B. Collection of Evidence
4 The differences between the various international courts and tribunals under review are most obvious as far as the collection of evidence is concerned. The procedural set-up of the international criminal courts and tribunals provide for an ‘international criminal investigation’, whereby international prosecutors collect evidence against suspects of international crimes, in order to later prove the guilt or innocence of these persons in a court of law (Fujiwara and Parmentier, 2012, 572–73); see also International Criminal Courts and Tribunals, Procedure).
6 Such rules may be seen more as technicalities. However, they aim at protecting the rights of the suspect or the accused during the interrogation. In international criminal proceedings they serve to protect the suspect or the accused from any undue pressure while at the same time guaranteeing the reliability of the evidence the Prosecutor may later seek to introduce at trial. The audio or video recording of the interrogation enables the defence to challenge the precision of the statement or its translation. It makes it possible to detect interpretation errors (Jackson and M’boge, 2013, 960). More importantly, it allows for verifying the voluntary nature of the interrogation. The availability of such audio or video recording enables the assessment of the context in which a statement was taken and an evaluation of the interviewee’s body language (Prosecutor v Halilović, Judgment (Separate Opinion of Judge Schomburg), 2007, para 2)). In this way, audio or video recordings facilitate ex post control over the way the interrogation was conducted. This is particularly important in international proceedings, because of the linguistic, cultural, and other barriers such proceedings face (International Adjudication and Cultural Diversity).
7 The Rules of Procedure of all of these institutions set out in considerable detail the procedure to be followed for such audio or video recordings. The ICTY RPE, ICTR RPE, SCSL RPE, STL RPE, and MICT RPE all require (i) that the suspect be informed about the audio or video recording in a language he or she understands; (ii) that the fact and time of interruptions in the course of the interrogation be noted; (iii) that at the end of the interrogation the suspect or accused be offered the opportunity to clarify anything he or she has said, and to add anything he or she might wish; (iv) that one of the original tapes of the recording be sealed in the presence of the suspect or accused; (v) that after a copy has been made, if necessary, of the recorded tape, the original recorded tape or one of the original tapes be sealed in the presence of the suspect or accused under the signature of the Prosecutor and the suspect or accused; and (vi) that the content of the recording be transcribed either ‘as soon as practicable’ (ICTR/SCSL) or if the suspect becomes an accused (ICTY). There is no definite time limit within which this must be accomplished (Prosecutor v Milutinović, 2008, para 10).
8 Likewise, the ICC RPE set out in detail the audio or video recording procedure for the interrogation of suspects and accused. The ICC RPE require (i) that the person be informed, in a language he or she fully understands and speaks, of the audio or video recording, (ii) that the waiver of the right to assistance by counsel be recorded, and (iii) that interruptions be recorded as well as the time of interruptions and resumptions. In addition and before concluding the questioning, (iv) the person questioned should be given an opportunity to clarify anything said or add anything they would like to the statement. The time when the questioning concludes should also be noted. Consequently, (v) the tape should be transcribed ‘as soon as practicable after the conclusion of the questioning’ and the suspect or accused should be given a copy of the transcript and the recorded tape. Finally, (vi) the original tape should be sealed in the presence of the accused or suspect and his or her counsel, if present, and be signed by them and the Prosecutor (Rule 112 (1) (a)–(f) ICC RPE). Unlike the ad hoc tribunals, the ICC RPE allow the suspect or the accused to object to the audio or video recording. He or she should be allowed to speak in private to his or her counsel before responding (Rule 112 (1) (a) ICC RPE).
9 Finally, the rules of procedure of the internationalized or mixed criminal tribunals are comparable. The ECCC IR provide that audio or video recording and a written record are required of the interrogation of a suspect or a ‘charged person’ ‘whenever possible’ (Rule 25 ECCC IR). Likewise, the Internal Rules require that a waiver of the right to assistance by counsel be recorded (Rule 25 (1) (b) ECCC IR), that breaks in the recording and the time thereof should be explained, and that the person should be given an opportunity to clarify what was said or to add anything (Rule 25 (1) (c) and (d) ECCC IR).
