War crimes and punishment: Rebecca Richman Cohen's 'War Don Don' dissects the U.N. Special Court

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Rebecca Richman Cohen discusses her Human Rights Watch Film Festival entry War Don Don, a documentary about the U.N. Special Court in Sierra Leone. The interview has been edited and annotated for clarity and length.

FJI: Could we discuss your background and how you came to make War Don Don?

RRC: I worked for two years after college as an assistant film editor. Then, I went to law school and got very excited about working in criminal defense. After serving as a summer intern at the Bronx Defenders office [a nonprofit located in the South Bronx, in New York City], I went to Sierra Leone my last year in law school as a member of the defense team for the U.N. Special Court. I should make it clear that this was not Issa Sesay’s trial. The defendant was accused of war crimes and crimes against humanity. When I returned home, my friends were surprised. They asked me how I could possibly defend someone who had committed such terrible crimes. War Don Don is a response to that.

FJI: You make a point in the documentary about the fact that the U.N. Special Court in Sierra Leone is a place apart. The building itself looks very different from anything else in Freetown. The court’s Western sensibilities about the determination of guilt and innocence also seems far removed from the Sierra Leoneans’ ideas about justice. In fact, in your on-the-street interviews, one woman whose family was killed by the rebels says that she forgives them.

RRC: The court does seem a world apart from Sierra Leone. David Crane [a lead prosecutor] at one point refers to the Special Court as a spaceship. That’s often how it feels. It’s this very weird place in the middle of Freetown—mostly foreigners with a lot of money. Of course, one of the court’s greatest strengths has been its outreach campaign; we tried to show that in the film. Regardless, it’s very, very removed from the lives of Sierra Leoneans.

Sierra Leoneans are deeply divided in their opinions about the court. They are also divided on how they see the nature of justice implemented in the court. Of course, most Sierra Leoneans’ experience of the Special Court was through outreach, so the visual metaphor that we developed of the people watching television, watching the mediated version of the trial, is a stylistic response to what was going on—seeing the trial through the video of it and being very far removed from the operation of the Special Court.

FJI: Those quiet scenes of Sierra Leoneans were pauses for me in which I could think about what you were saying in the film. There are some distinctions that are hard for a lay person to understand, for instance, the way in which this court differed from previous special courts.

RCC: Yes, one of the issues with this court, and I think one of its biggest flaws and its greatest achievements, was that as opposed to its predecessors, the tribunals in Rwanda and Tanzania and Yugoslavia, it prosecutes the leadership in the name of “speedy justice.” [The term is derived from Amendment VI in the Bill of Rights of the U.S. Constitution which begins: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”] While “speedy justice” was important, it also meant somewhat arbitrary prosecutions in the sense of who was prosecuted and who became a prosecution witness and got de facto immunity. That results in a very skewed narrative of the conflict. In the long run, it can do a disservice to the process of reconciliation.

FJI: How do Sierra Leoneans view the RUF (Revolutionary United Front)?

RCC: The RUF is a reviled organization. It has very little support in Sierra Leone. That having been said, I think there is a real culture of forgiveness in this country. Krio is the lingua franca of Sierra Leone and interestingly, there is no word for reconciliation. The word is “forgiveness.” What that means in a cultural context and what it means in the face of crimes that were so terrible is a difficult question to answer.

Sesay is complex character. I think he has some support, although it differs from region to region. His role in the disarmament is one reason for the support, and I think there are places in the country where he actively protected civilians. The weakness of the defense case is that even though there were instances where he protected civilians, he was also the high-ranking leader in an organization that perpetrated terrible crimes. Take the case of the Nazis: Even if the Nazis reduced unemployment for certain Germans, that doesn’t mean that they are not responsible for the crimes they committed.

FJI: The Nuremberg trials took place in a Westernized society accustomed to the rule of law, at least before the war. The Nazis prosecuted there understood the trials and their purpose. Your film suggests that these trials do not reflect the Sierra Leonean view of justice. Wouldn’t a process similar to the Gacaca trials in Rwanda have been more appropriate?

RCC: There was a Truth and Reconciliation Commission that worked with the Special Court, but it was largely undercut in terms of funding and because people were scared to death to testify for the TRC. They thought the testimony would be used against them at the Special Court. The TRC is a very crippled institution in Sierra Leone and there is a lot of proper resentment against the Special Court for that.

FJI: You touch upon this religious fervor that chief prosecutor David Crane brings to his job and the relative detachment of chief prosecutor Stephen Rapp. This gives a more complex picture of human-rights activists than we are accustomed to seeing.

