Reflections on the Russell Tribunal on Palestine Session in South Africa
An allegation of apartheid, like genocide, stands for something evil in the public mind, and is associated with the kind of institutionalized racism that owes its name to the governing process of South Africa under white rule. But the crime of apartheid was generalized on the basis of this historical background, and has the status of an international crime. Directing such an allegation at Israel for its overall treatment of the Palestinians is a provocative accusation, but one that increasingly reflects a consensus among objective observers. But it is also the kind of issue that is evaded by established international institutions, including the International Criminal Court (ICC), for at least two reasons: Israel is part of the West, and the West in general enjoys a de facto exemption from accountability under international criminal law; Israel is geopolitically insulated from formal procedures of accountability by the United States and some of its European allies.
For the above reasons, if the crime of apartheid associated with Israeli oppression of the Palestinians is to be exposed in a convincing manner, it will depend on an extraordinary procedure of inquiry, one that is constituted outside of the formal operations of the state system, which includes the United Nations and ICC. For this reason, it is entirely appropriate that a tribunal established by free citizens should examine this question under auspices that may not have normal ‘judicial’ credibility and capabilities, but do possess ‘moral’ and ‘political’ credibility. The Russell Tribunal on Palestine (RToP), in my judgment, possesses this moral and political credibility, and thereby makes a courageous and necessary contribution in the struggle to achieve global justice, and close somewhat the law-defying loopholes granted to the cruel purveyors of geopolitics.
Against such a background it is my belief that the recent finding of the Russell RToP that the state of Israel is guilty of the crime of apartheid in relation to the Palestine people should be taken with the utmost seriousness by all those who affirm human solidarity and care about making visible the long ordeal of a suffering and vulnerable people. This finding, and the conditions that give rise to it, are conspicuously ignored by Israel and the United States and Europe, as well as by most media and the United Nations. Such neglect is partly a result of Israel’s geopolitical weight and partly the widely shared opinion that if a decision on law and rights is rendered by a procedure that is not constituted by governments or international institutions it deserves no respect even if it is the most reliable available means to reveal some ‘inconvenient truths.’
I firmly believe that the Russell Tribunal has credibility as a venue for truth telling despite being established and funded by citizens whose concern about the denial of Palestinian rights and Israeli defiance of international law was not a secret. RToP makes no pretense of being ‘a court’ with enforcement powers, but it does deny allegations of ‘cooking the books’ because its organizers were undoubtedly confident that a verdict of guilt would be rendered, given the fact that most of those sitting in judgment were already on record as critics of Israeli treatment of Palestinians and denial of Palestinian rights under international law. Indeed, it is this knowledge in advance, based on abundant and uncontested evidence, which best explains the motivations for mounting the extraordinary organizational effort to raise the funds and handle the logistics required to organize a proceeding of this type without relying on an established bureaucracy. This tribunal made no attempt to discover the truth, although representatives of those accused were formally invited to present their defense, but rather it considers its role to be one of documenting the truth. Israel has made no secret of the policies, laws, and practices that were presented to the panel of jurors in Cape Town, although it characterizes them differently, hides and obscures their application, and insists on a different set of conclusions.
It should be understood that RToP is an ambitious undertaking that has already convened sessions in Barcelona and London, and plans a fourth and final session in New York City during the coming year. This third session in Cape Town is notable for its focus on allegations of apartheid, while the earlier sessions had emphasized the Palestinian core right of self-determination and the criminal accountability of corporate involvement in Israeli violations of international law in their treatment of the Palestinian people.
Bertrand Russell’s Historic Initiative
It was the celebrated British philosopher, Bertrand Russell who suggests in his autobiography that he felt that the world of the mid-1960s needed to know about the Vietnam War in a manner free from self-serving slant and Cold War propaganda, and so he invited leading moral authority figures of global stature to take part in an unrestricted inquiry into the alleged criminality associated with the American role in Vietnam. In Russell’s opening statement at the International War Crimes Tribunal convened in 1966 to investigate the atrocities by the United States in Vietnam, he declared that the initiative had no clear precedent but that such openness was helpful as it allowed the tribunal “to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations.”
Russell ended these remarks by making clear the distinctive objective of the undertaking: “May this Tribunal prevent the crime of silence.” In effect, the narration of the criminality is undertaken not primarily to speak truth to power, which is generally deaf to voices from below, at least until they mount a revolutionary challenge, but to speak truth to people, awakening public opinion from its apathy to the responsibilities of being human (concern for the victimized other) and duties as citizens of a free society to ensure that a government acting in its name upholds the law and is not guilty of or complicit in international criminality. Russell expressed this orientation as embodying very grand—some would say grandiose—expectations: “our task is to make mankind bear witness to these crimes and to unite humanity on the side of justice in Vietnam.”
Actually, the outcome of the original Russell Tribunal was virtually unreported at the time (except derisively), and later its work was known only to small coteries of anti-war activists and intellectuals, and even they were often confused at the time about whether such a seemingly one-sided unauthorized event was helpful to the general cause of peace and justice in the world. With the passage of time, the Russell experience has gained in influence and reputation, but it remains an exaggeration to claim, as Marvyn Bennum does in an otherwise excellent article (“Understanding the rational, logic and procedures of the Russell Tribunal,” Cape Argus, October 31, 2011) that the Russell tribunals had “a profound impact on world opinion,” although this historic initiative provided the charismatic example in most respects for subsequent enactments of such an approach, including the RToP.
