Presidential nominee on Human Rights Minister Mahinda Samarasinghe at UNHRC:

‘Channel 4 video tainted with bias and partiality’

The response of the government of Sri Lanka on May 11, 2011 to the Technical Note by the Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns, in relation to the authenticity of the second extended Channel 4 video tape regarding Sri Lanka.

“Whilst welcoming the Special Rapporteur’s efforts to provide the GoSL, an opportunity to respond to his Technical Note and annexures, the procedure adopted failed to achieve its objective for the following reasons;

The incomplete nature of the Note – the reports annexed contained blurred and illegible images which were not of a quality that could be examined and therefore precluded the Government from making an objective assessment. The apparent lack of professional diligence in ensuring that legible copies were made available in a timely manner is suggestive of a want of good faith.

Lack of professional diligence

The original copies of the Special Rapporteur’s Technical Note of 26 April, 2011 and annexures reached the permanent mission of Sri Lanka in Geneva on the same day. At this juncture a short deadline of 06 May was stipulated for the Government of Sri Lanka to respond. However, the annexures provided with the initial Note from the Special Rapporteur were faxed versions of original document. The illustrations in these documents were not legible and defied view. Thereupon a request was made from the Special Rapporteur to provide documents in their original electronic form. These versions of the documents were received on 29 April, 2011.

However, neither communications of 26 nor 29th April contained the report of the expert Mr Spivack despite the Special Rapporteur’s Note stating that it is attached. This omission was noted in Colombo and an immediate request was made for Mr Spivack’s report. His report was received by the Sri Lankan Mission on 30 April. This too was a scanned image of a faxed document. Further to a request from the Government an extension of the deadline until 11 May was agreed upon. The illustrations in the Spivack report are also illegible as the document is not an original. This means that the images on which many assertions were based would not be reviewed in time and a full analysis of the Technical Note along with its annexures has not been possible to date. Once such analysis is complete, the outcome will be shared with the Special Rapporteur.

A categorical assertion has been made by the Special Rapporteur that the “material also includes pictures of the dead body of Charles Anthony (son of the late LTTE leader Prabhakaran)” (in paragraph 34 of the Note). The video provided by the Special Rapporteur does not to the naked eye display a body that can be identified as that of Charles Anthony when the video is compared with the photographs of the deceased terrorist Charles Anthony.

There appears to be an absence of a satisfactory material to support the Special Rapporteur’s contention. It also gives rise to the question whether the Special Rapporteur has withheld relevant material, which ought to have been released to the Government at the earliest opportunity, in a spirit of constructive engagement and transparency. No less could be expected when engaging with a sovereign state. It is the Governments view that in an inquiry of this nature, complete disclosure of the material is an indispensable requirement. The Government has initiated steps to obtain the other materials adverted to by the Special Rapporteur which he offers to make available upon request (vide. Paragraph 35 of the Note).

Sri Lanka notes that the experts report submitted by Mr Grant Fredericks appears to have arrived at firm conclusions that both videos i.e. the video (2009) and extended video (2010) are authentic. He was initially requested by The Times of London Newspaper to evaluate the video (2009) around December 2009 and his conclusion was referred to by the previous Special Rapporteur Mr Philip Alston in his report of January 2010 although Mr Alston had not seen the full report.

Lack of unanimity

Despite not seeing the reports he cited Mr Federicks with approval since there was no apparent unanimity between Mr Fredericks and the experts commissioned by Mr Alston, Mr Fredericks, on or around 15 December 2009, made public assertion on print and electronic media that the video of 2009 was authentic. It was inconceivable that he should alter his perception of the genuiness of the extended video which also includes the 2009 video given the position taken by him publicly.

Sri Lanka also notes that the self-same experts are relied upon by the successor to Mr Alston including Mr Fredericks, in evaluating the extended video (2010). This hardly amounts to an independent evaluation of the extended video but appears to be a general reaffirmation of the conclusions of 2009 with the addition of some explanations aimed at dispelling the legitimate doubts and questions raised by the Sri Lankan experts in their analysis of the shorter video in 2009.

It is surprising that the Special Rapporteur should continue to rely on the same four experts who had already committed themselves by asserting that the video was genuine. It is remarkable that the Special Rapporteur, with all the resources available to his office, could not identify any other experts of equal or greater standing or repute who could objectively comment on the extended video.

If the governing interest of the Special Rapporteur is to undertake a truly impartial analysis,’ it would appear more feasible to commission experts other than then four who had already pronounced on the video of 2009. Suspicion of bias may well arise given the determination of the Special Rapporteur to re-commission the experts who had arrived at the most definite conclusions on the video (2009).

