A People's Tribunal Against the Crime of Silence? -The Politics of Judgement and
an Agenda for People's Law
Faculty of Law
University of Warwick
Street protests, public demonstrations, civil disobedience, direct action, citizen's juries, peoples' tribunal, transnational social movements, peoples' agendas, declarations and proclamations…these are all phenomena of social protest that are increasingly becoming familiar within the contemporary political environment. Both nationally and internationally, large numbers of ordinary people are rising up in judgement against their 'democratically-elected' representatives and their patrons and paymasters. As a motley crew of dissenters they might present themselves, for example in the streets of Seattle, Davos, Melbourne, London, Prague, Genoa - a representation favoured by the mainstream media – and in less known streets, and on less publicised occasions, the world over. Yet from this trend of asserting the voice of protest can be discerned, perhaps, a potent force – a growing movement by the 'weak' of the world to reclaim law. The realisation that the legal process, controlled by the interests of dominant political and economic actors, has served to maintain the marginalisation of the social majorities, however, is not recent. But with the increased visibility of people's action, there is also a perceptible rise in new initiatives for the 'doing of law'. These primarily are concerned with providing an alternative 'legal' forum for the voices of suffering to denounce the power of dominant law which refuses to name their violation a crime. An example of such an initiative, which has a rich history, to do law differently is the Permanent Peoples' Tribunal (PPT).
Set in the historical context of 'alternative' sites for the public discoursing of truths, the aim of the PPT is to provide a forum for the telling of truths and narratives of violation and suffering and to transform the praxis of law so as to amplify the voices/voicings of people's truths in their struggles against State as well as corporate-induced violence (that sphere of human wrongs yet untouched by the notion of 'international crime'), and to contribute to transforming the judgement of misfortune which still prevails to one of violation. The question - how to do law? - thus, becomes crucial to the conceptualisation of this alternative of a 'peoples' law'. Ultimately, we find, the question relating to the 'doing of law differently' revolves around the central issue of the politics of 'judgement'. It is this relationship between law, judgement and the struggle for the recognition of violation that this paper explores.
Keywords: : Politics, Crime of Silence, Permanent People's Tribunal, Dominant
This is a Refereed article published on 19 Decemeber 2001.
Citation: Nayar J, 'A People's Tribunal Against the Crime of Silence? - The Politics of Judgement and an Agenda for People's Law', Refereed article, Law, Social Justice & Global Development (LGD), 2001 (2) . <http://elj.warwick.ac.uk/global/issue/2001-2/nayar.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/nayar/>
Between misfortune and violation: this then is the site of struggle for the politics of judgement on human suffering. The struggle to name wrongs is the struggle to judge violation where merely misfortune is presented. The struggle to hear silenced voices is the struggle against the 'crime of silence'. Through this struggle then, maybe we might hear the voices of the violated say....
'We the Peoples' – with these words resound the 'modern' constitutional claim of the legitimacy of Law in 'society'. Within states, and now even encompassing the society of states as manifested through the global polity known as the 'United Nations', this notion of 'We the Peoples' expresses the vision of a humane politics, regulated by law. The Law, it is claimed, is for all. No one stands excluded from its concern and reach. There exists a recognised mutuality of welfare and suffering that unites us all in the quest for justice and well-being. No longer is permissible arbitrary minority rule where the whims and desires of the few imprison the many within a condition of subjugation, destitution and violence. And so we move towards a family of humankind, a universal 'we' - the 'Global Village'.
But this 'village' is a violent one.
3 billion or so people today live on a daily income of less than US$2, this at a time of unprecedented global wealth. But these statistics of the global disparities of wealth and opportunities are well known.
The 'Global Village' that is purportedly under construction – a 'village' with its landscape dominated by the towers of The Bretton Woods institutions, the WTO, NAFTA etc and whose streets are controlled by gangs of private corporations - is not one which was envisioned in their minds. The global majorities had little architectural input into the shape of world order, past or present.
No great power of analysis is required to come to this conclusion. It would not have been the design of the majority of the global population to create a world which perpetuates their condition of impoverishment and suffering. It would not have been their laws which legalise their destitution. It would not have been their sense of justice which sanctions the violence inflicted upon them - the consolidation of police states in the name of 'security', the creation of labour camps in the name of 'free-trade zones', the decimation of community livelihoods and environments in the name of 'economic growth', the plunder of both material and intellectual resources in the name of scientific research.
So much for the myth of: 'We the Peoples'!
The sacrifice of ordinary lives at the altars of dominant and dominating ideologies is, of course, a practice with a long and violent pedigree. Today, the vocabulary of neo-liberalism provides the legitimising language which is used to subjugate the 'primitives' of the world; in the past, the project of 'civilisation' served the same purpose. All sanctioned by law, where legality equates with the right to violence, the right to impunity.
So what do we do? How do we reconcile ourselves to the 'ideal' of 'law' if the law itself grants the powerful licence to inflict upon the weak their violence, if the legal processes themselves are manipulated by the powerful to acquire for themselves impunity from the violence they inflict upon the majority of the human population? Perhaps, by reclaiming the process of the 'doing of law'. Perhaps, by reclaiming the very idea of law. It is towards a beginning along this direction that this paper is directed.
First, from the attempt to conceptualise a process which aims at an alternative 'doing of law' from the perspective of the violated, I have sought to question some assumptions about 'dominant' law as a mechanism for social judgement. This is the subject of Part 1 of this paper. I suggest that dominant law, despite its sophisticated and often exclusionary rituals and languages, represents at base a mechanism for the entrenchment of social judgement upon the public memory. In this respect, it is a, and merely a, mechanism for the discoursing of truths where the struggle for the naming of wrongs and the judgement between violation and misfortune is waged. When seen in this light, much of the splendour and mystique of law is eroded and the essentially public function of law returned to its political base - the politics of judgement.
Second, I consider the philosophy and the practice of the PPT as a means of promoting the voices of an alternative, 'peoples' legality'. In Part 2, therefore, I provide a historical understanding of the PPT as a self-consciously political creation for the explicit purpose of challenging the constructions of dominant law and thereby seeking to reclaim for the purposes of suffering humanity the voice of judgement. It is in this respect that the PPT may be regarded as a site of and for a peoples' legality against the crime of silence.
Finally, these reflections have led me to contemplate a possible future agenda for the PPT. Part 3, therefore, outlines some of the issues which I believe are crucial for collective reflection and action towards enhancing the institution of the PPT as a force of peoples' judgement that is based on the articulations of legality that primarily emanate from, and directed to service of, communities of the violated.
As I see it, underlying this effort of the Warwick session of the PPT is a conviction, arising from experience, that, too often, the workings of what can be regarded as 'dominant law' inflict a second violation on communities of suffering; the first having been the original violence which imposed upon them the realities of the victimised, the second, through a judgement of denial, the apparent negation of their experiential suffering as resulting from violation - that instead it results from mere misfortune. Law has this power and authority, it seems, to 'categorise' suffering, its determination, 'judgement', inscribing upon the social memory the thin, but crucial, line between 'violation' and 'misfortune'. If this is the 'power' of law, then its mechanisms of judgement need to be unravelled.
It is often the case that truth and 'justice' are locked together as the corollary components for considerations on law. Justice, from truth, it is presumed, is the natural and necessary concern for law's work, and the essential yardstick for its efficacy. Although 'law as justice' may be recognised as too naive and simplistic an equation, the extent of law's approximation to justice is, nevertheless, the test to which it is put. It is assumed, and law promises so, that law's work is to excavate the truth, and thereby, to administer a justice that is true. Upon its perceived failure to do so, it is sought to be admonished.
But law's co-relation with 'justice' is a subject of contestation, often depending on the subjective positions of the contestants vying for law's favours; 'justice' that is derived from a determination in/through law may be perceived and experienced from the perspective of the 'loser' as 'injustice', or a 'miscarriage of justice'. Whether the treatment of a particular social context, in/through law, of conflicting desires is a 'just' one, depends largely on the perceptions, and positions, of the parties to the conflict. Despite this inherent subjectivity of justice, however, law's authority requires that this is subordinated to the general demand that law's 'Justice' must hold superior worth to any subjective view on the matter determined. Specificities of subjective perceptions aside, the justice-determination of law in any given context must, it is asserted, reign supreme. This is not to say that law can never countenance the prospect of 'injustice' arising from its application, or that it can never remedy instances of injustice (the very processes of appeal and counter-appeals may be seen to provide the law-process of 'justice-doing' with the claim that its determination is one that, ultimately, is 'just'). It does mean, however, that law sets the terms of (a law-recognised) justice/injustice within the boundaries it imposes based on the overall presumed and assumed sanctity of its authority.
