Philip Alston – Former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions

Amongst the many absurdities in the Channel 4 saga is the complete impunity enjoyed by Channel 4. In August 2009 it showed a video which led to an immediate response from Philip Alston, the Earlier Christof Heyns. Alston’s initial letter, which was accompanied by a press release, was immediately responded to with a request that he investigate the video which Channel 4 had shown, since it was not clear whether he was asking the Sri Lankan government to investigate the video or the incident depicted on the video.

Alston typically dodged the question, and went into a long spiel about how my response was ‘equivalent to a police officer telling an alleged victim that no investigation will take place until the victim can definitely prove to the officer’s satisfaction that the alleged crime took place’. This was the sort of obfuscation Alston specializes in, because I cannot believe that a Professor could not tell the difference between asking someone who reports a crime for further details and asking an actual victim. Indeed Alston’s density or low cunning became more apparent when he subsequently claimed that the situation was similar to that in which ‘an individual was beaten up or raped and reported the matter to the police, but because of the trauma suffered was unable to identify when or where the alleged assault took place’.

Be that as it may, having dodged the issue for as long as he could, Alston felt obliged when our own experts showed several flaws in the video to actually look at the video himself. However, with his usual habit of hiding facts, he did not tell us that he had not got from Channel 4 the video that they had shown. It was only in reading through the accounts of his experts that we found out that the video had in fact been received from ‘a group identified as “Journalists for Democracy in Sri Lanka”’ (First Report of Mr Spivack). It is clear then that Alston, whilst concealing the fact from us, permitted the source of the original evidence – for Channel 4 said they had got their video from this group – to tamper with a subsequent version. Mr Siri Hewa, whom Alston denigrated as ‘a member of a network of  Sri Lankan Professionals’ (which Alston Mark 2, Mr Heyns, transformed gratuitously into one of those who ‘had previously acted as advisers to the Government’ (which the original Alston, bless his soul, never claimed) noted that the original video was high quality and different to the video the UN analyzed. Some differences were detected but Alston maintained a stunning silence about the discrepancy and his failure – if indeed he tried – to convince Channel 4 to give him the original video they showed.

With regard to the new video, Channel 4 has it seems provided this themselves. However they have refused to respond to the enquiries made by Mr Heyns with regard to the origins of this video. Heyns excuses this on the grounds that since ‘ the video was more than likely filmed by an insider, and then made available to the media (whether this was done for compensation or not is not known), it is not a surprise that the journalists in question maintain that they have obtained the videos on the conditions of confidentiality from their sources.’ We are not told whether or not the video was made available by the shadowy organization called ‘Journalists for Democracy in Sri  Lanka’, at least one representative of which had to leave Sri Lanka when it was found that he had been helping himself to funds provided to the NGO for which he worked here (which may explain Mr Heyns’ delicate reference to compensation).

Heyns was not the only one to try in vain to get further information. Mr Spivack noted that ‘This analyst again repeatedly requested access to the device purportedly used to make the recordings for the purpose of comparing photo response non-uniformity and image sensor noise profiles present in the recordings submitted for analysis with exemplar recordings generated by the device. To date, the device has not been made available, nor has information regarding the specific make and model of the device. The identity and status of the person(s) who created the video files is unknown to this author. In the absence of the actual device, authenticity of the recordings cannot be determined to an absolute certainty.’

The Heyns excuse cannot be made for this evasion, since technical details could obviously be provided without breaching confidentiality. But Spivack, like Heyns, concludes that nevertheless all is well as regards what he was asked to do, namely pronounce on the authenticity of the video. The fact that he ‘again repeatedly requested’ information suggests that he thought such information essential, but in the end he bit the bullet and declared himself satisfied with what he had received.

None of the other experts seems to have worried about the source of the video. This is not surprising, since there seems to be much sleight of hand about how they were contacted. Thus it was not Mr Heyns who sent the video to Mr Diaczuk, but Mr Spivack, since Diaczuk says in his report that  ‘The video in question was initially received by traditional mail from Mr Jeff Spivack on 26-January-2011 burned onto a DVD, along with stills and short segments that have been stabilized to facilitate critical review.’ In fact the Sri Lankan government points to a possible vitiation of the declared independence of the experts when it tells Mr Heyns that ‘The Government of Sri Lanka has discovered that Mr Spivack is a technical representative for a brand of specialised proprietary software which was used to enhance the video 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.’ Whether this was done for compensation or not is now known, but it is surely incumbent on Mr Heyns to clarify this, and explain why there was no acknowledgment in the Report of  the alleged ‘usage of the specialised software which has had a profound impact on the analysis.’

I should add that I do not wish to prejudge the truth of this allegation, but is is certainly a serious one, and Mr Diaczuk’s admission of his prior dealings with Mr Spivack suggest that Mr Heyns has not been entirely honest or honourable in his dealings. When we add to this that the fourth expert, Mr Fredericks, based his analysis also on a video submitted to him previously by the Times newspaper (there is no mention of whether he was compensated, as Mr Heyns so elegantly puts it, either by the Times or by Mr Heyns) it is clear that there is much confusion here about the various interests that are being served.

Significantly, though Mr Fredericks claims that he focused his attention on the longer video supplied to him by the Office of the High Commissioner for Human Rights, he takes great pains to compare his earlier video with this one. He concludes that the two are identical, but then declares that in fact a few characters are not identical. His explanation for this is ‘The small variance is not caused by an altering of the file, rather it is likely due to the process of repacking the contents of Item #1 into Item #2. I have therefore formed the opinion that Item #1 is an exact transcoded version of Segment #2 in Item #2.’

This is obfuscation of the worst sort. Apart from the fact that such an anomaly arise also from editing, Mr Fredericks does not explain why the contents of the first video that he received several months ago should have been repacked into the contents of the second video.

Finally, it should be noted that Mr Heyns has been characteristically disingenuous about his consultations. According to Fredericks, he was first contacted by Heyns on February 3rd 2011, ‘in regard to digital video recordings that are alleged to show Sri Lankan soldiers executing a number of people by gun fire’. However, on February 15th, Heyns did not mention Fredericks at all, in his response to the Sri Lankan request to be kept informed of the parameters and modalities of his investigation.

Sadly, Sri Lanka did not make further inquiries of Heyns when he first mentioned an investigation in December, and it does not seem to have recorded objections either to the first three experts, who had previously pronounced on Alston’s behalf, or to Fredericks, who had also previously been cited by Alston. As I have noted previously, we seem to have assumed a decency and transparency in the proceedings of all UN Special Rapporteurs, which may have been borne out by those we had close dealings with such as Walter Kalin and Manfred Nowak, but which this precious pair cannot live up to.

Daily News 9 June 2011

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