Hope for Justice at the World’s Court? Pamela Yates with Williams Cole

For 20 years now, the Human Rights Watch International Film Festival (June 11th-25th at the Walter Reade Theater) has programmed documentary, narrative and animation from all over the world—including the U.S.—that engage issues and present stories that are often only blips in the American mainstream news. Of course, for eight of those 20 years the festival—and the films in it—have been tangled in the web of the George Bush years of U.S. unilateralism, an atmosphere that, to say the least, cast a dark hue on human rights around the world. Now with a new more, outward looking administration one can only hope that stories of injustice from around the world will be embraced rather than ignored in Washington DC.

Casualties of the Sudanese government attacks living in refugee camps on the Darfur/Chad border. Photo by Marcus Bleasdale/VII.

This year the festival opens with The Reckoning: The Battle for The International Criminal Court, a poignant documentary by Pamela Yates, Paco de Onis and Peter Kinoy. This is Yates’s fourth film at the HRWIFF and, in many ways, its subject embodies a hope for a potential New Era in which a superpower like the United States will join a world court that will prosecute—and whose presence will dissuade—the horrid injustices that daily plague many parts of the world. I sat down with Yates in Williamsburg, Brooklyn where we talked about the film, the challenges that such an international court faces and the outreach efforts around a movement for international justice.

Director Pamela Yates.

RAIL: Can you explain the general idea and mission behind the International Criminal Court?

YATES: Well, the International Criminal Court is the first permanent, independent, international court to try the gravest violators of crimes, and the major crimes of genocide, war crime, and crimes against humanity. So the ICC goes after the leaders, the commanders that make the command decisions and who send people out to do these crimes. It’s really meant to not only investigate, issue arrest warrants, and have trials, but to have a tremendous effect on the world that goes beyond the arrests and beyond the trials, some of which have only just begun. Actually, when I first started The Reckoning, I thought it was going to be about the arrests and the trials but, as it turned out, the first trial started two weeks after we finished the film. But what I came to understand in the making of the film was that it was much more complex—that it was really about the effects of the ICC on the world. The very presence of the ICC is powerful in that it makes leaders and those who are possibly thinking about doing the crimes think twice because the ICC will and can issue an arrest warrant for them. For example, in the film you hear a former commander from the Lord’s Resistance Army in Uganda—a group that has committed heinous acts—tell us that they talked about the ICC all the time in the bush while considering their plans of action, sometimes two or three times a day. It’s definitely a factor. The ICC has become a concern in how they operate.

RAIL: There’s a precedent going back to the mid-20th century to...

YATES: Yes, the ICC didn’t just spring up in isolation. There’s been this evolution of international justice since the Nuremberg Tribunals. Actually, in the last 15 years, there’s been an explosion of international justice. The International Criminal Tribunal for the Former Yugoslavia—the court that tried Milosevic—was an ad hoc tribunal, a temporary tribunal. And then we had the International Criminal Tribunal for Rwanda, another ad hoc, temporary tribunal. So people thought that instead of having these temporary courts—that would only deal with situations after the fact—let’s set up an international court that will investigate during ongoing conflicts, and try to attenuate or stop the conflict. So it’s been this kind of evolution of thinking, I think, in a very positive way.

RAIL: It’s certainly an important, idealistic entity. On the surface it seems like it would be common sense that a court like this should exist. Who are the powers that have issue with it and why?

YATES: It really is an idea whose time has come. And as the world becomes more and more globalized it’s not surprising that justice itself would become globalized. Yet, the three major powers—the United States, China, and Russia—have not joined the ICC. But it’s really the United States under President Bush that went on a mission to try to stop it. In the waning days of the Clinton administration, the United States actually signed the Rome Statute, the constitution for the ICC. But then under Bush, the United States unsigned the Rome Statute and withdrew any support or engagement for the ICC. Former U.S. Representative to the U.N. John Bolton, in the interview that I did with him, told me that the happiest day of his professional life was the day he unsigned the United States from the Rome Statute. So, yes, the United States was confrontational, and opposed to it, and told other countries that it would withdraw military and political aid if they joined or if they turned over any American to the ICC.

RAIL: So this was in line with the general ideological mission within the Bush administration. What about now? Even if that was the Bush Doctrine I assume there’s still probably some pretty strong advocates for keeping America out of international treaties.

YATES: You’re so right but, even so, I think there are things that we can do to re-engage slowly. We can be part of the Assembly of States’ Parties meeting, the body that represents all the member states. We can be part of the review conference in 2010; we can be an observer without being a member and we can add the very rich history of jurisprudence that exists in the United States and, at the same time, start the process for ratifying. It’s not going to be easy. A lot of states worry about their national sovereignty and ask if they are going to be able to control their own country if signing onto the ICC. But, in the U.S., the idea posited by the opposition that American soldiers and servicemen and women would be taken to the ICC is not true because the International Criminal Court is the court of last resort. So it’s only when the domestic and national system is unable or unwilling to try perpetrators and we have a very robust judicial system here.

RAIL: If the U.S. did say that they were going to join on some level, do you think that China and Russia would as well? Or if one of them joined would the U.S. then join?

YATES: That’s a big historical “if.” I think that the United States really should want to stand with other countries that are against perpetrators of these kinds of crimes whether China or Russia should decide to or not. It shouldn’t be about realpolitik. But if China or Russia decide to there’s no doubt that it would be significant.

RAIL: What’s your impression of what’s happening in the Obama administration toward the ICC?