This claim (assumption, presumption, faith) of law to be the supreme 'site of struggle' wherein the powerful and enticing appeal to 'justice' is invoked as its primary concern, infuses even critical, 'activist', engagements with law - the point of many such engagement itself being the 'struggle for justice', as if, and assuming that, 'justice' is a gift, a prize, for law to dispense, as it 'justly' pleases. And not without some periodic success too, which enhances the call for more sustained activist legal campaigning within sites of dominant law. I do not intend to pursue here this debate on the 'spaces' for social transformation afforded by law; this must be one that continues always with the specificities of contexts providing the substance of this debate. Rather, I wish to suggest a different starting-point from which we might reflect on law and its 'doing'. This is a perspective which makes explicit the question of judgement which I see as underpinning the rationalised functional authority of (dominant) law.
Moving away from the view that law serves as an arbiter of justice arising from determinations of truth, I suggest that law may be seen as a mechanism for the arbitering of (contested) truths from which a particular truth-judgement is arrived at. Justice, in this view, is a subsequent value-imposition upon that judgement, ideologically and contextually informed. This in itself does not challenge the demand of law that its determination is ultimately what counts, that its judgement, authored through the processes it prescribes, is to be recognised as the final statement on 'reality' inscribed upon the 'official' and public record of social memory. However, when this perspective of judgement on truth is coupled with the insight that judgement is always determined by the truths-claims we (are permitted to) see/hear/know, then it becomes necessary to reconsider the role of law within the social process of forming judgements upon (contested) truths of (alleged) wrongs.
We are all constantly engaged in the continuous process of making judgements upon the bombardment of truths we are confronted with[9 ]. As an everyday occurrence, social life revolves around the constant negotiation and re-negotiation of truths in relationships. Our 'human consciousness' of the 'reality' of our 'worlds' is dependent upon these truth-reflections, always contingent upon the mediated judgement that is brought to bear on the many truths that together comprise the interactions, and intersections, between ourselves, as social humans, as well as in relation to our social connections with 'nature' as the environment of the human world. Judgement on truths is therefore, the essentially human possibility of being with the world arising from the primordial necessity of being in the world. The significance of unveiling the process of judgement is all the more critical when, as now, we are concerned with truths of wrongs and judgements of violation.
So, how are judgements upon truths of wrongs formed? I believe that we have to be aware here of three processes, and 'locations', of judgement, which although are undeniably connected in a 'trialectical' relationship, nevertheless remain as distinct happenings and sites. I refer to these respectively as 'intra-personal', 'inter-personal' and 'public' judgement.
By 'intra-personal' judgement I mean to the process of locating the 'self', as an embodiment of 'society', within the wide spectrum of relationships that comprise the life-world. Judgement in this context is a process undertaken in isolation, itself isolating, of critical introspection and self-reflection, albeit with the full weight of the social conditioning of the self acting as a gravitational force which grounds the self to his/her location within the universe. Here, 'pain' is the experiential truth; judgement upon that pain determining the 'value' attached to it as either an infliction ('I have been wronged/violated') or an existential burden ('Such is my fate') or even self-admonishment ('I should not be so sensitive/stubborn/bad!...'). The outcome of intra-personal judgement may be understood as 'personal memory' which serves as the impetus for rebellion, stoicism or self-negation.
'Inter-personal' judgement brings the truth of pain out into relationships of communication. Here pain ceases to be a burden of isolation, rather, it transforms itself into a discursive terrain of and for social experience whereby judgement becomes a collective process, out of isolation, into the realm of dialogue and solidarity, which ascribes to truths of pain a 'social' value of either an infliction ('You/we have been wronged/violated'), existential burden ('Such is your/our fate) or even admonishment ('You/we should not have been so sensitive/stubborn/ bad/ backward!) And the outcome of inter-personal judgement may be understood as social memory that serves as the impetus for sympathy/collective action/collective rebellion, sympathy/support/resignation, or collective negation.
Finally, 'public' judgement refers to a process of objectification. Neither experience not relationship is required here. Pain, for the purposes of public judgement, becomes a neutralised object, to be made detachable from the 'experience', and the experiencer, of pain, subject to 'impersonal' verification; the purpose being specifically to ascertain whether that 'particular' pain, as an object, falls within one of those 'categories' of pain which fulfil predetermined conditions for 'public' recognition. Universality, objectivity and detachment are the essential 'standards' to which the conduct of public judgement must conform. The only concern here is for the question, 'Have you been violated (by the categories and 'standards' of objective and universal application)?' Anything but an affirmation would consign the experience and experiencer (of that particular 'category') of pain to the heap of misfortune and the unfortunate. And this would stand as the official 'public memory' which would serve as the impetus for 'remedy' or negation.
What this trialectical categorisation reveals is that the relevant question for the present discussion here involves a consideration of the societal processes of 'knowing' truths and then making judgements regarding these truths we have come to know. In this regard, truths of pain no longer hold merely (if merely is at all an appropriate term) subjective validity and worth (itself a socially influenced truth-judgement), true to the beholder of the truth in his/her understanding of a personalised being in the world, but rather, becomes an objective (objectifiable) imprint upon social consciousness - the socially acknowledged 'reality' of 'right' and 'wrong' within the existing human condition.
From this, we may understand judgement as not merely being the end of the discoursing of truths, but, rather, that it is the very process by which truths are discoursed. Distinguishing between the mediations of 'intra-personal' and 'inter-personal' judgements upon truths, on the one hand, and constructions of 'public' judgements of truths, on the other, enables necessary attention to be drawn to the political significance of the voicing and hearing of truths. Here, therefore, it might be appropriate to locate this process of the formation of judgement upon truths within the broader context of 'politics'.
The discoursing of truths is politics; both the voicing of truths and its listening, political acts. Despite all its sophistication, the art/science of politics is in essence the method by which the voices, or whispers, of truths are given a stage, a medium, to be heard. In this respect, the politician, the corporate magnate, the religious leader, the journalist, the academic, the 'common' person, all occupy sites of privilege; different sites, no doubt; different orders of privilege, for sure. By virtue of this privilege, speech is possible, heard in different locations and within these locations, accorded different degrees of authoritative, 'authentic' value. Never are the voices, even whispers, of truths of suffering and victimisation, silent. Unheard within different locations, perhaps, but never silent.
In privileging and subordinating, affirming and denouncing different voices/voicings of truth, the politics of humanity, therefore, construct the world-of-humanity; the mediated, adjudicated truth becoming the socially-recognised reality of the human condition as determined in any given historical context of truth-determination. Politics, thereby, represents that human engagement, in all its complexity, to construct public judgement upon reality. It is the struggle of truth-perspectives to inhabit the ground upon which from the 'heard' truth reality is constructed, and possibilities are imagined.
The politics of judgement as involving a struggle for recognition of competing truth, therefore, lies at the heart of the public construction of reality and the charting of future action. This essentially political struggle is the everyday play of human interaction, its sites manifold within the fabric of 'society'. In the media, in education, in street protests and demonstrations, in political chambers, in meeting halls and public hearings, in the writings of commentators and campaigners, in all those arenas that we have come to regard as 'public' sites of discourse, we observe the mechanics of the politics of judgement upon asserted truths and the struggle for the recognition of realities of right and wrong as they are sought to be constructed. Throughout this struggle to occupy the spaces of public judgement, therefore, the 'audience' remains key, for it is in their minds and consciousness that asserted-truths transform themselves to truth-judgement. And it is to the manifold audiences, therefore, that politics seek to 'speak' and 'convince' of the normality, naturalness, inevitability, and truthfulness of the judgements upon truths that are re-presented.
Which brings us back to law, and the doing of law. Amidst these diverse sites for discoursing truths law has emerged (at least within mainstream perceptions) as the culmination of this process of struggle for the social recognition of truth and judgement on it, as the supreme mechanism to arbiter and enunciate society's reality, for all the audiences within 'society'. Presumably, law represents the 'objective', final representation of the many subjective truth-assertions and truth-judgements. In law, and in the 'doing' of law, values of right and wrong, as regulation, are deemed to be the public record of society's fundamental truths and society's pathway towards emancipation. Through the doing of law, those truths/emancipation of right and wrong are given public repetition. From the judgement in law, the messy competition of opposing, subjective, truth-positions is tidied-up with the pronouncement of what is to be regarded as the 'official' public memory of this 'past' and the official direction for action towards an emancipatory future.