Despite the foregoing, it is noteworthy that one expert – Mr Spivack – appears to have substantially altered some of his observations. Moreover the statement that the experts worked “independently of one another” in analysing the video of 2009 is also questionable. The Government of Sri Lanka has discovered that Mr Spivack in a technical representative for a brand of specialized proprietary software which was used to enhance the video (2009) and which was shared with two other experts.

Hence the assertion of independence may be impugned on the basis of the prior collaboration between the experts. The recipient experts – responsible for ballistics and forensic pathology – both based their conclusion on the conclusions on the enhanced video provided by Mr Spivack. Furthermore he does not at any point acknowledge the usage of the specialized software which has had a profound impact on the analysis.

It is axiomatic that an expert should provide objective and unbiased opinions on matters within his expertise and should not assume the role of an advocate. This duty overrides any obligation to the person from whom he received instructions or by whom he is paid. This duty certainly includes an obligation to inform all parties of the expert’s opinion changes and this is hardly noticeable in the reports.

Preliminary study carried out

A preliminary study of the available legible material has been carried out and the following observations are made:

Initially, the experts concluded that the video (2009) was an unedited original video recording on a Phillips brand mobile telephone available in Sri Lanka. This level of certainly does not appear justified as another expert concluded that the extended video (2010) was edited using Phillips software but using a Nokia mdoel 6600 series mobile telephone for recording.

The first expert then changed his conclusion so as to be consistent with the later conclusion by Fredericks. However there does not appear to be any basis for the change other than the opinion of the second expert which taints Spivack’s opinion.

The expert – Fredericks – has generally identified the devise used for recording the extended video to be a Nokia 6600 series model. He also states that “it is clear that the camera used to record this segment (images 765 and 766) has an ability to jump to a 2X (200%) zoom. The zoom appears to be an optical zoom, since digital zoom artifacts are not present.” Having checked the standard specifications relating to this series of mobile telephone, it is apparent that the mentioned series do not have optical zoom capability.

In the extended video from frame Nos. 3 to 8 the person identified as victim #3 makes a body movement for which there is no apparent reason. From frame Nos. 17 to 30 when a gun is aimed and allegedly fired at victim #2, victim #3 who is away from the line of fire and is lying on the ground raises and lowers his head. The failure of the experts - Fredericks to note this feature raised concern as to whether he has reviewed all visual evidence including that which does not support his conclusions. This selective analysis leaves room for questioning the degree of diligence exercised by the expert.

The expert Spivack states that CMOS technology based imaging sensors are commonly found in mobile phone cameras while standard definition video camcorders typically use CCD imaging sensors. There are many digital video camcorders from almost every reputed manufacturer that utilise CMOS technology based imaging sensors.

Hasty conclusions

The Special Rapporteur has asserted in paragraph 36 of his Note that neither the Attorney-General nor the Independent Lessons Learnt and Reconciliation Commission have given serious consideration to the video. The Commission referred to by the Special Rapporteur has, in fact, taken cognisance of the matter and has called for the assistance of an expert from the premier technological University in Sri Lanka on the basis that it has examined the video and possesses the technical means to ascertain the authenticity of the video.

The Commission had requested the university to provide expertise on 12 April, 2011 and is a further reflection of the unprofessional and hasty conclusions arrived at in the Note. The Commission is in the process of receiving the expert evidence and it is expected that it will evaluate the same in its eventual findings. The concerns of the Special Rapporteur in this connection have been addressed. As far back as September 2009, it is a matter of record that the Attorney-General has given this matter his serious consideration.

For instance, on an initial broadcasting of the video by Channel 4 in August 2009 immediate steps were taken in September by the Attorney-General to complain to OFFCOM (UK) and demand an inquiry into the conduct of Channel 4 which declined to provide an original copy of the video to the Government of Sri Lanka for purposes of investigation.

Therefore to suggest that the Attorney-General did not give this matter serious consideration is misplaced and strongly suggestive of an intention to convey an attitude of inaction on the part of the Government.

It has to be highlighted that the legal efficacy of any report or publication is hinged upon the fundamental requirement of impartiality and a complete lack of bias, having regard to the rules of natural justice.

It is respectfully submitted that the process adopted in regard to the publication of the videos and subsequent steps taken fall far short of this requirement and is tainted with the fundamental vice of bias and partiality.

The fact that the contents of the video were not made available to the Sri Lankan Government by Channel 4 lends support to the suspicion that the broadcast of the videos was for a collateral purpose.

The Government of Sri Lanka is ready to constructively engage with the Special Rapporteur in the future on the basis of transparency and fair process being adopted.

Progress achieved through domestic procedures and mechanisms will be communicated to the Special Rapporteur upon completion of internal processes.”