Culture  Documenting the International Criminal Court

Pamela Yates’ The Reckoning traces the ICC’s growing pains

American filmmaker Pamela Yates’ latest production, The Reckoning – The Time for Truth, the Struggle of the International Penal Court, surveys the establishment of the International Criminal Court (ICC), and the challenges it has faced since its inception in 2003. The film will screen tomorrow as part of the Montreal Human Rights Film Festival’s Human Rights Encounters Series.

The film follows the ICC’s prosecutor, Luis Moreno Ocampo, and his office’s activities over a three-year span. Arrest warrants are issued for Uganda’s Lord’s Resistance Army leaders, warlords of the Congo are put on trial, the Colombian justice system is questioned, and charges are laid for genocide in Darfur. Prosecutor Moreno Ocampo and his office investigate the crimes, gather the evidence, indict the perpetrators, and finally face them in trial. The Reckoning doesn’t paint a pretty picture, but it offers a promising outlook on the prevention of international crimes.

The opening scene sets the tone of the film, which relies on graphic images and horrific examples to illustrate the magnitude of cases being dealt with. It shows a tearful group approaching a recent murder scene in the bush of Middle-Africa. Lifting a muddy skull from the ground, a local man explains that without justice, there is no basis for respect, and communities will continue to attack and kill one another. In countries where mass murders and gruesome crimes are committed with impunity, citizens hope for representation that will end these acts of cyclical destruction.

The idea of an international court was conceived at the end of the Second World War, when Axis leaders were prosecuted for crimes against humanity at the Nuremburg trials. Only after the Cold War were other international criminal processes, such as the former Yugoslavia and Rwanda tribunals, established by the United Nations (UN) Security Council. Aware of the shortcomings of ad hoc tribunals, the UN General Assembly convened in 1998 in Rome, bringing government representatives from around the world to construct the framework of a permanent international criminal court. The court became a reality in 2002, and today the Rome Statute has been ratified by 110 member states.

Philippe Kirsch, a former Canadian diplomat, served as a judge of the ICC from 2003 to 2009, and was also its first president. In a phone interview, Kirsch explained how the ICC differed from earlier conceptions of international justice arrangements like the Nuremburg trials. “All of these [ad hoc international tribunals] returned to the past and returned to specific regions and countries,” he said. “Eventually states decided that they needed something permanent that would look toward the future.”

Expounding on the difficulties of the ICC’s creation, Kirsch added: “an entirely new court and an entirely new system was created from scratch…it was complex; it had very novel components.” Indeed, the ICC’s early stages were fraught with numerous practical challenges. Yates’ film addresses these internal issues, beginning with the problem of which human rights violations required investigation. When it comes to issues like rape and murder, or the abduction of child soldiers and sexual slaves, how do you decide which is most pertinent, and which most deserves punishment?
Kirsch points out that in addition to internal challenges, the ICC faces numerous external critiques. Crucially, the legitimacy of the court has been questioned as many of the world’s most powerful nations have rejected membership. Though the United States, under the Clinton government, initially signed the treaty, it was never sent to Congress for ratification, leaving the opportunity for the Bush administration to withdraw its involvement from – and actively work against – the ICC. While the U.S. is no longer hostile to the ICC, it still has yet to re-enter the organization.

Meanwhile, other states have refrained from signing the treaty, notably China, Russia, India, and most Middle Eastern countries. “The old tribunals – Nuremburg, the Yugoslav tribunal, the Rwanda tribunal – were criticized for exactly the opposite reason [association with powerful nations],” Kirsch asserted, “because they were created – imposed, in fact – by the victor states after World War II and later by the UN Security Council. To avoid that implication, the ICC was the first and only criminal court that was created by global treaty so that it could represent all views.”

Political legitimacy is another great concern of the ICC’s. All cases to come before the court so far are from Africa, raising a question of possible bias of judicial procedures. Kirsch points out, however, that “the ICC has never taken up any situation itself. All the situations that have been referred to the court…the Democratic Republic of Congo, Uganda, and the Central African Republic, have referred their own situations.” As a court of last resort, the ICC can only take a case if a country is unable or unwilling itself to prosecute. He goes on to comment that “the ICC always operates in a political environment, so whatever it does touches always on immense interest, economical and political…. It is often criticized, not for what it does but because it complicates…political situations, and to overcome that…will take some time.”

Regarding future increase of state ratification, perseverance and time will likely prove the court’s credibility to unsigned nations. Kirsch explains that “the essential condition for the ICC to have legitimacy is to always remain faithful…to a judicial role, not to ever act politically and the ICC system has been designed to avoid that…. That is where legitimacy comes from and that is what, ultimately, will give confidence to states that have not ratified yet that they should, that…the ICC is a good thing for the world.”

For member states, the court has been beneficial, leading to improvements in the domestic judicial systems, which will, ideally , bring local perpetrators to justice. In turn, local progress benefits the ICC’s mission, as the ICC’s limited resources restrict its capacity to undertake cases. A joint effort must be made between international and domestic judicial systems.

The Reckoning covers a small, though very important, portion of the tribulations that have surrounded the ICC since its conception. To grasp the extent of the court’s challenges, this riveting documentary shows the external struggles the court has faced, as well as hazards of field work, illustrated by explicit images and testimonials. Yates, who has received recognition for previous films from Sundance and has seen one of her pictures released in over 150 countries, has created a captivating story that vividly exposes not only the difficulties faced by the first independent international criminal court, but also issues that countries affected by war crimes deal with.

The success of the court, postulates Kirsch, lies in public awareness about its functioning. “The worst enemy of the ICC is ignorance, and the states need to be pushed a little bit…. Civil society has an enormous role to play in helping understand…international justice.”