Q&A with Former ICC Prosecutor Christine Chung - The Reckoning: The Battle for the ICC

Note to self to re-read this, from The AM Law Litigation Daily
Q&A with Former ICC Prosecutor Christine Chung
By Ben Hallman, Friday, July 10, 2009

We tend to steer away from film recommendations here at the Litigation Daily, but a documentary about the International Criminal Court, airing on PBS on Tuesday, should be worth your while. "The Reckoning: The Battle for the International Criminal Court" follows ICC prosecutor Luis Moreno-Ocampo and his team for three years as they issues arrest warrants for Lord's Resistance Army leaders in Uganda, put Congolese warlords on trial, and charge Sudan's President Omar al-Bashir with war crimes and crimes against humanity in Darfur. A central figure in the film is Christine Chung, an American lawyer who was one of the three first senior trial attorneys at the ICC. We caught up with her by phone on Friday afternoon at her office at Quinn Emanuel Urquhart Oliver & Hedges, where she has worked since leaving the ICC in 2007.

LIT DAILY: Hi Christine, thanks for taking the time to talk to us. How did you come to be one of the first trial attorneys at the ICC?

CHUNG: At the time when I was leaving [the U.S. Attorney's Office in Manhattan], the chief prosecutor had just been elected. He was teaching at Harvard at the time. I had read about the court, but figured he was probably not so interested in having an American lawyer on board, given that the U.S. government was so opposed to the court at the time. I called him and asked if he would be interested in having someone with my background on his team, and he encouraged me to apply. I got hired in the first round, along with a British and a German lawyer.

LD: How did being a federal prosecutor experience prepare you for investigating cases for the ICC?

CHUNG: Maybe half way. The American prosecutorial system is very sophisticated, but [the ICC rules] were very different. I had to learn a whole new set of substantive and procedural rules. I had to learn a new governing text. The court itself was new. We often said it was like building an airplane and flying it at the same time. We had to hire translators, and hire investigators. It was a brick by brick process.

LD: What would you describe as your greatest personal triumph at the ICC?

CHUNG: For most of us it was getting the court up and running in what people perceive as a credible way. In part because of U.S. opposition, and other reasons, there was some belief that we would try and fail. Today, it's a viable institution.

LD: The best known action of the ICC was the indictment of Sudan leader Omar al-Bashir on war crimes charges. What did that mean for the ICC?

CHUNG: Charging Bashir was two milestones. For one, the United Nations security counsel referred the case to the court, which is a real achievement in terms of credibility. Second, he was the first sitting head of state to be prosecuted by the court in connection with one of the worst crimes in the world.

LD: What did you want the filmmakers, and eventually the viewers, to understand about the work of the ICC?

CHUNG: We wanted them to understand how it works. We wanted them to understand the rules, the kinds of crimes the court will investigate and prosecute. We saw this as a vehicle to let the world know that the ICC is not just a concept, but is a reality.

LD: What do you think of the finished film?

CHUNG: It's amazing. They take a complicated legal story and convert it into a compelling narrative. The filmmakers call it a legal thriller, but it's a little more geeky than that. Lawyers, especially, find it fascinating. You're really watching the frontier of the law. You wonder as you are watching, will it work? You can see the thing shudder off the ground to lift off.

The Reckoning: The Battle for the International Criminal Court
Premiere Date: July 14, 2009
Click here to watch trailer now.

Synopsis

Over 120 countries have united to form the International Criminal Court (ICC) — the first permanent court created to prosecute perpetrators, no matter how powerful, of crimes against humanity, war crimes and genocide. The Reckoning follows dynamic ICC Prosecutor Luis Moreno-Ocampo and his team for three years across four continents as he issues arrest warrants for Lord's Resistance Army leaders in Uganda, puts Congolese warlords on trial, shakes up the Colombian justice system, and charges Sudan's President Omar al-Bashir with genocide in Darfur. Like a deft thriller, The Reckoning keeps you on the edge of your seat. Will the prosecutor succeed? Will the world ensure that justice prevails? An Official Selection of the 2009 Sundance Film Festival.

