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Justice on Screen – A Study of Four Documentary Films on the International Criminal Court

  • WOUTER G. WERNER

Abstract

In the past ten years or so, several documentaries on international criminal justice have been produced, shown at film festivals, and used for advocacy and educational purposes. On some occasions, artists, humanitarian organizations, and the Office of the Prosecutor of the International Criminal Court (ICC) have worked closely together in the production of documentary films. Documentaries have thus become important tools for education and the spread of imageries of international criminal justice. So far, however, international legal scholars have largely shied away from researching cinematic representations of their field. In this article, I seek to remedy this by focusing on a family of four recent influential documentaries related to the ICC: The Reckoning, The Court, Prosecutor, and Watchers of the Sky. All four use similar modes of representation, narration and promotion and basically communicate the same message about the Court. My article critically analyzes how such artistic interventions have helped create specific images, stories, and sentiments.

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1 Watchers of the Sky (2014), directed by Edet Belzberg.

2 Some other recent examples are: The Reckoning (2009), directed by Pamela Yates; Prosecutor (2010), directed by Barry Stevens; War Don Don (2010), directed by Rebecca Richman Cohen; Peace vs Justice (2012), directed by Klaartje Quirijns; Carte Blanche (2012), directed by Heidi Specogna; The Court (2013), directed by Markus Vetter; The Khmer Rouge and the Man of Non-Violence (2013), directed by Bernard Mangiante; Law not War (2014), directed by Ullabrit Horn. Of course, the form and content of these documentaries differ widely, with some openly advocating international courts (such as The Reckoning, The Court, Prosecutor, Watchers of the Sky, and Kony 2012 directed by Jason Russell), others criticizing specific trials or courts (such as Slobodan Milošević Trial (2010), directed by Jos de Putter), and yet others focusing on the dilemmas that come with the prosecution of international crimes (examples include: War Don Don, Peace vs Justice, Carte Blanche, and Khmer Rouge and The Man of Non-Violence).

3 Weber, C., Imagining America at War: Morality, Politics and Film (2006), 137 (paraphrasing and quoting N. Mirzoeff, An Introduction to Visual Culture (1999)).

4 Some of these documentaries are discussed in S. Liebman, ‘La Libération des camps vue par le cinéma: l'exemple de Vernichtungslager Majdanek’, Cahier de judaïsme, no. 15 (2003), 49–60; Leibman, S., ‘Documenting the Liberation of the Camps: The Case of Aleksander Ford's Vernichtungslager Majdanek- Cmenarzyko Europy ’ (1944), in Herzog, D. (ed.), Lessons and Legacies (2006), Vol. VII, at 333–51; and Liebman, S., ‘The Majdanek Trial: The Holocaust on Trial on Film’, in Delage, C. and Goodrich, P., The Scene of the Mass Crime, History, Film, and International Tribunals (2013), 113129 .

5 Hôtel Terminus: The Life and Times of Klaus Barbie (1988), directed by Marcel Ophüls, Eichmann Trial (1961), directed by Leo Hurwitz. By now there is also a film about two key figures involved in documenting the Eichmann trial, Leo Hurwitz and Milton Fruchtman (see: The Eichmann Show (2015), directed by Paul Williams).

6 The literature on expressivism and the educational function of international criminal justice is vast. Among the many publications: M. Osiel, Mass Atrocity, Collective Memory and the Law (1999); M. Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of United Nations Law (2002), Vol. 6, at 1–35; M. Drumbl, Atrocity, Punishment and International Law (2007). L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001); Sunstein, C., ‘On the Expressive Function of Law’, (1996) 5 East European Constitutional Review 66; Meijers, T. and Glasius, M., ‘Expression of Justice or Political Trial, Discursive Battles in the Karadžić Case’, (2013) 35 Human Rights Quarterly 720 .

7 This critique was voiced by H. Arendt in, Eichmann in Jerusalem, A Report on the Banality of Evil (1963). For a more recent critique, see, for example, Snyder, J. and Vinjamuri, L., ‘Trials and Error’, (2004) 28 International Security 5 , at 39–40; B. Sander, ‘The Expressive Limits of International Criminal Justice: Trauma, Local Culture and the Iron Cage of the Law’ (2016, forthcoming, text on file with the author).

8 An example can be found at the website of the ICTY, which promotes itself by pointing at its pedagogical impact: ‘[T]he Tribunal . . . has now shown that those suspected of bearing the greatest responsibility for atrocities committed can be called to account, as well as that guilt should be individualised, protecting entire communities from being labeled as “collectively responsible”.’ www.icty.org/ (accessed 15 February 2016).

