The Role of Video in The Criminal Justice Process

BASICS

Tribunal: International Criminal Court (ICC)
Who: Thomas Lubanga Dyilo
What Crimes: Enlisting, conscripting, and using child soldiers under the age of 15 actively in hostilities
How: Co-perpetration

BACKSTORY

Between 1994 and 2003, the Democratic Republic of Congo (DRC) was embroiled in a complex conflict fueled by foreign armies and local militias. This war led to the loss of some five million lives. Thomas Lubanga Dyilo served as one of the many militia leaders. He was the president of the Union of Congolese Patriots (UPC), a militia group that claimed to represent the interests of the Hema ethnic group in the Ituri region of northeastern DRC. The Hema have been implicated in many serious abuses including ethnic massacres, torture, rape, and the use of child soldiers.

Specifically, the military wing of the UPC, under Lubanga’s leadership, was known to recruit young people, regardless of age, in schools and in villages. Some of these recruitment efforts were coercive, including abductions. This meant that children under 15 years old were recruited — in violation of international law — whether or not this was specifically intended. The children were sent to training camps where they were beaten, whipped, imprisoned, and inadequately fed. Young female recruits were raped. The children were encouraged to smoke cannabis and drink alcohol and were frequently intoxicated.

The ICC initially charged Lubanga with thirty-three crimes. After the evidence was analyzed, the strongest body of admissible evidence allowed the ICC to charge Lubanga for the war crimes of conscripting, enlisting, and using child soldiers under the age of 15 actively in hostilities.

VIDEO’S ROLE AT DIFFERENT STAGES OF THE CRIMINAL JUSTICE PROCESS

1: Video’s Role in Initiating an Investigation

In 2003, the DRC-based organization, AJEDI-Ka, alongside other courageous NGOs, started capturing video documentation of the use of child soldiers to complement their other forms of evidence collection. AJEDI-Ka took this risk in hopes that, someday, the military leaders responsible for using child soldiers would be held criminally liable.

As part of AJEDI-Ka’s work towards this goal, they partnered with WITNESS to produce two films to contextualize the human rights crime, A Duty to Protect (14 min.) and On The Front Lines (15 min.).

After the films were completed, AJEDI-Ka met with the DRC investigations team at the Office of the Prosecutor (OTP) for the ICC. AJEDI-Ka screened the two films to provide the OTP with the broad factual context on the use of child soldiers in hopes that the OTP would ramp up its investigations into the use of child soldiers in war. The Prosecutor requested all the original, unedited footage from AJEDI-Ka and asked AJEDI-Ka to provide chain-of-custody information.

The result: The provision and presentation of this video footage, in part, gave the ICC’s Office of the Prosecutor the information it needed to initiate an in-depth investigation into the enlistment, conscription, and use of child soldiers in eastern DRC.

2: Video’s Role at the Confirmation of Charges Hearing

Over the next three years, the ICC’s OTP collected evidence — including video evidence — against Lubanga. When they had sufficient admissible legal evidence, they issued an arrest warrant charging Lubanga for the war crimes of enlisting, conscripting, and using child soldiers actively in hostilities.

Once arrested, Lubanga appeared at his confirmation of charges hearing. At this hearing, the ICC Prosecutor told the judges he intended to show twelve video clips that would prove there were sub-stantial grounds to believe that Lubanga enlisted, conscripted, and used child soldiers and, therefore, he should stand trial for the alleged crimes. Lubanga’s lawyers asked the judges to exclude these clips. They argued that the clips should not be admitted as evidence and not seen by the judges because:

• the authenticity of the clips had not been proven,
• the chain-of-custody of the clips had not been provided, and
• some of the clips included discussions in Swahili and Kingwana (local languages) and
  Lubanga’s lawyers did not trust the prosecutor’s translations.

The result: After two days of arguing, the judges decided to view the twelve videos. In the end, the judges gave special consideration to the video of Lubanga visiting the camps in determining that there was in fact substantial ground to believe that Lubanga used child soldiers in his militia. Then, based on all the evidence, the judges ordered Lubanga to stand trial.