When viewed in this light, it becomes possible to situate law within the spectrum of truth discoursing and truth judgement. The promised 'emancipation' of law, thus, is premised upon an implicit demand that the judgement arising in/through law represents a socially sanctioned and sanctified statement of truth/reality from which the future may be mapped. Law's judgement upon the 'truth of the past' thereby directs law's path to the 'truth of the future'. It is here that the importance of explicating the politics of judgement inherent in the doing of law lies. The manner of truth discoursing facilitated/permitted by a particular doing of law largely influences the nature of judgement which results. Voicings and silencings of voices as prescribed by the law-doing determines the 'truth' that law decrees. To examine the politics of judgement arising from the doing of law, therefore, is to expose the contingency of law's truth/judgement and to question the 'emancipatory' claims of law for suffering voices. And this claim, in most parts, is a hoax. An example, pertinent to the contemporary context of 'globalisation', may help put the point in sharp focus. We turn briefly to the 'economic migrant'.
The 'debate' surrounding so-called economic migrants is one which attracts much passion within contemporary political discourse. No greater 'wrong' is committed to the 'right(ousness)' of humanity's sense of solidarity in suffering, as given effect through the provisions of law on 'refugees' seeking asylum in foreign lands from (political) 'persecution', than the liberties assumed by the vile 'economic migrant' - the 'bogus' asylum seeker - who seeks 'merely' to find better life-chances at the 'tax-payers expense'. Outrage and condemnation of such 'parasites' are increasingly expressed - always, it seems, a political vote-winner with the 'silent majority' who have to endure the 'victimisation' by these vultures of greed. The 'economic migrant' must not qualify for entry and stay, and that is right!. Unless, of course, the economic migrant in question is a corporation or 'investor' - then it becomes an imperative that 'free access' must be ensured as a matter of civil 'obligation', which was sought to be enshrined in, the now shelved, Multilateral Agreement on Investments (MAI). The MAI was envisaged by its' proponents as the basis for a global law for the free movement of capital. So, the judgement on truth within dominant sites of legality may be expressed succinctly as follows: movement by the most vulnerable and impoverished within the global population for purely economic reasons is a wrong which is to be 'rightfully' prevented. However, movement by the most privileged and wealthy within the global population for purely economic reasons is a 'right' which must be actively promoted and protected from 'wrongful' impediment. Such is the truth-judgement that is sought to be inscribed into the public memory.
So, at least, dominant players within the official spheres of public judgement, would present as the reasonable and 'just' response to the truths of the human condition and of progress. All of this, however, would only be unproblematic and uncontested if suffering humanity were nothing more than mere automatons whose own judgements become suspended, even erased, by the pronouncements of dominant law which thereby result. Docile resignation to law's judgement and constructions of reality, fortunately, is not the experiential propensity of living human persons and communities. The power of judgements on truths of suffering resulting from victimisation, be they intra-personal or inter-personal, is such that the refusal to be subjugated by law's judgements of misfortune or total denial of the realities of suffering is only fuelled by the greater protestations of law to objective truth and final judgement.
The doing of law is by no means a neutral act - this is an obvious statement. Few, especially those whose suffering has been invalidated (in dominant law's official public memory) by law's judgement of denial, would remain fixated by law's claim to objectivity and neutrality, let alone its claim to 'justice'. To state this truism, however does little by way suggesting new directions for law praxes, for the search for alternative legalities from which a different process of judgement may be initiated. It is in this connection that I seek to direct attention to the presence of other possible 'doings' of law which exist within the margins of social space carved out by the 'silenced' and the victimised.
Despite the claim to hegemony by dominant law, the voices of what may be regarded as 'activist' and 'subaltern' legalities may be increasingly discerned. These other doings of law, I suggest, are significant to re-viewing the landscape of the politics of judgement and in identifying opportunities for engagement.
If dominant law prescribes the sanctified texts, institutions and processes of truth-judgements within 'society' as the 'legitimate' terrain of engagement in the politics of judgement, 'subaltern legality' may be understood as standing as its complete 'other'. Often articulated from within 'hidden' (that is to the outsider) sites of social interaction and solidarity, subaltern legality represents the voices of judgements amidst communities of the violated wherein the organic, and 'subjective' languages and symbols of the social majorities of suffering are generated in unmediated and authentic form. They abide by no niceties of language towards which the sensibilities of the 'dominant' are inclined, they meet no standards of etiquette familiar to the dominant and they speak in tongues often totally incomprehensible to the dominant. And the 'actions' that emanate from it takes many forms; from apparent subservience through playing the 'idiot games' of foot-dragging, inefficiency, excessive deference and the like, to confrontation through 'sacred violence, to disengagement from the dominant spheres of control and discipline, they undermine the legitimacy claim of the dominant and lay bare the vulnerability of dominant legality's aspiration for hegemonic control over the public memory.
'Activist legality', on the other hand, stands in a rather more ambiguous relationship with dominant law. Schooled in the disciplines of dominant law, yet reaching out in solidarity to the voices of subaltern judgement, activist legality may be seen as a translational language of judgement that straddles the worlds of the dominant and the subaltern in a state of constant anxiety. The source of this anxiety is twofold; first is the concern that the judgements of the subaltern be given amplification in a manner that is 'empowering' to these communities of the victimised; and secondly, the concern to perform an effective transformatory role within the politics of judgement which is influenced by the conviction that to 'change the world', action within the sites and with the languages of the dominant are still critical. And so, activist legality emerges as the mediated voices of the subaltern within the sites of judgement open to the dominant, both visible and comprehensible. Its aim, to subvert the languages and symbols that are recognised by the dominant so that the cause of the subaltern within specific contexts of liberational and resistance endeavours may be served.
It is in the light the doing of an activist legality, therefore, that the experiences of the PPT become significant.
The Permanent People's Tribunal has its roots in the experience of the Bertrand Russell War Crimes Tribunal and the anti-imperialist movement which found articulation in the Algiers Declaration on the Rights of Peoples, 1976. Founded by an Italian, Lelio Basso, who played a prominent role in both of these historic, peoples', initiatives, the Tribunal was envisaged as providing a forum for what we can now regard as a platform for peoples' legality. Before going on to consider some of the principles which underpin its work, it is useful first to elaborate on the influences which have determined the founding rationale of the Tribunal.
The context of anti-imperialism, it must be emphasised is crucial to both the creation and subsequent 'mission' of the Tribunal. Central to the violence of the imperialistic world order, it was recognised, was the 'crime of silence'. Thus, addressing the first meeting of the members of the War Crimes Tribunal in London on 13 November 1966, Bertrand Russell articulates the mission of the Tribunal as follows:
'We must record the truth in Vietnam. We must pass judgement on what we find to be the truth. We must warn of the consequences of this truth. We must, moreover, reject the view that only indifferent men are impartial men. We must repudiate the degenerate conception of individual intelligence, which confuses open minds with empty ones. ... May this Tribunal prevent the crime of silence'.
The 'crime of silence' which Russell talked about pertains to a fundamental position on truth and judgement: that what is being done (and what is being done is always presented by those doing it with all the linguistic niceties of rightful action) is wrong: The crime of silence is, therefore, the silence which refuses to name a crime and, thus, to struggle to bring about its end. For the Russell Tribunal, the crimes which required naming were the war crimes committed by the US on the peoples of Vietnam. The standards by which the crimes were judged were those laid down by the Nuremberg and Tokyo Tribunals. Renouncing the historic limitations of these standards as those of a 'victor's justice', the Russell Tribunal sought to reinvoke the spirit of Nuremberg/Tokyo that the universality of human dignity serves to justify the universality of application of standards of (il)legality and standards of culpability. Standards of legality alone, however, provided little space for the voicing of truths and for the naming of crimes. More important within the creational philosophy of the alternative forum that was the Russell Tribunal for the voicing of truths.