9 S.R. Stein and S. Cashman, ‘Documentaries, Motion Picture’, in C.H. Sterling (ed.), Encyclopedia of Journalism (2009), 450.

10 For a discussion, see B. Nichols, Representing Reality: Issues and Concepts in Documentary (1991), Chapter 1, at 3–32.

11 As quoted in W. Stott, Documentary Expression and Thirties (1986), 10.

12 Stott, supra note 11, at 12 (emphasis in the original).

13 For a discussion of the concept of ‘documentary’ see Platinga, C., ‘What a Documentary Is, After All, (2005) 63 The Journal of Aesthetics and Art Criticism 105; M. Chahan, The Politics of Documentary (2007); B. Nichols, Introduction to Documentary (2001).

14 With more than 100 million views in six days, Kony 2012 has been labeled as the most viral video so far: M. Aguilar, ‘Kony 2012 Is the “Most Viral” Video of All Time’, Gizmodo, 3 December 2012, available at gizmodo.com/5892541/kony-2012-is-the-most-viral-video-of-all-time (accessed 15 February 2016).

15 Watchers of the Sky has recently been made available for Netflix USA (supra note 1).

16 R. Hillman Harrigan, The Reckoning—Interview with Director Pamela Yates, Huffington Post, 13 August 2009, www.huffingtonpost.com/robyn-hillmanharrigan/emthe-reckoning-em—-int_b_230516.html (accessed 27 July 2016).

17 For a recent analysis, see R. van Munster and C. Sylvest (eds.), Documenting World Politics: A Critical Companion to IR and Non-Fiction Film (2015).

18 It should be noted that the use of documentaries within criminal procedure has received more attention, in particular in the context of the Nuremberg Trials. As the editors of this journal rightly pointed out to me, the use of the Scorpions video in the Milošević case at the ICTY has also drawn considerable attention. For an analysis see Petrović, V., ‘A Crack in the Wall of Denial: The Scorpions Video in and out of the Courtroom’, in Zarkov, D. and Glasius, M. (eds.), Narratives of Justice In and Out of the Courtroom: Former Yugoslavia and Beyond (2014) 89. Documentaries representing international criminal law, however, remain largely unstudied. Some examples of scholars who have dealt with the representation of international criminal law in documentaries include Liebman, supra note 4; January, S., ‘Tribunal Verité: Documenting Transitional Justice in Sierra Leone’, (2009) 3 International Journal of Transitional Justice 207; J. Handemaker, ‘Facing Up to the ICC's Crisis of Legitimacy: A Critique of The Reckoning and its Representation of International Criminal Justice’, (2011) Recht der Werkelijkheid, available at www.bjutijdschriften.nl/tijdschrift/rechtderwerkelijkheid/2011/3/RdW_1380-6424_2011_032_003_008 (accessed 27 July 2016); F.A. Akena, ‘Pornography and the Entrenchment of Western Hegemony: Deconstructing the Kony 2012 Video’, (2012) 10 Socialist Studies 50; W.G. Werner, ‘“We cannot allow ourselves to imagine what it all means”: ICC Documentaries and Practices of Representation’ (2013) 76 Law and Contemporary Problems 319.

19 Note that the ICC also actively promotes itself through documentaries, e.g., via Youtube. See, for example, The International Criminal Court, Institutional Video (2014), available at www.youtube.com/watch?v=1K4Y8iqLzxQ (accessed 26 January 2016).

20 In their modes of representation, central message, and mode of narration, the four documentaries differ from two other advocacy documentaries on the ICC. The first is Kony 2012. While this film does advocate the ICC, it does so in a very specific context (advocating military intervention to arrest Kony) and with the aim of mobilizing ‘humanity’ in order to protect children from war. The ICC, in other words, appears only in the background of the documentary and is hardly discussed as such. The second is Law, Not War (2014), a film about the life and achievements of Ben Ferencz. While this documentary contains a central message similar to the one that can be found in the four documentaries under study here, its mode of representation is fundamentally different. The documentary basically consists of an interview with Ben Ferencz, who tells his life story and shares his message with the viewers. For these reasons, I have selected only The Reckoning, The Court, Prosecutor, and Watchers of the Sky for further analysis.

21 The same scene is quoted (albeit for different purposes) in Schwoebel, C., ‘The Market and Marketing Culture of International Criminal Law’, in Schwoebel, C. (ed.), Critical Approaches to International Criminal Law (2014) 264 , at 272–3.

22 Nichols, supra note 13, at 110 and 111 (emphasis added).

23 Eitzen, D., ‘When is a Documentary?: Documentary as a Mode of Reception’, (1995) 35 Cinema Journal 81.

24 Both Nichols and Plantinga, supra note 13, have developed much-quoted taxonomies of documentary sub-genres. For this article I rely on the more recent adaption of their work by Van Munster and Sylvest, supra note 17.

