Five reasons to use video as evidence for International Criminal Court crimes

This article was first published on the website of the Coalition for the International Criminal Court.

By Elizabeth O’Shea, Program Fellow, and Kelly Matheson, Senior Attorney and Program Manager, with WITNESS. 

Video can be compelling, shocking and revealing. In just a few seconds, it can document things that might otherwise be difficult or even impossible to prove. Yet video does not always tell us everything and sometimes it takes more effort than we realize to convince a court to accept it as evidence at all. Elizabeth O’Shea and Kelly Matheson of WITNESS join us to present their new Video as Evidence Field Guide for advocates and activists to better document genocide, crimes against humanity and war crimes. Download the guide to learn how to safely, ethically and effectively expose human rights abuses.

Please be aware, some people may find the images and videos linked to in this article distressing.

As the camera phone becomes commonplace, committed human rights advocates and gutsy residents who live in zones where international crimes are perpetrated are using video more and more to capture human rights violations and their aftermath. Prosecutors from the International Criminal Court (ICC) have repeatedly made clear that they understand the important role played by these first responders who are on the ground where and when the crimes happen. As summarized in a workshop on collecting evidence of international crimes, “Without NGO cooperation, the Office of the Prosecutor may never discover or obtain the relevant evidence to ensure perpetrators are held responsible for their crimes.”

For these reasons, video is more important than ever. So, if you are an activist or advocate, or working with everyday people who help you to film what is going on, here are five reasons why you need the Field Guide:

1. Video can be great lead evidence

Lead evidence is information that suggests a crime may have happened and allows us to make an educated guess about what took place. This evidence may not ever make it to court but it tells us that the event needs to be investigated further.

For example, in August 2013, video footage from Ghouta, Syria was uploaded showing men, women and children suffering from symptoms of constricted breathing, involuntary muscle spasms, frothing at the mouth, and fluid coming out of noses and eyes. Lifeless bodies covered the floors of makeshift hospitals. Activists claimed the footage was proof of a chemical weapons attack by the Assad government on civilians.

While experts agreed that the video provided solid lead information that thousands of people were suffering from some kind of massive poisoning, the footage did not actually prove that it was a chemical weapons attack, nor did the video prove who was responsible. It did, however, serve as a powerful lead evidence to prompt an investigation about what exactly was going on.

In the end, this footage – shot by the brave residents – triggered a UN investigation, which used the initial videos in corroboration with witness testimony, medical exams, lab results and weapons analysis to conclude by clear and convincing evidence that chemical weapons were used against civilians.

Lead evidence is often used to raise awareness, encourage people to take action and prompt investigations. It is reasonable to think that more of this kind of video will be used in all kinds of legal proceedings. To do this successfully, the Field Guide offers ways of thinking about how video can be used not only for advocacy through the media and human rights bodies, but also by courts resolving criminal cases at a later date.

2. Video can also be important linkage evidence

Instinctively, we imagine that we should point our cameras towards the violence and the impact on victims. But video can also be important in linking key decision makers to the events in question. Linkage evidence helps prove who is responsible for a crime and how they did it. It connects people to events, even if they were not there at the time. Linkage evidence might demonstrate that a commander was in charge of forces that committed crimes or that a general ordered his troops to target civilians and is therefore responsible for their behavior.

Bill Wiley leads war crimes investigations throughout the world. He has spoken about the importance of linkage evidence, saying that “[m]ost of our resources, around 80 percent, goes into establishing linkages.” The prosecutors at the ICC have also emphasized this.

By the time prosecutors get involved in a situation, any such evidence will be very hard to collect. As such, this linkage evidence is just as crucial to success in court, even if it might seem less direct and exciting.

Video can be an effective way of showing these linkages. One example is the case of Jean-Pierre Bemba Gombo. Bemba was charged with command responsibility for crimes in the Central African Republic in 2002. Although he did not commit the crimes with his own hands, but he was the commander who was directing the army and allowed murders, rapes and pillaging to happen. By law, this means he can be held responsible. Prosecutors presented video evidence not of any crime itself but of Bemba’s links to criminal acts. This was footage of Bemba, in a military uniform, talking to troops on the ground in other parts of the country on the radio. This video helped to prove that Bemba fulfilled the legal requirements of command responsibility, which requires that the prosecution show that the troops were under his effective command, that he knew what these troops were doing and that he failed to act to prevent them from committing crimes. This video contributed to the successful prosecution of the crime.

In this case, the footage of Bemba came from an insider. However, it is easy to imagine that videos of similar activities (such as public speeches and addresses at military events) from human rights activists for example, might provide similar support in other legal cases. Filming everyday events may not feel like an effective use of time when conflict is raging all around, but the Field Guide section on filming linkage evidence demonstrates how sometimes innocuous footage proves to be invaluable in a court of law.

3. It is important that video is reliable

To improve the chances that a video could be used in court, documenters need to know how to capture reliable footage. In other words, the footage has to be what it purports to be. The better that a video is filmed, the easier it is for remote investigators to use.

For example, many videos filmed by citizens of Syria recording aspects of the conflict are uploaded to YouTube. These clips are a great potential source of evidence for investigators, but it can be difficult to verify them, which often involves some detective work. One such video comes from a channel named msaken hanano, which is the name of a neighborhood in Aleppo. Its written title is “Masaken Hanano – Effects of the destruction 9/9/2012 – The result of warplanes”. The voice in the video says, “Aleppo, this is Masaken Hanano. Warplanes are bombing the neighborhood.” Investigators therefore had a good place to start to work out where exactly the clip was taken. Yet to verify the video, they had to go through a lengthy and detailed process to stitch together a panorama from the footage and geolocate the site of the wreckage using maps and satellite images. This process took hours.