The Russell Tribunal was created to provide that space for voices of suffering, a space denied by theatres of dominant legality. Throughout its proceedings, it was challenged as to its 'legitimacy' and its 'objectivity'. Throughout, it had to create a space for truths of suffering, to assert its historic mission to voice the truth, to force judgement, to prevent the crime of silence. The response was clear and uncompromising and is worth recalling:
The Nuremberg Tribunal, an ambiguous reality, was created from the highest legal principles no doubt but, at the same time, it created a precedent, the embryo of a tradition. Nobody can go back, stop what has already existed, nor, when a small and poor country is the object of aggression, prevent one from thinking back to those trials and saying to oneself: it is this very same thing that was condemned then. In this way, the hasty and incomplete measures taken and then abandoned by the Allies in 1945 have created a real gap in international affairs. We sadly lack an organization which has been created and affirmed in its permanency and universality and which has irreversibly defined its rights and duties. It is a gap which must be filled and yet which no one will fill.
There are, in fact, two sources of power for such a body. The first is the state and its institutions. However, in this period of violence most governments, if they took such an initiative, would fear that it might one day be used against them and that they would find themselves in the dock with the accused.
And then, for many, the United States is a powerful ally: who would dare ask for the resurrection of a tribunal whose first action would be to demand an inquiry on the Vietnam conflict? The other source is the people, in a revolutionary period, when institutions are changing. But, although the struggle is implacable, how could the masses, divided by frontiers, unite and impose on the various governments an institution which would be a true Court of the People?
The Russell Tribunal was born of this doubly contradictory conclusion: the judgement of Nuremberg had necessitated the existence of an institution to inquire into war crimes and, if necessary, to sit in judgement; today neither governments nor the masses are capable of forming one. We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need. We were not recruited or invested with real powers by governments: but, as we have just seen, the investiture at Nuremberg was not enough to give the jurists unquestioned legality. . . . The Russell Tribunal believes, on the contrary, that its legality comes from both its absolute powerlessness and its universality'.
As a result of this struggle for voice, the public record that is Prevent the Crime of Silence: Reports from the sessions of the International War Crimes Tribunal founded by Bertrand Russell, stands as a permanent indictment against the US and the international structures of dominant legality with regards the violence in Vietnam. Yet, as Chomsky noted in 1971, despite the truth:
'[t]he streets of Europe and the cities of North America remain smug and complacent'[28 ].
Little, it would appear, has since changed and history seems destined to replay itself, as the more recent case of Iraq demonstrates only too vividly. Nevertheless, the Russell Tribunal did create the precedent for transnational solidarities in search for different means of determining legality, one that claimed its legitimacy through the authority of peoples, ready, itself, to stand judged. In this, it has emerged as a standard by which the legitimising claims of legality may be judged.
The second influence which was to contribute to the creation of the Permanent People's Tribunal, as indicated above, was the Algiers Declaration of the Rights of Peoples. If the Russell Tribunal set the precedent for attempts to do a 'people's law', the Algiers Declaration provided the substantive content of 'people's legality'. Representing, perhaps, the highwater mark of the anti-imperial conceptualisation of human rights struggles, the Declaration locates itself firmly in the historic context of 'post-colonial' struggles against continuing 'neo-colonial' violence. It rejected the individualistic, legalistic and segregationist approaches of dominant human rights articulations[32 ]. In its stead, it contains an articulation of struggle from structures of exploitation, political, economic and cultural. And in so doing, it adopted a self-consciously political stance, emphasising the material concerns which underpin the struggles against imperialistic violence.
The Algiers Declaration is not a document of, or for, dominant legality. It is more a self-confident manifesto of struggle, a demand for the recognition of the right, the legitimacy, of struggles against the wrongs of violence, oppression and exploitation. The aim of the Declaration was not to pander to the sensitivities of the international lawyer in the quest for ever greater sophistication in the 'science' of legal articulation but to explicitly set before the world the demands of a people's legality. This position is made clear in the Preamble to the Declaration:
'May all those who, throughout the world, are fighting the great battle, at times through armed struggle, for the freedom of all peoples, find in this Declaration the assurance of the legitimacy of their struggle'.
But by what authority? By the same authority that was relied upon, and embraced as a responsibility, by the Russell Tribunal - the authority of peoples' judgement. With the same foundation to its claim to legality as expressed by Sartre with respect to the Russell Tribunal: 'that its legality comes from both its absolute powerlessness and its universality', the Declaration, therefore, presents itself as a counterpoint to all those articulations of 'human rights' that is devoid of real meaning to the life conditions of the violated majorities. Its legitimacy, neither sanctioned by international law-making structures and institutions, nor by those of the State, stands independently as a source of 'truth' for communities in struggle. Thus it follows, its 'enforcement' relies not upon the technical pronouncements of dominant legality, but rather, through the politics of social action and struggle.
Given these historical influences, the Permanent People's Tribunal which was established as a forum for the pursuit of the aspirations of the Algiers Declaration is manifestly a political institution. It was born out of a historical movement of peoples' efforts which gained strength from the conviction that the dominant legality of an imperialist world order, despite all its rhetoric of human rights and justice, serves to keep unheard, if not silence, the voicings of truths of suffering. Some extracts from the Preamble of the Statute of the Permanent Peoples' Tribunal might help illustrate its orientation:
'Whereas peoples are ever more exposed to flagrant and systematic violations of their fundamental rights caused by military regimes ... and the ever greater influence of neo-colonialist groups and structures ...' (para.1).
'Whereas these violations ... are perpetrated while the international community is unable to prevent effectively such crimes and violations or put an end to them' (para. 2).
'Whereas it is equally necessary to analyze the economic, political and social causes of the crimes against peoples in relation to imperialism and neo-colonialism ...' (para.4).
'Whereas until the progressive governments accept and set up international organisms, capable of bringing these phenomena to an end, it is up to enlightened political groups and advanced trade-unions, supported by world public opinion to create international structures to attract the attention of governments, political movements, trade-unions and world public opinion to the serious and systematic violations of the rights of peoples ...' (para. 5).
The last paragraph, perhaps, can be taken as the most significant; it contains within it the essential purpose of the Permanent People's Tribunal, as envisaged by the founders. This purpose is further clarified in Article 2 of the Statute:
'The Tribunal's mission is to promote universal and effective respect for the fundamental rights of peoples by determining whether these rights have been violated, by examining the causes of such infringements, and by pointing out to world public opinion the authors of these violations'.
The conscience of 'world public opinion, therefore, is the target for the Tribunal's work; it is to inform, educate and activate the public conscience that the Tribunal is aimed. As such, it seeks to construct an alternative discourse of human wrongs which locates the infliction of wrongs not simply as an 'acute' event of violence - with an identifiable deviant perpetrator and an identifiable subject victim - but as a 'chronic' condition of systematic, structural violation resulting in communities of suffering. Above all, the Tribunal is directed towards a mobilisation of social action against the 'crime of silence'.
An interesting, and telling, feature of the Tribunal's work is that there appears to be a noticeable shift in focus- from considerations of what can be regarded as State violations within a conventional 'international law' context, in its early years, to considerations of structural, transnational violence, increasingly by 'private' actors in the context of 'globalisation'. Thus, for example, the early sessions of the Tribunal concerned itself with issues such as, for example, the regime of suppression in Philippines against the Bangsa-Moro people during the rule of Marcos (1980), the role of the Soviet military in Afghanistan (1981/82), the use of force by Indonesia in East Timor (1981), the allegations of genocide committed by Turkey on the Armenian people (1984), and US intervention in Nicaragua (1984). A greater emphasis on transnational violence wherein structures of violence - the political, economic, and to a lesser degree socio-cultural - have come under scrutiny from the late 1980s, with an increasing prominence to recent years. Issues which been subject to the deliberations of the Tribunal in this regard have included the human wrongs committed by the IMF and the World Bank (1988/1994), the 'mass disaster' that was the Bhopal gas 'leak' (1992), the wrongs resulting from industrial hazards (1994) the Chernobyl nuclear 'accident' (1996), the violations committed by the international garment industries (1998), and most recently, the crimes committed by the French oil/energy corporation Elf-Aquitaine in collusion with the French state in the former territories of French colonial rule (1999). In this respect, the session of the Tribunal planned for Warwick in March 2000 represents an explicit response to this growing concern with the impacts of transnational economic actors on the lives and livelihoods of communities within an increasingly globalising political economy.
This brief description of the scope of the Tribunals work reveals quite clearly its mission to disrupt the silencing of these truths of suffering within sites of dominant legality. In sum, the following can be identified as its continuing legacy for struggles to break the crime of silence within dominant sites of public judgement:
- to provide a forum for the voicing of truths of violation and to provoke the formation of judgement against the commission of wrongs.
- to challenge the silence of dominant/imperialist legality and to create instead a public memory of people's struggles against violence.
