Share your stories of using video for documentation and/or evidence. What lessons have you learned? Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
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Our main project we have been engaged in of recent is called Our Feet Are Rooted (see www.facebook.com/ourfeetarerooted). It is a documentary film about how people of Northern Uganda are using nonviolent action to protect their land threatened by companies and the central government due to it's fertility and it's oil reserves.
The documentary will help bring attention to the issue of forced displacement and land grabbing, and we will use it as an advocacy tool to encourage foreign governments to divest their support from Uganda's governmental departments commiting human rights abuses, especially the Uganda Peoples' Defense Forces and Uganda Wildlife Authority.
The Uganda Wildlife Authority has retaliated to this exposure of their crimes by burning down local homes at night. This makes it difficult for us to document the human rights abuses, due to the limited artificial lighting in extremely rural places. We are an organisation with very few resources, so buying special equipment is diificult. At the moment, we have planted a Canon Vixia (high digital zoom) and a GoPro (very discrete) in high risk areas to help us catch perpetrators, but have not yet had much success. Looking forward to others' tips on the matter.
Also, cameras can be used when interacting with representatives from oil companies in Uganda. Recently we interrupted a meeting of one oil company to ask whether they intend to drill in our district. Of course, saying "yes" or "no" to such a question on camera carries consequences for the company representatives, so cameras can put opponents in difficult positions, forcing them to be exposed.
We are looking forward to other creative ideas rearding human rights documentation using video.
The International Criminal Tribunal for the former Yugoslavia used a lot of footage in its trials (www.icty.org, for general information and cases) and I wanted to present one short example, from the destruction of the Mostar bridge. It's a UNESCO world heritage site, destroyed by the Bosnian Croats during the war in Bosnia.
With footage like this, there will always be questions as to who was shooting at the bridge and it needs to come in combination with ballistic analysis and other expert testimony that can prove, beyond a reasonable doubt, that the shots were fired from a position held by one of the sides in the conflict. We see a lot of those tesimonies also in relation to the siege of Sarajevo and the sniping attacks there.
This is the case, if you want to know more:
I find this an interesting example of videos used as evidence in court. This is just the evidence that something happened. What needs to be established is who did it.
For more on how the International Criminal Tribunal for the Former Yugoslavia conducted its investigations, see this link: http://www.icty.org/sid/97
This is how the ICTY described its investigations strategy:
In the early years, investigations had to be conducted with limited resources and under dangerous conditions, as the war was still ongoing. The Tribunal's legitimacy was not recognised by certain authorities in the region, who denied investigators access to crime scenes and witnesses....
As a result, the OTP decided to follow what has been called a pyramidal investigation strategy, starting from the bottom, in other words, with crime base evidence and lower-ranking persons who actually committed or ordered the crimes. Investigations began in refugee centres throughout the world, where victims and witnesses were able to provide evidence implicating the persons who had physically committed the crimes, such as, for example, the persons in the camps where they were detained or the camp commanders. As the evidence grew, investigators began working up the pyramid to the persons who could be regarded as most responsible for the crimes.
During the "top down" investigation phase, the challenge was to link the crime base incidents with persons who did not physically commit the crime but who may have ordered, planned, implemented or facilitated key parts of any common scheme, strategy or plan. As in any organised crime or human rights abuse investigations, legally linking the persons higher up to the actual crimes committed is not easy and takes time. While the crime base evidence was being identified, many others within the OTP were engaged on compiling profiles of potential suspects and identifying and gathering documentary, intercept and insider evidence. This could not be achieved overnight and it took several years of work by many dedicated present and former members of the OTP.
An addendum to our discussion about how digital evidence can be used for accountability purposes - while digital evidence can be useful to record the commission of crimes and the testimony of victims, it can also be useful to prove responsibility up the chain of command of a military, police or other hierarchy. Under international and domestic law, superiors (miltiary or civilian) can be held liable for the crimes committed by their subordinates. Superiors can be held directly liable if they order, or are otherwise complicit, in crimes committed by their subordinates.
In the alternative, superiors can also be held responsible if they become aware that their subordinates are about to commit, or are committing, abuses and they fail to intervene to prevent such actions. This is the essence of the doctrine of superior (or command) responsibility.
