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The Channel 4 ‘documentary’



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By Neville Ladduwahetty


President Mahinda Rajapaksa meeting a Channel 4 journalist in Colombo during the recently-concluded CHOGM


Issues raised in the C4 Documentary will not go away, as they are driven by political imperatives of Governments such as UK, Canada and India, and not by the truth. These imperatives are influenced by constituencies in countries where they have the potential to tip political fortunes of Governments one way or another.


Britain’s Prime Minister David Cameron is reported to have stated:"I was very clear that we need a proper independent inquiry into what happened, particularly at the end of the war, which C4 proved with that excellent documentary showing some truly chilling and appalling scenes"(Sunday Island, November 17, 2013). Another report in the same paper states: "Let me be very clear if an investigation is not completed by March, then I will use our position on the UN Human Rights Commission and call for a full, credible and independent international inquiry".


By claiming that C4 had proved with their "excellent Documentary", the PM staked his entire reputation and that of his country to make it "very clear" to Sri Lanka, based on one piece of "evidence". This makes it imperative that practices and methodologies that filmmakers and broadcasters of Documentaries adopt are explored to ascertain whether the C4 Documentary is reliable enough to warrant conclusions reached by the British PM.


MAKING DOCUMENTARIES


Documentaries are made by filmmakers and sold to broadcasters and distributors. As a "Publisher/Distributor", C4 either commissioned or bought the Documentary in question. C4 is guided by Ofcom rules. The response by Ofcom to complaints received when "Sri Lanka’s Killing Fields" was first broadcast was: "In response to complaints that the programme was misleading, Ofcom said Channel 4 had taken reasonable steps to establish that the material included in Sri Lanka’s Killing Fields was not faked or manipulated, and had not materially misled viewers in the way it was presented on air". Considering the corrupt practices adopted by the print media exposed in the Leveson Report despite the existence of a Press Complaints Commission, the dismissal of C4 by Ofcom appears not to be constrained by ethical standards that dog filmmakers in the US. For instance, a report titled "Honest Truth: Documentary filmmakers on Ethical Challenges in their Work" prepared by the American University in Washington DC, USA, states: "In relation to viewers, they often justified the manipulation of individual facts, sequences, and meanings of images, if it meant telling a story more effectively and help viewers grasp the main, and overall truthful themes of the story" (September 2009).


C4’s PRODUCTION


By their own admission the C4 Documentary was based on visuals recorded by amateurs using mobile-phones and small cameras. Since access to originals is denied, it is not possible to establish the authenticity of the original material. Furthermore, since the intent to record conflict related scenes was to embarrass the Sri Lankan Government the C4 production could very well be based on faked originals. The final production therefore is an edited and manipulated version of material received together with material from other websites, so arranged as to convey a "chilling and appalling" effect on the audience. Such practices are the stock in trade of Documentary filmmakers.


Most of the frames are stand alone visuals arranged in a sequence to induce desired emotions in the viewer; a technique known as the "Kulachov effect". For instance:


1. In one scene a group of people pleads with the UN not to leave, prior to the fall of Kilinochchi. Evidence exists that the pleas were instigated by the LTTE; a strategy intended to impede military operations. Therefore, the request for the UN to leave the conflict zone was a military necessity. However, the request was presented in the film as a strategy to prevent the UN from becoming potential witnesses to possible violations. Another UN commentator describes his discomfort for leaving the people behind to face an uncertain future. The combined effect was not to convey military imperatives, but to create a backdrop for the military to freely commit unlawful violations. C4 fails to convey that had the UN been present it would amount to them having provided material support to the LTTE by impeding military operations; a fact that would warrant the UN being categorized as combatants under Rules of War. The obvious intent was to mislead the audience.


2. The commentary of Vany Kumar is clearly made in a London location because the typical fireplace in London homes forms the background. However, her commentary describes horrific battle field images of medical facilities being splattered with body parts and her experiencing firsthand, shells racing past so close that if she were to stand up she would be dead. The only reference to her in the conflict zone itself is to her presence there in a pink dress. Her graphic commentary on the amputation of a young boy’s arm and leg using a regular knife without anesthesia does not show the patient or the Doctor who performed the crude operation. She could very well have been reading from a script. This is manipulation.


3. Having referred to Rules of War, the charge is made that the number of civilians trapped by the LTTE as a human shield was deliberately underestimated to deny humanitarian aid. Rules of War do not obligate a party to the conflict to provide humanitarian aid to the other party to the conflict. Their only obligation is to permit access to humanitarian aid givers such as the UN and ICRC. It is their responsibility to make the assessments and undertake deliveries. The implied accusation that the Government underestimated numbers has no place under Rules of War. This is another example of manipulating the facts to mislead the viewer.