- to extend the scope of truth and judgement to the realm of structural violence in order that exploitation in all its forms is denied the status of normalcy in human relations.
The opportunities provided for by the PPT to communities of the violated that have been marginalised by dominant law into the spaces of public amnesia to reclaim their judgements of violation and to demand public hearing of their truths have undoubtedly been of significant import. From the point of view of the violated, the PPT has historically been a source of recognition and support; this in itself being a significant expression of solidarity in the struggle to have their experiences of suffering named as a violation. Yet we must remain constantly vigilant of complacency and self-satisfaction; the creation of an important alternative site of legality that is the Permanent Peoples Tribunal is not in itself sufficient. Without in any way reducing the importance of the PPT with respect to the solidarity needs of communities of the violated, wider questions remain, and these pertain to its public function of judgement. The question simply put is this: to what extent does the PPT as a site of peoples' legality truly impact upon the politics of judgement. It is from the critical perspectives upon this question that, I believe, the creative and constructive task of realising the mission of the PPT may be undertaken.
There can of course be no 'scientifically' verifiable basis upon which this assessment of 'effectiveness' may be made; we must rely instead on the vagaries of perceptions. Uncertainty, in this regard, is less important than the recognition that there must be a constant energising of the processes of the Permanent Peoples Tribunal so as to serve as a peoples' tribunal. For this purpose, I believe it is essential to make explicit the implications of the attempt to 'do law differently' that are relevant to the PPT.
What follows are my reflections regarding the potential role of the tribunal process as one which gives effect to a peoples' voices of judgement and develops ands disseminates the often silenced articulations of peoples' legality. Below, therefore, I set out what I believe are to be some issues that require explicit consideration in determining the aims of the PPT process within the wider context of the politics of judgement towards the evolution of a praxis of peoples' law, a challenge which may be the historic task of the Tribunal's future work.
The first point which ought to be made is that the PPT is a site of an 'activist' doing of law. This being the case, the inescapable tensions that exist within this location with regard to the relationship of the PPT to, both, dominant and subaltern legalities need to be explored.
It would be futile, misleading and dishonest to suggest that the PPT may be regarded as a site of subaltern legality. As currently constituted by its Statute, and given a public profile through its practice, the PPT is deeply entrenched within 'modes of being' that are largely influenced by the dictates of dominant law. The constitution of the 'judges', the hierarchical positioning of 'experts', the conceptual and literal languages of communication, the mechanics of the presentation of 'evidence' and the formulaic construction of 'indictments' and 'verdicts' within the PPT process all retain within them some assumptions and prescriptions of dominant legality. This is not to suggest that flexibility and innovation is not present within all these aspects of the PPT process, simply that notwithstanding the ideological and motivational orientation of the participants within the process, certain legacies of dominant law still permeate into the 'peoples' tribunal'.
And yet, the PPT stands as an isolated and deviant 'institution' within the institutional landscape of dominant law. For good reason, and for reasons that are good. It would be anathema for dominant law to countenance the usurpation of its assumed role of public judgement by an institution and process of legality which does not abide by its strictures, scriptures and disciplines. But it is precisely this deviance which provides the PPT with the claim to an alternative legitimacy which derives its sustenance from the communities that have been expelled from the embrace of dominant law's 'protection'. Here, therefore, lies the challenge for the PPT considering the ambiguous location between dominant and subaltern legalities. How might the PPT construct for itself a space for an activist doing of law that presents, if not a 'subaltern-peoples' legality, at least a 'subaltern- peoples'-oriented activist legality' (in short, a mediated 'peoples' legality')? How, given the constraints which are present due to the still present 'umbilical-cord' which attaches activism with dominant law, might the PPT move towards securing spaces for the voices of the victimised to emerge into the public conscience, to provoke the naming of violation which will disrupt the amnesia of dominant legality and 're-member' communities of suffering within the public memory?
If these are the critical tasks confronting the PPT, then, two underlying issues need to be addressed:
- what are the most important contributions that can be made by an activist event, and process, that is initiated by the PPT towards effecting a peoples' legality that is derived from judgements of the victimised. In considering this question, it is critical to bear in mind the dual challenges of provoking public attention to the realities of a global political-economy, in which increasingly the violence of corporate wrongs is pervasive, and of reasserting solidarity, support and assistance to communities of resistance to these corporate activities.
- how can this aim best be achieved in a sustained and inclusive manner so as to amplify the voices of the violated to the maximum extent possible so as to effect a peoples' legality which transforms judgements of 'rights' and 'wrongs'.
The first step in addressing these, I believe, is in giving some thought specifically to the question of 'audiences' and 'authorship'.
It is important to recall that it is within an 'audience' that the discoursing of truths finds an ultimate resting place as judgement, and that it is from this judgement that the 'audience' may then be moved to be actors for change. In this connection, Chomsky's advice on the responsibility of the 'writer' is instructive:
'The responsibility of the writer as a moral agent is to try to bring the truth about matters of human significance to an audience that can do something about them'.
This statement of responsibility holds true to the PPT, as a 'writer/author' of an aspired for peoples' judgement. It becomes crucial, therefore, to take note of 'audiences that matter'.
It seems to me that implicit in most discussions on the PPT and the conceptualisations of its events and processes, three constituencies of audience stand addressed - the policy formulators and lawyers within the dominant legality, the 'docile' general public within societies of 'engineered consent' and communities (and supporters) of victimised. And before these various audiences stand various possible 'authors' of a peoples' legality within the spaces provided for by the PPT event and process: the representative voices of communities of the victimised (the subaltern) and their local support groups; the 'transnational' activist individuals and groups working in solidarity with these communities of the victimised; and activist lawyers concerned to 'translate' these voices into the languages of (dominant) law. It is the effectiveness with which the respective authors are connected with the audiences that matter, therefore, that will be key to the PPT's efforts to impact upon the politics of judgement. In undertaking this task, I believe that two considerations need to be given priority: the need for co-ordination rather than replication of efforts; and the need for inclusiveness of participation due to the urgency for broad-based mobilisation. These considerations become all the more pertinent when seen in the light of the authorship role of the activist lawyer.
The activist lawyer, it may be regarded, represents the primary author in communication with the institutions and processes of dominant law. They are well versed in the languages that are comprehensible to (and permitted by) dominant law and familiar with its terrain for the purposes of charting out spaces for subversion. It may also be envisaged that through their activist legal imagination, real change to the realities of victimisation may be brought about by the progressive transformation of judgements within dominant legal processes. For these reasons of expertise and strategic purpose, activist lawyers have historically played a central, and often, determining role within the PPT process in the translation of subaltern judgements of violation into the construction of an alternative peoples' legality. Undoubtedly, this role of the activist lawyer is important. I do believe, however, that when the broader context of the politics of judgement is brought to bear upon our thinking, some reconsideration of the primacy accorded to this role becomes necessary.
To duplicate possibilities of effort which are perhaps better conducted in more specialist sites would be a misdirected use of valuable resources from the point of view of the PPT process. The constituency of activist lawyers is one which exists already within a network of communication - their substantive work of critical engagement with the processes and institutions of dominant law in communication with the audience that are the actors of dominant legality should be part of an on-going process that runs in parallel to the PPT. By advocating a rethinking of the role of the activist lawyer, therefore, I am proposing that a more coherent strategy of co-ordination needs to be implemented, between a wider and necessary PPT process and the specificities of PPT events. The challenge, I believe, is to ensure that the PPT event, as an occasion of public theatre, provides a point of contact and a point of departure for legal activism; that the event stands both as a recipient of the movements of a people-oriented legal imagination and as a generative source from which these movements are energised and informed.
Thus, this activist engagement with legal strategies of resistance should be seen as both contributing to, and being contributed to by, the PPT; its contribution being to advance, through the specific language of law, the broader struggles against violence, being itself contributed to by the capacity of the PPT to communicate, amplify, co-ordinate and disseminate information regarding the need for a victimised-oriented legal imagination within a wider context of public advocacy.
