Understanding the rationale, logic and procedures of the Russell Tribunal – Prof Mervyn Bennun

In his autobiography, Bertrand Russell describes the establishment in 1966
of the International War Crimes Tribunal to investigate atrocities by the
United States in Vietnam. He was joined by Jean-Paul Sartre, Isaac Deutscher,
and other leading figures in the project. Russell wrote that it had seemed to
him that what the United States was doing in Vietnam should be examined with
scrupulous care. He went on: “I believed that the integrity of the members
of the Tribunal, the fact they represented no state power and the complete
openness of the hearings would ensure the objectivity of the proceedings. We
also decided to accept possible evidence from any source, so I wrote to
President Johnson inviting him to attend the Tribunal. Unfortunately, he was
too busy planning the bombardment of the Vietnamese to reply”.

The first meeting of the Tribunal took place in November of that year. In
his opening speech, Bertrand Russell pointed out that the Tribunal had no clear
historical precedent. He said: “We do not represent any State power, nor
can we compel the policy-makers responsible for crimes against the people of
Vietnam to stand accused before us. We have no force majeure. The
procedures of a trial are impossible to implement”. He immediately
explained why these apparent limitations were in fact virtues: “We are
free to conduct a solemn and historic investigation, uncompelled by reasons of
State or other such obligations”. He concluded his address with the
memorable words, “May this Tribunal prevent the crime of silence”.

The Russell Tribunal on Vietnam was followed by a similar peoples’ tribunal
in the mid-1970s, which investigated State atrocities in Brazil and by the
Pinochet regime in Chile. Both these Russell Tribunals had a profound impact on
world opinion, and now the Russell Tribunal on Palestine is convening on the
same principles.

Bertrand Russell opened the second session of the Vietnam Tribunal with the
words, “We are not judges. We are witnesses. Our task is to make mankind
bear witness to these terrible crimes and to unite humanity on the side of
justice in Vietnam”.

This is not empty rhetoric. It is a statement of great jurisprudential
significance, for it puts the lie to the claim that the purpose of the Russell
Tribunal on Palestine is to put Israel on trial.

There is a commonly-drawn distinction between “accusatorial” or
“adversarial” criminal proceedings on one hand, and
“inquisitorial” criminal proceedings on the other. The distinction is
not a rigid one, and many legal systems (including South Africa, which follows
the “accusatorial” model) include elements of both while broadly
following one or the other model. There is more than one way of running a fair
and legitimate criminal justice process.

One of the criticisms levelled against the Russell Tribunal on Palestine is
that it is biased against Israel and Zionism, and therefore unjust from the
outset. This is because of a failure to understand (or to accept) that the
proceedings of the Tribunal are based essentially on the preliminary stages of
the inquisitorial model of criminal procedure. The Russell Tribunal on
Palestine, like earlier proceedings of the Russell Tribunal in regard to
Vietnam and South America, is not a “trial” and it cannot be one for
the reasons given by Bertrand Russell himself.

In the adversarial system (or adversary system or accusatorial system) the
parties present their cases before an impartial Bench of one or more judges
which determine the law, consider the evidence and make the necessary findings
of fact in order to acquit or convict. In some countries there is also a jury;
in that case, the jury makes findings on the facts and acquits or convicts on
the basis of the law as directed by the judge. In South Africa, our Bill of
Rights deliberately ensures that the playing field is not level, but tilted in
favour of the defence in compliance with international Conventions which
require factors such as the presumption of innocence and a heavy standard of
proof before there can be a conviction. The Bench and any jury in the
accusatorial system are impartial, generally playing little part in the
presentation and investigation of the case. Such a trial can be a summary one –
there may be no preliminary proceedings even in grave cases. It is important to
note that it is easy to identify the role of the prosecutor.

On the other hand, in the inquisitorial system in general, the examining
judge (in some countries, known as the juge d’instruction) with or
without a jury must first actively investigate a matter or complaint or
accusation to determine whether there is substance in it. It is not a trial at
this stage. The examining judge calls witnesses, questions them, and often
directs how the investigations should proceed. Such processes can comply
perfectly adequately with the internationally-prescribed presumption of
innocence and the requirement of a heavy standard of proof before there can be
a conviction at the subsequent trial. The careful distinction drawn in the
accusatorial system between the prosecution and Bench (with or without a jury)
is simply not relevant at this stage of the proceedings, and it is misleading
to attempt to draw one. The investigating magistrate or judge compiles a
dossier which goes on to the trial court if it is considered that there is
truly a prospect of a conviction.

