3: Video’s Role at LAW TRIAL Every crime is broken down into what are called the “elements of the crime.” For example, to secure a conviction for the larger war crime of “enlisting, conscripting, or using child soldiers actively in hostilities,” one of the seventeen elements the ICC Prosecutor needed to prove is that some of Lubanga’s soldiers were under the age of 15 . In many places across the globe, it’s easy to prove age. Documents such as birth certificates, baptism records, school registrations, diplomas, driver’s licenses, and voter ID cards are all key sources of evidence for proving age. Medical experts can determine an approximate age by reviewing x-rays of bones and teeth; another option would be to ask family or community members how old a child is. In this case, documents, medical exams, and witnesses were not viable sources of evidence to prove age, because: • • • Documents were either non-existent or extremely difficult to access. Medical exams could not pinpoint the age of children in the DRC because models for determining age are based on healthy, well-fed European and American populations; the malnourished child soldiers from sub-Saharan Africa met neither criteria. Witnesses could not always speak safely with investigators and sometimes could not tell the truth even when they wanted to because their personal well-being would be at risk if they spoke out against a militia. Instead, the Prosecutor relied, in part, on a series of video clips to show that some of Lubanga’s recruits were clearly under the age of 15. The clips showed children visibly under the age of 15 • • • • at training camps where Lubanga is encouraging young recruits; serving as bodyguards in a number of situations, including being part of the presidential convoy when moving locations, during negotiation meetings, and outside of Lubanga’s residence and his office; present at rallies, political speeches, and assemblies where Lubanga addresses audiences that include young people. He discusses the work that remains to be done, the need to be trained, and the need to take up arms, and thanks audiences for the support they have given; and present at a “grading ceremony” that includes the parents of the soldiers that are receiving their military grades. A sample of the footage from the opening argument can be watched here.3 The defense argued that it is impossible to reliably distinguish between a 12- or 13-year-old and a 15 - or 16-year-old on the basis of video alone. The trial judges agreed that it is often difficult to determine the age of a person from a video and in turn relied on the video evidence only in cases where the video “clearly” showed that a child was under the age of 15. FOR MORE INFORMATION To learn more about elements of a crime, see “Anatomy of a Crime” or “Collection Planning” at vae.witness.org SHOWN IN THIS CLIP This clip takes us inside the courtroom at the ICC where the Prosecutor, Luis Moreno Ocampo, is making his opening statement in the trial against Thomas Lubanga Dyilo. During his opening statement he shows multiple raw video clips of what he states are children at the isolated training camps and serving as Lubanga’s bodyguards. The result: On March 14, 2012, Lubanga was found guilty of enlisting, conscripting, and using child soldiers actively in hostilities and was sentenced to fourteen years in prison. 25 VIDEO AS EVIDENCE: STAGES & STANDARDS OF PROOF V 1.0