10 Only exceptionally, ‘where the circumstances prevent such recording taking place’ (Rule 112 (2) ICC RPE and Rule 25 (2) ECCC IR), or ‘where circumstances make it absolutely impractical’ (Article 66 (B) STL RPE), can a suspect or accused person be questioned by the Prosecutor without audio or video recording.
11 The ICC RPE and the ECCC IR additionally encourage the Prosecutor to apply the audio or video recording procedure to the questioning of other persons, ‘in particular where the use of such procedures could assist in reducing any subsequent traumatisation of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence’ (Rule 112 (4) ICC RPE, Rule 25 (4) ECCC IR). Moreover, following a request by the Prosecutor, the ICC Pre-Trial Chamber may even order an audio or video recording of the questioning in case of a so-called ‘unique investigative opportunity’. From the reading together of the Rome Statute of the International Criminal Court (‘ICC Statute’) and the ICC RPE, it follows that the Pre-Trial Chamber may not proprio motu order the audio or video recording in such case. This possibility safeguards the specific interests of victims and other persons in a vulnerable position. The intention behind including this provision was to prevent re-traumatization at trial (Friman, 2001, 514–15).
C. Admission and Assessment of Audio and Video Recordings
13 Notwithstanding the silence of the procedural frameworks of most international courts and tribunals on audio and video recordings, the practice of many of these institutions illustrates how this form of evidence is regularly produced in international proceedings. International courts and tribunals normally enjoy wide discretion in the assessment of evidence as they are guided by the principle of the free assessment of evidence (see also Valencia-Ospina, 1999, 204: ‘liberal evidentiary regime’). Hence, these institutions have taken a flexible approach towards the introduction of audio or video recordings.
14 As far as the ICJ is concerned, such recordings are often presented as an annex to the memorial during the written part of the procedure (as a ‘document in support’, see Art 43 (2) ICJ Statute) However, they may also be submitted during the oral part of the proceedings. This will be the case when the recordings are in a format that makes them unsuitable to submission as an annex or when the party submitting the recordings wants to offer some explanation to it (Riddell and Plant, 2009, 284). It follows from Article 56 (1) Rules of Court 1978 (‘ICJ Rules’) that in such case (an original or a certified copy of) the recording should be filed with the Registry, which is responsible for the communication thereof to the other party. In principle, the other party should consent to the production of the document at this stage. Silence is considered consent. If the other party does not consent, the Court may authorize its production after hearing the parties, but only when it ‘considers the document necessary’ (Art 56 (2) ICJ Rules). A similar approach is to be found in Article 71 (1) and (2) Rules of the International Tribunal for the Law of the Sea (ITLOS) (‘ITLOS Rules’). If the other party does not lodge an objection to the production of the document within 15 days of receiving it, it shall be held to consent. As an exception to the aforementioned rule, it follows from Article 56 (4) ICJ Rules that during the oral proceedings, reference may be made to documents which were not produced during the written proceedings, on condition that the document is ‘part of a publication readily available’. Such documents may also include publications in electronic format or in online form, such as posted on the internet or on digital or any other media (Practice Direction IXbis (2) (i)). However, documents can only be considered ‘part of a publication readily available’ on condition that the publication or its relevant parts are accessible in either of the official languages of the Court and can be consulted ‘within a reasonably short period of time’ (Practice Direction IXbis (2) (ii)). Finally, Practice Direction IXquater, which was adopted in March 2013, specifically addresses the presentation at hearings of audiovisual or photographic materials which were not previously included in the case file of the written proceedings. It codifies the existing practice of the Court with regard to these materials (Quintana, 2015, 436). The party should submit a request to that extent sufficiently in advance of the date on which it wants to present these materials, in order to permit the Court to take a decision after having obtained the views of the other party. The request should be duly motivated and include information as to its source, the circumstances in which it was made, the date it was made, and the extent to which it is available to the public, including, wherever relevant, the geographic coordinates at which it was taken (Practice Direction IXquater (1)–(3)). In practice, it may be difficult to meet these criteria on the authenticity and authorship because audiovisual materials can easily be manipulated (Roscini, 2016, 548). Practice Direction IXquater does not clarify whether or not it also applies to publications ‘readily available’. Arguably, a practice direction cannot override a procedural right provided by the Rules of Court (Mačák, 2019, 1271). Moreover, the practice direction includes a renvoi to Article 56 ICJ Rules, indicating that it did not intend to curb Article 56 (4) (contrary: Quintana, 2015, 437). Nevertheless, in the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Ukraine v Russian Federation case, it was argued that a video that was shown by the Russian Federation was not admissible, since the procedure prescribed by Practice Direction IXquater had not been followed (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Ukraine v Russian Federation, 2017, ICJ Pleadings, CR 2017/3, 49).