In the powerful movie “Z” (pronounced “Zee”) which was
banned in South Africa (guess why!) featuring the music of Mikis Theodorakis
and the actors Yves Montand and Jean-Louis Trintignant, the point is made
clearly and dramatically. The film was set in the brutal regime of the Greek
colonels in the 1960s onwards. The examining magistrate takes statement after
statement, dispassionately and even sceptically, as he hears allegations of
murder by police and other officials of the State of which he is a part. As he
types the statements during his enquiries he makes it clear that in his view he
is hearing only accusations. But then, at a certain dramatic moment which is a
turning point in the story, he decides that he has heard enough credible
evidence. He is persuaded. He rolls a new sheet of paper into his typewriter
and starts writing an indictment; from that moment he is formulating definite
charges. He cannot convict – that is not his task – but he decides that he must
go to the next stage, and prepare a dossier because he is now satisfied that
there is a case to be made against the military and police officers he has been
investigating. He must now bring the matter to the criminal court which can
convict.

The Russell Tribunal on Palestine is in the role of investigating judges as
in the preliminary stages of the inquisitorial system. The question placed
before the Tribunal is: “Are Israel practices against the Palestinian
People in breach of the prohibition on Apartheid under International Law?”
Witnesses have been asked to present evidence to the Tribunal on the basis of
their personal experience or expert knowledge, and the jury of the Tribunal
will consider whether it can draw up an indictment on the basis of evidence
which has accumulated over decades about the abuse of human rights by Israel.

It is not the Tribunal’s role to prescribe a forum and modality for any
response by Israel, which has been invited to make a submission to the
Tribunal. As Bertrand Russell pointed out above, it is not a court in which
Israel is on trial and it cannot convict. The Tribunal’s jury can do no more
than draw up an indictment as advised by a group of leading lawyers who have
specialised in international human rights and humanitarian law.

The jury is a group of men and women whose credentials in the struggle for
human rights are beyond reproach. In Bertrand Russell’s book on the War Crimes
Tribunal on Vietnam, Noam Chomsky wrote in the Foreword, in reply to the claim
that the Tribunal was biased, that this was true. He wrote: “The participants,
the ‘jurors’ and the witnesses, were undoubtedly biased. They made no attempt,
in fact, to conceal this bias, this profound hatred of murder and wanton
destruction carried out by a brutal foreign invader with unmatched
technological resources.”

In Bertrand Russell’s last statement, dated 31 January 1970 and read on 3
February (the day after his death) to an International Conference of
Parliamentarians meeting in Cairo, he wrote: “What Israel is doing today cannot
be condoned, and to invoke the horrors of the past to justify those of the
present is gross hypocrisy”.

Over forty years later, a jury with similar “biases” is convening
at last: the jury of the Russell Tribunal on Palestine. Stéphane Hessel joined the
French Resistance to fight the Nazis in World War Two, was captured, and
survived Buchenwald by assuming the identity of another prisoner who had died
of typhus. He helped to draft the United Nations’ Universal Declaration of
Human Rights in 1946. Does anyone dare to challenge his credentials? Or perhaps
Alice Walker’s? Mairead Maguire’s? Michael Mansfield’s? Are these anti-Semitic
Jew-haters? Are human rights foreign to their lives’ work?

Ten such prominent people of integrity will be asked to draw up their
findings in the light of what they will have heard from the witnesses. The jury
have a heavy duty to formulate a conclusion which must stand up to critical
survey.

The judges will not be some individuals in the District 6 Museum on 5 and 6
November, but the people of the world before whom the conclusions of the
Russell Tribunal on Palestine will be placed.

_______________

Prof Mervyn E. Bennun

This article appeared in the CAPE ARGUS on Monday 31 October 2011

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One response to this post.

  1. Dear Prof Bennum!

    I’m working on a book about the first Russell Tribunal, of which you say: “Both these Russell Tribunals had a profound impact on
    world opinion.”
    I wish this were true – what do you base your evaluation on?

    Best, Dr Karl Stefan Andersson

    Like

    Reply

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