24 Jul Legitimation Crisis or Access to Justice? On the Authority of International People’s Tribunals
[Aldo Zammit Borda is Head of Research and Investigation at the Uyghur Tribunal; Stefan Mandelbaum is a Senior Lecturer at Anglia Ruskin University and Marilena Stegbauer is Assistant to Counsel at the Uyghur Tribunal.]
Wherever allegations of mass human rights violations emerge, like in the recent case of the Uyghurs and other Turkic minorities in Xinjiang, the legitimate expectation is that the primary authority to take effective action to combat impunity rests with the affected State or with the international community of States. This primary responsibility of States merely mirrors the fact that each atrocity takes or has taken place in one or many juridically administered territories and that territorial control is the conditio sine qua non for a swift and effective remedy.
Such territorial fragmentation of responsibility only becomes a problem, however, once States are not willing or able to take appropriate measures to respond to atrocities in their particular jurisdictions. There are, unfortunately, countless such cases of States preferring to deny or to look the other way. And, in many such cases, international organisations, including the International Criminal Court, do not always have the necessary mandate or jurisdiction to step in. Thus, even though the global fight against impunity has indeed made progress, the truth is that it still remains a fledgeling venture, subordinated to power realities.
In these contexts, human rights initiatives are more likely to come from individuals and nongovernmental organizations rather than from governments. It is in such contexts that International People’s Tribunals (“PTs”) gain in significance, when States and international organisations fail to take effective action. Initially, PTs have what Falk has called a “residual responsibility” in (Falk, 2007, p. 180) to respond to unanswered calls for action. In other word, PTs derive their initial, input legitimacy to start proceedings in a residual manner, as an “act of defiance against official silence” (Chinkin, 2006, p. 210).
Take the case of the Uyghur Tribunal which was formed to investigate “ongoing atrocities and possible genocide” against the Uyghurs, Kazakhs and other Turkic Muslim populations. This PT was launched in September 2020 and has held public hearings in London in June 2021 and will continue to do so in September 2021. As such, it is the latest example of international PTs, which have proliferated over the past few decades promising to address atrocities that have fallen through the net of a purely statist international legal order and a geopolitical stalemate.
And yet PTs in general remain relatively unknown in mainstream international criminal justice. Their conclusions are seldom quoted and their contributions to international law remain mostly unexplored. To some extent, this lack of attention is a result of the dominant view amongst international legal theorists that PTs suffer from a legitimacy deficit. State actors and representatives, for example, tend to view them as usurping State powers and thus as illegitimate. And, indeed, when Bertrand Russell and his colleagues sought to organise the First Russell Tribunal in Paris, the French President retorted as follows:
I have no need to tell you that justice of any sort, in principle as in execution, emanates from the state. […] This is why the government has decided to oppose the Tribunal’s meeting in our country since, through its very form, the Tribunal would be acting against that very thing which it is seeking to uphold (cited in Byrnes & Simm, 2018, p. 30-1).
The discourse of legitimacy/illegitimacy in international criminal justice tends to be rooted and to reflect a primarily statist standpoint. According to this standpoint, only institutions sanctioned by States are morally and legitimately justified in engaging in justice-delivery. In other words, in the ‘language game of legitimacy’ non-State justice responses are necessarily perceived to lack legitimate authority and are thus put on a perpetual argumentative backfoot as concerns their justification. Indeed, States routinely use the discourse of legitimacy to either seek to discredit the work of PTs or to avoid having to engage with them.
And this approach has tended to be perpetuated by practitioners and academics too. Apart from a small group of scholars and practitioners who have participated in the work of PTs and who have tended to be supportive of them, a large number of experts, in assessing the legitimacy of PTs, have tended to apply the statist standpoint and have thus shared exactly the attitudes of State actors towards PTs, viewing them as, at best, “interesting experiments,” and, at worst, as illegitimate. This would also explain, at least in part, why the work of PTs has tended to be overlooked in mainstream international criminal justice.
Yet, this exclusive association of legitimacy with State action mirrors a very traditional legal positivist argumentation that sees the authority of laws and State actions as being the manifestation of an unobstructed pedigree of authority delegation from a sovereign entity downwards. However, this traditional legal positivist argumentation has been increasingly and consistently challenged. There is no reason for which other initiatives, not emanating from States but from civil society, may be deemed as justified or legitimate, if they fulfil a judicial function in the same manner (proceedings) and on the same ground (access to justice) as State adjudication mechanisms. This is particularly so where States forgo their ‘right of first refusal’ to set up adjudication mechanisms in face of allegations of gross human rights violations.