Some shifting of the functional priority of authorship away from substantive legal activism is also necessary due to the importance of ensuring a more inclusive participation and communication for the purposes of provoking social judgement and mobilising public support and action. To have the languages of law dominate the 'proceedings' and 'findings' of the tribunal process would be to run the risk of alienating and excluding the majority of other, 'legally-illiterate', audiences that matter. I believe, therefore, that the 'specialism' of law should stand as one, and only one, communicative tool for a peoples' legality. To put it differently, the PPT provides as opportunity by which 'social judgement' may be mobilised behind the various and diverse activist endeavours to name violation where presently only misfortune is presented to the public memory by dominant law. And this I believe can only be achieved if the approach adopted by the PPT and its processes is one that is inclusive to public participation and comprehension. As a public forum of and for peoples, the tribunal must first and foremost speak for and to the public, in languages which are comprehensible to a wider audience than that of the activist lawyer. The work of creative legal imagination can only be reinforced by this inclusion, participation and public endorsement.
Locating the PPT within a wider process of the struggle for deglobalisation would entail the necessary and important recognition of other constituency of audiences that should stand represented and included. Doing so would necessarily include the critical authorship roles of other activist movements. The PPT process can therefore best be seen as a public front of and for a peoples' initiative - the point of convergence between numerous activist endeavours where the context of mutual struggle may be represented to the public opinion. It provides therefore the base from which further activist action may be given a public profile and endorsement. The task then is to carry this peoples' endorsement further into the process of struggle in all its forms of within specialised fields of engagement. Seen in this light, the notion, which I think is an important one, of peoples' law, can be seen in its wider context of relevance.
If the Permanent Peoples' Tribunal is to be maintained as a peoples' tribunal, then I believe we must take as our primary source the voices and experiences and aspirations and demands and even visions for action, of the peoples' of communities of the violated themselves, from which all other specialist support groups - lawyers, the media, politicians, economists, and others - may build upon by utilising their specialist languages for resistance in diverse sites of public judgement. And from the point of view of advocacy, the aim of the PPT should be to utilise the most powerful mobilisational language of real experience which would touch and move, inform and demand for the recognition of a peoples' judgement. Activism, in all its forms, stands as facilitating, supporting and reinforcing this struggle.
The task of amplifying and disseminating a peoples' legality, when consciously incorporated as the primary objective of the PPT, would entail a struggle for the recognition of silenced judgements on right and wrong, the struggle to break free from the dominant normalisations of violation as misfortune. If we can strive to give effect to this, which is after all the underlying cause for the coming into being of the PPT, then we might gain from the PPT a contribution to peoples' legality that goes beyond the ad-hoc, event-based pricking of public conscience through the important, yet insufficient, recounting of issue-specific narratives of wrongs. Rather, the PPT may act as an activating nexus from which the spokes of activism can spread in various directions. Perhaps this is too ambitious a role for the PPT but it is one that I believe we should aspire for.
Along these lines, perhaps, we may give effect to the struggles towards breaking the silence of naming violation. Perhaps, along these lines, we might awaken the public conscience so that in whatever small measures, maybe we might hear the voices of the violated say, ' We have the right to be, with name and with dignity.' Perhaps, then, law may be reclaimed for justice.
1. See text of the Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July, 1998.
2. Much of the reflections contained in this paper is the result of my involvement as part of the organising committee in the Warwick Session of the Permanent Peoples' Tribunal on Global Corporations and Human Wrongs, held in March 2000. An issue which was central to our concerns during the planning stages of the Tribunal was the means by which we might be able to operationalise the idea of doing law differently. The mechanics of truth-telling and listening, the texts by which the 'law' is identified, the criteria of judgement, these were all of critical importance to our thinking about the Tribunal. The present paper is part of my efforts since to locate initiatives such as the PPT within the wider context of a struggle, as I see it, to reclaim the idea of law. The usual 'disclaimer' of a 'work in progress' might therefore apply!
3. The expression 'crime of silence' was first articulated in all its potency by Bertrand Russell to describe the nature of the indictment against the violent global political-legal order during the opening of the International War Crimes Tribunal on Vietnam against the USA. Since then, it has come to symbolise the struggle for naming wrongs that confronts all violated communities and peoples. See below for a discussion on the Bertrand Russell Tribunal.
4. I employ no theoretically loaded notion of what constitutes dominant legality. Rather I base my views on the empirical reality that within what is regarded as the 'legal system', certain institutions and processes of legality obtain a presupposed authority in the social dynamics of judgement; in this respect, the 'texts', institutions, and processes, of the formal political-legal system, national and international, may for the purposes of the present discussion be understood as falling within the terminology of dominant law. Dominant law in this regard may be contrasted with what I refer to as 'activist', and, 'subaltern' law. My point in this delineation is not to discuss the intricacies of law-doing within the spectrum of law-sites - dominant, activist and subaltern - but rather first, to understand the nature of social judgement where the mainstream, dominant 'voice' of law represents an important determinant, and subsequently to chart pathways of reclaiming spaces for 'judgement' through the creative communications between activist and subaltern legalities; see below for a further discussion.
5. What I refer to as a 'judgement of denial' may take two forms. First, the denial of access to a legal forum of judgement wherein the truths of suffering may be voiced through a diversity of means. These range from the simple impediment of the lack of resources to bring an effective legal claim to the more sophisticated, yet increasingly utilised mechanism of exclusion through the doctrine of 'forum non conveniens' which provides legal justification for the silencing of voice through the claim of jurisdictional inappropriateness. Second, through the determination made by and in law that the truths of suffering fail to satisfy the strict evidentiary and causational tests imposed by law in order to transform the assumption of misfortune into the naming of violation. Both these methods of denial render the truths of suffering of the victimised officially invalid within the law-constructed public memory. For a context specific discussion of the violence of the doctrine and application of 'forum non convenience', as the historic legacy of dominant law to the struggle for the judgement of violation for the victims of the Bhopal 'disaster', see, U. Baxi, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case, The Indian Law Institute, Delhi, 1986.
6. Not all engagements with dominant processes of law, it should be said, would subscribe to this 'justice'-oriented motivation. Another, more instrumental, and less bleary-eyed, rationale for (selective) engagement arises from the very recognition that law, and its processes, are merely violence clothed in regal garb; that the 'terrain of struggle' is in reality a brutal one where the struggle itself is to appropriate, then inflict, the violence of law upon the enemy. This it must be added is a high-risk strategy in all cases and whether it is one worth pursuing still subject of much debate. I am grateful to Dan Bennet and Upen Baxi for their long-standing participation in this, an on-going discussion.
7. For a reflective discussion of these challenges, based on a conviction of liberational opportunities afforded by law arising from the Indian context of 'social action litigation', see U. Baxi, 'Law, Struggle and Change: An Agendum for Activists', Social Action, Vol. 35, April-June, 1985, p. 132.
8. With regard to the controlling of the telling of truths in law, it is illuminating to take note of the numerous explanatory works which take on the task of educating the reader of the intricacies of law-talk and proper behaviour within sites of dominant law. In these works, the 'expert' lawyer gently takes the uneducated, legal illiterate by the hand through the many demands of the formalities of language, courtroom etiquette, even the appropriate usage of the word 'learned'!. In all of this, the politics of exclusion, power, subordination, even the explicit recognition that this ritualisation of 'specialist' sensibilities may be seen as wholly irrelevant to the underlying task of truth-judgement, or 'justice' is little evident or problematised. For an example of such an 'educational' endeavour, see, K. Evans, The Language of Advocacy: What to Say and How to Say It in the English-speaking Courts, Blackstone Press, London, 1998. By way of contrast, see the description of patronising tolerance, non-understanding and non-engagement, and thereby, silencing and exclusion of subaltern voices and narratives of suffering that is provided in, P. Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks, Weidenfeld and Nicolson, London, 1990, pp.179-86.
9. It is perhaps worth stating that I adopt a perspective on 'truth' which does not require a final word (judgement?) on the debate between Truth (as an a priori category) and truth as wholly a social construction. My 'feeling' which leads me to hold that there is Truth, is neither dependent upon, nor determinative of, my approach which concentrates on the 'human' engagement which is the (re)presentation of truths. Whether or not there exists an absolute Truth is not central to my concern here. What is important is that we recognise that to be a social human actor is to be engaged within the trajectories of the many contested (re)presentations of truths, and it is for this reason that consciousness of the 'judgement' upon truths becomes crucial to our 'knowing' our worlds as (re)presented. For an interesting read on the subject of Truth, and its 'history', however, see, F. Fernandez-Armesto, Truth: A History and A Guide for the Perplexed, Bantam Press, London, 1997.
10. I borrow these terms from Paolo Freire's description of the process of 'conscientisation', itself an explicit call to 'judgement'; see P. Freire, Pedagogy of the Oppressed, .Penguin, London, 1974.
