedly, a form of law; the answer was formal and was also expressed by Sartre: it was not necessary to innovate on the legal level, but it was necessary to apply the rules of international criminal law such as they exist and mainly the three crimes of the famous Nuremberg trilogy: crimes against peace, war crimes and crimes against humanity. This is part of positive international law, not only because of the Nuremberg sentence, but because the Nuremberg sentence was subsequently the subject of a unanimous resolution by the United Nations and, indeed, the provisions of the Nuremberg statute were very closely applied. However, as Lelio Basso pointed out in his final summary report, there were concepts that had evolved since then, and in particular the theory of aggression had made a certain amount of progress, but that progress had been made within the framework of international law; innovations were being made, but the law as it had evolved was being applied.
Another question was: what was the applicable procedure? In the Nuremberg statute, it was said that the Nuremberg Tribunal adopted a very simple procedure, that it decided itself the value of the evidence and the way in which the proceedings would be conducted. We did the same thing.
But difficulties arose, especially on the part of the lay members of the court; they were always concerned and very afraid of doing something that was not sufficiently legal; for example, in the examination of witnesses. In Anglo-Saxon law, especially in American law, the witnesses are questioned respectively by one side and the other, the prosecution and the defence, and the president merely arbitrates and declares whether a particular question is admissible or not; in French law and in the criminal procedure of the assises, it is the president of the assises alone who asks questions, and the other parties may ask them later, but in the end it is he who questions. In the end, we decided that we would proceed in a way that would be neither one nor the other, each witness would give his or her testimony and after the testimony, each witness, each member of the court would have the right to ask questions, and this gave rise to very lively and animated debates.
A final question was the question of the defence of the United States. Could the United States be tried without being defended? It was originally intended that the United States would be invited to make any observations, to designate someone to present the United States’ point of view. Of course, there was no response to these repeated invitations, except once the tribunal was in place, a very cheeky response from the then Secretary of State, to which Sartre responded in a scathing manner. I won’t go into all these details, but in any case, it was agreed that all the official American publications justifying the intervention in Vietnam from a legal point of view would be examined in detail. All these documents were distributed to the members of the tribunal and, therefore, it can be said that their theory was set out in various reports, so at no time was the American point of view overlooked, despite the absence of the United States. These lessons were taken into account by the Russell Tribunal II on Latin America and, above all, by the Permanent Peoples’ Tribunal, which has a much more detailed statute than the charter of the Russell Tribunal I, but which only consecrated the experience acquired by the first Russell Tribunal on Vietnam, and whose preamble answers the question of legitimacy; Article three of the Charter indicates the applicable law, and articles fifteen and sixteen indicate how the respondent State or the respondents may present their case.
Can it be said that these courts of opinion have enriched the law of nations? I believe that they have contributed a great deal to raising awareness of the existence of a right of peoples and, in an area in which there is a lack of State action and a lack of international institutions, I believe that they have been a mouthpiece, a forum for a right of peoples, and I believe that, from this point of view, we can pay them unquestionable tribute.
in: Cahier du GEMDEV n° 4 (Où en est le droit des peuples?), juin 1985