Not judges but witnesses

When establishing the International War Crimes Tribunal in 1966 to investigate atrocities by the United States in Vietnam, philosopher Bertrand Russell insisted that the matter should be examined with scrupulous care. He wrote: “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.” He was joined by Jean-Paul Sartre, Isaac Deutscher and other leading figures in the project.

In his opening speech at its first meeting, 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”. These, he said, were merely apparent limitations: “We are free to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations”. He concluded: “May this Tribunal prevent the crime of silence.”

Now the Russell Tribunal on Palestine is convening on the same principles, which Russell explained when he said: “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.”

Echoing those who claimed that the Vietnam tribunal was biased against the US, the claim is made that the Russell Tribunal on Palestine is designed to put Israel in the dock in a biased trial.

This is based on a misrepresentation of the tribunal’s proceedings. In many countries, of which South Africa is one, the accusatorial model of criminal procedure is followed: in broad terms, a criminal court is constituted by an impartial judge who determines the law and makes necessary findings of fact — in some countries, an impartial jury performs the latter task. Generally the court plays little part in how the matter is investigated and how the evidence is presented, and so the roles of the defence and prosecution are clearly defined.

Yet, as Bertrand Russell pointed out, a “trial” is pointless, for there can be no conviction or enforceable sentence and so the Vietnam tribunal’s proceedings followed the inquisitorial model instead. In broad terms, an examining judge or magistrate (in some countries, with a jury) actively directs the investigation of a matter, calling and questioning witnesses.

If satisfied that there may be a case to be answered, the examining judge draws up an indictment, which then goes to the court of trial. Examples of such institutions (though they differ in details) are the grand jury in the US, and the juge d’instruction in France and other countries.

Putting Israel on trial
It would be fatuous for the Russell Tribunal on Palestine to set about putting Israel on trial: there is no person fulfilling the role of prosecutor as in accusatorial proceedings, and no claim is being made that what may emerge is a conviction.

The question posed for the jury of the tribunal is: Are Israel’s practices against the Palestinian people in breach of the prohibition on apartheid under international law? If the jury decides that it would be right to draw up an indictment, then it has the heavy task of writing one that will stand up to the intense critical examination to which real judges will subject it.

This will not be easy. This is not a theatrical performance with a predetermined script. What emerges must truly be based on the evidence of the many experts and of the personal experiences of those who have been asked to testify. It is not for the tribunal to determine whether or how Israel responds to the invitation to make submissions.

In the foreword to Russell’s book on the Vietnam war-crimes tribunal on Vietnam, Noam Chomsky replied to those who claimed that the tribunal was biased. 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.”

Those on the Palestine-tribunal jury match the stature of the original jury of the tribunal on Vietnam.

Of Jewish descent, Stéphane Hessel is certainly “biased”: he fought the Nazis as a member of the underground French resistance in World War II, and survived Buchenwald by assuming the identity of another prisoner who had died of typhus. After the war he helped to draft the United Nations’ Universal Declaration of Human Rights in 1946. Others — equally “biased”! — on the jury include the Nobel Peace Prize laureate Mairead Maguire, writer Alice Walker, and Antonio Martin Pallin, now retired from the Supreme Court of Spain but still active in Amnesty International and the president of the Human Rights Association of Spain. Those not mentioned have all made human rights their life’s work. Is it seriously suggested that these are anti-Semites?

In 1970, almost as his dying words, Russell 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.”

More than 40 years later, it is increasingly clear that what those who are so hostile to the Russell Tribunal on Palestine really fear is that the people of the world — the real judges — will hear the evidence and decide for themselves that the jury in the District Six Museum has properly reached the conclusion that Israel has a case to answer.

A former law lecturer at the University of Exeter, Mervyn Bennun was active in the ANC in exile and the anti-apartheid movement

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