RCC: I wouldn’t describe Stephen Rapp as detached, but I do think he has a different professional ethos than David Crane. I believe all the lawyers that appear in the film were deeply, personally and emotionally involved in the case. Whether that impaired or created an advantage for them as lawyers, all of them saw that they had a role in the public-relations effort. I think that Jordash got very close to Issa in a way that made him a passionate advocate, but I think he was criticized for being too close.

One of the things that we try to do as filmmakers is represent many different perspectives and to honor them, and to let people make their best point and then to set them up against each other so that the audience can decide who is the most persuasive. It is true that many European audiences do take issue with the religious overtones of Crane’s message, with the sort of judgment that is hyper-emotional, and in a way that does a disservice to the cool hand of the rule of law. On the other hand, many Sierra Leoneans respected David Crane and appreciated the moral clarity he brought to the discussions about the crimes of the RUF.

FJI: At first Wayne Jordash is very appealing to us—he has a British accent, and he’s handsome and articulate. He’s your star, really, but then as the documentary progresses, he implies very strongly that if a defense lawyer doesn’t appreciate or come to understand the person they’re defending—in this case someone who has committed heinous crimes—it’s very difficult to mount an effective defense. Is that true?

RCC: Yes. It’s very easy to find a justification for why we need a vigorous defense, but you need a personal motivation to get through a trial.

At the Bronx Defenders, for instance, two common motivations are having empathy for your client and seeing them as someone who made a terrible decision, while understanding the context in which they made the decision. You have to see the defendant as someone who has moved beyond the worst thing they’ve done in their life.

I actually think that in the international criminal justice system, when your client committed crimes not one time, but a series of crimes over ten years, if you can understand the context in which his decisions were made, that speaks to your ability to connect on a very fundamental level with humanity in general.

FJI: Jordash talks about the “fine distinctions” of Issa Sesay’s case, which the prosecution wasn’t paying attention to.

RCC: I think the trials don’t give a definitive history of the conflict in Sierra Leone. I tried to make a film about the process of getting to that history, and about how a trial writes the historical narrative. The truth is that an adversarial system never does that very well.

David Crane is judging the soul of an individual. So, to me, the sentencing was the moment when the court had the opportunity to take into account the larger context of Sesay’s life, to say that even though he committed these terrible crimes, the court would send the message that while they would convict him for the worst crimes in the world, they would reduce the sentence significantly for the role he played in the disarmament. Instead, he got a life sentence with no mitigation.

The court had the opportunity to step back and create a more complete picture of the conflict. The problem with missing that opportunity is that you’re distorting the nature of the conflict and the reasons people took up arms. It makes it difficult to prevent conflict in the future when you write such a distorted history of the conflict.

FJI: It does appear that Crane’s fervor was expressed in the sentencing. 

RCC: The sentencing recognizes the gravity of the crime. For the victims who suffered in the war, there is no punishment proportional to the crimes committed. Jordash says the message it sends is: “Don’t disarm.” The prosecution responds: “No, the message it sends is don’t commit the crimes in the first place.” I feel that criminal justice is very young, and it’s going to take us many years to recognize the legacy of the Special Court and the legacy of the International Criminal Court. I don’t come out clearly on that debate, on whether international criminal justice has to create a true deterrent. I think that remains to be seen.

As long as we are only prosecuting the leaders of weak states or failed states and we’re not going after people who are committing war crimes, such as torture, in powerful Western states, the takeaway is much harder to rectify.

FJI: What would you like the audience to feel after they’ve watched your documentary?

RCC: As filmmakers, we tried to leave the film open-ended, open to very different interpretations. If people leave and debate, and there is no one “take-away,” that’s great. I hope people will ask tough questions about the hard work that needs to take place after a conflict. I hope that the prosecution of international criminal justice will not be seen as a stopping point, but as a starting point to ask the tougher questions about the rest of the work that needs to be done. If we inspire those sorts of questions, I would feel very good about that.

FJI: I was actually surprised by your film because most of the documentaries about the special court at HRWFF have been unequivocal. The participants are idolized, the prosecution especially.

RRC: We were very pleased to have our film accepted by Human Rights Watch. To raise these critical questions is an illustration of their commitment to promoting open debate.

FJI: Jordash says that the court isn’t willing to look at itself, that in fact in some ways it is unable to do that. Do lawyers in international criminal justice share this opinion?

RRC: My take is that these are not new criticisms. There is so much opposition to international criminal justice in the U.S. from sources that are concerned about compromising American sovereignty that the public face of human-rights activism is the need to be supportive. Privately, however, I don’t think we are discussing controversial or unknown criticisms, although it may be that this is the first time they have been introduced on film.