15 At the ICJ, video recordings have been introduced on a regular basis. The first example of this was during the oral proceedings in the Temple of Preah Vihear Case, Cambodia v Thailand, 1962, 9. The judgment mentions how ‘the Court withdrew and reassembled in private to attend, in the presence of the representatives of the Parties, the showing of a film of the place in dispute filed by Cambodia’. Since then, video recordings have been submitted in a number of cases (see eg Continental Shelf, Tunisia v Libyan Arab Jamahiriya, 11, para 12; Gabčíkovo-Nagymaros Case (Hungary/Slovakia), 1997, 13, para 8; Kasikili/Sedudu Island Case (Botswana/Namibia), 1999, 1052, para 8; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), 2000, ICJ Pleadings, CR 2000/13, 28; Land and Maritime Boundary between Cameroon and Nigeria Case (Cameroon v Nigeria), 2002, Pleadings, CR 2002/11, 62; Sovereignty over Pulau Ligitan and Pulau Sipadan Case (Indonesia/Malaysia), 2002, Pleadings, CR 2002/30, 19–21; Armed Activities on the Territory of the Congo Cases, Democratic Republic of the Congo v Uganda, 2005, para 65; Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro), 2007, paras 20, 45, 52; Certain Activities Carried Out by Nicaragua in the Border Area, Costa Rica v Nicaragua, 2011, Pleadings, CR 2011/1, 14, CR 2011/4, 9, 11; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia v Serbia, 2014, Pleadings, CR 2014/10, 16–17, CR 2014/16, 46–47; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Ukraine v Russian Federation, 2017, Pleadings, CR 2017/1, 44–45, 2019, Pleadings, CR 2019/10, 44). Also in proceedings before the ITLOS, video recordings have occasionally been shown (see the ‘Camouco’ Case, Panama v France, 2000, para 17).
16 In some cases the presentation of such video recordings during the oral proceedings was blocked because of the opposition of the other party. A notable example is the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada/United States case (Gulf of Maine Case), in which Canada wanted to present a short film on the geography of the Gulf of Maine area (Gulf of Maine Case, 1984, ICJ Pleadings, vol VII, 328). The United States strongly opposed this presentation and put forward six reasons for its objection. Amongst others, the United States argued that such video served as a substitute for an on-site visit, which the parties first agreed should not be conducted (Gulf of Maine Case, 1984, ICJ Pleadings, vol VII, 328, Site Visit). Also in other cases, the presentation of video recordings was blocked by the opposing party (see eg Jadhav Case, India v Pakistan, 2017, Pleadings, CR 2017/6, 10 (opposition of India to the presentation of a confessional video of Mr Jadhav); Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea Case (Nicaragua v Honduras), 2007, 665–66, para 13; Pulp Mills on the River Uruguay (Argentina v Uruguay), 2010, 26, para 6). No reasons for such objection need to be given. The absence of a requirement to give reasons is particularly problematic in light of the absence of formal rules of evidence (Anton, 2010, 222). In the absence of any agreement between parties, it will be for the Chamber to decide whether the video recording is admitted in accordance with the requirements of Article 56 (2) ICJ Rules (Gulf of Maine Case, 1984, ICJ Pleadings, vol VII, 335). Hence, it will only authorize its production if the Chamber consider this necessary. Once the recording has been admitted, the Court should determine the probative value thereof. For that purpose, the Court will consider its authenticity and the purpose of its production (Riddell and Plant, 2009, 287). If authenticity is challenged, it is for the party producing the evidence to demonstrate its authenticity (Roscini, 2016, 545).