11. It may be useful to note, in this connection, Baxi's appeal that the 'historic mission of 'contemporary' human rights is to give voice to human suffering, to make it visible, and to ameliorate it.'; U. Baxi, 'Voices of Suffering and the Future of Human Rights.', Transnational Law and Contemporary Problems, Fall 1998, Vol. 3, No. 113, p. 128 (emphasis in original). I would suggest a slightly altered formulation; rather than the 'giving of voice', it is the prevention of the silencing of voices of suffering that is to be the role of a people-oriented practice of human rights advocacy. The difference is a significant one. Beginning with the presence of voice rather than its absence would transform the nature of the 'historic mission' of human rights; whilst the latter might assume the inherent legitimacy of the terrain of human rights activity as the site of human emancipation, where all other forms of the 'politics of judgement' stand in deference to the imaginations of the human rights activist, the former would dictate that human rights activism be seen as one of several 'instruments/language of voice', where the language and practice of human rights always stand judged and assessed for its contribution to amplifying the voices of suffering by reference to this recognised functional role. And increasingly, the effectiveness of this role comes into question. Undoubtedly, the languages of human rights are being more vociferously articulated, yet as Baxi himself notes later in 'Voices of Suffering' (p. 169), there appears to be a usurpation of the language of human rights - from 'human human rights to 'trade-related, market-friendly human rights (the rights of transnational capital). The question then becomes: to what extent has the human rights terrain of activist practitioners and advocates impinge on the human rights terrains that are deafened by the 'voices' of the dominant? Upon an assessment of this question would lie the prospects and challenges of the 'historic mission' of human rights within a wider context of the politics of judgement in the service of voices of suffering. In this regard, the languages and practices of human rights themselves need to be subject constantly to the question whether they too, in ways unintended, do provide another mechanism for the silencing of voices. I am confident that Baxi would intend such a reflexive process of self-criticism within his imagination of the mission of contemporary human rights.
12. In this respect, some 'audiences' are 'more equal' than other; their judgements have greater force in bringing about change. This said, there is no fixity in the relative capacities of audiences to emerge as influential within any given context of judgement. Surprising shifts may occur as evidenced recently in the disruptions to the World Trade Talks in Seattle and in the campaign against genetically-modified foods. But this again, is subject to the effectiveness of alternative articulations of judgement in taking hold within the public mind where once the public memory was lulled into complacency and an 'engineered consent' by the dominant judgement on reality. The recent 'uprisings' of civil movements against the status quo may, therefore, be seen simply as a process whereby the previously docile have reclaimed the impetus within the political struggle for public judgement. For an activist reflection on, and celebration of, the implications of the mass mobilisation of social movements in Seattle, see, V. Shiva, 'The Historic Significance of Seattle' at < http://www.foodfirst.org/progs/global/trade/wto99-shiva.html>, visited on 7 Feb, 2000.
13. The power and importance of gaining the public judgement is not lost on the dominant sectors within 'society. Global corporations in their attempts to normalise violence are clearly aware of the need to court the public mind with their (re)presentations of the truths of globalisation and the corporate-economy; the recent 'feeding the world' advertisement by Monsanto to promote its involvement in the field of bio-technology and genetic-modification of food-crops is an example. This is far from an isolated attack on the public conscience. Rather, 'corporate propaganda' has a long and (multi-billion dollar) rich history; see, for example, J. Greer and K. Bruno, Greenwash: The Reality Behind Corporate Environmentalism, Apex Press, New York, 1997; S. Beder, Global Spin, The Corporate Assault on Environmentalism, Green Books, Totnes, 1997; and, S. Gorelick, 'Learning to Serve the Global Market', in S. Gorelick, Small is Beautiful, Big is Subsidised: How Our Taxes Contribute to Social and Environmental Breakdown, International Society for Ecology and Culture, Dartington, 1998, p. 27.
14. I wonder if this, to use a now popular term, 'collateral damage' of the transnational political-economic (mis)order was within the thinking of the President of the World Bank, James Wolfensohn, when he so concernedly appealed to the international audience to confront the 'challenge of inclusion' - the challenge to incorporate into the 'global economy' those who so far have been excluded from its reach; see J.D. Wolfensohn, 'The Challenge of Inclusion', Annual Meetings Address to the World Bank, Hong Kong SAR, China, 23 September, 1997, at < http://www.worldbank.org/html/extdr.am97/jdw_sp/jwsp97e.htm>, visited on 20, Nov., 1998. This challenge, at least, has been taken seriously by Kofi Annan, the Secretary-General of the United Nations in conjunction with the United Nations Development Programme (UNDP), as evidenced by the launching of the '2B2M' initiative - a UNDP partnership with global corporations to 'include' 'two billion more people into the market economy by the year 2020'; see 'The Global Sustainable Development Facility: 2B2M', UNDP internal document, New York, July 1998. I am grateful to Ward Morehouse for bringing my attention to this new orientation in UN development thinking and strategy. I wonder if all these initiatives for 'inclusion' would extend also the challenge of inclusion to the countries of the North to open-up their territorial boundaries to the 'included' populations seeking further 'integration' into the nerve-centres of the global market economy.
15. The MAI has as its antecedent the North American Free Trade Agreement (NAFTA) which secures for corporate 'economic migrant' within the North American region the full freedoms of movement and protections of 'residence'. As capital and abstract 'legal persons' move unhindered by the high barbed-wired walls which demarcate the 'boundary' between Mexico and the United States, the embodied 'natural persons' that are the Mexican 'economic migrant' is constantly reminded, if need be forcibly, of the inviolability of the territorial space. The MAI would seek to push for such a system of legalised 'apartheid' between the legal persons that are corporations and the natural persons that are citizens in relation to the freedoms and restrictions of economic migrancy at the global level. For an in-depth discussion of the implications of the MAI; see S. Picciotto and R. Mayne (eds.), Regulating International Business: Beyond Liberalization, MacMillan Press, London, 1999. Information on the MAI, is also abundant in the web; useful starting points may be, http://www.corpwatch.org, and http://www.southbound.com.my/souths/twn/twn.htm.
16. The Zapatista's 'communiques' from the forests of Chiapas, Mexico, may be taken as an example of this alternative voicing of judgement which has since gained international prominence and support; for a discussion of the significance of the Zapatistas within a broader context of struggles against the violence of globalisation, see, G. Esteva and M.S. Prakash, Grassroots Post-Modernism: Remaking the Soil of Cultures, Zed Books, London, 1998.
17. See J. Scott, Domination and the Arts of Resistance: Hidden Transcripts, Yale Uni. Press, New Haven, 1992 (reprint)
18. A most powerful account of 'decolonisation' and 'liberation' through the regenerative force of violence is that provided by Frantz Fanon; see F. Fanon, The Wretched of the Earth, translated by Constance Farrington, Penguin Books, London, 1967 (1961).
19. See, Esteva and Prakash, Grassroots Post-Modernism, supra, n. 16, especially Chapter 2.
20. For reflections on the ambiguity of the position of the activist/critic within 'world orders'; see J. Nayar, 'Orders of Inhumanity', in R. Falk, R. Walker and L. Ruiz (eds.) Re-Framing World Order for a New Millennium , Special Edition of Transnational Law and Contemporary Problems, Vol. 9, XXX, Fall 1999 (forthcoming)
21. The proliferation of 'peoples tribunals' (of which the Permanent Peoples' Tribunal is of course an example) and 'peoples declarations and statements' throughout activist sites around the world are all evidence of the growing realisation that spaces for judgement outside of the prescribed institutions and processes of dominant law need to be reclaimed. As a means for shattering the silences of dominant law in the causes of widespread human suffering, this trend must be celebrated as a real contribution of activist engagement.
22. Thus we can put into context Baxi's call on the challenge confronting human rights; see, supra, n. 11.
23. '...it is in the nature of imperialism that citizens of the imperial power are always the last to know - or care - about circumstances in the colonies.', N. Chomsky, 'Foreword', in P. Limqueco and P. Weiss (eds.), Prevent the Crime of Silence: Reports from the sessions of the International War Crimes 24.Tribunal founded by Bertrand Russell - LONDON · STOCKHOLM · ROSKILDE, Bertrand Russell Peace Foundation, 1971, at < http://www.homeusers.prestel.co.uk/littleton/v1!!cho1.htm>, p. 1, visited on 1.3.99.