Read the full Film Description

The Reckoning: The Battle for the International Criminal Court is an epic, nail-biting account of the new International Criminal Court's struggle to prosecute perpetrators — however powerful or concealed they may be — of crimes against humanity as the Court fights to establish its own credibility on the world stage. The film shows the lead-up to the court's most recent and sensational action, the indictment of Sudan's President Omar al-Bashir on March 4, 2009, for crimes against humanity and war crimes. Established by treaty in 2002 in response to the mass atrocities that stained the late 20th century, the International Criminal Court (known as the ICC) is the first permanent international criminal court created to seek justice for victims of genocide, war crimes and crimes against humanity. But the Court, given a historic mandate by its founding 100-plus nations, was not given a police force or other enforcement arm. Moreover, the ICC faces major obstacles in pursuing its mission from nations that did not join the treaty.

The Reckoning's history of the ICC's founding will be as valuable to those familiar with the story as to those new to it. But the film's central drama concerns events that occurred after 2002. For three years, the filmmakers followed chief ICC Prosecutor Luis Moreno-Ocampo and his team of investigators and prosecutors across four continents as they issued arrest warrants for Lord's Resistance Army leaders in Uganda, put an infamous Congolese warlord on trial, shook up the Colombian justice system and charged Sudan's al-Bashir with crimes against humanity. At every turn, Moreno-Ocampo and crew faced danger, hostility and resistance. The larger drama in The Reckoning is the fate of the ICC itself. Will this tiny court in The Hague succeed against the odds in forging a new paradigm for human rights and justice in the world?

Interested in screening The Reckoning in your community?

Just sign up in our Community Network, fill out an application and POV will send you a copy of the film and a discussion guide. After your screening, all you have to do is tell us how it went and send back the DVD.

The Reckoning has a mythological opening. A man holding a human skull in a lonely field offers perhaps the most eloquent argument for the ICC. "Without justice," he says, "people have no respect for each other. If this is left unpunished, it will be repeated." He is speaking of the more than 5 million people killed in the wars that have torn eastern Congo apart since 1998. But he might as well have been speaking for the victims of mass murder in Guatemala (200,000), Cambodia (1.7 million), East Timor (200,000), Sierra Leone (50,000), Bosnia (200,000) and Rwanda (800,000), to name only the most notorious cases. It was the horror of these events — and the prospect of more occurring — that brought the world's nations together at the 1998 Rome Conference and set in motion the negotiations that would lead to the ICC's establishment in 2002.

The Reckoning shows that the idea for the Court goes back further, to the Nuremberg Trials of Nazi leaders following World War II, which the United States was the leader in establishing. This connection is uniquely expressed in the film by Ben Ferencz, who, as a 27-year-old lawyer, prosecuted 22 German officers at Nuremberg for murdering over a million people; all were convicted and 13 were sentenced to death. Ferencz never forgot the horror of the Nazi death camps and became a writer on world peace and a tireless campaigner for a permanent tribunal to prosecute crimes against humanity. He recalls the significance of Nuremberg: that the Allies sought justice through rule of law, establishing that no one was above the law and that not only was the killing of civilians a war crime, but the murder of people on the basis of their race, creed or class — genocide — was a crime of the greatest magnitude. Ferencz was there at The Hague on June 16, 2003, when Moreno-Ocampo was sworn in as the first Prosecutor of the new International Criminal Court.

Moreno-Ocampo himself brings unique experience and moral authority to the ICC — and an acute awareness of its historical roots. In 1985, a younger Moreno-Ocampo successfully prosecuted members of the Argentine military junta that, from 1976 to 1983, conducted a "dirty war" of murder, "disappearances" and torture against its political opponents. "It was the first trial of generals since Nuremberg," Moreno-Ocampo notes. Later, as district attorney for the Federal Circuit of the City of Buenos Aires from 1987 to 1992, he prosecuted the military commanders responsible for the Falklands War, the leaders of two military rebellions and dozens of high-profile corruption cases.