This doctrine has four main elements:
Digital/video evidence can be used to prove all these elements.
In addition to proving the commission of crimes, as we have already discussed elsewhere in this forum, it can also establish the relationship of subordination. Proving subordination requires proof that the superior exercised "effective control" over her subordinates in the sense of having the ability to order them to undertake, or refrain from, particular conduct. The doctrine applies even if the potential defendant is a superior in an informal militia group or paramilitary (as opposed to a national army, security, or police force). All that matters is that the individual exercises actual ("de facto") command or control.
Video footage that shows a superior effectively exercising command (e.g. giving orders in the field, admitting to being "the one in charge", taking credit for battle successes, commanding or ordering troops, speaking with authority about planned miltiary tactics, being consulted by political leaders, etc.) can thus help to establish the subordination prong of the doctrine of superior responsibility.
Where abuses are widespread and systematic, it can contribute to proof that the defendant superior either knew, or should have known, that subordinates were committing abuses. This knowledge standard is the mens rea, or mental state, of the doctrine. So, footage of civilian areas being attacked that is publicly available, aired in the press, or sent directly to a commander can lay a foundation for proof that the commander knew that subordinates were committing abuses but failed to react appropriately. Or, multiple examples of detainees speaking of being mistreated while in a custodial situation can also put a superior on notice that subordinates are violating the rights of detainees. Obviously, security concerns are acute when dealing with footage that identifies victims.
In short, in addition to contributing to the proof that particular crimes occurred, video footage and other forms of digital information can also lay the groundwork for holding superiors responsible even where they may be miles from where the abuses occurred.
Since I haven’t researched camera kits recently, I don’t have the most up-to-date information of filming in low light. Where I would begin my research, however, is with the biologists and wildlife videographers as they have been setting up discreet, infra-red camera traps that capture the behavior of animals that are active at night for well over a decade now. Fun examples of video captured by a network of over 60 camera traps can be watched through the website of the Goaulougo Triangle Ape Project (GTAP). They don’t have any of their nighttime footage posted but the night video footage I have seen from the project is fantastic. And if you have time for a small break from human rights footage, the below video shows us what footage from the infra-red cameras looks like!
So a question for our community -- does anyone have an up-to-date equipment list for a discreet, infra-red or low light camera trap set-up ideally with motion sensing capacity? Or any other advice for our friends in Uganda?
And while this won’t help for this conversation, WITNESS is drafting a guide entitled, A Field Guide to Enhancing the Evidentiary Value of Video for Human Rights. I will look into including a synopsis on setting up discreet camera traps for both day and night time use as I am sure there are many activists that would interested in topic. When I get scoop on this I will also share it at our blog.
Regarding the use of citizen video in securing justice, I'd like to bring up here the case of an extrajudicial killing in Jamaica in 2010. I was not involved in this case, but I was in Jamaica when it happened documenting extrajudicial killings with a local human rights group, and work on citizen video now at WITNESS, so I followed news of the case with interest for three years. I'd love to hear from the legal experts in this conversation about if there is a way eyewitness video could have proved a more effective piece of evidence in the trial.
I wrote about the case on the WITNESS blog, so please see link for more background. In brief, eyewitness video was used to expose the fatal shooting at close range of a man laying on a dirt road. The video led to the arrest of the officer and a shakeup of the internal review board, but it was not used in the trial, and the officer was set free with his argument of self-defence. As the public prosecutor told the media (you can skip to 13:30 in this video), part of the reason the video was not used is because the filmer could not be identified and the video therefore could not be authenticated.
While I'm not convinced the prosecutor tried very hard to track down the filmer (or had the resources to do so), it raises for me the question once again of how and when a citizen or online video can be used as evidence. In a case like this, the filmer may not want to be identified for fear of retribution (the same reason witnesses wouldn't want to come forward). If the filmer cannot be found but the video could be authenticated in other ways--for example if YouTube provided metadata showing when and where it was filmed and its chain of custody--would it be possible to admit footage like this as evidence in a trial? I'm not a lawyer so I am probably missing crucial legal reasoning that could be applied in this situation (so lawyers, please advise!).