17 Inter-state arbitration also offers some examples on the use of audio and video recordings. In the aforementioned Arctic Sunrise Arbitration, Netherlands v Russia, the arbitrators did not only rely on evidence that was presented by the Netherlands but also on the primary sources that were available. These primary sources included 30 video clips from the ship Arctic Sunrise and its rigid-hull inflatable boats (‘RHIBs’), from the Russian Coast Guard vessel Ladoga, the oil-platform Prirazlomnaya, and the Prirazlomnaya’s support vessel Iskatel as well as audio recordings that were made aboard the Arctic Sunrise (Arctic Sunrise Arbitration, Netherlands v Russia, Award (Merits), 2015, para 71). Most notably, the Tribunal relied on these video materials for its determination of whether the hot pursuit of the Arctic Sunrise was in accordance with the conditions laid down in Article 111 United Nations Convention on the Law of the Sea (‘UNCLOS’). This included the question of whether the pursuit was lawfully commenced, ascertaining whether, at the time of the first signal to stop, one of the RHIBs of the Arctic Sunrise was still within the 500-metre range of the oil platform (Arctic Sunrise Arbitration, Netherlands v Russia, Award (Merits), 2015, paras 261–68). It estimated this factual determination on the basis of these videos. However, it should be borne in mind that Russia refused to participate in the proceedings. Hence, the authenticity and the use of these recordings was not challenged. Similarly, in the South China Sea Arbitration (Philippines v China), video footage from the BBC was submitted by the Philippines after one of the arbitrators asked ‘what “hard facts” the Philippines had about the harvesting of giant clams’ (South China Sea Arbitration, Philippines v China, 2016, para 847). Consequently, this video footage was one of the evidentiary items upon which the Tribunal based its finding ‘that in recent years, Chinese fishing vessels have been engaged in widespread harvesting of giant clams through the use of boat propellers to break through the coral substrate in search of buried clam shells’ (South China Sea Arbitration, Philippines v China, 2016, para 953).
18 With regard to the World Trade Organization (WTO) dispute settlement (World Trade Organization, Dispute Settlement), both the Panels and the Appellate Body have confirmed that there is an extensive range of forms of evidence that may be summited (Cook, 2015, 133). There is no exhaustive list of forms of evidence that can be admitted (EC – Bed Linen, Panel Reports, 2000, 14). The WTO jurisprudence offers some examples where video evidence was submitted by the parties. One notable example is EC – Seal Products, Panel Report, 2013, 59–60, in which the European Union presented several video recordings regarding the issue of commercial seal hunts. While both complainants, Canada and Norway, questioned the probative value and reliability of the video evidence submitted (and of reports and statements that were submitted and relied on the same video footage), the panel considered these video recordings to be useful and decided to rely on them ‘as part of the totality of evidence’. Another interesting example is the US – Tuna II (Mexico) case. In this case, a video was submitted by Mexico, apparently showing handline vessels chasing dolphins. However, the panel noted that ‘[t]he video is in a foreign language, and it is not exactly clear what the images are showing’. Nevertheless, the panel did attach some weight to it, since it ‘appears to be consistent with what the other exhibits on the record show’ (US – Tuna II (Mexico) (Article 21.5 – US) / US – Tuna II (Mexico) (Article 21.5 – Mexico II), Panel Reports, 2017, 150). Further examples include Brazil – Retreaded Tyres, Panel Report, 2007, 178, Australia – Tobacco Plain Packaging, Panel Report 2018, 549, and US – Tax Incentives, Panel Report, 2017, 81–82, 94, 102, 106).
