Peoples’ Tribunals and the Rule of Law

Marcos Zunino

British Institute of International and Comparative Law

Last month, the People’s Tribunal on Contested Citizenship in Assam met for two days in New Delhi at the Indian Society of International Law to discuss a situation affecting the rights of millions of residents of North-Eastern India. The People’s Tribunal organized by a group of NGOs and composed of retired judges, academics and activists focused on events in the State of Assam where the establishment of a National Register of Citizens (NRC) could lead to millions of people losing their citizenship. This recent initiative has built on a rich tradition of civil society tribunals spanning five decades.

Peoples’ tribunals are civil society bodies that examine evidence and arguments with the purpose of adjudicating questions of legal responsibility, usually for large-scale violations of human rights.  Unable to enforce their judgments, they seek to influence public opinion, raise awareness and develop legal arguments. As self-appointed bodies that lack any official mandate while claiming the right to adjudicate, peoples’ tribunals appear unlikely mechanisms for contributing to the Rule of Law. However, a closer look at their history, rationale and procedure yields interesting insights into their relationship with the Rule of Law.

The first peoples’ tribunal was the panel of eminent personalities convened by philosopher Bertrand Russell that in 1967 examined the conduct of the United States and its allies in the on-going Vietnam War. This was followed by another tribunal set up by the Bertrand Russell Peace Foundation in 1973, after the philosopher’s death, that looked into political repression in Latin America. Since then, peoples’ tribunals have proliferated covering a range of issues including the international crime of aggression, torture, gender-based violence, socioeconomic rights violations and environmental degradation. Peoples’ tribunals have adopted a variety of formats and procedures, but they often have a panel of notable members, not necessarily legally-trained, that assesses evidence and hears arguments before making legal findings.

Peoples’ tribunals have also been used to bring scrutiny to official courts. The Permanent Peoples’ Tribunal held a session in 1995 on crimes against humanity in the former Yugoslavia in which it made recommendations to the International Criminal Tribunal for the former Yugoslavia. The Argentine victims’ organisation Asociación Madres de Plaza de Mayo held a peoples’ tribunal in 2010 to examine the role of judges during the 1976-1983 dictatorship and their complicity with human rights violations, some of which were only belatedly beginning to be investigated by a new generation of prosecutors and judges. The People’s Tribunal on Contested Citizenship in Assam also scrutinised the conduct of the Indian Supreme Court in relation to the NRC.

The relationship of peoples’ tribunals with the Rule of Law has two dimensions: the Rule of Law as it applies to peoples’ tribunals’ internal procedures and their external impact on the wider Rule of Law. Concerning the former, due to the different procedures that these institutions have followed over the years, it is difficult to generalise. However, while almost all peoples’ tribunals make an effort to present the views of the defence, those under scrutiny before such unofficial bodies often refuse to take part. Some tribunals then appoint advocates to undertake the defence, whereas others rely on public statements and documents from those under examination. As a result, there can be an imbalance between the prosecution and defence. Moreover, the people appointed as members of a panel may hold views and opinions that give the impression of partiality. While these procedural flaws can be inimical to the internal Rule of Law, they are not a necessary feature of peoples’ tribunals, which can be designed so as to avoid them. Furthermore, their potential negative effects are contained by the fact that the judgments of peoples’ tribunals are not enforceable. At the same time, any such deleterious effects need to be balanced with any potential benefits for the wider Rule of Law.

Turning to the external impact of peoples’ tribunals on the Rule of Law, the main rationale for these bodies is often framed in terms of filling an accountability gap. Peoples’ tribunals often claim that in the absence of national or international judicial institutions willing or able to adjudicate a particular matter, civil society needs to step in to draw attention to that gap and to fill it. This certainly was the case with the 1967 Vietnam Russell Tribunal, whose establishment was expressly justified by the lack of a permanent international criminal court that could satisfy the expectations generated by the earlier Nuremberg trial. Similarly, the Permanent Peoples’ Tribunal, which has held almost 50 sessions since its creation in 1979, is meant to fill institutional and doctrinal gaps in international law. In drawing attention to the absence or inadequacy of legal norms and institutions and bringing to light abuses, peoples’ tribunals can make a contribution to the wider Rule of Law as advocacy bodies pushing for a more effective, comprehensive and fair system of protection and enforcement of human rights.

The People’s Tribunal on Contested Citizenship in Assam entailed a public examination of the NRC process. It discussed the NRC’s compliance with the Indian Constitution and the role of the judiciary in its implementation. The tribunal thus represented an effort of civil society to participate in the scrutiny of governmental policies and state institutions to monitor their conduciveness to the Rule of Law. 

Ultimately, whether any given peoples’ tribunal contributes to or undermines the Rule of Law will depend on its particular mandate, composition, procedure and functioning. But in providing a voice to the voiceless and advocating for legal and institutional reform, they have the potential to contribute to a substantive Rule of Law based on human rights.

Marcos Zunino is Research Fellow in Judicial Independence and Constitutional Transitions at the Bingham Centre for the Rule of Law of the British Institute of International and Comparative Law.

Suggested citation: Marcos Zunino, “Peoples’ Tribunals and the Rule of Law” IACL-IADC Blog (21 November 2019), https://blog-iacl-aidc.org/2019-posts/2019/11/21/peoples-tribunals-and-the-rule-of-law