3: Video’s Role at Trial

Every crime is broken down into what are called the “elements of the crime.” For example, to secure a conviction for the larger war crime of “enlisting, conscripting, or using child soldiers actively in hostilities,” one of the seventeen elements the ICC Prosecutor needed to prove is that some of Lubanga’s soldiers were under the age of 15.

In many places across the globe, it’s easy to prove age. Documents such as birth certificates, baptism records, school registrations, diplomas, driver’s licenses, and voter ID cards are all key sources of evidence for proving age. Medical experts can determine an approximate age by reviewing x-rays of bones and teeth; another option would be to ask family or community members how old a child is.

In this case, documents, medical exams, and witnesses were not viable sources of evidence to prove age, because:

• Documents were either non-existent or extremely difficult to access.
• Medical exams could not pinpoint the age of children in the DRC because models for determining age are based on healthy, well-fed European and American populations; the malnourished child soldiers from sub-Saharan Africa met neither criteria.
• Witnesses could not always speak safely with investigators and sometimes could not tell the
  truth even when they wanted to because their personal well-being would be at risk if they spoke out against a militia.

Instead, the Prosecutor relied, in part, on a series of video clips to show that some of Lubanga’s recruits were clearly under the age of 15. The clips showed children visibly under the age of 15:

• at training camps where Lubanga is encouraging young recruits;
• serving as bodyguards in a number of situations, including being part of the presidential convoy when moving locations, during negotiation meetings, and outside of Lubanga’s residence and his office;
• present at rallies, political speeches, and assemblies where Lubanga addresses audiences that include young people. He discusses the work that remains to be done, the need to be trained, and the need to take up arms, and thanks audiences for the support they have given; and
• present at a “grading ceremony” that includes the parents of the soldiers that are receiving their military grades.

The following is a sample of the footage from the opening argument.

This clip takes us inside the courtroom at the ICC where the Prosecutor, Luis Moreno Ocampo, is making his opening statement in the trial against Thomas Lubanga Dyilo. During his opening statement he shows multiple raw video clips of what he states are children at the isolated training camps and serving as Lubanga’s bodyguards.

The defense argued that it is impossible to reliably distinguish between a 12- or 13-year-old and a 15- or 16-year-old on the basis of video alone. The trial judges agreed that it is often difficult to determine the age of a person from a video and in turn relied on the video evidence only in cases where the video “clearly” showed that a child was under the age of 15.

The result: On March 14, 2012, Lubanga was found guilty of enlisting, conscripting, and using child soldiers actively in hostilities and was sentenced to fourteen years in prison.

4: Videos Role in the Appeal

In May of 2014, the ICC’s Appeals Chamber heard Lubanga’s case. An overarching focus of the two-day hearing was whether the first judges to hear the case — the trial judges — could reasonably conclude that the children in the video excerpts were under the age of 15.

Lubanga argued that the trial judges could not rely on the video excerpts showing the physical appearance of soldiers to conclude — beyond a reasonable doubt — that the persons seen in the video excerpts were under the age of 15 years.
The prosecution stressed that trial judges have the ability — and duty — to evaluate the strength of the videos and reach reasonable conclusions as to the age of the persons depicted. The prosecution also emphasized that the trial judges were very cautious and conservative in their consideration of the video evidence.

Specifically, the trial judges stated on the record that there are indeed limitations to determining age on the basis of physical appearance as seen in video excerpts. And indeed, the trial judges were not convinced that all the individuals said to be unde 15 years old were, in fact, under 15. In light of this limitation, the judges were cautious and allowed for a wide margin of error when reviewing the videos and reaching conclusions about age based on appearance. In the end, they were convinced that certain individuals depicted in the body of video evidence were “clearly” under the age of 15 years.

The Appeals Court concluded, among other findings, that the trial judges were “fully entitled to evaluate the videos and reach a reasonable conclusion as to the age of the person depicted on them.”

The result: On December 1, 2014, Lubanga’s conviction was upheld.

To learn more about the purposes video can serve, see All About Evidence (PDF).