19 In a similar vein, audio and video recordings are submitted on a regular basis before the human rights courts. Occasionally, video recordings have proven to be important evidentiary items in proceedings before the European Court of Human Rights (ECtHR) (see eg Bazorkina v Russia, 2006, paras 14–18, 110 (video footage of the interrogation of a Chechen fighter by a Russian officer); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v Georgia, 2007, paras 35, 100–10 (video recording of an attack during a religious meeting of a group of members of the Gldani Congregation of Jehovah’s Witnesses); Frumkin v Russia, 2016 (video footage on the dispersal of a sit-in demonstration), paras 117 and 135). Such video recordings may be screened to the judges taking part in the proceedings (Jersild v Denmark, 1994, para 5; Scozzari and Giunta v Italy, 2000, paras 10, 91, and 176).
20 In the jurisprudence of the ECtHR, such video recordings were either submitted by the applicants themselves (eg Gutsanovi v Bulgaria, 2013, paras 21 and 117; Sabanchiyeva and others v Russia, 2013, para 53; Oleksandr Volkov v Ukraine, 2013, paras 33 and 144; Wingrove v the United Kingdom, 1996, para 6) or produced at the Court’s request (see eg Kalashnikov v Russia, 2002, para 6). It follows from Rule 59 (1) of the Court that the Chamber or its President may invite the parties to submit further evidence and written observations. This illustrates the more active role of the ECtHR in collecting evidence, due to the disadvantageous position of applicants vis-à-vis the State.
21 Also the Inter-American Court of Human Rights (IACtHR) has adopted a flexible approach towards the admission of video recordings (‘Juvenile Reeducation Institute’ v Paraguay, 2004, para 72 (non-sworn statements by witnesses who were unable to attend the hearing)). Even in cases where the Court has certain doubts regarding the reliability of video recordings submitted, it seems inclined to admit them. In such case it will ‘not attach full evidentiary value to the respective item of evidence, but rather … appraise its content within the context of the body of evidence and applying the rules of competent analysis’ or ‘assess [it] together with the body of evidence, taking into account the State’s observations and applying the rules of sound criticism’ (Gómez-Paquiyauri Brothers v Peru, 2004, paras 55–56 and Serrano-Cruz Sisters v El Salvador, 2005, para 40). In some cases, video recordings were presented in court (Myrna Mack Chang v Guatemala, 2003, para 46; Castillo Petruzzi and ors v Peru, 1999, para 49). The jurisprudence of the IACtHR offers many examples of video recordings of witness statements made before a public notary being submitted as evidence before the Court (see eg Raxcacó-Reyes v Guatemala, 2005, para 22). On occasion, such video recordings are produced at the Court’s request, pursuant to Article 44 Rules of Procedure of the Inter-American Court of Human Rights (see eg Maritza Urrutia v Guatemala, 2003, para 56).
22 The practice of the international and mixed criminal courts and tribunals also shows that audiovisual recordings are occasionally introduced as evidence. Here too, proof of the reliability and authenticity of such recordings is important. It is recalled that, generally speaking, these institutions have adopted a flexible and liberal approach to the admission of evidence, whereby judges are not bound by strict technical rules of evidence (Ambos, 2016, 447; Klamberg, 2013, 1017). Any relevant evidence may be admitted, taking into account, inter alia, the probative value of the evidence (Rule 89 (C) ICTY RPE, Rule 89 (C) ICTR RPE, Art 69 (4) ICC Statute, Art 21 (2) STL Statute, Rule 149 (C) STL RPE, and Rule 105 (C) MICT RPE (Klamberg, 2013, 1043)). Reliability is normally considered to be an inherent element of probative value. However, like other documentary evidence, for audio and video recordings to be admissible, the threshold is low. It suffices that the tendering party proves that the evidence has, on a prima facie basis, probative value, based on assessment of its ‘indicia of reliability’ (Gosnell, 2010, 385). In the Bemba case, the ICC Prosecutor