4. Under Rules of War, No Fire Zones are created to separate civilians from combatants for the specific purpose of ensuring their safety. However, recognition of such zones requires the formal consent of all parties to a conflict. When the LTTE decided to use the civilians as a human shield, the civilians became an instrument of war and the concept of a No Fire Zone ceased to exist, and areas demarcated as such reverted back to being war zones where Rules of War applied. Repeated references to a non-existent No Fire Zone is thus a deliberate attempt to mislead.


5. Firing into the war zone in response to artillery fire from the LTTE is permitted under the Rules of War. Civilians whether under coercion or not, in the vicinity of such facilities where ordinance is deliberately positioned become Combatants under Rules of War. Independent and separate frames showing damage to medical facilities are followed by scenes of victims of the war, leaving the viewer to make the connection that what they are viewing are scenes of victims following military attacks on medical facilities (Kulachov Effect). Again, the intent is to distort and mislead.


6. Since civilians who render material support become combatants under Rules of War, the distinction between combatant and civilian is blurred. Under the circumstances, attempting to establish the number of civilian deaths is meaningless. The UN’s original estimation of 7,000+ of civilians dead was exaggerated without factual basis to 20,000 by The Times of London. The Darusman Report having cited these figures went on to say that perhaps as much 40,000 civilians would have died. In this context, for C4 to pick the figure of 40,000 civilian deaths and "possibly more" in the opening statement of the film is to shock and mislead the audience.


7. The comment that civilians leaving the "No Fire Zone" were fired upon begs the question as to who was doing the firing. Since the strategy of the military was to separate the civilians from the LTTE it is ridiculous to even hint that it was the military that fired at the civilians. However, since the protection of the LTTE depended on maintaining the human shield at all cost, there is little doubt that it was the LTTE that fired on the retreating civilians. The practice of LTTE firing on escaping civilians was confirmed by Gordon Weiss. Footage is also devoted to the grief of a father who lost his 14 year son as a result of artillery being directed at the escaping civilians. The sympathy elicited clouds the judgment of the viewer to question the source of the artillery. This is manipulation.


NEED for a NATIONAL INQUIRY


The issues addressed above demonstrate that regardless of the authenticity or otherwise of the material in the Documentary, the charges being made against the security forces could be challenged under internationally recognized Rules of Customary Law. However, for any conclusions to be acceptable, it is necessary that a suitably constituted body be appointed with authority to conduct a formal and comprehensive inquiry relating not only to all aspects depicted in the C4 Documentary, but also to cover the entire ~30 year duration of the conflict.


The footage described as "Trophy Killings" in which persons are seen to commit criminal acts needs to be handled differently, because of the LLRC experience during its inquiry.


The Commission could not come to conclusions as to the authenticity or otherwise of the footage because of divergent expert opinions. The inability to arrive at a decisive conclusion may continue even if fresh opinions are sought. In these circumstances, the concept of Conditional Amnesty within a specified time frame should be adopted. This would permit perpetrators to reveal the truth and seek amnesty, while accusers would have the opportunity to present evidence on which appropriate action could be taken.


An appropriate body to inquire into all issues could be set up under provisions of Consultative Jurisdiction of the Constitution under Article 129.


Article 129 (1) states: "If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to the Court for consideration and the Court may, after such hearing as it thinks fit …report to the President its opinion thereon."


Article 129 (3) states: Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one".


Article 129 (4) states: "Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs".


Provision should be made for the inquiry to be conducted to ensure protection of the witnesses and all others associated with the inquiry.


CONCLUSION


Issues raised in the C4 Documentary will not go away, as they are driven by political imperatives of Governments such as UK, Canada and India, and not by the truth. These imperatives are influenced by constituencies in countries where they have the potential to tip political fortunes of Governments one way or another. This dimension has focused the spotlight on the issues depicted in the Documentary. If negative consequences are to be avoided, Sri Lanka has to separate the bulk of the issues from those associated with "Trophy Killings", in order to enable the former to be judged by internationally accepted Customary Rules of War, while the latter is judged on the basis of conditional amnesty. Proceedings relating to both should be conducted under provisions of Consultative Jurisdiction in Article 129 of the Constitution and its remit should not be limited to the final stages of the conflict but to the entire ~30yr duration of the conflict for there to be closure.


However, Sri Lanka should be aware that no matter how comprehensive and legitimate the inquiry is, political compulsions driven by Diaspora lobbyists may not deter external Governments to desist from their mission for an independent international inquiry. But an inquiry conducted by the highest legal institution, unlike a Commission, no matter how impeccable its composition, would convey to the world that Sri Lanka had done its best.


 
 
 
 
 
 
 
 
 
 
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