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The End of Impunity?

• June 19, 2009 • 12:00 PM

An upcoming PBS documentary shows how the International Criminal Court is changing the world’s approach to crimes against humanity.

Two years into the new century, humanity took what may be a momentous leap forward, and most of us missed it entirely. While the United States was licking its wounds in the wake of 9/11 and gearing up for the Iraq War, the International Criminal Court opened its offices and began pursuing its bold agenda: to prosecute war atrocities and other crimes against humanity in places where the local authorities are unwilling or unable to do so.

Unlike the short-lived tribunals following World War II and the conflict in the former Yugoslavia (which served as important templates), the ICC was designed as a permanent institution. Based in The Hague and backed financially by the 100-plus nations that ratified the treaty (the U.S., Russia and China are the major holdouts), the court was founded on the radical idea that justice should not be at the mercy of national sovereignty. Some crimes are simply too heinous for the international community to ignore.

But which crimes? How does one go about investigating and prosecuting them? And what takes precedence when the pursuit of justice hampers the pursuit of peace? The ICC has been grappling with all these issues during its early years, as its leaders delicately feel their way through uncharted legal territory. These courageous baby steps are chronicled in Pamela Yates’ documentary The Reckoning, which will be broadcast July 14 on PBS as part of the P.O.V. series.

By necessity, the film does not have the structure typical of a courtroom drama: It does not take one case and follow it to its conclusion. International human rights law is a slow-moving process, even by judicial standards, and none of the cases the ICC has investigated to date has culminated in a verdict. The case that has progressed the furthest is that of Congolese warlord Thomas Lubanga Dyilo; his lengthy, ongoing trial began Jan. 26, one week after the film’s world premiere at the Sundance Film Festival.

So Yates and her team were forced to focus on a less dramatic but ultimately more important element of the story: the careful way in which the court has begun its work, mindful of its need to establish an aura of authority. The ICC, which is independent of the United Nations, has no police force of its own, let alone an army. It relies upon the cooperation of its member states — a reality that means lead prosecutor Luis Moreno-Ocampo must be both a fierce advocate and a delicate diplomat.

Though the film boasts several compelling characters (most notably Ben Ferencz, a 27-year-old prosecutor at the Nuremberg trials who has lived long enough to see the ICC become a reality), Moreno-Ocampo is its quietly charismatic central figure. The Argentine attorney is uniquely qualified for the position: In 1985, he successfully prosecuted members of his nation’s former military junta on charges of torturing and murdering their political opponents.

Moreno-Ocampo comes across as a world-weary figure, more sage than firebrand. Watching him consult with his staff, cajole politicians and hold press conferences, an image emerges of a cautious revolutionary, one who is carefully and methodically staking out new legal territory. When objections to the court’s admittedly intrusive activities are raised, he always returns the focus of the discussion to the victims of the crime in question. Too often, he contends, they have been the forgotten element in peace deals and amnesty agreements.

Each of the cases the court has pursued to date has its own flavor, and together they illustrate the various ways an ICC investigation can be instigated and the different paths they can take. In Uganda, the court was asked by the government — which essentially admitted its powerlessness in the matter — to prosecute rebel leaders accused of kidnapping young boys and forcing them to join their army.

The government hoped this action would put pressure on the “Lord’s Resistance Army,” and it did: Key members of the rebel hierarchy, apparently fearful of prosecution, initiated peace talks. But they also insisted on amnesty as a price for the laying down of weapons. It is fascinating to watch ordinary Ugandans at outdoor public meetings debate this unpalatable but hard-to-resist offer.

In Colombia, human rights organizations petitioned the court to investigate the criminal activities of paramilitary groups with ties to the government. In this instance, the ICC has played a quite different role: The presence of its prosecutors became a way of putting pressure on the authorities to clean up their own house. As in Uganda, the situation remains unresolved.

Finally, there is Darfur, which was referred to the court for possible prosecution by the U.N. Security Council. After finding clear evidence implicating him in crimes of genocide, the ICC issued an arrest warrant for Sudanese President Omar al-Bashir, who has been linked to the region’s infamous Janjaweed militias. Al-Bashir reacted angrily, expelling international humanitarian agencies, and the situation remains at a stalemate. Once again, the question arises: Is the court, at least in the short term, doing more harm than good? Or must any lasting peace involve an acknowledgement of the horrors that occurred, with the truth established in a court of law?

Yates clearly believes so but does not shy from the topic’s inherent ambiguity. Although she is an outspoken champion of the court and its work, her beautifully crafted film does not have a propagandistic tone. “I tried to humanize a judicial institution —to get to know the people who are inside it making these decisions,” she said.

Of course, a more skeptical filmmaker could have framed the story of the ICC’s early years as a case study in impotence. But that would be premature. At this point, the court is something of a wild card: Its presence clearly impacts a situation but in unpredictable ways. This gives the film a cliffhanger ending, an issue Yates will address by making a number of short films for the Web site ijcentral.org.

Yates notes that the issues raised in the film have “particular resonance in the U.S. right now, as we grapple with our own recent past.” Given revelations about government-sanctioned torture at the Guantánamo Bay prison, it’s hard to watch her interview with former U.N. Ambassador John Bolton without wincing. His reasons for the U.S. not joining the ICC are principled and well-articulated, but one can’t help but wonder whether he was also fearful of what an investigation of American behavior might expose.

There’s no word yet from the Obama administration as to whether the U.S. government’s attitude toward the court will shift. No doubt a Senate debate on becoming an official member would be inflammatory and contentious. But in a world where an increasing number of nation-states are unable to control activity within their own borders, the presence of an international system of justice will likely take on increasing importance. The Reckoning makes a convincing case that, in both practical and moral terms, the ICC’s time has arrived.

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Tom Jacobs
Staff writer Tom Jacobs is a veteran journalist with more than 20 years experience at daily newspapers. He has served as a staff writer for The Los Angeles Daily News and the Santa Barbara News-Press. His work has also appeared in The Los Angeles Times, Chicago Tribune, and Ventura County Star.

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