This is a really important, yet somewhat unresolved question. One issue courts are concerned about in the case of anonymous video is the ability to cross exam the witness. If the person who filmed the video is not identified, the defense does not have an opportunity to cross examine. However, whether or not this would preclude the introduction of the video into evidence depends on the jurisdiction. In a jurisdiction, such as the US, that has rules against admitting hearsay evidence, the video could be barred depending on the purpose for which it is used or if it falls under an exception. Beth posted more on this topic here. There is also a book entitled "Social Media as Evidence," written by Joshua Briones and Ana Tagvoryan that may have additional information.
In international courts, such as the International Criminal Court, the anonymity of the filmer may not bar admissibility. The ICC does not require the filmer to testify as long as there are sufficient other indicia of the videos reliability. For videos in general, the court has indicated it looks at originality, integrity, date/location in making this determination. However, since citizen captured video is such a new type of information in the court context, the parameters of what constitutes sufficient indicia in this regard have not been fully hammered out. Additionally, even if the footage is admitted, the fact that the filmer is anonymous may lessen the weight given to the video as evidence.
These are only examples of two jurisdictions. Practitioners from other jurisdictions/legal systems may be able to shed more light on this question.
I share this story because it’s a very different example of the use of video from any we have discussed so far. My hope is that it will serve as another example of our creativity in the human rights community. The second reason I share – the story and the film below are simply inspiring!
Here’s we go …
On May 4, 2011, young people from across the U.S. did the unprecedented – with the support of a team of attorneys and the world’s top climate scientists they brought legal against 49 state governments and the federal government for our leader’s collective failure to protect our atmosphere in trust for their future. This landmark litigation effort is called Atmospheric Trust Litigation (ATL). For those of you who haven’t heard about ATL, I will very briefly explain.
ATL in Brief?: ATL is based on two fundamental legal doctrines. First, it's rooted in the Public Trust Doctrine. To over simplify, back in the year 535 C.E, the Roman Emperor Justinian and his attorneys wrote down the most important laws of the land. They wrote that it is the government’s obligation to protect the resources we all share and depend upon for our very survival – our air and water. This is simply common sense. You and I can’t protect the air and water by ourselves. Our corporations certainly aren’t doing this. So the responsibility falls on our governments as trustees. Embedded in the Public Trust Doctrine is the human rights principle of Intergenerational Justice which simply means that the adults cannot have a party on the planet and leave it a mess for the kids. Combine Public Trust and Intergenerational Justice and you have ATL.
So where does video come in? To sue the government in most any democratic country, the person bringing the case - the plaintiff - typically has to prove three things:
One of the first documents a lawyer drafts when bringing a case against a government is called a Standing Declaration. This Standing Declaration is really just a letter to the court, from the plaintiff, outlining the harm they have suffered. Here is the Standing Declaration of Nelson Kanuk, a then 16-year old from Kipnuk, Alaska.
With the support of a cutting-edge NGO, Our Children’s Trust, Nelson took the story he told the court in his Standing Declaration and made it into an eight-minute film called TRUST Alaska (linked here and embedded below). The film was later submitted to the Supreme Court of the State of Alaska by the Alaska Inter-Tribal Council (AITC). AITC is a statewide, tribally governed, non-profit organization that advocates on behalf of tribal governments throughout the state. AITC submitted the film to the Supreme Court Justices via an Amicus Brief which literally means “friends of the court brief”. An Amicus Brief is a document that is submitted to the justices by individuals or organizations that are not a party to the case. These outside individuals or organizations submit briefs because they have information that is important for the judges to know when making a final decision. In Kanuk v. the State of Alaska, the AITC wanted the justices to know that harm from climate change is happening now and actually be able to see, through the film, what is at stake.
In this online conversation we have been focused on the use of raw, citizen-shot footage in the courts. I hope Nelson’s story about how his film was submitted to the Supreme Court of the State of Alaska to demonstrate the impact of climate change on our youth worldwide will be added to the list of tactics our community can use to ensure voices are heard in the halls of justice. I look forward to hearing other examples.