Unfortunately, although Russell’s words are often invoked as the core justifying claim, the reality after some 45 years is that such undertakings, and there have many since this first one, are rendered almost mute by a media that mostly thinks and feels like a state, which is especially so when the allegations are directed at the United States, a constitutional democracy that sits firmly at the pinnacle of geopolitical power and influence, and although declining at a rapid rate, remains the leader of the last hurrah of the West centric world order. The wall of silence erected by the West does not crumble easily if sustained by the combined corporate and military muscle at the disposal of Washington and its various collaborators in Europe and around the world.
As Russell said in 1967 at the second session of the Vietnam Tribunal, “[w]e are not judges. We are witnesses.” This witnessing is meant to be more politically effective than mere pronouncements of injustice and criminality, and has gradually in recent years become more so. As the state system has itself moved to criminalize certain forms of conduct, and even to establish an International Criminal Court, it seems more plausible for representatives of civil society to demand that the law should be applied to the strong as well as the weak, and to take action of its own in the event of a failure to do so. This makes the type of initiative associated with RToP less of a usurpation of governmental functions. It is an expression of global democratic entitlement and transnational human responsibility: persons acting on their own to do and say what institutions of the state are failing to do and say, that is, assess charges of criminal guilt.
It may seem to be the case that the Vietnam War Crimes Tribunal gave the game away at the outset by putting the words “investigate the atrocities by the United States in Vietnam.” Such provocative language makes us think more carefully about the nature of the game, and how it should be played. To deal with the impunity of the powerful in their abuse of the weak, the supposed uncertainty of outcome in a governmental trial (where some version of the myth of ‘innocent until proven guilty beyond a reasonable doubt’ is in force) is not present in this kind of setting. The very premise of the Russell Tribunal, and the many subsequent reenactments, is that it is the presence of such certainty that generates a sufficiency of moral outrage and political incentive to give rise to the inquiry. Frank Barat, the main organizer of RToP put the issue slightly differently, by observing “[o]ur intention has never been to find out if Israel were guilty or not, nor to start a debate about it. This work has already been done by UN bodies, human rights organizations, aid organizations and countless violated UN Security Council resolutions.” And further, “[i]t is our duty to stand with the oppressed in its quest for justice.”
In this respect, those civil society tribunals that try to imitate to enhance their credibility by mimicking a judicial model of inquiry and decision risk generating confusion. They make it more reasonable for critics to point out that if the tribunal purports to be trying to ascertain guilt rather than denounce it on the basis of a preexisting legal consensus, then a pretense of ‘judicial process’ does make itself subject to criticism as a hypocritical fraud. To some extent, the recently concluded Kuala Lumpur War Crimes Tribunal, while impressive in many respects, fell into this trap by emphasizing the legal credentials of its ‘judges’ who were almost all exclusively jurists who were only locally known and by putting forward a token defense on behalf of Bush and Blair who were being primarily charged with crimes against the peace in connection with initiating a war of aggression against Iraq in 2003. The Russell Vietnam Tribunal, in contrast, had clearly signaled its rejection of this vocational model of law (that is, law as the exclusive province of those trained and credentialed in law) by using the word ‘atrocities’ in naming itself, by not seeking to appoint individuals with a law background to serve on its panel of judges, and by not mounting any defense on behalf of those accused (although a ritualized invitation was issued to the then American president, Lyndon B. Johnson, to do so).
Obviously this issue raises a question for the future of such civil society efforts to document international criminality. Is it better to mimic the state-centric model of judicial process in a criminal case to the degree possible, or is it preferable to produce a morality pageant in which a true story is told with as much passion, reasoning, and proof as available? Of course, international law can be invoked in the pageant model as explained by Barat when he writes that the RToP “by using international law as its basis, proposes a no-nonsense way forward. The law is on the side of the Palestinians, so let’s make good use of it. The Tribunal intends to assist the people working on a just peace for all with the legal means they have crucially been lacking for too long.” (Frank Barat, “What is the point of the Russell Tribunal on Palestine?”) The pro-Palestinian claim as to international law here seems to correspond with a fair reading of relevant international law on all crucial dividing issues: settlements, Jerusalem, refugees, occupation, land, water, and the utmost issue, self-determination. So stacked it reinforces the moral condemnation. Incidentally, Israel seems to share this assessment as it has used all of its ingenuity and political skill to ensure that peace negotiations are carried on in a perverse atmosphere that excludes the relevance of claims of right with respect to international law. It is such an exclusion in these phony negotiations that allows Israel to rely on ‘facts on the ground’ to overcome the usual view that unlawful acts cannot generate legal rights. It is true that a genuine ‘peace process’ that considered rights rather than hard power as the basis of compromise and reconciliation would suddenly swing the balance of equities sharply in favor of Palestinian claims.