Shifting the paradigm - bringing to justice those who commit human rights atrocities.

• Author: Ellis, Mark S.
• Position: Frederick K. Cox International Law Center Symposium: International Regulation of Emerging Military Technologies

MICHAEL SCHARF: Good afternoon, everybody. For those of you who are new to our events, I am interim Dean Michael Scharf, and I am also the Director of the Cox International Law Center. And on behalf of the faculty and the staff and the students of our great law school, we welcome you to the 2014 Klatsky seminar on human rights.

Now, the Cox Center actually was created in 1991 with a $4 million-dollar endowment, but our human rights program got kicked off in 2001, ten years later, when one of our trustees of the university, Bruce Klatsky, very generously gave us a very nice endowment that goes to send two students every summer to human rights watch. And he also is on the board of trustees there and got us these permanent slots for our students, and this has launched some of our students on amazing careers in human rights, and the rest of the money goes to this endowed lecture series. And over the years, we have had some amazing people give this lecture and no more amazing than the person we are going to have today.

But some of you know, have been here over the years, you know last year we had Harold Koh, who was the former State Department legal adviser. We have had Samantha Power, who had just won her Pulitzer Prize, and it was years before she ever became our U.S. representative to the United Nations. We have had Navi Pillay, the High Commissioner for Human Rights. And it has really been a field of super stars that have come to Cleveland for the Klatsky lecture, and so today's speaker is right up there.

This is Mark Ellis. He is the Executive Director of the International Bar Association. I met him twenty years ago when he was the Inaugural Creator of the American Bar Association, CEELI program, and that stands for Central European and Eurasian Law

Initiative. (2) That has since been morphed into a larger project of the American Bar Association, including its ROLI, its Rule of Law Initiative. (3) And we have several of our alumni that are now working in the organizations that Mark started. Mark also started an organization called ILAC, the International Legal Assistance Consortium, and he is just one of those people who creates institutions that last the test of time and does good things around the world. (4) And meanwhile, when he has time, he hop scotches around the world himself, and he is involved in transitional justice and fighting war crimes, doing--I guess you were the legal adviser to the Kosovo Commission, so the whole country of Kosovo, in part, owes its existence to Mark and his colleagues' work, and he has just done amazing things.

Well, today, he is going to be telling you about something brand new. He is actually launching it. This is the first public time anybody will hear about this, and there are some audio videos he will be sharing with you, so you are in for a real treat. Please join me in welcoming Mark Ellis, our Klatsky lecturer. (Applause)

MARK ELLIS: Michael, thank you very much. It is a little intimidating, Harold Koh, Samantha Power, I am not any of those people. I assure you that's your A list group, but I am honored to be here. I am honored to be here primarily because in my previous visits here I have come to really appreciate and admire this institution and this law school. It is quite remarkable. You have a great reputation internationally. I have had the pleasure of working with a number of students over the years, and so it is always a pleasure to come back here and to be here at this institution. Michael Scharf, who is one of the greats in international law and is recognized worldwide, the friendship that we have had for all these many years has been something that I have treasured. So again, it is wonderful to be here.

I apologize in advance because, as Michael says, I have tried to put together a combination of a power point with embedded videos. I have never done either of those, so I am experimenting with this. But I felt when I came here my office said, well, this is a great opportunity to honk your new book, and I said "no, that would be quite boring to do. I want to do something a little bit different," which I hope you will generally enjoy. It is really going to be up to you to engage in this conversation. I am going to lay out this project on the pictorial evidence and human rights violations, and then, hopefully, we can have a bit of a dialogue on this.

About three years ago, I was asked by a television TV station in London called Channel 4--it is an investigative channel (5)--to look at some videos, and these videos were taken during the Civil War in Sri Lanka, and the videos are quite graphic. They were quite graphic. In fact, I have embedded some of those in here. I have kept the most graphic videos out, but I wanted to warn you about what I will show you. They asked me to come in and review these videos and to see whether or not I felt war crimes had been committed. So I reviewed those, and my answer was, yes, they were certainly evidence of war crime.

And then what surprised me is, that week when they put it on air, the first thing they said--this is again three and-a-half years ago--we cannot verify these videos. We cannot authenticate what you are about to see. And in fact, it went so far as to say if any of you, the public, have any knowledge of these videos, we would like to know. And I thought, well, now, that's odd because that video undoubtedly raised the consciousness of those who watched it about some horrendous crimes that were being committed. But in regards to whether or not that video could be used as evidence to bring to justice those individuals who had committed the crimes, the answer was actually not.

So it got me thinking. Well, maybe there is a solution to this problem. And that led me to think with social media, I mean, the use of social media because that's what this was, it was just a video that was sent in to this Channel 4. And then later on, as I was watching, interacting with CNN and BBC, as other videos were being used, the same thing was happening, can't authenticate it, can't verify it, and therefore, for me, what was the use of that? And the idea, then, was to say, well, could we create something that, in essence, answered those questions, and that made those videos relevant as evidence in war crimes prosecutions? And that's what we started to work on, and let me start with just this introductory piece of video, and then we will see.

(Video clip is played)

MARK ELLIS: So the idea here is that you have the growth of citizen videos. All of you is much younger than I am recognize this, you use it, you see it, you see it on YouTube. The growth of the use of citizen journalism is quite astounding. There arereasons for that actually. Mainline media is no longer engaged in these environments. The liability is too great for them. So you have freelance journalists doing this, or you have citizens doing that. That's where we are. Every single video that I showed you there--and there is many more--was videos that I was asked to review, many more actually too graphic to show, but all of those were sent in to either Channel 4, CNN, BBC. And so they were giving them to them, but as you noted, they were not able to be used in any way other than being shown on YouTube. So the idea of what this is about is to be able to use videos generally

It is not as if it has never been done in the International Criminal Court for Yugoslavia (6) or for Rwanda (7) or for the ICC (8), and it is used primarily for these reasons, at the trial in the sense of showing conduct or context or just knowledge of what was going on, knowledge of individuals that should have known but they didn't do anything to stop those atrocities. The threshold determination, this was something used in Sudan. (9)

Gravity is always a big issue in war crimes tribunals, particularly the International Criminal Court because they won't engage with any cases unless it meets this gravity. (10) So, of course, videos can be very strong in showing that, in fact, it has reached that level. And investigations, this is one of the most important areas, I think, and that is something that we don't know about yet. Some of those videos actually were sent to--well, they were brought to an investigative journalist who came to me and did a documentary that was shown three weeks ago, and it was a similar situation. But this had to do with Nigeria and Nigerian government perpetrating crimes against citizens. It had never been seen before, so that would have been an example of where those videos, if they could be authenticated, if they could be verified, could be the answer to, at least, the initial investigation that a court would be asked to do, the admissibility standards for videos for something that became quite important.

And this is where we decided we would go and speak to the International Criminal Court, to all the regional tribunals, and we conducted a research project also with DLA Piper out of its Washington office to assist us in going through all the evidentiary requirements. We wanted to know what is required to accept pictorial evidence, to accept one of those videos without having the chain of custody. So if Dean Scharf was out in the field and he was taking that video, then if he was not available, we didn't even know who he was, if he sent us that video, could that video be used in a court of law, and this is what we came up with, the admissibility standards of relevance. The reliability is probably the most important in the sense the ability to be able to authenticate it, its significance, the issue of ensuring it is not unfair, prejudice as well.

So we started looking at what those admissibility standards were, and why did we look at it? Because if we were going to build this app, then the app had to answer and had to ensure that we could tick those boxes on that. So the reliability was--the heart of that was authenticity. Just as you listened to the CNN-BBC commentator...