The ICC: The Reckoning (2009)

The Reckoning

Release date: January 19th, 2009
Running Time: 95 min

Credits

Pamela Yates, Director
Peter Kinoy, Editor
Paco de Onís, Producer

Outreach Partners

International Center for Transitional Justice

International Criminal Court -- Out of concern that the most serious crimes do not go unpunished, a permanent, independent international criminal court was established in 1998. Does humanity have the possibility of preventing atrocities? Can we do something to prevent the indispensability of human life? 

At the end of WWII, 1945, confronted by the systemic killing of civilians by the Nazi regime, the Allied forces chose not to execute those responsible but to use the rule of law - international penal action to affirm man's right to live in peace and dignity regardless of race or creed. It was a plea of humanity to law in the Nuremburg Trials hoping to lay a foundation stone saying nobody is immune to such injustice. But the 20th century evidenced a century of atrocities, which accelerated the demand for a global system of justice.  Fifty years of effort led to the 1998 Rome Conference, brought the effort to establish a framework for an international criminal court. A constitution was drafted and accepted by the nations who gathered. In 2002, the ICC came into existence.  66 countries ratified the court, which took on massive crimes. 

Luis Moreno Ocampo, an ICC prosecutor; Christine Chung, trial attorny for ICC. They saw this as participating in a start-up. Would Mignolo say that this was the act of delinking -- investigating the rhetoric of modernity and the logic of coloniality? Does this court formalize an effort to expose the matrix of colonial power or is it just a matter of power? Does the ICC embody colonialism or is it an tool for delinking for deconstructing the framework and then creating a new framework for justice? 

The court was shaped by the office of the prosecutor who had to investigate the crime, gather evidence, and bring the perpetrators to trial, but faced with conflict situations around the world, the problem was where to start. The court only has the power to investigate crimes that happened after it started, after July 2002. This is a court of last resort, so they are only able to take a case if the state is unable or unwilling to prosectute the criminals themselves.  they accepted referrals from the territorial states.

Uganda: Lord's Resistance Army. President Musevani sent Dr. Rugunda, minister of internal affairs, to try to talk peace, but he was unable to establish peace, so he referred the case to ICC.  They could not get Kony to prosecute him. The way the ICC began was crucial because they had to establish their reputation while doing the work with which they were charged. In 2004, the investigators arrived in Northern Uganda to investigate the 20 year war between the LRA and the government of Uganda, investigating the victims  of this conflict. They went to a camp witnessing over a milion IDPs, internally displaced persons,  camps. the LRA attacked a camp the ICC visted, Pagak? it was clearly an attack on civilians -- women and babies. The court did not prosecute foot soldiers but rather focused on the leadership for those crimes -- Joseph Kony and Vincent Otti. The first arrest warrants were issued three years after beginning the ICC.  However, did the ICC have the capacity to make the arrests?  The power and authority of the ICC is derived from the consensus of its member states. Is this part of the rhetoric of modernity? It has no police force to make arrests. The idea to have international criminal law is so new that the case has to be used to build consensus. Lack of international support was a growing problem for the court -- China, Russia, and the US had not joined, and the US was actively opposed because of its concerns with sovereign power. The US said, "No financial support, no collaboration, and no further negotition with other governments" thus  wanting the ICC to wither and collapse. The US told governments that they would lose all economic and military assistance (Bush administration). However, because the ICC represented interests much broader than the United States, by 2004 92 countires had joined the Court.

The arrest warrants had not been executed. Kony and other LRA leaders were still at large, but the LRA expressed interest in peace talks. However, Kony would only talk if the ICC arrest warrant was dropped, so the ICC was affecting the peace process; the court, however, said that amnesty in exchange for peace was not an option. LRA came to Uganda for a public discussion about wanting the ICC to stop the arrest warrants -- taking a public vote. Talks of how to proscute developed within Uganda, within Africa. There was a discussion about what a court system would look like within so that the ICC was not needed to do work that Africans could do -- it seems like this discussion is an attempt to delink from the colonial matrix of power that Mignolo talks about.  So even if there is no case in the Hague, the idea of a rule of law has been brought into communities. 

