Read this in Arabic.
In 2015, WITNESS and PILnet co-hosted a Video as Evidence training in Casablanca, Morocco, designed to train lawyers from across the MENA region in how to use video footage as evidence in a trial. While the participants were interested in the concept, many of them did not know how video would fit the legal context of their respective countries. How do you use video as evidence, when video has never been used as evidence before?
Over the following months, WITNESS and PILnet collaborated to fill this gap—traveling to Tunisia, Morocco, Egypt, Lebanon, and Jordan, collaborating with local partners to research each jurisdiction. The result is a 70-page report that examines legal contexts, precedents, and challenges facing each of the surveyed countries; you can read it in English and in Arabic.
Below, Tara Vassefi (VAE Legal Fellow) joins Raja Althaibani (WITNESS MENA Program Manager) and Maysa Zorob (PILnet Senior Legal Officer for MENA) to discuss the creation of the Video As Evidence report.
How did the Video as Evidence guide come to be?
Raja: Our Video As Evidence Field Guide was born out of our work on Syria. We, as WITNESS, were providing training and support for activists, citizen journalists, lawyers and many others who were filming human rights abuses and crimes that they were witnessing on the ground. We wanted to ensure that those who documented with video had access to a resource that could continue to strengthen their efforts to use video for media advocacy, human rights advocacy and justice and accountability.
In the beginning of the conflict, many people were seeking support to film for media reports—but as the conflict continued to escalate and access into the country for international stakeholders became less of an option, Syrians began turning to video to document war crimes with the hope that their content could be used to help fuel investigations and prosecutions – and overall efforts towards justice and accountability.
By default, local activists are taking on the role of investigators and human rights monitors—and they had to learn these skills. Seven years later, there is now more hours of footage of the Syrian conflict on YouTube, than of the conflict itself. But how can these videos be used for justice and accountability?
We sat down with lawyers, and asked them what kind of evidence they would need to build these cases, and tried to connect them to activists (first responders when an incident occurs). We worked with technology experts, on issues like verification, and using tools like geolocation and other metadata to confirm information and understand how people are documenting and sharing information. We also worked with legal experts, both in Syria and internationally, to better understand how video should be captured, collected and prepared for legal systems around the world – systems that have been largely under-equipped to handle the influx of footage made possible by today’s mobile technologies.
WITNESS Senior Attorney and Program Manager Kelly Matheson developed these findings into a guide that would be relevant, and useful to people around the world.
When did WITNESS and PILNET decided to collaborate, to further understand Video as Evidence in the MENA region?
TARA: The collaboration started three years ago, when WITNESS partnered with PILNET to run a Video as Evidence training in Casablanca, Morocco with lawyers, judges, and journalists from across the MENA region. But while the participants were interested in learning about Video as Evidence, many of them didn’t know how to apply it to the legal context of their countries. What are the laws governing video and digital evidence? Do judges accept it? What factors are used to weigh the evidence?
RAJA: After this training, we saw that PILNET was the ideal influencer to help tailor this guide for the MENA region.
TARA: As a network public interest advocates, of pro-bono lawyers and law firms, PILNET was able to reach out to one of their partners, Latham & Watkins who in collaborating with local counsel in certain jurisdictions, provided the legal memos in respect of the countries surveyed which were the backbone of the research. I ended up traveling to several of the countries to connect with lawyers, judges, and civil society on the ground and learn more about the practice of using video evidence in human rights cases within the various jurisdictions. I wrote out the book based on all of that information.
MAYSA: We made this happen by collaborating—Kelly (WITNESS) had the expertise on video as evidence, and could provide substantive guidance and input. Tara interviewed our partners on the ground, and did legal research beyond the memos provided. I leveraged PILnet’s resources and contacts, coordinated the efforts of the different partners involved and oversaw the process, to make sure we were on track and had the information we needed. It was a multi-stakeholder collaboration, and so much greater than the sum of its parts.
The MENA region has so many different countries, political dynamics and legal systems. How are you personalizing the guide’s information to be useful in each context?
TARA: The key issue in this research is that it has to be very localized—different countries have different legal and historical contexts. While the justice systems are all similar in their form and codes and the countries have all experienced an uptick in video and social media documentation especially in the aftermath of the 2011 uprisings, any discussion of how video evidence might be used is very different from one country to the next. In Tunisia for example, there is a unique sensitivity to transparency and privacy, not just in the justice system but in society writ large, that underlies any conversation about social media and digital documentation. As another example, the Egyptian justice system implements technical means related to the use of video evidence that I didn’t see in other countries like how to make sure the video is shown in court or verified and authenticated before its use. So it is very important to localize this research and discussion as much as possible.
While there is a lot of focus on sourcing evidence of war crimes in international courts, there isn’t a lot of focus on domestic legal systems, which is where the bulk of the day-to-day decision-making and advocacy is actually happening.
MAYSA: As International NGOs, the partnerships that WITNESS and PILNET establish with local partners are crucial. We can’t possibly come in and pretend that we know the local context as well as someone who is on the ground. Without creating local ownership, whatever we do, no matter how valuable we think our expertise and information is, if people don’t trust it and translate it into a way that speaks to them, it won’t have any impact.