25 The Atomic Café (1982), directed by Jayne Loader, Kevin Rafferty and Pierce Rafferty. Discussed by C. Sylvest, ‘Nuclear Weapons in Documentary Film’, in Van Munster and Sylvest, supra note 17, at 95–113.

26 The Atomic Café, supra note 25, at 0:15. The example is borrowed from Van Munster and Sylvest, supra note 17, at 101.

27 Fahrenheit 9/11 (2004) directed by Michael Moore, at 16:55.

28 Milošević Trial, Corruption of International Justice (2010), Jos de Putter, VPRO Tegenlicht.

29 Nichols, supra note 13.

30 In G. Roy Levin, Documentary Explorations: Fifteen Interviews with Film-Makers (1971), 135. Quoted by Minh-ha, T.T., ‘The Totalizing Quest of Meaning’, in Renov, M. (ed.), Theorizing Documentary (1993), 90 , at 95.

31 Carte Blanche, supra note 2. For an analysis see Werner, supra note 18.

32 The idea of a ‘direct cinema’ or ‘cinéma vérité’ was criticized, inter alia, by Errol Morris: ‘I believe cinéma vérité set back documentary filmmaking twenty or thirty years. It sees documentary as a sub-species of journalism . . . There is no reason why documentaries can't be as personal as fiction filmmaking and bear the imprint of those who made them. Truth isn't guaranteed by style or expression. It isn't guaranteed by anything’. Quoted in P. Arthur, ‘Jargons of Authenticity (Three American Moments)’, in Renov (ed.), supra note 29, at 127.

33 Nichols, supra note 10, at 35.

34 Examples can be found in documentaries from the 1930s produced to propagate and educate the American people about the New Deal, including The River, The Plough that Broke the Plains (1936), and The City (1939). For a discussion, see Stott, supra note 11.

35 Examples can be found in The Reckoning and Prosecutor, supra note 2.

36 Examples can be found in The Court, supra note 2, and Watchers of the Sky, supra note 1.

37 Plantinga, supra note 13, at 114–15.

38 The Reckoning, supra note 2, at 1:30.

39 Ibid., at 1:52.

40 For a more extensive analysis and critique see Werner, W.G., ‘The Reckoning: Advocating international criminal justice and the flattening of humanity’, in Sylvest, C. and van Munster, R. (eds.), Documenting World Politics (2015), 166.

41 Ferencz has his own website documenting his life and efforts and promoting his project for international criminal justice, www.benferencz.org/#media. The editors of this journals pointed to the fact that Ferencz is also active on social media, including Twitter: twitter.com/BenFerencz.

42 In this context, it is interesting to note that most of the music was specifically composed for The Court, supra note 2. Thanks to Sofia Stolk for pointing this out.

43 Stolk, S., ‘“The Record on Which History Will Judge Us Tomorrow”: Auto-History in the Opening Statement of the Prosecution in International Criminal Trials’, (2015) 28 Leiden Journal of International Law 993.

44 The somewhat amorphous term ‘we’ is chosen deliberately here, as the four documentaries all actively seek to create a ‘we’ feeling. The ‘we’ in the documentaries takes different meanings, from ‘humanity’, to ‘states’, to ‘the viewers’. On the problematic nature of ‘we talk’ in international criminal law, see Tallgren, I., ‘The Voice of the International; Who Is Speaking?’, (2015) 13 Journal of International Criminal Justice 135.

45 The Court, supra note 2, at 10:00.

46 Prosecutor, supra note 2, at 3:00–3:11.

47 Ibid., at 8:00.

48 Ibid., at 3:11–3:30.

49 F. Fukuyama, The End of History and the Last Man (1992).

50 Moreno Ocampo in Prosecutor, supra note 2.

51 Moreno Ocampo in The Reckoning, supra note 2, at 58:28.

52 Moreno Ocampo in Watchers of the Sky, supra note 1.

53 Ferencz in The Reckoning, supra note 2, at 58:30.

54 Power in Watchers of the Sky, supra note 1.

55 Watchers of the Sky, supra note 1, at 1:53–1:54.

56 Ibid., at 1:54.

57 For an analysis see Werner, supra note 18, at 334–5.

58 Prosecutor, supra note 2, at 21:57.

59 Ibid., at 43:00.

60 Skylight Pictures, The Reckoning, skylight.is/films/the-reckoning/ (accessed 15 February 2016).

61 Icarus Films, Prosecutor, icarusfilms.com/new2011/pros.html. The image used for the poster of The Court can be found at www.thecourt-movie.com (accessed 15 February 2016).