Eastern Congo: Over 4 million people had died as a result of the war in Congo. The conflict was not binary like the LRA vs. government. In the Congo, there were many more participants. They found evidence of mass atrocities carried out by different warring factions; the ICC did an analysis of which groups were responsible for the most crimes -- the UPC Militia. Thomas Lubanga Dyilo is the leader of the militia who conducted killings and abductions of kids to transform them into killers or sex slaves. He was detained, so an arrest warrant ws issued on Mary 17, 2006 for charges of child soldiers. The government of Congo cooperated and handed over Lubanga to the ICC and flown to the Hague.  This was a historic moment -- prosecuting the case of Lubanga would be a step toward fulfililng the ICC's goal to symolize the hope of ending empunity and thus prevent the occurence while contributing to the peace and well being of the world. 

Prosecutors gave them the voice by listening to their story and translating their story in the court proceedings. Sexual violence is silenced. Children's voices are silenced. They were exploited -- trained to kill, to serve Lubanga and his militia.  The measurement of the court is how the court impacts the world. The successful start of Lubanga's procescution raised expectations of what the court could do. 

After 6 months, the trial of Lubanga began. The procedure of the court had not been tested. The prosecution was accused of witholding evidence vital to the defense. The judge considered ending the case, Judge Adrian Fulford. The dilemma is real -- the due process needs to be resolved.The court is about the rule of law. 

Columbia:  Claiming rampant impunity at the highest levels of power, Columbia was reported to the ICC. 6 decades of war -a humanitarian crisis. The ICC announced that they are collecting information, which may lead to an investigation, but they want to encourage the country to use its own system to prosecute. The ICC is a last resort. The ICC found that the FARC guerrillas were responsible for massacres and kidnappings; thousands of civilians had been killed by paramilitary militias working with the Colombian army. The paramilitaries can disguise themselves as peasants; they can go into villages where the FARC are or others and do the work of the government. 

Big crimes happen because there is political or economic support. 30 members of Congress in Colombia are connected to the paramilitaires -- possibly the president, too. The ICC representative went to Colombia-- 287 assassinations by the paras or police with impunity, the complicty of the government. The ICC wants to move Columbia to prosecture and not intervene. Can the court exert enough pressure to produce an outcome better than what would have occurred without the court's pressure. Their job is to look at the cases Columbia is working on and encourage avenues of investigation -- about the political and economic support of the crimes. The ICC laws are not just for criminals but for presidents and armys that also have to stop others from committing crimes. 

Darfur: The idea that perpetrators of crimes against humanity must face justice is the foundation of the ICC -- shaped in Rome, tested in the ICC's first years, but Darfur was the "reckoning." The court had been unable to take on the case because Sudan was not a member of the court. The only way the ICC could open a case was with a referral from the United Nation's security council --March 2005. The prosecutor opens the case and begins investigating outside of Darfur. Every government has a right to use force to quell a rebellion, but it cannot be used as an excuse to attack the civilian population. The ICC determined that Ahmad Harun and Ali-Kushayb are the most responsible and issued an arrest on February 27, 2007. Sudanese government, a UN member state,  said they would not comply. It was up to the UN Security Council to enforce the warrant. Mass atrocities need to be planned; it takes commanders, money, and many people to execute the plan. Mostly, it requires that the rest of the world look away and do nothing. They cannot invoke a national sovereignty to attack their own civilians. Omar al Bashir, the president of Sudan, is the person bearing the greatest responsiblity for the atrocities - a genocide. The ICC issued an arrest warrant but al Bashir rallied allies to get the ICC to defer the case -- his allies were the African Council. This diplomatic work is part of the cover-up; it is the rhetorical of modernity and follows the logic of coloniality (does this argument work here?). 

Arrest warrants cannot be executed. The permanent international court makes it possible that a warrant can eventually be executed; however, is this system part of the logic of coloniality where the matrix of power is so tightly linked that the dispensibility of human beings can go on?  The "natural resources" or commodities that are at the heart of genocide seem so much more valuable than human life, and so while the ICC is a permanent structure for justice, it is not temporally sound; instead, it seems the international community that supports the ICC is satisfied with "temporary" impunity, which takes us back to the rhetoric of modernity, only now the rhetoric is saying "yes, we are pursuing justice...look at how we have come together."