By Professor Carla Ferstman, Essex Law School
I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.
This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.
People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.
In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.
People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.
In the case of the Aban Tribunal, the goal was to do all these things. And, to draw attention to the patterns of repression; impunity breeds recurrence and we are seeing this every day with the Iran Government’s brutal repression of the ongoing protests into the killing of Mahsa Amini. These tribunals can also serve as an end in and of themselves, by serving the goal of acknowledgement of wrongs and doing justice that otherwise would never had been done.
Who gets to decide what justice looks like?
What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?
Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?
In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.
As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.
In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.
In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.
Can justice exist without a government legitimising it?
In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.
Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.
But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.
It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.
The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.
How to avoid the accusation of Kangaroo Justice?
There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.
The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.
Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.
For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.
People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.
The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.