JUSTICE ON TRIAL
by Penny Lane
REBECCA RICHMAN COHEN with Penny Lane
Rebecca Richman Cohen’s remarkable debut film War Don Don begins at the end of a decade-long civil war in Sierra Leone which has left a population devastated by mass murder, rape, and savage disfigurement. Now, in the capital city of Freetown, United Nations soldiers guard a heavily fortified building known as the Special Court. Inside, a man named Issa Sesay awaits his trial.
The prosecution says Sesay is a war criminal, guilty of heinous crimes against humanity. The defense says that he is a reluctant fighter who protected civilians and was himself a victim of terrible poverty and violent coercion. Justice Benjamin Itoe says the Court means “to bring an end to impunity and to contribute to the peace and reconciliation process.” War Don Don presents the trial of Issa Sesay in incredible detail, offering a rare and penetrating view of international criminal justice.
Rebecca Richman Cohen, a Harvard Law School graduate who had previously worked as a legal intern behind bulletproof glass at the Special Court (and before that as Michael Moore’s assistant editor), matches extensive footage of Sesay’s trial with unprecedented access to the workings of the Special Court. Her critically acclaimed film is not so much about the question of Sesay’s guilt or innocence, although any viewer will come to some conclusions about that. Rather, War Don Don sidesteps the clichés of the “legal thriller” all too often carried over from fiction to documentary. Perhaps because of the director’s legal background, War Don Don offers one of the most complex views of a legal proceeding ever presented in a documentary film. By putting the trial itself on trial, Cohen creates a fascinating puzzle certain to provoke debate amongst audience members.
War Don Don is screening at Anthology Film Archives on Monday, May 9 at 7:30 p.m. as part of Flaherty NYC, a monthly series showcasing innovative documentary films. Rebecca Richman Cohen and Producer/Editor Francisco Bello will be present for Q&A.
For more information on War Don Don: www.wardondonfilm.com
Penny Lane (Rail): Rebecca, tell me about making your first feature documentary.
Rebecca Richman Cohen: Back when I was working as an assistant editor on Fahrenheit 911, I was lucky to have met a lot of other young, hungry, creative folks who were willing to take risks with me. That was really important, because almost my entire crew on War Don Don ended up being folks I had worked with back then. You have to realize that, when we started making War Don Don, we weren’t sure what kind of access we’d have to Sesay or the lawyers, and I wasn’t exactly sure what the story was. The first trip we took was about 5 weeks. We went all over the country and filmed lots of stuff that ended up being really extraneous to the story. [Laughs.] But I think my crew was just up for an adventure, and had faith that we’d find the story. I was also lucky that they were at a stage in their careers where they were happy to defer payment and were really invested in the project. I think that’s a great gift for a first time filmmaker. But of course, now, I would never go about making a film that way.
Rail: How did you go about funding the film?
Cohen: Well, you’re assuming I figured out how to fund it. [Laughs.] Early on, fundraising looked like it wasn’t going to be that hard. It was a fascinating and relevant story, and I had worked at the Special Court when I was in law school, so at least on paper it looked like I had some kind of unique access to the subjects. That made some of the early grants easier to get. Later, it got harder. Fundraising in the middle was horrible. I thought we were never going to finish the film. I always joke that we were really lucky that the glacial pace of fundraising for an independent documentary was matched by the glacial pace of international criminal justice. [Laughs.] But in the end we were able to find two wonderful executive producers who believed in the film and shared our vision for it, and they came in with finishing funds. They, along with a co-producer who helped us sell the film, were worth their weight in gold.
Rail: The film shows the process of two opposing legal teams working to build their cases to present before the Special Court: Wayne Jordash leads Sesay’s defense, and Steven Rapp leads the prosecution. Can you tell me how you thought about these men as characters?
Cohen: I had met defense lawyers Wayne Jordash and Sareta Ashraph when I had worked as an intern on a separate defense team at the Special Court, and I was just really taken by how committed they were to their case and to their client. It wasn’t that they thought his hands were completely clean or that they were defending an innocent man. But they connected with this man on a genuine level, and they were really committed to trying to understand the circumstances Sesay had found himself in and try to understand the complexity of his character. I was very moved by them, and also by the prosecution, led by Steve Rapp. Steve Rapp, who is now Ambassador Rapp, is absolutely committed to justice and to due process. He has been very supportive of the film; he is not frightened by showing a vigorous defense. In fact, just the opposite is true: Ambassador Rapp says that because War Don Don shows that such a vigorous defense was given to Sesay, the film shows that this was a fair trial. I think it’s just great fodder for a film to find two opposing sides with equally committed and passionate and hardworking people.
Rail: Because the legal process is set up to be adversarial by nature, is there a danger of each side seeing the other side as less than human?