Legitimacy has both normative and sociological aspects. While State institutions like courts are normative and derive their legitimacy on the basis of their place within a rational and legitimate legal order, some institutions, like PTs, generate their legitimacy the other way around: PTs verdicts and advisory opinions become normative through increasing social acceptance and recognition of the global community. The sociological legitimacy of PTs is thus based on “symbolic validation,” that is, a public perception of legitimacy: “[i]t is thus not the foundation that legitimises PT[s], but people who trust them” (Duerr, 2019).
If one accepts this argument that PTs may be endowed with sociological legitimacy, we believe, for reasons discussed below, that the most powerful source of initial, input legitimacy is indeed located in the imperative to investigate impartially allegations of “untold suffering” of victims-survivors. “Untold” both in the sense of “significant” (given that these allegations relate to gross violations), and in the sense of “unacknowledged” and not investigated by an official mechanism of inquiry.
This argument is underpinned by a cosmopolitan notion of normative individualism, where human beings are taken to be “self-originating sources of valid claims” (Pierik & Werner, 2010, p. 2), and victims-survivors constitute a special category of such persons who, from the perspective of global justice, deserve particular attention. In discharging their residual responsibilities, PTs may thus partly fill a gap in the current international criminal justice system by opening a new avenue for access to some level of justice. They do this by giving a voice to and, where appropriately evidencing and validating, the untold suffering of victims-survivors. According to Chinkin (2006, p. 216), it is the power of personal testimony given to a public audience in conditions of solemnity that offers PTs the strongest source of legitimacy:
[l]egitimacy derives from the strength of narration, supplemented by expert evidence, objective documentation and the full historical context. Above all, this provides the legitimacy of hearing those voices that are silenced by international and national judicial arenas and the moral legitimacy of victims – not state elites, nor legal representatives – speaking for themselves.
Indeed, in a survey of victim-survivors’ perspectives on PTs, Paulose (2019) found that they were generally supportive or strongly supportive of such initiatives. For instance, one individual (GF) held: “[t]he People’s Tribunal is such an important part of my life. In short, it gives a voice to survivors who have been made to be silent to hide the abuse”, and another (JZ) emphasized: “April 7, 2019 is a day that I shall never forget. On that day, I was invited, as a labor camp survivor, to testify regarding my personal experiences related to forced organ harvesting, before [China Tribunal]. […N]obody knew how long I had waited, what a journey I had travelled, and how grateful I was to be given such an opportunity!”
Naturally, in order for the allegations of “untold suffering” of victims-survivors to serve as a source of their legitimacy, PTs have to derive their mandate from the victim-witnesses themselves. Rather than being designed as top-down initiatives, therefore, they should ideally be grassroots initiatives. For instance, the most important distinguishing feature of the Iran Tribunal was that it came from the grassroots, the Mothers of Khavaran, rather than Western intellectual elites and activists a world away.
It is clear, therefore, that in order for PTs to be able to claim that they are representative of those in whose name they claim to speak, their mandates must derive from victims-survivors and, indeed, their input legitimacy will remain closely dependent on their ability to give voice to the allegations of “untold suffering” of victim-witnesses. However, given that victims-survivors also have clear vested interests in the process and outcomes, PTs should be structured in such a way as to ensure the proper separation and independence of their procedures and outcomes. While, therefore, a mandate from victims-survivors’ groups is a necessary condition for PTs to gain initial legitimacy, it is not sufficient to secure broader and sustained acceptance for their processes and findings. For this, a robust adherence to fair trial and procedural standards will also be necessary.
In conclusion, while the social recognition of PTs derives from being a possible and, in some cases, the only possible, response to an unheard yet legitimate call for action in the interest of global justice and human rights, it is also clear that a rigorous legitimacy discourse is a battle to be lost for PTs lacking State support. In the register of this discourse, it is relatively easy for the work of PTs to be dismissed as “illegitimate” as lacking a formal basis. However, the failure of States or international community to act in face of allegations of gross human rights violations is itself rarely labelled as “illegitimate.”
In the final analysis, it is argued that, with the residual responsibility as enabling circumstance, PTs do not actually challenge the of prerogative of State authorities, as portrayed by critics, but rather complement the very notion of an access to justice that underlies State authority itself. Or put another way, PTs challenge one set of State prerogatives – exclusivity in the areas of governance and justice-delivery – to reaffirm another set of State prerogatives – promoting access to justice for victims-survivors, in cases where States and the international community themselves fail to act.
Eventually, it is really either-or. Either refrain from action due to traditional legitimacy challenges or put access to justice considerations first and let legitimacy follow.