International Justice System v. People’s Tribunals: A Fictional Hierarchy

[Shadi Sadr was a member of the panel at the International People’s Tribunals on Indonesia, Myanmar, and China. She is also a co-founder and director of Justice for Iran, and a PhD candidate at Leiden University.]

It is inconceivable, in the post-Nuremberg world, for those affected by atrocities to find no avenue for justice. Yet, many atrocities have been neglected by both national and international formal justice systems. For almost six decades since  on US war crimes in Vietnam, communities of victims, survivors, and civil society actors have turned to the framework of people’s tribunals in response to such situations. People’s tribunals usually consist of a panel of independent lawyers or a mix of legal and non-legal experts. Typically, these tribunals employ international law as their legal foundation to investigate atrocities. They are often collective, participatory, and publicly broadcast processes, shaping public opinion to potentially instigate further actions. 

Despite their popularity, the conclusions of people’s tribunals are seldom quoted, and their contributions to international law remain mostly unexplored (p. 68). Although compliance with due process varies among different tribunals, as does the quality of their conclusions, regardless of these differences, there is a blanket hierarchy drawing a distinct line between formal proceedings and people’s tribunals. The former is accorded significant weight, while the achievements of the latter are either ignored or, at best, considered as footnotes to serious debates in international law.  This hierarchy, reinforced by state officials, media, and other influential figures, dismisses the judgments of people’s tribunals by regarding justice primarily as the execution of state or states’ power. Anything which falls short of this, due to a lack of authority, is considered to lack legitimacy and is therefore deemed unworthy of study. This perspective overlooks the fact that the legitimacy of people’s tribunals derives from the mandate often entrusted by the communities of victims. 

This article will debunk major criticisms of people’s tribunals, demonstrating that the most important deficits and shortcomings mentioned as excuses for ignoring them in academic discourses are also deficits of the international justice system, particularly from the victims’ perspective.

Lack of Participation of the Implicated Parties

The implicated states, entities, and individuals subject to people’s tribunal accusations typically ignore them. People’s tribunals employ various strategies to ensure that the implicated parties are aware of the accusations and have an opportunity to respond. Many tribunals invite the implicated parties to present their evidence, and some use amici curiae to address gaps in the involvement of implicated states (p. 299). 

The international justice system has also consistently grappled with the enduring issue of limited participation, largely dependent on states themselves in international criminal justice systems. Certain mechanisms, like referrals from the United Nations Security Council to the International Criminal Court (ICC), have been established to address the justice and accountability gap resulting from the lack of states’ participation. However, the ICC, lacking a police force or enforcement body, relies on state cooperation for arrests or transfers of individuals in custody. Furthermore, activating these mechanisms requires significant political will, often absent in numerous atrocity cases. Consequently, victims are left with the stark choice of either dying without seeing justice or engaging in informal justice initiatives such as people’s tribunals.

In response to this deadlock, a growing trend in formal criminal proceedings, especially in universal jurisdiction cases, acknowledges the difficulty of locating suspects associated with oppressive regimes at the right place and time. This gap in justice for victims has prompted innovative approaches. Notably, the German federal prosecutor initiated structural investigations into Syria several years before the first suspects were found on its soil (p. 787). Similarly, a federal criminal court in Buenos Aires is investigating a case against Myanmar authorities for the Rohingya genocide in the absence of the defendants. Despite the unpopularity of trial in absentia, discussions on prosecuting Vladimir Putin and his aides for aggression in a special international or EU court have also persisted since Russia’s 2022 Ukraine invasion.

Non-Binding and Symbolic Nature

The non-binding nature of people’s tribunals is inherently its most significant flaw, leading many scholars to label the judgments as ‘symbolic.’ Nonetheless, several justice mechanisms supported by states’ authority, such as the advisory opinions of the International Court of Justice (ICJ), or the UN Human Rights Committee’s jurisprudence are also non-binding but nevertheless play a substantial role in shaping and influencing international law.

Moreover, the binding judgments of some international or regional rulings are not easily enforceable unless the states in question abides by them. For instance, Turkey continues not to comply with the judgments from the European Court of Human Rights (ECtHR). The ICJ biding ruling on provisional measure in South Africa v. Israel where the world court obliged Israel to prevent and punish actions that may amount to the crime of genocide is another example. If implemented by the State of Israel or the member states of the Genocide Convention, the outcome likely would have been a significant slowing down of the conflict in Gaza. Over six months on, nothing has changed in terms of the warfare methods Israel has been using and the polices in place despite the much-praised decision on provisional measures against Israel. 

