When “The” Piece of Footage is Not Enough
We’ve all seen the videos. The ones with burnt villages, frightened and bewildered children, or worse, parents carrying their lifeless child, covered in dust, out from the rubble. Not only have we seen them, the world has seen them. They have millions of views. They’ve gone viral. So why isn’t anyone going to jail?
At eyeWitness to Atrocities we regularly confront the question of why these images don’t end up in a courtroom. Putting aside the issue of whether there is the political will for anyone to act, let’s focus here on why that single piece of footage is not enough to bring justice from a legal perspective. Imagine someone shares a video on social media showing one person shooting another. The post accompanying the video explains that it shows a soldier executing an innocent civilian and was taken by a human rights documenter hoping to hold an abusive regime to account. Now imagine you are the judge looking at this video.
Seeing is not always believing
First, the video itself must be trustworthy. The tremendous benefit of the digital age is that it is easy to capture and share information that in the past would never have been brought to light. The serious shortcoming of the digital age is that it is easy to manipulate and spread false information. The video of the shooting may have been taken at an entirely different place or time than what is claimed. The video could have been edited to remove scenes showing what happened before and after the shooting or to change the order of events. The video could have been manipulated to change features identifying the affiliation of the shooter or the victim. If this many doubts can be had about the video, how could you rely on it as evidence to prove guilt beyond a reasonable doubt.
Genocide, war crimes, and crimes against humanity are complex and difficult to prove by design. These are some of the most serious charges that can be made against a person and rightly require substantial evidence. A single act alone, no matter how heinous, is not sufficient. There are other elements related to the context in which the act took place that also must be demonstrated. Let’s go back to our example video of the shooting. Even if it is accurate, unedited, original footage, the situation may not be as it seems. The video may show a murder, a war crime, a crime against humanity, an act of genocide, or even no crime at all. Who the individuals are, their affiliations, their motivations, and the overall environment in which the act takes place dictate the legal significance of shooting. When seeking to hold someone legally responsible, each of these questions must be answered. A single video does not establish these facts. Therefore, one video alone is never sufficient evidence.
Who is really responsible?
Another point is that, in the case of large-scale atrocities, the leaders who may have orchestrated the events are usually nowhere near the crime scene. Therefore, they are not going to appear in the one shooting video. Fortunately, international criminal law allows for individual civilian and military leaders to be held responsible for atrocity crimes, even if they did not pull the trigger. However, prosecuting these leaders requires evidence to show the role they played or how they were linked to the crime. Such information includes their level of knowledge, control, or facilitation of the shooting. Once again, this information cannot come from one video alone.
None of this is to say that photos and videos of violations serve no purpose. To the contrary, photos and videos provide a very personal and human perspective of the events taking place that is tremendously powerful when combined with other pieces of evidence. Therefore, they have the potential to be integral pieces of the evidentiary puzzle that allows justice to be served. But to help ensure that photos and videos fulfil this role, it is important that they are captured in a manner that can be easily verified.
The eyeWitness to Atrocities app was developed for this very purpose.
It is also important that documenters record as much information about the context as possible, either in the footage itself or as an accompaniment to the footage when it is shared. This information will help investigators further authenticate the images and lead them to additional evidence to complete the evidentiary puzzle.
Our goal has always been to assist human rights defenders to collect verifiable footage and get it in the hands of those who can combine it with other necessary evidence to build a case. Together we can bring to justice the perpetrators of these heinous crimes.
This article was written by Wendy Betts, Director of eyeWitness to atrocities. Wendy has twenty years of experience in international development, rule of law reform, and transitional justice, including serving as the Director of the American Bar Association War Crimes Documentation.