sought to have ten audio recordings of radio broadcasts admitted. The Trial Chamber held that at the admissibility stage, it may take into account the extent to which audio and video recordings have been authenticated, to be sure that they are what they purport to be (Prosecutor v Bemba Gombo (Jean-Pierre), 2012, para 8). However, the Trial Chamber emphasized that, like other documents, recordings that have not been authenticated in court can still be admitted, ‘as in-court authentication is but one factor for the Chamber to consider when determining an item’s authenticity and probative value’ (Prosecutor v Bemba Gombo (Jean-Pierre), 2012, para 120). There is no strict requirement that every evidentiary item be authenticated officially or by a witness in court. Items can also be (i) self-authenticating, such as official documents publicly available from official sources, (ii) agreed by the parties to be authentic, (iii) prima facie reliable if they bear sufficient indicia of reliability such as a logo, letter head, signature, date, or stamp, and appear to have been produced in the ordinary course of the activities of persons or organizations which created them, or (iv), if the item does not bear sufficient indications of reliability, shown to be authentic and reliable by the tendering party through provision of sufficient information to enable the Chamber to verify that the documents are what they purport to be (Prosecutor v Bemba Gombo (Jean-Pierre), 2012, para 9). Hence, the absence of authentication does not preclude the admission of audio and video recordings. This decision is in line with the case law of the ad hoc tribunals, which held that ‘there is no general prohibition on the admission of documents simply on the ground that their purported author has not been called to testify. Similarly, the fact that a document is unsigned or unstamped does not, a priori, render it void of authenticity’ (Prosecutor v Martić, 2006, para 5; see also Prosecutor v Brđanin and Talić, 2002, para 20; Prosecutor v Mucić and ors, 1998, paras 33–34; contrary, see Prosecutor v Renzaho, 2007, paras 1–2). With regard to the admission of audio and video recordings, the ICC expressed a clear preference for the admission of whole recordings rather than excerpts thereof (Prosecutor v Bemba Gombo (Jean-Pierre), 2012, paras 120, 122; Prosecutor v Bemba Gombo (Jean-Pierre), 2013, para 18, and Prosecutor v Bemba Gombo (Jean-Pierre), 2016, para 237). Once audio or video recordings have been admitted, the judges will have to assess their evidentiary weight and make a final determination regarding their probative value, including their reliability and authenticity (Prosecutor v Popović and ors, 2007, para 77). In this regard, factors such as authenticity, proof of authorship and chain of custody are important (Prosecutor v Martić, 2006, para 3). Authenticity of audio and video recordings may be proven through internal indicators (timestamps and metadata) or external indicators (eg a transcript or expert testimony by an expert) (Ashouri and others, 2014, 118). For example, in the Tolimir case, a large number of intercepted communications were submitted as evidence. The Trial Chamber found these recordings to be authentic and reliable after hearing viva voce testimony from 17 intercept operators, their supervisors, a former OTP research officer, and from an analyst who all described the procedures followed in producing the intercepts. Furthermore, the evidence was corroborated by other documents, including notes by UN officials, aerial images etc, as well as intercepts made by the other side (Prosecutor v Tolimir, 2012, paras 63–65). Similarly, in the Bemba case the Trial Chamber confirmed that it enjoys a considerable degree of flexibility in weighing different types of evidence. With regard to audio and video recordings, as with other documentary evidence, it will assess ‘its provenance, source or author, as well as their role in the relevant events, the chain of custody from the time of the item’s creation until its submission to the Chamber, and any other relevant information’ (Prosecutor v Bemba Gombo (Jean-Pierre), 2016, paras 54, 237).
