On November 29, 1945, only a week into the trial, the . . . prosecution introduced an hour-long film titled ‘The Nazi Concentration Camps.’ When the lights came up in the Palace of Justice all assembled sat in silence. The human impact of this visual evidence was a turning point in the Nuremberg Trial. It brought the Holocaust into the courtroom.

~ United States Holocaust Memorial Museum

Some abuses are too incomprehensible for the human mind to accept—and even harder to counter when those horrors cannot be observed. General Dwight D. Eisenhower understood this. From the moment Eisenhower first witnessed the horrors of the Nazi concentration camps during their liberation in April of 1945, he ordered American troops to start filming. He gave this order to document the extent of Nazi atrocities, prepare a defense against the public’s belief that such horrors were propaganda or exaggerations, and secure visual evidence to build a watertight case for a potential international military tribunal. 

In October of 1945, Justice Robert H. Jackson temporarily left the U.S. Supreme Court to serve as the Chief Prosecutor for the Nuremburg trials. While the meticulous paper records kept by the Nazis formed the backbone of the case brought against the 23 accused, Jackson, like Eisenhower, understood the extraordinary impact that imagery would have in the courtroom. In his opening statement, Jackson promised the panel of judges, and the world, that the prosecution team would prove their case with a landslide of documents and visual evidence. And they did. The prosecution followed their opening statement with six reels containing 6,000 feet of film shot by American and British cameramen during the camps’ liberation. Not only does this footage continue to inform our understanding of the Holocaust, historians believe this visual evidence played an important role during the trial itself.

In honor of the 75th Anniversary of the first use of film as evidence in international criminal prosecutions and to officially launch Berkeley Protocol on Digital Open Source Investigations. Friedrich-Alexander Universität Erlangen-Nürnberg, University of California Berkeley’s Human Rights Center, United Nations Office of the High Commissioner for Human Rights, International Nuremberg Principles Academy, Memorium Nürnberger Prozesse, and WITNESS’ Video as Evidence Program, hosted a special event.

During the event, panelists traced the journey of visual evidence from Courtroom 600 – the site of the Nuremberg trials – to its modern day uses in courts today and forecasted where it may be headed next. They also examined the power of new forms of digital evidence collected from platforms such as YouTube, Twitter, and Facebook to help secure justice and accountability.

WITNESS Senior Attorney and Associate Director Kelly Matheson spoke as part of this virtual commemoration. Other speakers included a number of experts from Nuremberg and the former United Nations High Commissioner for Human Rights, Navi Pillay. The full transcript of her remarks is below. To see the agenda and description of the event go here. To watch to video of the full event go here

REMARKS

First, it’s a great honor to be here with all of you tonight.  Thank you so much for having me. 

As we heard during the first panel, the foresight to present film footage as evidence and also film the Nuremberg Trials opening Courtroom 600 to the world broke uncharted legal ground. It also forms the cornerstone upon which we are developing good practices to leverage visual and open-source evidence in justice processes, today.

Before we celebrate just a small handful of landmark evidentiary uses of visual and open-source information along the path from Nuremberg to 2020, I would like to underline that – just as in the Nuremberg trials – damning visual evidence will never do away with the need for other evidence such as documents, physical evidence, and witness testimony. 

However, with that emphasized, visual and other open-source materials today – more than ever before – can and do serve as powerful, direct evidence to prove criminal acts, to prove the intent of the perpetrator, to prove the role the accused played in the commission of a crime, or even to exonerate those falsely accused.

Let’s have a look with a note of caution for everyone that what I am about to talk about and show includes difficult human rights content. 

In the early 80s, a young filmmaker named Pamela Yates captured then dictator, General Ríos Montt, bragging about the control he had over his forces. Let’s watch. 

This footage, together with other parts of the interview, served as direct evidence to help prove Montt had effective command over the troops carrying out genocide against Guatemala’s indigenous peoples. While the case was later dismissed on procedural grounds, substantively the court’s guilty verdict for genocide still stands today. 

Next, we go to Mali, where journalists from various media outlets working on-the-ground in 2012 captured irrefutable evidence of Ahmad Al Faqi Mahdi planning to – and destroying – historic religious sites. Again, let’s watch.

Al Mahdi also gave many on-camera interviews, where he clearly states his intent to commit these crimes. This visual evidence and much more helped the International Criminal Court secure a guilty plea for war crimes.

Syria is our next visit where an insider, working as a forensic photographer for the Syrian Regime who goes by the pseudonym Caesar shared over 50,000 damning images taken inside Syria’s prisons. The photos showed the corpses of numerous prisoners that had been tortured and killed in detention centers. The former US Ambassador for War Crimes, Stephen Rapp, described the collection of photos as the ‘clearest case’ he’s seen of international crimes.  

While the Caesar Photos have yet to realize their full evidentiary potential, criminal actions have been brought against members of the Regime in six European jurisdictions. The photos are poised for use as crime-based, contextual, and linkage evidence in the cases. 

AFP/File Photo

Let’s now go to Yemen, and consider how visual evidence has been used to document less known crimes. One September morning an airstrike – one of many – hit a pick-up truck and killed three women and 12 children on their way to harvest vegetables in their fields. The NGO, Mwatana for Human Rights, collected photos of the truck, crater, and munitions at the scene of the strike. JIAT, a Saudi-led Arab coalition formed to investigate allegations of civilian harm and violations of international law, concluded this attack was on military commanders in a military vehicle, not on civilians. Mwatana’s photographic evidence helps refute JIAT’s false findings. 

Finally, while we are here honoring the Nuremberg prosecutors, in Nigeria, a network of 800 volunteer lawyers with #EndSARS Legal Aid are tirelessly sifting through video filmed and posted on social media by protestors. They then present this open-source video evidence to authorities to exonerate protesters that have been falsely accused of crimes and imprisoned by Nigeria’s Special Anti-Robbery Squad. To date, they have freed 337 innocent protesters.

These are just a few of the many stories illustrating how visual and open source evidence are being used in pursuit of justice. There are so, so many more to come.

And, while I recognize that there are numerous challenges in using these sources as evidence, I do not doubt that in 25 years when we honor the 100th Anniversary of the Nuremberg Trials, a new generation of lawyers will be leveraging open-source, visual evidence from filmmakers, journalists, insiders, NGOS, peaceful protestors, and, as Michelle Bachelet highlighted, from perpetrators too, as core evidence in most – if not all – of their cases to support the long arc of history as it bends us towards justice.

So, with that, a very special thanks to all who came before us and those yet to come. We owe you a debt of gratitude. Thank you.

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