24 . B. Russell, 'Speech to the First Meeting of Members of the War Crimes Tribunal, London, 13 November 1966', in P. Limqueco and P. Weiss (eds.), ibid, at < http://www.homeusers.prestel.co.uk/littleton/v1!-russ.htm>, visited on 1.3.99, pp. 1-2.
25. In the context of the Vietnam war, Chomsky observed that: '[i]t is unfortunate, but undeniable, that the central issue in the American debate over Vietnam, in respectable circles, has been the question: can we win at an acceptable cost? The doves and the hawks disagree. ... The Tribunal is concerned with very different questions. It does not ask whether the US can win at an acceptable cost, but rather whether it should win ...', Chomsky, supra, n.23, p. 6.
26. In this respect, the words of Robert Jackson, US prosecutor at Nuremberg, serve as a constant reminder: 'If certain acts and violations of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked gainst us.', see Chomsky, supra, n.15, p. 6.
27. J-P. Sartre, 'Inaugural Statement', in Limqueco and Weiss (eds.), supra, n.23, at < http://www.homeusers.prestel.co.uk/littleton/v1101sar.htm>, visited on 17.12.98, p. 2.
28. Chomsky, supra, n.23, p.1.
30. How better to demonstrate the radical shift in the perspective on legality than to demand its subservience to the cause of human struggle against oppression, and the willingness so to be judged, as reflected in Russell's closing address to the Second Session of the Tribunal in Stockholm: 'Wherever men struggle against suffering we must be their voice. Whenever they are cruelly attacked for their self-sacrifice we must find our voices. It is easy to pay lip-service to these ideals. We will be judged not by our reputations or our pretences but by our will to act. Against this standard we too will be judged by better men.', in Limqueco and Weiss (eds.), supra, n.23, at < http://www.homeusers.prestel.co.uk/littleton/v1120rus.htm>, p. 2, visited on 1.3.99.
31. See I.G. Shivji, The Concept of Human Rights in Africa, CODESRIA, London, 1989, pp. 94-95.
32. On this, Francois Rigaux, a still active participant in the work of the Permanent Peoples Tribunal, commented: 'By dividing up its object, science - especially the science of law - has managed to render social reality aseptic. Only a larva can live in a test-tube and the very success of the so-called human or social sciences has helped to depoliticise our thinking. In this sense, the Algiers declaration is profoundly political, because its inspiration is a global reflection on the real conditions in which people are actually living.' quoted in Shivji, ibid, p. 95.
33. Although, the omission of any mention of gender-based violence is a significant one.
34. Any quick examination of the standard texts on 'international human rights law', the texts of dominant legality, would make this amply clear. The Algiers Declaration finds little mention, let alone assessment of its contribution to awakening the consciousness of the 'world community' to the material, human substance behind human rights articulations, in these pages of dominant legal texts, where the 'law' of human rights is stripped bare of its political foundations in struggle.
35. See Preamble, Universal Declaration of the Rights of Peoples (Algiers, 4 July 1976), para. 5.
36. Falk suggests that the Algiers Declaration, alongside the Russell Tribunal and the Permanent People's Tribunal, represents a new praxis of human rights, one that is rooted in the politics of 'popular sovereignty' as being more vigorously pursued by the emergent 'international civil society'; see 'The Algiers Declaration of the Rights of Peoples', in R. Falk, Human Rights and State Sovereignty , 1991, p. 184, at pp. 192-3.
37. Two decades after this subsequent to this articulation, it would appear that this statement rings more true today as evidenced by, what is now almost a practice of habit, the persistent, periodic, lamentations of the disjunctures between aspiration and reality which go along the lines of 'this is the best of times, this is the worst of times'; see for example, the Vienna Declaration on Human Rights, 1993; the Copenhagen Declaration on Social Development, 1995; and the Annual Report 1998 of Amnesty International. We wonder whether these repetitions of human rights advances which always precede the acknowledgements of an apparent sense of futility serve more as a reassurance for those who have struggled intensely to make the aspiration of a less violent world a reality. Perhaps, Baxi is right when he urges for an even greater proliferation of human rights articulations and warns against self-serving cynicism which defeats the efforts of human rights 'knights-errant', but I cannot help but wonder, and perhaps I am guilty of the sort of cynicism that Baxi speaks about, whether this cycle of repetition of success despite ever acknowledgements of ever greater failures achieves much in efforts to ameliorate the suffering of the victimised. This is not to suggest resignation, or inactivity, but, perhaps, it may be better to say it as it is - that this is the worst of times! - and begin our journey from there; see U. Baxi, Mambrino's Helmet?: Human Rights for a Changing World, Har-Anand Pub., New Delhi, 1994, Introduction and Chaps 1-3. For a different perspective of human rights and its impact on human struggle, see Esteva and Prakash, Grassroots Post-Modernism , supra, n. 16, Chapter 4.
38. For the purposes of our analysis, this paragraph contains within it the underlying rationale which motivates the Tribunal's attempt at 'doing law differently' along with its implications on the discoursing of truths and the politics of judgement. To briefly state some questions of relevance to our later discussions: why is the stated audience chosen as the constituencies of judgement? what is the envisaged result of the Tribunal's efforts to discourse truths? by what standards do the enlightened agents of 'justice' seek to tell truths of suffering? how does this impact on the liberational praxis? See below for a broader discussion on these issues.
39. Although this is retained as being within the jurisdictional capacity of the Tribunal, based on the standards set by the Nuremberg principles: see Article 1, Statute for the Permanent People's Tribunal.
40. This distinction between 'acute' and 'chronic' violence may be seen to indicate the significant difference between approaches of dominant legality as it is now being replayed in the context of the new International Criminal Court, and what may be regarded as sites of an alternative peoples' legality. The point is that contrary to the neat categorisation of 'crimes' as events, isolated from the wider relational contexts of human existence, human experience of wrongs reveal structures of victimisation which precede, frame and flow on from events of violence.
41. This 'solidarity role' of the PPT was explicitly recognised by one of the representatives of victim communities during the PPT session on The French State, Elf-Aquitaine and Human Rights Violations in Francophone Africa, held in Paris, France, May 1999. The point he was keen to stress was simply that the Tribunal provided, for the first time, the forum for the telling of their narratives of suffering and a support network of solidarity groups. This moving expression of gratitude was discomforting for the reason that it contains within it the sense of helplessness and abandonment that shames all 'audiences'. Nevertheless, it might also be taken as an impetus for ever greater effort on the part of the PPT to give effect to its objectives of amplifying the voicings of peoples' judgements against the wrongs that are committed against them in the name of normalcy.
42. N. Chomsky, Powers and Prospects: Reflections on Human Nature and the Social Order, Pluto Press, London, 1996, p. 56.
43. I chose focus the discussion by referring to the activist lawyer and legal activism because there has been, perhaps, a tendency to view the PPT event and process as bound to (loosely) mirror certain substantive and procedural methods of working that are inherited from dominant law and its institutions. The reasons for this preoccupation with replicating the processes of dominant law may be many, and is reflective of the general 'anxiety' which consumes the legal activist, discussed above. It could be for the reason of ensuring some semblance of procedure, style and language which is familiar to the dominant, as a means of seeking to divert the charge of 'by what authority'. It could be for the reason of merely seeking out a space whereby the frustrations of the activist lawyer in his/her failure to successfully engage the processes of dominant law may be sought to be vented through an appeal to a friendly 'tribunal'. It may be for the reason that there exists a sincere belief that the small steps towards the articulation of 'progressive' clauses into the texts of dominant legality may eventually bring reprieve to the ignored 'victim'. These reasons, important though separately are for critical introspection by the 'activist lawyer, are nevertheless secondary to the concerns I seek to address here; the point being simply whether the dominance and domination by 'law' as a language of communication and judgement is best serving to the cause of public judgement for the purposes of provoking action for change.
44. In this regard, the co-ordination of planning which enabled us to conduct a Workshop on International Law and Corporate Liability immediately preceding the Tribunal session on Global Corporations and Human Wrongs at Warwick, organised by the International Restructuring Education Network Europe (IRENE), based in Tilburg, The Netherlands, appears to have provided us with an ideal distribution of burdens. With the holding of the workshop, the Tribunal was able to incorporate into its proceedings a specific reporting mechanism by which the findings and reflections of the Workshop could be communicated to the tribunal process. By having a separate, yet related specialist activity, therefore, the Tribunal session itself was freed to expand its scope for activist orientations along other specialist lines of solidarity and resistance - the media, direct action solidarity groups, and North-South networked NGO campaigns being the three main.