To Build Consensus
In this court, the drivers are the dreamers.
“People were advising me, ‘Be careful,’” remembers Luis Moreno-Ocampo, “I knew I had to run, I had to show very quickly some outcome, some results.” The Prosecutor of the International Criminal Court (ICC), Moreno-Campos knows too well the pressures associated with saving the world. The Court’s decisions—what case to investigate and which criminals to prosecute—are expected to bring justice to populations long aggrieved and only rarely acknowledged.
Moreno-Campos recounts the early years of the ICC for The Reckoning: The Battle for the International Criminal Court, the documentary that opens the 20th Human Rights Watch International Film Festival in New York on 11 June. As the film shows, the Court was initiated in 2002, following years of international negotiating, and inspired in part by the Nuremberg Tribunal. A prosecutor at Nuremberg when he was just 27 years old, Ben Ferencz here describes his experience bringing charges against 22 former SS officers who had murdered millions of people. Even with such a monumental task before him, Ferencz says, the hope of the prosecutors at Nuremberg was “that we would lay a cornerstone saying that genocide is a crime. Nobody is immune: a head of state will be brought to trial.”
The problem of immunity shapes the ICC’s work, both its objectives and its obstacles. While the ideal is to bring to justice criminals who otherwise avoid punishment because they are too powerful within their own nations, the reality is that it is difficult to secure international support—in particular the ability to execute arrest warrants against such figures.
Human Rights Watch representative Richard Dicker says the Court was conceived as “an institution that would have the authority to investigate and prosecute these horrendous crimes”—such as genocide, rape, and torture—committed by heads of state and other vested authorities. Moreno-Ocampo, who was also a prominent figure in the documentary Darfur Now, recalls his previous experience as an assistant prosecutor in Argentina 1985, during the “Trial of the Juntas.” At the time, he says, he thought it was “the most important work of my life, prosecuting the top generals of a country because they killed 20,000 people” (the first time since Nuremberg that such a case had been brought). Now, he says, “I feel that was my training to do this job.”
Pamela Yates’ film—conventional in structure but profound in effect—tracks the ICC’s early cases, beginning with Uganda. The Court ran into its first real-world obstruction when it issued arrest warrants for Lords of Resistance Army leaders Joseph Kony and Vincent Otti, only to find that no police body would execute the warrants. Dennis Lemoyi, leader of an IDP Camp in Pagak, describes the frustrations of internally displaced persons, forced to move from place to place, enduring the hardships of camp life, as they agree to testify against their persecutors and then learn no action can be taken. A second case was brought against the UPC Militia’s Thomas Lubanga Dyilo, responsible for some 3000 killings in Ituri, Congo.
The testimonies of witnesses are heart-breaking of course, retold here in close-ups intercut with photographic and video evidence. These narratives are crucial to build cases against men (and the criminals in the ICC cases thus far are all men) who have long operated without regard for law, and who typically send conscripts and kidnapped and tortured child soldiers to do their most brutal work. ICC Senior Trial Attorney Christine Chung explains the process of gathering information. As the camera shows her repeatedly gazing into her computer monitor at transcripts and photos showing horrific injuries and mutilated bodies, she says, “A lot of it is about erasing yourself, and letting the stories and the accounts come forward so the facts can be judged.”
The facts seem apparent. And yet they also exist in cultural and political frameworks designed to protect those in power. And so, as The Reckoning reveals again and again, the ICC team—attorneys, investigators, and analysts—must work through thickets of denial, elusion, and obfuscation. As Moreno-Campos declares, “A president cannot use openly a state to commit crimes, that is why they cover the crimes. Part of his cover-up is diplomatic work.”
This raises the specter of power networks that blocks the ICC repeatedly: countries who refuse to participate in the process or sign on to the Court, out of concern for their own “national sovereignty.” Chung observes, “We rely on a network of the states, the member countries,” to achieve ICC ends. And yet, some nations will not participate. The case in point for The Reckoning is the United States. As John Bolton, U.S. Ambassador to the United Nations during the Bush Administration, puts it, “The notion that somehow we’re obliged to sign on to a treaty just because a lot of other people have done it frankly is ridiculous. If that’s American exceptionalism,” he asserts, “I’m an American exceptionalist.”
While it is becoming increasingly evident—with the releases of memos and reports concerning torture—just why the recent U.S. administration wanted to avoid even the possibility of being prosecuted for war crimes, hopes remain that the new administration will rethink this course. In the meantime, the ICC has continued its work, focusing on Darfur. No matter that its 2007 warrants for Ahmad Harun and Ali-Kushayb have not yet been fulfilled. Moreno-Campos and his team have gone on to construct a case against Sudanese president Omar Hassan Ahmad al-Bashir, for genocide. That arrest warrant has shaken officials around the world. As Chung says, though the crimes are evident, “The problem is the world just doesn╒t want to do anything about it.”
As the film observes, this problem is exactly why the ICC is in place. “The world” is typically understood as those in power, people who want to preserve their positions and the systems as it stands. The ICC means to change that arrangement. Moreno-Ocampo notes that while the work inside the courtroom is crucial, “The measurement of this Court is how the Court impacts the world.” The Reckoning offers a valuable introduction to that potential impact.