Sri Lanka denies targeting civilians while crushing Tamil Tiger rebels but said action would be taken if war crimes allegations contained in a new British documentary were true. The Channel 4 documentary, “Sri Lanka’s Killing Fields”, contained footage of what it said were prisoner executions.
By Geraldine Coughlan
How can such a video be authenticated?
As I understood it, it’s footage from mobile phones of soldiers who are willing to testify that footage is actually coming from their phones - that would be one way to authenticate it. However usually in criminal cases this material is used as evidence in a supporting way rather than as the main evidence on which the prosecution relies.
So before a war crimes tribunal then obviously witnesses would be the main source of evidence and this footage that we can now see on TV would be possibly playing a supporting role.
How would such a role apply to rules of evidence?
You can see it all the time in tribunals, that video footage is used as evidence in a supportive manner. Of course the main evidence will always be the testimony of witnesses - be it witnesses of specific crimes or be it insider witnesses. Any other sources are documents - for example, in this case from the military, etc. So it doesn’t necessarily have to play the most important role within a prosecution case.
Is there a difference in presenting such video evidence in national courts, compared to international courts?
I don’t think there would be really any difference because I cannot imagine any criminal case focussing solely on this footage - simply because there will always be a risk that it is falsified or not authentic. So as a prosecutor in a tribunal or in a national domestic court, you would never want to rely solely on footage from a mobile phone or whatever.
Would such evidence be more easily accepted in an international court like the ICC, than in a national court?
Not necessarily. I think the rules of evidence don’t differ that much between domestic courts on the one hand and international tribunals on the other.
Evidence is usually what witnesses present. It’s about the way they present it and if the evidence is reliable then it is also about the footage and I think the basic rules of evidence don’t differ that much.
How would you present evidence like this video in court?
I would solely use it as supporting evidence which comes from primary sources like witnesses, people who have been present while those crimes were committed. That could be deserting soldiers from the ranks of the Sinhalese army or it could be people from the Tamil population who witnessed those horrific events.
They would be the primary sources and I would back it up with this material.
The Liberation Tigers of Tamil Elam (LTTE) is listed as a terrorist organisation by the European Union. Why are you in favour of lifting that ban, even though the Tamil Tigers are regarded internationally as a terrorist group because of their attacks on civilian targets during the conflict?
Well we have filed an application against this ban a few weeks ago before the European Court of Justice (ECJ) in Luxembourg and one of our main arguments is that the Tamil groups are fighting a legitimate battle for self-determination.
You know the right to self-determination is one of the fundamental principles of international law. And it is within the context of an armed conflict that there were two parties fighting each other.
Obviously things have gone wrong - but to call the LTTE a terrorist organization rather than one of the two fighting parties is in our opinion contrary to international law.
Lead photo - ECCC on flickr.com - all further use subject to this CC licence