The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law, the Alien Tort Claims Act allows civil actions, provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.
The Move to Civil Society Tribunals
To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67, which addressed criminal allegations arising out of the Vietnam War, whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.
The most direct precedent for KLWCT was the World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair, among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language:
The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony…. In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.
Unlike KLWCT, the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. [For a full account, see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).]
Justifying Tribunals of Popular Justice and Public Conscience
Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard, there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.
Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances, the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is, of course, impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.
The Legalism of the KLWCT
The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.
Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law—although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.
Tribunals of ‘Conscience’ or of ‘Law’?
It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.
This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT, it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity; and this is a move, however haltingly, toward global justice and the global rule of law.