The Salience of Video in Human Rights Law: Setting Up Visual Legal Standards

Sandra Ristovska (University of Pennsylvania, USA)

Summary of the Project

Relevance

Although law has built its authority on words, not images, it has gradually shifted towards visual communication by admitting certain uses of video as evidence, testimony, confession, closing argument, settlement and even as audio-visual record of legal proceedings. This visual turn in law is driven in part by innovative uses of visual imagery in human rights tribunals and courts. The debates about the presentation of visual evidence and recording of courtroom sessions in the aftermath of the Holocaust that marked the human rights trials of the day, such as Nuremberg, Papon and Eichmann, evolved into a consensus about the centrality of video in the international tribunals established since. Therefore, a closer scrutiny is needed to understand the ways and ends to which visuals promulgate legal environments.

Research Questions

What are the parameters under which video operates in legal settings, particularly human rights courts and tribunals?

What kind of interpretative schemas render images legally meaningful?

How are the legal uses of video evidence shaping human rights advocacy?

Theoretical Framework

By tackling the legal frameworks under which human rights video operates, my project responds to John Tagg’s call to look at the ways in which institutional apparatuses and technologies render images meaningful. In his view, photography’s “status as technology varies with the power relations that invest it. Its nature as a practice depends on the institutions and agents which define it and set it to work…It is this field we must study, not photography as such.” Therefore, understanding the role and shape of video in legal environments is of moral, cultural and political significance.

Methods

This project takes a case-study approach. It looks at the uses of video as evidence at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, Netherlands. Furthermore, to understand how the legal uses of video shape contemporary forms of human rights advocacy, the project also looks at the ways in which three leading human rights organizations- WITNESS, Human Rights Watch and Amnesty International- mobilize video in their advocacy strategies. The project is centered on the provision of a mixed qualitative methodology: archival work, visual textual analysis and ethnography (fieldwork with participant observation and interviews). The project examines the videos that were used as evidence at the ICTY, particularly citizen videos, and supplements this analysis with participant observation (the researcher attended trials at the ICTY during two periods: January 16-31 and April 15-22, 2015), tour of the ICTY facilities and the courtroom, and interviews with audiovisual, archival and outreach staff. Furthermore, the project incorporates interviews with relevant staff at WITNESS, Human Rights Watch and Amnesty International (media and video advocacy personnel, communication team members and legal advisors) as well as textual analysis of a range of documents these organizations produce.

Results

As a first court of its kind, ICTY set a precedent by establishing certain legal protocols for uses of video as evidence (as well as video recording of trials). Though evolving, these protocols have become central component of other international tribunals and national courts that operate under humanitarian and human rights law. The procedures for using video as evidence depend upon the establishment of authenticity, reliability, relevance and quality. The selection of videos played in court is based on their importance according to several standards: appeal to fact, direct link with the accused, ability to corroborate with witness’s testimony or relevant documents and overall quality. The emerging legal premise is that videos can perform an eyewitness function. Timeliness is also significant (e.g. a video that documented a mass killing in Srebrenica, Bosnia, was obtained after the prosecution has presented their case. Although not used as court evidence, the video still became an iconic visual record of the atrocities in Bosnia).

The use of videos in human rights trials and courts has opened new possibilities for human rights organizations. The professionalization of video activism, for example, stems, in part, from the growing relevance of citizen media to journalism and law. Amnesty International and WITNESS, in particular, have been active players in the development of tools and tactics for video activism. For example, these organizations collaborated with the European Association of Journalists for the publication of the Verification Handbook: A Definitive Guide for Verifying Digital Content for Emergency Coverage. Moreover, WITNESS has worked with The Guardian Project in the development of smart-phone applications that enhance the authenticity of mobile videos. Amnesty International, on the other hand, set up the Citizen Evidence Lab that includes an online platform with readings, tips and exercises for the verification of citizen footage. The legal logic around authenticity, reliability and quality of video content lingers in these initiatives.

References

Tagg, J. (1988). The Burden of Representation: Essays on Photographies and Histories. Minneapolis: University of Minnesota Press

Methodological Reflections

Methodological Potentials

A mixed qualitative methodology is central to the project because it enables triangulation of the data and offers a more complete picture of the salience of video in human rights law. As this project is part of my dissertation that looks at the institutionalization and professionalization of human rights video advocacy, the utilization of different tools of methodological engagement helps me trace the unfolding role and shape of human rights video across platforms and institutional environments.

Solely visual analysis of the video evidence at the ICTY could not provide a nuanced understanding of the parameters under which video can be used in court. To examine the rhetorical strategies and interpretative schemas that render videos legally meaningful, an analysis of the trial transcripts is necessary. To understand the assumptions underlying the legal usage of video, observing trial sessions, seeing the technical infrastructure in the courtroom that dictates how images are shown, and interviewing key stakeholders is an essential component. Moreover, for a comprehensive analysis of the interlinkages between video and human rights, seeing how the legal logic lingers in the advocacy endeavors of leading human rights practitioners, such as human rights NGOs, is important. To do this, the project incorporates interviews with relevant staff members at WITNESS, Human Right Watch and Amnesty International. To better prepare for these interviews, the author needed to analyze a range of documents these organizations produce.

The methodological approach is driven by the theoretical framework that sets the parameters for an institutional analysis of video as a way of understanding the contemporary human rights landscape.

Methodological Challenges

Navigating the archival materials at the ICTY is challenging. There is no physical archive open to the public and no easy system to search the online database for videos and watch them online. Instead, I had to search the database for all video transcripts (each video has to be transcribed and translated). Based on the exhibit numbers of the transcripts and the dates when they were discussed in court, I was able to find the exhibit numbers of every video used as evidence. I then compiled a list of exhibit numbers and made an official request to the Tribunal to get a copy of the videos. This process is lengthy and time-consuming.

Securing access to the Tribunal is also a challenge. For most interviews, I relied on snowball sampling method. I would ask each person to recommend someone else I could talk to that would be helpful for my project. This takes time and money (face-to-face communication is better, so I had to make two trips to the Tribunal and I still need to go back again). Furthermore, every interview request needs to first get clearance and approval. Although easier, scheduling interviews with relevant staff at the human rights NGOs is also time-consuming.

Methodological Limitations

The project could not have been undertaken with a reliance on merely visual methods as they are limited in their ability to illuminate the wider cultural, legal and political contexts that support, frame (and even undermine) the ability of video to achieve human rights.

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