Cohen: What I want to say is that there is a danger of rhetoric of the kind that some people in our film used, things like, “I looked into Sesay’s eyes and I saw no soul.” By dehumanizing war crimes perpetrators in this way, by painting them as less than human, I think you really obscure the root causes of the war. If you just say, “Hey, there were a few bad apples, a few psychopaths, and now we picked them up—we’re done,” that makes the difficult work of reconciliation and repair even more difficult. Without trying to understand why thousands of people picked up arms and decided that this was a war that was important to fight, it is very difficult to address the root causes of conflict and to try to prevent it in the future. I also think that in a conflict like the one we saw in Sierra Leone, one of the things that happens is that the perpetrators see their victims as less than human. Some of the most important work that has to take place after mass atrocity is being able to see everyone as human beings, the victims and the perpetrators. And this is especially important for us as Westerners: to be able to see war crime perpetrators as human and not so different from us that these things could never happen here, that we could never be implicated in crimes like these. Which doesn’t mean that you don’t judge or punish war crimes perpetrators, but to be able to do that and still consider them human is really important work.
Rail: Despite what you might conclude from watching a John Grisham movie, the reality is that most trials are quite boring. Is that true in a war crimes tribunal as well?
Cohen: Yes. Rebecca West called the trial at Nuremberg “the citadel of boredom.” [Laughs.] And that was certainly at least part of my experience of the trials in Freetown. So yes, we were initially worried that the courtroom footage would be way too boring to use very much of, but in the end it turned out to be some of the most interesting and important material. You know, it really is a challenge to edit the courtroom scenes in a way that’s interesting and dramatic, but also true to the real complexity of these kinds of cases.
Rail: I found this quote in something you wrote a while back, and I wondered if you could expand upon it: “As a defense lawyer you’re ethically bound to zealously advocate for your client—often at the expense of getting to the truth. As a filmmaker you’re ethically bound to your audience to tell an honest and balanced story.” First of all, I think you’re giving documentary filmmakers a lot of credit, probably a lot more than some of them deserve. [Laughs.] But I wanted to ask you to talk about that idea a little bit.
Cohen: There are a lot of filmmakers out there who make “advocacy” films, who are advocating for a certain position or issue almost the way that a defense lawyer advocates for their client. But we weren’t really doing that. In fact, it was a great liberation for us as filmmakers to say, we’re not trying to promote the court or detract from the Special Court in Sierra Leone. Our interest was not to say whether this institution will succeed or fail. In fact, we knew this institution would be more or less closed by the time we finished the film. We wanted to show the process of international criminal justice in a balanced way that respects audiences enough to let them make up their own minds about what they think about this case, the Special Court, and even the current practice of international criminal justice. But you know, it really is a hard line to walk as filmmakers, because we’re raising questions about due process and we’re raising questions that we think show some flaws in the prosecution’s case. And I think that because of that, for lay audiences there can often be an impulse to say, “Well, if there are some flaws in the prosecution’s case, then this must be a film about a wrongful conviction, a miscarriage of justice.” And I don’t think it’s that either. I don’t think Issa Sesay is innocent or that he was wrongfully convicted. So to find that balance between raising criticisms of the process without exonerating a war criminal—that was really difficult, and it took a long time in the editing process.
Rail: War Don Don really made me think about war crimes tribunals and wonder about what they are, exactly. For example, who created the Special Court in Sierra Leone? Where does the legal authority come from?
Cohen: The Special Court and other tribunals like it are created on an ad hoc basis just to prosecute specific war criminals in specific cases. The two major tribunals that preceded the Special Court were the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ICTY and the ICTR were created using Chapter 7 powers of the United Nations Security Council to “restore international peace and security.” There was actually a lot of controversy around whether or not the UN actually had the power to create these tribunals. But the Special Court was created much differently. The government of Sierra Leone actually approached the UN and said we want to have trials, and we don’t have the legal infrastructure to do it because our entire legal system was decimated during the war. So the Special Court for Sierra Leone was the first hybrid tribunal, where the Sierra Leonean government worked in tandem with the United Nations.
Rail: I think one of the most important of the many important issues your film raises is the difficulty of trying to “write history” in this kind of adversarial courtroom context. Can you talk about that idea a little bit?
Cohen: Yes. I think that idea really stems from the Nuremberg Trials organized by the Allies to prosecute Nazi war criminals in the aftermath of World War II. The Allies wanted to avoid emotional witness testimony that could be biased, and they wanted to put together all this documentation to essentially create an irrefutable case about the Nazis’ crimes for the rest of history. They had the idea that by going through this process and putting this kind of evidence before neutral judges, you’re really able to create something that has value as a historical document. And I think that’s no longer credited as a belief. I think that now we know that what trials can do well is judge the guilt or innocence of individuals. International criminal prosecutions should be a part of a more holistic response to dealing with transitional justice for what happens after a conflict. But to understand the larger historical context of why war crimes happen, and the way that guilt can be distributed over the multitude of players or factions—that’s not something that trials can do very well. Truth and reconciliation commissions do that much better, for example. But in the aftermath of mass atrocity, we tend to want to load these trials with a lot of expectations that are frankly just too high, when the only question we should be asking of any specific trial is, “Did this trial fairly judge the guilt or innocence of this individual person?” It’s also important to say that international criminal justice is still a very young field, which means that precedent is still being created. There are still a lot of unanswered questions around the process, far too many for my film to answer.