Left, Luis Moreno-Ocampo , the first prosecutor of the International Criminal Court (ICC) who retired in 2012, and Angelina Jolie, actress who has been among the most high profile advocates for the ICC. (Photo: A Grab from the documentary ‘The Court’ and the front page of Hi India)
The following interview appeared in the latest edition of the Chicago and New York based Hi India weekly newspaper.
By Mayank Chhaya
When U.S. Congressman Ed Royce, chairman of the powerful House Foreign Relations Committee, recently recommended that seven Pakistani suspects in the November 26, 2008 Mumbai terrorist attacks be tried by the International Criminal Court (ICC), he unintentionally brought focus on a significant new documentary about the court.
While the Republican Congressman from California’s 39th district was pointing out that if Pakistan cannot try the suspects they should be handed over to the ICC, the documentary titled ‘The Court’ offers a fascinating look inside its working in general and, in particular, on its remarkable first prosecutor Luis Moreno-Ocampo.
Jointly directed by Michele Gentile and Marcus Vetter, ‘The Court’ also chronicles an institution that has the potential to bring justice to despots, dictators and warlords who often escape punishment despite their egregious crimes against humanity.
Of course, the ICC has its own challenges because major countries such as the United States and India have not ratified the Rome Statute that created it in 2002. So far 122 countries accept the ICC’s jurisdiction. Incidentally, India has chosen to stay outside because it disapproves of its broad definition of crimes against humanity.
Watching ‘The Court’ you realize how hard it is to achieve justice for those on the margins of the human civilization. Although the documentary addresses several intractable global crises arising out the harrowingly criminal regimes in many parts of the world, its basic story is about the Congolese warlord Thomas Lubunga Dyilo who forced children to serve as his soldiers and subjected them to unspeakable cruelty as a matter of routine.
It was a great moment for Moreno-Ocampo when Lubanga was sentenced to 14 years in prison in 2012. The effectiveness of the ICC has remained a matter of serious doubt but this particular conviction was regarded as a path-breaking achievement.
As the Argentine prosecutor Moreno-Ocampo describes his challenge, “The problem is that the biggest countries of the world are outside my jurisdiction because they never signed this treaty.” One of the biggest problems that the ICC faces is that it has no enforcement mechanism in these countries and must depend on individual nations to execute arrest warrants against those accused of crimes against humanity.
Early on in the documentary, there is a scene about what are presumably the soldiers of the Lubanga brutalizing a boy. When you see that you seriously wonder whether we have really travelled that far from our violent primitive impulses. Unarmed, utterly helpless young men are casually shot point blank even before they could complete their pleas for mercy.
The documentary does a powerful job of capturing Moreno-Ocampo’s relentless pursuit of justice. He is a natural protagonist for a documentary such as this with his innate flair for the medium. Excerpts from Hi India’s (HI) interview with Marcus Vetter (MV):
HI: You followed Moreno-Ocampo for six years across four continents to film the documentary. That prompts two questions. How was the process of sifting through the sheer amount material you must have got? How difficult was it to stitch a cohesive narrative?
MV: We had around 150 hours of footage, which we have all transcribed and watched. As we began shooting it was about the Palestinian Case, but then we realized how important the case about child soldiers was for the court and of course for the film. It was the first case of the ICC. It took several years. We had hundreds of hours of archive footage from the courtroom. So this was the red line in the story, from the opening of the case to the closing and the final verdict. When during the filming the upraising in Libya happened we had suddenly another angle. So we chose these three cases our three cases for the narrative.
HI: One of the frequently heard criticisms of the ICC has been that it has been ineffectual and focused on certain parts of the world. My sense from watching the documentary is that you did not directly address that issue other than having an Austrian journalist ask that question. Was that deliberate?
MV: I have seen the other documentaries about the ICC– especially The Prosecutor – focusing on the critical questions concerning the ICC. I couldn’t really share these thoughts, because I think this court is very young and needs its time get its strength. The fact that 120 countries voted for the existence of the court is a miracle in itself. Ocampo worked for 9 years day and night to establish this vulnerable institution. And the Libyan case was transferred to the ICC with only after little discussion by the UN, where the US, China, Russia are playing a dominant role. This shows that with time the ICC might be recognized also by powerful states like the US and Russia. For us it was much more important to reach a big audience and to inform them about the existence and the importance of the ICC which is often confused with the different tribunals in The Hague.
HI: The canvas on which Mr. Moreno-Ocampo operated was vast and complicated. What do you think was one factor that motivated him?
MV: I think the fact that he was part of the trial against the junta in his own country in Argentina made him the right person for this position. He liked Ben Ferencz – the former prosecutor of the Nuremberg trials – so much. He followed each of his movements. I think Ocampo really believed in the fact that justice will prevail and that the only way to get it is to make sure that war criminals will be prosecuted and no political deal will help them to get impunity. When he saw the film heart of Jenin – a film I made about a Palestinian father whose son was shot down by the Israeli Army and who then – instead of seeking revenge – donated his sons organs to Israeli children – he was flashed by the message of reconciliation in this film and he approached me, if I could imagine in doing a film about the ICC. I agreed, because I liked the fighting for his cause and I liked his ideas towards reconciliation.
HI: As someone who followed the subject for a long time what is your sense about the future efficacy of the ICC?
MV: I deeply hope that it will be successful. I liked the fact that the ICC was handing over the prosecution of Gaddafi to the National Authorities in Libya, when they saw that they so much wanted to prosecute Saif Gaddafi themselves. The Rome Statute says the primacy is for national proceedings and they acted accordingly. I think now with Fatou Bensouda as the new prosecutor the ICC will be defined by another sort of mentality. She is a woman from Gambia and she is not a front person like Luis Moreno Ocampo was. I think only after her term we will see where the Court is heading. Now, some countries, who voted for the court at the Rome Conference see that it is not only their neighbors who might be prosecuted but also maybe themselves and these countries are now thinking about if they did the right thing when they became part of the ICC. It will be challenging times ahead.
HI: It took the ICC ten years to secure its first conviction in the form of the Congolese warlord Thomas Lubanga Dyilo. How do you think that record of accomplishment could be significantly improved?
MV: The first case took that long because all the procedures had to be established first. They did not want to make any mayor errors. The cases who are coming now might not take that long anymore. Again, it needs still time to really make a judgment about the efficiency of the ICC.
HI: Towards the end of the documentary you mention that Mr. Moreno-Ocampo is working on ways to treat war itself as a crime against humanity. That is a hugely ambitious and highly laudable objective. What progress has he made on that?
MV: I think this is somehow much more Ben Ferencz dream. But without dreamers little can be reached To make political deals impossible when it comes to war crimes is at least first step in this direction.