23 Before the international criminal courts and tribunals, the Prosecutor also often seeks to introduce prior recorded witness testimony as evidence. Such testimony may also take the form of an audio or video recording. Rule 68 ICC RPE explicitly refers to the admission of previously recorded audio or video testimony of witnesses. In 2013, Rule 68 was amended, further increasing the possibility to introduce such prior recorded testimony at trial. The rationale behind this amendment was ‘to reduce the length of ICC proceedings and streamline evidence presentation by increasing the instances in which prior recorded testimony can be introduced instead of hearing the witness in person’ (Report of Study Group on Governance (2013), para 19; Resolution ICC-ASP/12/Res.7). The Chamber has broad discretion to admit such previously recorded testimony (Prosecutor v Katanga (Germain) and Ngudjolo Chui (Mathieu), 2010, para 15; Katanga Case). The Chamber should be ‘satisfied’ that this prior recorded evidence is ‘of sufficient specificity and probative value’ (see Prosecutor v Ruto (William Samoei) and Sang (Joshua Arap), 2015, para 37). If the witness is present, such recording may be introduced if the witness does not object and is present for cross-examination (Rule 68 (3) ICC RPE). If the witness is not present, the introduction is possible under certain conditions in four scenarios, knowing (i) when both the Prosecutor and the defence had the chance to examine the witness during the recording; (ii) when the prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused; (iii) when the witness subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally, or (iv) when the witness has been subjected to interference (Rule 68 (2) ICC RPE). While the RPE of the ad hoc tribunals and the IRMCT do not expressly refer to the admission of previously recorded audio or video testimony of witnesses, in line with the ICC, they all to varying degrees allow(ed) for the introduction of out-of-court witness statements (see Rules 92bis to 92quinquies ICTY RPE; Rule 92bis (A) ICTR RPE; Rules 92bis–92quater SCSL RPE; Rules 110–13 MICT RPE; Rules 155–59 STL RPE).
24 Finally, what the consequences are of breaches of the aforementioned audio or video recording procedure for the interrogation of suspects and accused for the admission of the resulting statement as evidence should be addressed. Such violations do not automatically result in the exclusion of the resulting evidence at trial. In general, in international criminal proceedings, such exclusion is only warranted in cases in which very serious breaches have occurred, which lead to substantial unreliability of the evidence that is presented (Alamuddin, 2010, 279; Zappalà, 2003, 149). While statements of suspects or accused which were obtained during the investigation in violation of their procedural rights (see eg Rule 42 ICTY, ICTR, and SCSL RPE) will automatically be excluded (see Prosecutor v Delalić and ors, 1997, paras 43–44; Prosecutor v Bagosora and ors, 2004, para 21; Prosecutor v Zigiranyirazo, 2006, para 13; Prosecutor v Kordić and Čerkez, 2000; Prosecutor v Nchamihigo, 2007, para 21), this is not the case when such statement is taken in violation of the audio or video recording procedure.
25 When the modalities for the conduct of the interrogation of a suspect or an accused, including the requirement of an audio or video recording, are not respected, the Prosecutor will still be able to prove the reliability of the resulting statement. In Halilović, the ICTY Appeals Chamber held that this would be assessed in accordance with Rule 89 (C) and (D) ICTY RPE (Prosecutor v Halilović, 2007, paras 38–40; Prosecutor v Halilović, 2005, paras 24–25). Some judges argued that such requirement reflects a substantive judgment that unrecorded statements are, by definition, insufficiently reliable and that such unrecorded statements should always be excluded (Prosecutor v Halilović, Judgment (Separate Opinion of Judge Meron), 2007, para 6; Prosecutor v Halilović, Judgment (Separate Opinion of Judge Schomburg), 2007, para 7). However, the majority held the view that while the requirement of an audio or video recording ensures the reliability of the statement, the reliability can also be proven by other means. As was pointed out by Judge Shahabuddeen, this follows from Rule 92 ICTY RPE on confessions. According to Rule 92, a confession will ‘be presumed to have been free and voluntary’, if the rules on audio or video recording are strictly complied with, unless the contrary is proven. Consequently, even if these rules are not respected, the confession can still be admitted as evidence (Prosecutor v Halilović, Judgment (Declaration of Judge Shahabuddeen), 2007, para 8). Likewise, in proceedings before the ICC, statements by suspects or accused persons in which the audio or video recording procedure was not respected, will not automatically be excluded in proceedings before the ICC (Art 69 (7) ICC Statute).
![Max Planck Encyclopedia of International Procedural Law [MPEiPro]](/view/covers/mpeipro.jpg)
