The New York Times reports on a Liberian woman collecting oral histories of the war in Liberia from refugees on Staten Island:
Seeking Hidden Accounts of Atrocity: In Liberia, she specializes in persuading former child soldiers — men with every reason to keep silent — to give oral histories, sometimes confessing acts of bewildering violence on her radio program there.
…The puzzle before her this fall is how to do this work in Staten Island, where survivors have lived side by side for years without revealing what role they played in Liberia’s civil wars, which spanned the years from 1989 to 1996 and 1999 to 2003. She will submit the accounts of soldiers, victims and witnesses to Liberia’s Truth and Reconciliation Commission, which this year began a historic effort to collect narratives about wartime atrocities from refugees in the United States.
This work–collecting testimony for the war crimes tribunal–is clearly tremendously important. However, it raises an alarming question in my mind. Does this imply that statements taken anonymously from refugees in a foreign country by a radio program host can be submitted as evidence in a war crimes trial?
I’m woefully ignorant of evidentiary law and customs, but this seems tremendously controversial. Are those accused of war crimes tried by a different set of rules than other criminals? I need to learn more about this. It would be deeply ironic and tragic if an internationally-supported tribunal provided poorer legal protection for the accused that the USG provides to Guantanamo detainees.
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Also, I should note that the Truth and Reconciliation Commission is not a war crimes tribunal — it’s a different kind of process. The evidentiary standards are lower because typically these Commissions do not mete out punishment, but encourage, for lack of a better word, reconciliation. If she were submitting the testimonies to the Taylor tribunal or something, that would be a different story…
Based on what I saw in The Hague, media sources (and documentaries and such) could be used at the indictment phase (i.e. to secure an indictment), but could not be used at the trial phase, as they were both hearsay (not really a sacrosanct principle in international law) and they denied the accused the right to confront witnesses against him (actually a sacrosanct principle in international law). But what the radio program may do is help investigators find potential witnesses and other leads, which if properly followed up on could result in a valuable contribution to the prosecution of war criminals.
Based on what I saw in The Hague, often documentaries/media sources could be used at the indictment phase (i.e. to secure an indictment), but couldn’t be used in the trial phase as proof of guilt — for that you needed some kind of direct testimony (and generally the defendant had to have some kind of way to confront the witnesses, except in extreme circumstances). I agree though that it is just one of the many thorny issues in war crimes prosecutions.