Moreno-Ocampo's team includes such savvy lawyers and investigators as former U.S. federal prosecutor Christine Chung, the ICC's first senior trial attorney, who has been a visiting lecturer and senior fellow at the Schell Center for International Human Rights at Yale Law School. She is now a partner at the law firm Quinn Emanuel. Well aware of the obstacles facing the ICC, she describes the Court as a "justice start-up."

Three great powers — China, Russia and the United States — are not members of the Court. The United States actively opposed the Court during the George W. Bush administration. In The Reckoning, former U.S. Ambassador to the United Nations John R. Bolton explains his rationale for the American campaign against it. He doesn't ever want to contemplate U.S. leaders in an international dock. For Bolton, national sovereignty cannot be compromised. For its part, China opposes the ICC arrest warrant indicting Sudanese President al-Bashir, and Russia remains skeptical about it.

The ICC's job, as a court of "last resort," is to support and push national judiciaries to investigate and prosecute alleged crimes against humanity, war crimes and genocide. Only when a country's justice system proves completely incapable of dealing with such crimes, and only when asked, does the ICC step in directly — and then gingerly. Where international justice conflicts with national sovereignty, the ICC must employ both clarity of purpose and political diplomacy.

Thus, in Colombia, where officials "at the highest levels" have been implicated in the political violence ravaging the country, the Court throws its prestige and resources behind Colombian prosecutors who are fighting to investigate the allegations in the face of political opposition. In Congo, by contrast, the Congolese government has asked the ICC to intervene because chaos prevents any credible judicial process. So the ICC investigates and issues its own arrest warrant for Thomas Lubanga Dyilo, a notorious militia leader, for abducting children to serve as his child soldiers. To serve its warrant in Congo, the ICC must rely on local allies, in this case the government — making Dyilo the first war criminal brought to trial at the ICC's headquarters in The Hague.

The Sudan/Darfur case was referred to the ICC by the U.N. Security Council. Since many around the world see Darfur as a clear case of genocide by the Sudanese government against indigenous Darfurians, the government's open defiance of the ICC's warrant for al-Bashir forces the ICC to return to the U.N. Security Council itself to get the international community to bring pressure to arrest al-Bashir. At that point, the clarity provided by law and the U.N. is caught up in murky realpolitik.

In the case of Uganda, an even more difficult contradiction threatens to derail the ICC's work. The government of Uganda asked the ICC to investigate and bring the leaders of a rebel group, the Lord's Resistance Army (LRA), to justice. After 50 investigative missions documenting some 2,200 murders, the ICC prepares to bring warrants when the LRA leaders, clearly worried, try to turn the situation on its head. They come in from the bush, offering negotiations and a new era of peace and stability — but only if the ICC warrants are lifted. After so many years of war and death, even surviving victims of the LRA's worst atrocities find it all but impossible not to take the bait.

ICC prosecutors go on a campaign to convince Ugandans that, in the long run, there will be no peace or stability if the LRA leaders are allowed to get away with their crimes. Ultimately, whether speaking to the august ambassadors of state at the U.N. or to maimed villagers in Uganda, the ICC holds fast to the simple principle spoken by that Congolese man in the field: "Without justice, people have no respect for each other."

Nothing less than a real-life thriller, The Reckoning keeps you on the edge of your seat with two riveting dramas — the prosecution of three cases of unspeakable crimes against humanity and the ICC's fight for its own survival and effectiveness. Senior Trial Attorney Chung reveals the stakes that still hang in the balance when she wonders if the ICC will emerge as an effective institution for justice or simply a symbolic one, a "shadow" of what it was meant to be.

"I started out thinking that The Reckoning would be about the ICC's cases and trials, like any good crime thriller," says director Pamela Yates. "I quickly realized I had to expand the film's vision to include the far-reaching effects the ICC was having at the local level, with the tremendous amount of controversy as well as hope that its investigations were causing. The Court itself became the protagonist of The Reckoning, and all the cinematic elements were developed in realizing this idea."

The Reckoning: The Battle for the International Criminal Court is a production of Skylight Pictures. Visit the filmmakers' site, IJCentral* if you want to support the international justice movement and join in their action campaigns.

Posted on June 8, 2009 Updated on July 10, 2009

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