Generating Unrealistic Expectations

Some argue that by mimicking real trials and adopting the same terminology as courts, people’s tribunals create a false impression of authority, leading to unrealistic expectations among victims’ communities, who are often unaware of the non-binding nature of the tribunal’s judgments. Contrary to this argument, a brief examination of communication materials, such as press releases and public statements of people’s tribunals, proves that most of them have consistently emphasized the informal nature of their processes.

Moreover, the level of disappointment among victims is even greater when the formal mechanisms, created with great promises, fail to meet their expectations. Victims often find international legal processes too complicated to grasp and misaligned with their immediate needs, rendering them both misunderstood and irrelevant. The ICJ’s January 2020 order on the application of provisional measures in Gambia v. Myanmar serves as a notable example of how an international court decision can fall short of the expectations of victims’ communities. The ICJ obliged the government of Myanmar to cease any genocidal acts or incitement and preserve all evidence. However, despite its historical significance, it did not address the repatriation of Rohingya refugees stranded in Bangladesh—a measure considered by the community, as well as activists and scholars, equally as important as the crucial step toward justice. 

Limited Impact on the Ground and Beyond

Another noteworthy critique of people’s tribunals is their perceived lack of enforceability, rendering their judgments ineffective in instigating change on the ground, and especially beyond local contexts. However, even the enforceability of judgments from the ICC or ad-hoc tribunals, which may entail prison sentences for perpetrators, has demonstrated much less impact on the victims’ communities than originally anticipated. For example, the EU Council’s commissioner for human rights has recently published a report warning that the impact of legal breakthroughs in the aftermath of the wars, such as the establishment of the International Criminal Tribunal on Yugoslavia (ICTY), and the arrest and conviction of many of the political and military leaders responsible for the mass killings, are beginning to fade and impunity is returning. According to the commissioner, a concerning trend has emerged of individuals convicted and sentenced by the ICTY return to their communities as heroes. Conversely, certain people’s tribunals have driven tangible change on the ground. For instance, the report ‘Buried Evidence,’ published by the International People’s Tribunal on Kashmir, prompted the Indian government to establish an ad-hoc commission to investigate the 3,000-plus unmarked graves in Kashmir (p. 6).

A thorough assessment of the impacts of people’s tribunals beyond local contexts and their contributions to the broader picture, such as international law, is yet to be conducted. However, some documented examples are available (p. 743). In several instances, people’s tribunals have outpaced formal justice proceedings. The 2014 Russell Tribunal on Palestine concluded that “Israel subjects the Palestinian people to an institutionalized regime of domination amounting to apartheid” and the Permanent People’s Tribunal (PPT) on Myanmar recognized the acts of the Burmese government against the Rohingya as genocide in 2017.

In some instances, people’s tribunals have stretched the boundaries defined by international law, either by addressing issues not traditionally considered within the scope of international crimes or by proposing novel interpretations of laws (p. 309). The PPT’s session on ‘Pandemic and Authoritarianism’, which held the Brazilian President accountable for crimes against humanity related to Covid-19 prevention policies and resulting deaths, serves as a notable example of such an approach. 

What is Justice?

In his famous essay, ‘What is Justice’, Hans Kelsen pointed out that “the most illustrious thinkers have failed” to answer the question of what absolute justice for which “[hu]mankind is longing” is (p. 24).  He then concluded:

“I must acquiesce in a relative justice and I can only say what justice is to me… justice, to me, is that social order under whose protection the search for truth can prosper. ‘My’ justice, then, is the justice of freedom, the justice of peace, the justice of democracy-the justice of tolerance.”

Therefore, before and above the question of the means, of how to achieve justice, lies the fundamental inquiry of what justice means to the victims and survivors. Victims’ communities engaged in formal international justice proceedings are often told that the system is not perfect, and in fact, far from perfect, but it is the only thing that we have. Despite acknowledging the relativity and shortcomings of the formal international justice system, along with its persistent failure to meet the justice expectations of victims of atrocities, a hierarchy still exists between the formal international justice system and people’s tribunals. This post has demonstrated that the hierarchy is fictional to a considerable extent – the distinction becomes blurred when considering the meaning of justice for victims and evaluating their respective impacts on the promised offering of justice to societies affected by atrocities. People’s tribunals provide a degree of justice to victims by acknowledging their truths through often rigorous examination of evidence. Placing these truths within the framework of international law allows victims’ suffering to be expressed in a credible, internationally recognized language, conveying the gravity of the situation and unsettling the world for its lack of action.

In the world of imperfection, the hierarchy between the international justice system and people’s tribunals must also be challenged in the field of legal studies. The significantly under-studied conclusions of people’s tribunals are valuable assets for the development of international law (p. 171), produced by a community of hundreds of the most committed and, in some cases, the greatest, lawyers globally. Justice for their incredible, generally pro-bono, work can only be realized by recognizing the potential contribution their work has made beyond successful local public campaigns to the broader context of international law theories and practices.