Our Tribunal was formed, on the initiative of Lord Bertrand Russell, to decide whether the accusations of ‘war crimesÂ' levelled against the government of the United States as well as against those of South Korea, New Zealand and Australia, during the conflict in Vietnam, are justified.
During this inaugural session, the origin, function, aims and limits of the Tribunal must be clarified: the Tribunal means to explain itself, without sidetracking, on the question of what has been called its ‘legitimacyÂ'.
In 1945, something absolutely new in history appeared at Nuremberg with the first international Tribunal formed to pass judgement on crimes committed by a belligerent power. Until then there had been a few international agreements, for instance the Briand-Kellogg pact, which were aimed at limiting the jus ad bellum; but as no other body had been created to implement them, the relations between the powers continued to operate under the law of the jungle. It could not be otherwise: the nations which had built their wealth upon the conquest of great colonial empires would not have tolerated being judged upon their actions in Africa or Asia.
From 1939, the Hitlerian furies had endangered the world to such an extent that the horrified Allies decided, since they were to be the victors, to judge and condemn the wars of aggression and conquest, the maltreatment of prisoners and the tortures, as well as the racist practices known as ‘genocideÂ', unaware that they were condemning themselves, in this way, for their own actions in the colonies.
For this reason, that is to say because they were recognizing the Nazi crimes, and because, in the more universal sense, they were opening the way to a real jurisdiction for the denunciation and {63} condemnation of war crimes wherever committed, and whoever the culprits, the Tribunal of Nuremberg is still the manifestation of a change of capital importance: the substitution of jus ad bellum by jus contra bellum.
Unfortunately, as is wont to happen whenever a new force is created by historical exigencies, this Tribunal was not free from serious faults. It has been said that it was a diktat of the victors to the vanquished and, which comes to the same thing, that it was not really being international: one group of nations was judging another. Would it have been more worthwhile to have taken the judges from neutral countries? I cannot say. What is certain, however, is that, although the decisions were perfectly just by ethical standards, they did not convince all Germans. The legitimacy of the magistrates and their sentences is contested to this day. Also, it has been declared that, if the fortunes of war had been otherwise, a tribunal of the Axis could have condemned the Allies for the bombing of Dresden or for that of Hiroshima.
Such a body would not have been difficult to set up. It would have sufficed that the body created for the judgement of the Nazis had continued after its original task, or that the United Nations, considering all the consequences of what had just been achieved, would, by a vote of the General Assembly, have consolidated it into a permanent tribunal, empowered to investigate and to judge all accusations of war crimes, even if the accused should be one of the countries that had been responsible for the sentencing at Nuremberg. In this way, the implicit universality of the original intention would have been clearly defined. However, we know what did happen: hardly had the last guilty German been sentenced than the Tribunal vanished and no one ever heard of it again.
Are we therefore so pure? Have there been no war crimes since 1945? Have we never had further resort to violence or to aggression? Have there been no more ‘genocidesÂ'? Has no large country ever tried to break by force the sovereignty of a smaller one? Has there never been reason for denouncing more Oradours or Auschwitzes?
You know the truth: in the last twenty years, the great historical act has been the struggle of the underdeveloped nations for their freedom. The colonial empires have crumbled, and in {64} their place independent nations have grown or have reclaimed ancient and traditional independence which had been eliminated by colonialism. All this has happened in suffering, sweat and blood. A tribunal such as that of Nuremberg has become a permanent necessity. I have already said that, before the Nazi trials, war was lawless. 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, {65} 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.
We are powerless: that is the guarantee of our independence. There is nothing to help us except for the participation of the supporting committees which are, like ourselves, meetings of private individuals. As we do not represent any government or party, we cannot receive orders. We will examine the facts ‘in our souls and our consciencesÂ', as we say, or, if one prefers, in the full liberty of our spirits. None of us can state, today, how the discussions will turn out and whether we answer yes or no to the accusations, or whether we will come to a conclusion at all, perhaps deciding that the evidence, though real, is insufficiently proven. What is certain, in any case, is that our weakness, even if we are convinced by the proof brought before us, would not enable us to condemn. What can even the lightest sentence mean if we do not have the means to put it into effect? We will therefore limit ourselves, should this arise, to declaring that this or that act does in fact fall under the jurisdiction of Nuremberg, and that it is therefore a war crime and that, if the law were applied, it would be appropriate for this or that sentence to be carried out. In this case, if possible, we will name the guilty. Thus, the Russell Tribunal will have no other function in this inquiry and its conclusions, but to make everybody understand the necessity for international jurisdiction - which it has neither the means nor the ambition to replace and the essence of which would be to resuscitate the jus contra bellum, stillborn at Nuremberg, and to substitute legal, ethical laws for the law of the jungle.
From the very fact that we are simple citizens, we have been able, in coopting ourselves from all over the world, to give our Tribunal a more universal structure than that which prevailed at Nuremberg. I do not only mean that a larger number of countries is represented; from this point of view there are still many gaps. But, most of all, whilst in 1945 the Germans were represented only in the dock, or sometimes as witnesses, here {66} several members of the jury are from the USA. This means that they come from the country whose very policy is our subject and that they have, therefore, their own ways of understanding it. Whatever may be their conclusions, the intimate relation with their own country and its institutions and traditions will necessarily be reflected in this TribunalÂ's conclusions.
Whatever may be our wishes for impartiality and universality, we are very conscious that this does not legitimize our undertaking. What we would really like is that our legitimation would be in retrospect, or a posteriori. In fact we do not work for ourselves nor for our own edification, and we do not presume to impose our conclusions like a thunderbolt. In truth, we would wish, with press collaboration, to maintain constant contact between ourselves and the masses all over the world who are painfully watching the tragedy in Vietnam. We hope that they will be learning while we learn, that they will watch and understand, and come to their own conclusions. These conclusions, whatever they may be, we would wish to be reached individually and independently of those we come to ourselves. This session is a communal undertaking for which the final term should be, as a philosopher said, ‘une verité devenueÂ'. If the masses agree with our judgement, it will become truth, and we, at the very moment when we step back so that they will become the guardians and powerful supporters of that truth, will then know that we have been legitimized. When the people show their agreement they will also show a greater need: that a real ‘War Crimes TribunalÂ' be created on a permanent basis, that these crimes may be denounced and not sanctioned anywhere and at any time.
These last remarks reply to a critical comment made, without ill-feeling, in a Paris newspaper: ‘What a strange Tribunal: jurymen but no judge!Â' It is true, we are only jurymen, we have no power to condemn, nor to acquit anyone. Therefore, we are not prosecutors. There will not even be a real accusation. Maître Matarasso, President of the Legal Commission, will read you a statement of the charges registered. The jurists, at the end of the session, will have to pronounce on these statements: are they justified or not? But judges exist everywhere. It is for the peoples of the world and, in particular, the American people that we are working. {67}