62 Watchers of the Sky, at watchersofthesky.com/about-the-film/ (accessed 15 February 2016).

63 The trailer can be found at www.idfa.nl/industry/tags/project.aspx?id=c69857bc-f3c2-430b-8b65-5f17714bd35b (accessed 15 June 2015).

64 icarusfilms.com/new2011/pros.html (accessed 15 February 2016).

65 The most vivid example was the initial poster used to advertise The Court. The poster showed a picture combining the images of five people: Judge Fulford, Luis Moreno Ocampo, Fatou Bensouda, Ben Ferencz, and finally Angelina Jolie, Hollywood celebrity and human rights activist. At some point, the pictures of Jolie and Ferencz were removed from the poster, thus leaving only the judge and the two prosecutors to promote the film. The nature of the poster, however, remained basically the same: a tongue in cheek representation of the ICC modeled after a US courtroom drama.

66 See the following examples: ‘Like a deft thriller, The Reckoning keeps you on the edge of your seat, in this case with two riveting dramas—the prosecution of unspeakable crimes and the ICC's fight for efficacy in its nascent years’, at skylight.is/films/the-reckoning/ (accessed 15 June 2015); ‘The movie “The Court” is told from the point of view of the office of the prosecutor. In the style of a courtroom thriller Michele Gentile and Marcus Vetter (The Tunnel, The Heart of Jenin) follow Ocampo during an inordinately complex juridical process which is given a face during the course of the film’, at www.thecourt-movie.com/en/about-the-film, (accessed 15 June 2015); ‘Shot in the style of a legal thriller, the documentary “The International Criminal Court” relates how the first internationally legitimated criminal court was founded in 2002, and how it investigates appalling crimes committed by some of the world's most ruthless war criminals’, at www.imdb.com/title/tt2819570/plotsummary?ref_=tt_ov_pl (accessed 15 June 2015).

67 Filmsite, Thriller-Suspense Films, at www.filmsite.org/thrillerfilms.html (accessed 18 June 2015). Director Pamela Yates spoke of The Reckoning as ‘a political thriller about crime and punishment’, supra note 16.

68 The Script Lab, Genre: Epic, at thescriptlab.com/screenplay/genre/epic# (accessed 19 June 2015).

69 Prospero, Epic, Rise of a Genre, at www.economist.com/blogs/prospero/2014/05/film (accessed 19 June 2015).

70 Note, however, that a review described The Court not only as a thriller, but also as having ‘an epic “good versus evil” plot’. S.S., ‘The International Criminal Court on screen; Ready for its close-up’, The Economist, 24 June 2013, at 13:37, www.economist.com/blogs/prospero/2013/06/international-criminal-court-screen (accessed 15 June 2015).

71 www.youtube.com/watch?v=kf0lj07z7ZI (accessed 15 June 2015).

72 www.thecourt-movie.com/en/about-the-film (accessed 15 February 2016).

73 www.youtube.com/watch?v=kf0lj07z7ZI (accessed 15 February 2016).

74 www.youtube.com/watch?v=1e0HFCKcVhc (accessed 15 February 2016).

75 F. Ragazzi, ‘Your Film in Seven Minutes’, in Van Munster and Sylvest, supra note 17.

76 ‘Er macht ihn auch fur Leute attraktiv, die sonst nich in Dokumentarfilme gehen’, ïn ‘“The Court”: Am Mittwoch hatte der erste Tübinger Film mit Angelina Jolie Premiere’, Schwaebisches Taggblatt, 29 April 2013, at www.tagblatt.de/Home/kino/filmregion_artikel,-The-Court-Am-Mittwoch-hatte-der-erste-Tuebinger-Film-mit-Angelina-Jolie-Premiere-_arid,212709.html (accessed 15 June 2015).

77 For an analysis of the politics of international criminal justice, see inter alia G. Simpson, Law, War and Crime (2007); Nouwen, S. and Werner, W.G., ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, (2010) 21 EJIL 941; Schwoebel, supra note 21.

78 For a more extensive elaboration of this argument, see Werner, supra note 40.

* Professor of Public International Law, Centre for the Politics of Transnational Law, Vrije Universiteit, Amsterdam []. I would like to thank Tanja Aalberts, Lianne Boer, Mark Drumbl, Oliver Kessler, Elies van Sliedregt, Sofia Stolk, Christine Schwobel and Sergey Vasiliev for their useful comments on earlier versions of this article.

Keywords

Justice on Screen – A Study of Four Documentary Films on the International Criminal Court

  • WOUTER G. WERNER

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