Citizens' Tribunals

 

A. Overview

A Citizens’ Tribunal is a community-led, court-like litigation event, similar in structure to a courtroom, in which a complainant or class of complainants who have suffered injuries due to environmental exposures tries an agency, corporation or other defendant deemed responsible for those exposures against standards established by international human rights instruments.

A community, for example, may decide to try a private company, agricultural enterprise or government agency that sprays insecticides and herbicides in the near vicinity of their children’s schools, for violation of human rights standards that are designed to protect children’s safety, health and opportunities for education. In another example a community may choose to try a specific government agency for failure to adequately regulate, or for failure to sufficiently protect the community’s health.

The Tribunal must be a well publicized event, carried out by persons of recognized standing and integrity, and its primary purposes would be education about human rights standards and environmental hazards, and the mobilization of shame directed against the defendant.

The Tribunal would be comprised of 3-5 judges and teams of perhaps two or three attorneys on each side representing the petitioners and defendant. Ideally the judges and attorneys would be persons of national or international standing, would have (or develop) familiarity with international human rights instruments, and would commit to fulfilling their Tribunal roles with integrity and honor. Attorneys for the defendant should represent their client’s interests as best they can. The tribunal should not be, and should not be seen as, anything resembling a kangaroo court.

The primary differences between the Citizens’ Tribunal and normal courts of law are:

• The standard against which defendants are judged in courts of law are the applicable domestic laws and legal precedents from prior court decisions. The standards against which a defendant would be tried in a Citizens’ Tribunal would be those standards expressed in international human rights instruments.
  
  
• The Tribunal would not have formal legal standing and its findings would not have compulsory legal force as would the findings of a court of law.

B. Standards

The primary international human rights instruments against which defendants’ actions would be measured in a Tribunal would include “the big three,” viz.:

• The Universal Declaration of Human Rights
• The International Covenant on Civil and Political Rights
• The International Covenant on Economic, Social and Cultural Rights
  
  Other instruments that may also be applicable include
  
  
• The Convention on the Rights of the Child
• The Convention on the Elimination of All Forms of Discrimination against Women
• The Rio Declaration on Environment and Development
• The Aarhus Convention
• United Nations Declaration on the Rights of Indigenous Peoples
  
• Perhaps the Draft Declaration of Principles on Human Rights and the Environment

If a country has both signed and ratified a given human rights instrument, then that particular instrument may have more relevance in the case (and may have the force of domestic law as well) than those instruments that have not been ratified. The US unfortunately has a poor record of ratifying international human rights instruments. Of the instruments mentioned above the US has signed several but has ratified only the Covenant on Civil and Political Rights. These unratified treaties therefore do not have the force of domestic law in the US. They do, however, still carry the weight of international moral consensus.

The Nuremberg Code, the premier code of ethics governing all research that uses human beings as research subjects, may be applicable as well. Individuals who have been unwillingly exposed to pollutants may claim that they are in effect serving as research subjects in a toxics experiment, and that they were neither fully informed about the experiment and its risks nor asked for their consent to participate.

C. Officers

The officers of the court, i.e., attorneys and judges, would be persons of integrity who will have volunteered their time, their familiarity with and their skill in the use of courtroom procedures and protocol, their expertise in the application of standards of justice, and their ability to reason and argue applying a universal standard to a particular case.

D. Duration

The Tribunal should take place over a period of several days, partly to insure that the opportunity for representation and argument is adequate to the situation. It may be that briefs and preliminary motions will need to be heard and dealt with prior to the time during which the formal Tribunal sits and hears the case. The longer time period can also maximize potential for media coverage.

E. Venue

The venue for the Tribunal will need to be a place of dignity and authority, perhaps an actual courtroom or courtroom-like space. In choosing a geographical location for the Tribunal, three considerations seem important but weighing their relative importance may be difficult.

1. It should be located near to or in the heart of the area where the exposures and events in question occurred and where the affected persons live. The Nuremberg Trials after World War II, for example, were held at Nuremberg largely for symbolic reasons, because that was one of the centers of Nazi Power during the Third Reich.
   
   
2. It may be better located in a large urban area where more people will have access to it, where more media will be available to cover it, and where the chances of finding a respectable and august building in which to hold it may be higher.
   
   
3. It should be held in a location that will be amenable to those who will be organizing, serving on and testifying before the Tribunal.

F. Media

Media coverage will need to be maximized because one of the primary purposes of the Tribunal will be education of the larger community.

G. Finances

Financial costs of the tribunal can be minimized by organizers and officers of the court volunteering to serve. The court venue may perhaps be secured at no or minimal cost. Officers of the court, judges and attorneys, should have their travel, lodging and meal expenses covered by the sponsoring organization(s), but should be offered no fees or honoraria.

H. Outcomes

The final result of a Citizens’ Tribunal will be a written verdict of guilt or innocence on the proffered charges, decided and authored by the panel of judges after hearing the facts and arguments and after deliberating on what they have heard. There may be both majority and minority opinions.