Former child soldiers of the Thomas Lubanga UPC militia, Ituri, eastern Congo. Photo provided by Skylight Pictures

YATES: [Laughs.] We don’t know. We know that they’re studying what the approach should be to the ICC. But what we’re doing is trying to use The Reckoning as a flagship for a three-year audience engagement and outreach campaign, so that we can start a global conversation about international justice. And what we’re urging people in the United States to do is get involved. What the Obama administration is thinking is one thing but we need to move forward as citizens to pressure the government to resign the Rome Statute. We envision a robust citizen’s movement for international justice that the film is only a part of. We have a website called ijcentral.org where you can find out what’s going on. We have a daily news feed and every week there’s a ten-minute summary from the trial against Thomas Lubanga—the former militia leader from the Congo whose been charged with conscripting child soldiers—that’s going on in the Hague right now. You can even join our Twitter which is geo-located, meaning that high school students in Boston can talk to the head of the Internally Displaced Persons camp in Uganda. When things are happening at the ICC or controversies around international justice you can get this incredible Twitter coming from all over the world.

RAIL: That sounds very different from what Twitter is used for a lot of the time.

YATES: It’s really amazing all the things that are going on. On the home page a map comes up and everything that people are saying comes through and the world turns around, depending on where it’s coming from. There’s so much talk about international justice because the ICC is one mechanism in a huge array of mechanisms. That’s one of the reasons that in the last 15 years there’s been this explosion of international justice. And I don’t know whether you know it but there have been something like 49 heads of state have been tried in the last 15 years through national courts and international courts. I find that to be a really surprising statistic.

RAIL: How can the ICC avoid becoming the kind of bloated, bureaucratic, somewhat ineffective international organization that some believe the U.N. has become?

YATES: Well, in the short term, I think it’s doing what it was set up to do, which is to investigate, issue arrest warrants, and start trials. So that’s all very good. But every time you issue an arrest warrant, or begin a trial, you’re putting into practice the Rome Statute, and invariably there are going to be obstacles or challenges or things that you couldn’t possibly have perceived both on the judicial front and in making the arrest. So I think what remains to be seen is how agile the International Criminal Court can continue to be. And one of the reasons that it’s been successful in its first six years is because of the prosecutor, Luis Moreno-Ocampo, who is both a tireless prosecutor and an incredibly good diplomat, because he uses the investigations and the arrest warrants and the trials to build consensus around international justice. He also seems to be an eternal, if not optimist, idealist. He believes in the idea of international justice and he believes that a prosecutor has to persevere and stand his ground and try to make these investigations and arrests free of political interference or political pressure to the extent that that’s possible.

RAIL: What are the major challenges of enforcement that the ICC has? If they issue a warrant how do they fulfill it? 

Professor Pilo inspects a skull in the killing fields of Bogoro, Ituri, eastern Congo. Photo by Susan Meiselas/Magnum Photos.

YATES: Well, the ICC does not have a police force, so it relies on the member states to do the arresting. In Uganda, in the case of arrest warrants for the Lord’s Resistance Army, they’re counting on the Ugandan army and they’re counting on the Congolese army, because the Lord’s Resistance Army is hiding out in the Congo. They’re counting on the member states to do the arrest, and that’s probably the greatest Achilles Heel of the ICC, not having a police force to make an arrest. It’s not easy to arrest people. The ICC is made up of the member states that belong. Right now, the continent that has the largest number of member states is Africa and there have been many arrests made. They’re three Congolese former militia leaders who are under arrest in the jail in The Hague, and one former senator from the Congo who’s been arrested. So people are being arrested but not everyone’s being arrested. And certainly, arresting al-Bashir in the Sudan is very difficult because he’s a sitting head of state. But he is now an international fugitive who has been indicted for war crimes and crimes against humanity. Essentially, the member states have to rise to the occasion and exercise their political will. Also, when a person who’s been issued an arrest warrant travels to a member state, the member state can arrest them. That’s what happened to Jean Pierre Bemba from the Congo. He traveled to Belgium, to visit relatives, and he was arrested there and sent to The Hague. These kinds of arrest warrants severely curtail people’s ability to travel internationally. Or they can severely curtail their ability to travel internationally if member countries keep proactive.

RAIL: And often warring parties in countries say that the ICC prosecution will “endanger a peace process” right?

YATES: Yes, the thing that comes up over and over again, and will continue to, both in Uganda and in the Sudan, in the Darfur case, and other places, is really peace and justice. Or some people call it peace versus justice. I think that’s a false choice. It’s kind of like in the United States after 9/11 when people talked about security versus civil liberties. Why can’t we have both? But I think one of the things that come up over and over again is if justice can play a part in a peace process? Or is justice opposed to that? And many people think that justice stops the peace process from moving forward. But I think there’s a growing sense in the international community that justice actually has to be part of an enduring peace. So I see that as a positive development.

RAIL: So, in effect, there is an increasing call for international justice even if different parties say that prosecution will endanger peace processes in different countries.

YATES: The International Criminal Court is now a player on the world stage. It’s a vibrant entity that cannot be denied. Well, you know, it’s never a good time to make an arrest warrant. I mean, look at al-Bashir. He presided over the government of Sudan during the North-South war, during the war with Southern Sudan, in which hundreds of thousands of people were killed. He armed the LRA which killed, and maimed, and abducted children in northern Uganda, and then the Darfur debacle. So when is going to be a good time to arrest him? I think now is a good time to arrest him.

The Reckoning will broadcast on PBS in July. Please visit www.ijcentral.org for more information on the international justice movement.

Contributor

Williams Cole

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