What kind of impact are you hoping that the Video As Evidence guide and research will have on the MENA region?
TARA: The MENA research is just a starting point. There are a lot of issues that need to be fleshed out like how this evidence can be used in civil cases (in addition to criminal cases) and how the evidentiary standards shift based on the stage of proceeding. But as I’ve been traveling and discussing the topic with more and more people, it has been super helpful to have something like this a basepoint for conversations around how to most effectively use digital/video evidence, whether and to what extent it is beneficial to a case, and perhaps most importantly, what other steps need to be taken to improve justice and accountability systems so as to optimize this kind of evidence. The cool thing about this topic is that it is something that applies across various disciplines and actors: everyone agrees that there is more and more digital/video evidence, everyone agrees that it affects their work and impact in some way.
RAJA: We want activists that are filming, gathering content—and evidence—become more equipped and better supported. As locals, they have unique access and expertise that has resulted in some of the most powerful reporting and documentation. Foreign monitors are not always able to do this, especially in a dangerous environment like Syria—so it is that much more important that people know how to do this in the most effective and safe (and ethical) way.
In our conversations with lawyers, we found out that one example that was seen time and time again in Syria, are the dozens of videos of barrel bombings uploaded to the Internet. While activists thought that they were proving war crimes, these videos alone weren’t necessarily useful for building a case. In addition, the lawyers needed footage of munitions used, or the exact geo-location of the bombing itself–footage that would be available if the activists were filming strategically. This is the kind of information that provides the necessary evidence to prove the context of the crime and therefore demand accountability. Our Video as Evidence field guide goes into further details in the Collection Planning section, as well as the Filming Secure Scenes and Filming Linkage Evidence sections.
Ultimately, the goal of the guide is to connect the lawyers with the activists, with the technologists and provide the knowledge and know-how to optimize this rich archive of videos, as evidence.
TARA: So for example, when we launched this report in Tunisia we wanted to open the discussion with different elements of civil society and the response was striking. People were really excited about the topic and they felt like they had a key role to play in figuring out these issues. But they were also very much aware of the importance of other actors. We spoke to human rights groups and they said: “make sure you talk to journalists about this.” We met with a union of journalists and they said, “make sure you bring in members of parliament or ministry of justice.” Each party was eager to make sure that others, including the government, were looped into the conversation. As so I’ve been working closely with an awesome local organization called LEAD to put on some kind of a convening, hackathon, startup weekend, etc. where we bring together people from technology, human rights, and government and have them discuss and design a possibly tech-enabled solution to address issues related to digital technical evidence.
We talked about what video can bring to the table. What are some of the challenges with using video as evidence?
TARA: I think there are a few ways that video can be more effective. The first step is clarifying that video can be used in a case; it sounds easier than it is. Sometimes it is political; other times, it’s technical. For example, in Egypt there are two government bodies that handle showing video in a court case—the first is the Ministry of Interior’s Technical Support Administration, which ensures that the courtroom is equipped with a projector or other means to show the video; the second is under the State Television Agency and is responsible for verification and authentication of the evidence. In theory, if a party tries to use video, and it’s not allowed without just cause, leading to an unfavorable decision, it can be grounds for a mistrial. In reality, this mechanism has been used as a political tool by the government and prosecution against activists and others in human rights-related cases.
The other problem is technical issues. In many of the countries surveyed, the judges and lawyers I spoke with had never seen a courtroom that was outfitted with a projector or anything to show the video. A description of the video might be accepted as evidence in the case file, but the courtrooms are lacking a mechanism to ensure that it is used during trial or other proceedings.
RAJA: Video is one piece of the puzzle, but it’s not the only piece of the puzzle. It is important to consider other sources of evidence that can help prove a whole story versus relying on a single video clip to tell the whole story and context surrounding it. Another challenge with video as evidence is that it is a double-edged sword. In the same way, it can help catalyze an investigation, justice, and accountability, it can also jeopardize lives. For some—like the Egyptian woman in Tahrir Square whose sexual assault was documented and shared online—it is a living record of trauma, that can be re-victimizing. In the same way it can be used to expose crimes and abuses, it can equally be used by adversaries to identify witnesses, victims, and individuals behind the camera. Some videos are also misinforming; if you have audiences that are interpreting it out of context, it can create a space of misinformation and distrust. That’s why things like verification and ethics are so important when filming, sharing, or even viewing a video. Whether you are the filmer, lawyer, sharer or viewer – be sure you understand the strengths and limitations of video. Be safe. Be ethical. Be effective.
For more information visit vae.witness.org.
About the author: Anna Lekas Miller is WITNESS’ MENA Communications Consultant based in London. She has reported from the Middle East on the Syrian refugee crisis, the Israel-Palestine conflict, and other issues for a variety of publications, including The Intercept, Vanity Fair, The Daily Beast, The Nation, The Guardian, Al Jazeera America, and VICE.