To End, a Short Side Note on Advocacy Outside the Courtroom: Nelson and his peers have also used his film (and 9 others) outside the courtroom. Nelson's film has been screened for key audiences literally all over the world, hand-delivered to President Obama in the Oval Office, and watched by the former Administrator of the U.S. Environmental Protection Agency. And these are just a few ways the film is educating our leaders and the broader public about our human right to a clean and healthy environment.
Thanks for sharing this, Kelly! This is a great example of using video in a creative and effective way to document human rights issues, raise awareness, and support legal proceedings. It's also a great example of how important it is to have a range of allies that take on different roles in helping you to reach your goal.
Are there other examples out there of video being used to achieve multiple objectives?
- Kristin Antin, New Tactics Online Community Builder
We've been mostly discussing the use of citizen/witness generated video for documentation and accountability purposes. In today's conflicts, we often have access to so-called "trophy evidence"--information generated by perpetrators themselves to "brag" about their accomplishments or otherwise prove to their superiors that certain deeds were done.
An infamous example of this, which has yet to provoke any sort of accountability mechanism, is the video obtained several years ago by Channel 4 news in Great Britain of Sri Lankan uniformed soldiers executing blind-folded and bound prisoners (presumably members of the Liberation Tigers of Tamil Eelam--LTTE) at close range. (See here for a discussion). In some cases, it is possible to identify the perpetrators.
Although Sri Lanka has claimed that the videos are "fakes", a U.N. report indicates that following a frame by frame analysis, the video appears authentic and there was no evidence of tampering. Channel 4 received other such videos after airing the first one, including ones that appear to show gender and sexual violence. These videos have been used to demand a more searching criminal investigation into the commission of war crimes in Sri Lanka in the end of the civil war. Recently, the U.N. High Commissioner for Human Rights in Geneva initiated an independent expert review, without the consent of Sri Lanka, as discussed here.
The rules of evidence (and particularly the bar on hearsay) of the particular system may render it difficult to admit video evidence such as this without testimony of the individual who created the video - at least to prove the truth of the matter asserted. So, the Channel 4 video may be inadmissible in some legal systems that do not allow "hearsay" -- a statement that was made out of court that is introduced in court by a party without the ability to cross examine the speaker. So, in systems that recognize the hearsay bar, a lawyer cannot always ask a witness, "what did Beth say?" if Beth cannot be brought into court for some reason to testify directly about what she said and to be subject to cross-examination. This rule is largely a feature of systems that rely on lay juries as finders of fact. The concern is that jurors will give too much weight to hearsay that cannot be subject to cross-examination.
The hearsay bar does not, however, bar the admissibility of evidence for purposes other than to prove the truth of the matter asserted. So, if the Channel 4 video were introduced not to prove the truth of what it shows (that bound prisoners were executed) but rather to prove
Many systems do not bar hearsay as a matter of course. Indeed, none of the international tribunals bars hearsay. As such, the Channel 4 videos would be easily admissible in these systems. The parties would then fight about what probative weight should be given to them. This may involve the introduction of expert testimony on video forensics.
Thank you so much for participating in this conversation on Using Video for Documentation and Evidence! It has been an informative exchange and I really appreciate everyone's contribution. I especially want to thank Kelly Matheson of WITNESS for being so engaged in every step of this process and for engaging this awesome network of practitioners. Thank you, Kelly!
I hope you found it helpful to:
I hope you all are taking away new ideas, resources, reflections and allies!
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I hope to see you in our upcoming discussions on our theme Seeking Justice, which include:
August 25 to 29: Expanding Access to Justice through Community-Based Paralegals in partnership with Namati and Reinventing the Rules
In many post-conflict and developing countries, justice can often be elusive because the vast majority of population live in areas where they cannot access lawyers or the formal justice system due to distance, cost, and cultural barriers. To address this challenge, volunteers with an intimate knowledge of their community are trained as community-based paralegals to provide legal education, mediation, advocacy, and legal aid.
September 22 to 26: Improving Access to Justice to Children and Teens in partnership with Child Rights Connect
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Despite international legal advancements, children often face additional obstacles to those encountered by adults because of their dependent status and lack of standing, the potential conflict of interest with their legal representative(s), the lack of information that is available to them, or simply because they are not taken seriously when they need to seek remedies because their rights are violated.
- Kristin Antin, New Tactics Online Community Builder