There are many fairly simply techniques documenters can use to drastically decrease the amount of time it takes for an investigator, who was not present at the at the scene of the incident, to verify content from a remote location. Documenters can ensure they capture a variety of shots with identifying information in the footage such as landmarks, weather, street signs, etc. They can verbally add key information to the video and clearly document the chain-of-custody from the citizen witness or activist, to the lawyer, and eventually to court. Reliable footage is ideally original raw footage, embedded with the metadata, and free from manipulation.

The Field Guide section on filming secure scenes, adding essential information to video and verifying eyewitness video provides suggestions for how to do this effectively, together with handy mini-guides that can be taken into the field. In the end, the easier video is to verify, the more likely it is to be used.

4. To be accepted as evidence, video must be relevant

Making video that is legally relevant involves other considerations. It requires understanding basic principles of law so documenters know what content to put in the camera’s frame. Relevance is the first and most important test a court will apply in deciding whether to allow a video to be used as evidence. If a video is not relevant, it will not be admitted as evidence. It is critical that documenters think about the various elements of a crime and make a plan for how video can be created that is relevant to helping prove these elements.

A great example of how video can be used to prove one element of a crime involves a video documenting child soldiers. Between 1994 and 2003, the Democratic Republic of Congo was embroiled in a complex conflict that cost 5 million lives. Thomas Lubanga Dyilo served as one of the conflict’s many militia leaders. In 2006, he was charged by the International Criminal Court (ICC) for the war crimes of conscripting, enlisting, and using child soldiers under the age of 15 actively in hostilities. One of the elements of the crime that needed to be proved by prosecutors was the age of the soldiers. This was a challenge in the context of a war-torn country, where records were non-existent and witnesses were frightened to speak out.

A few brave and forward-thinking NGOs collected video footage of child soldiers during the conflict. They hoped it would someday be used to hold warlords accountable. Initially, they shared this footage with prosecutors at the ICC.

They asked the Court to launch an investigation into the use of children, which the ICC did. As part of the investigation, the ICC collected additional footage. This footage was introduced as direct evidence at trial to prove that some of Lubanga’s forces were under the age of 15. Without this footage, a guilty verdict would have been much more difficult to secure – there was simply no better way to prove this element of the crime.

In this case, video was an effective way of helping to prove an element of a crime that would have been otherwise difficult to show. Making a plan about how to do this is a great way to ensure footage will have a good chance of being relevant in legal cases.

The Field Guide offers some useful tools for collection planning, both practical tips for how to do this well, and suggestions for how to capture film that fits with the anatomy of a particular crime.

5. Archiving is not just an afterthought

Martin Luther King reminded us that ‘the arc of the moral universe is long, but it bends toward justice.’ Video can be collected easily and quickly, but it might not actually be used as evidence until many years later.

This was certainly true for a young filmmaker named Pamela Yates, who went to Guatemala in 1982 to make a movie about the ongoing genocide of Guatemala’s indigenous people. In the process, she got a rare opportunity to interview then President Ríos Montt, part of which ended up in her film. Twenty-five years later, lawyers investigating President Montt learned about the interview and asked Yates if she still had the full, uncut interview. Yates had to dig through her storage unit of old videotapes, but it was worth it: in one clip, President Montt made key admissions giving the lawyers proof of his role in the genocide. He admitted that he had effective command and control of the army, and knowledge of what they were doing meaning that lawyers could argue that President Montt could be held responsible for the crimes.

Advocates and activists can learn a lot about how film-makers have kept and managed their archives. We need to know how to organize and store video files so that investigators and lawyers can easily search for footage relevant to the cases they are building days, weeks, or even years after crimes occurred.

Basic practices set out in the Field Guide, combined with the Activists’ Guide to Archiving Video, offer suggestions about how to do this to ensure important footage is not lost. There are lots to of interesting tricks and tips to learn in this space, so the guides are worth checking out.

Download and tell us your thoughts!

All these issue and many more are considered in the complete Field Guide together with case studies and materials for use in the field. Video is getting easier than ever to create – anyone with a smart phone can do it with the press of a button. This is a huge advantage for activists and citizens seeking to document international crimes. With some help from lawyers, and drawing on experience of international criminal cases, we can make sure we make the best of this opportunity.

To ensure documenters are armed with knowledge, WITNESS encourages the use of this Field Guide pursuant to its Creative Commons license. All or any part of the material may be duplicated, modified, translated, or tailored to support your work to protect human rights. We just ask that you provide proper acknowledgement and do not use the materials for commercial purposes.

Most importantly, if you can, let us know how you modified the materials. We would love to help share any new versions you create with others! Send us an email feedback [at] witness [dot] org. We would love to hear your thoughts.

Download the complete Video as Evidence Field Guide or individual sections of it here!

Elizabeth O’Shea is a Legal Fellow and Kelly Matheson is the Senior Attorney and Program Manager at WITNESS, an international nonprofit organization that trains and supports people using video in their fight for human rights. You can support their work here and learn more about their work to effectively expose human rights abuses.