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D. Intercepts

Definition

Intercepts fall under documentary evidence and can be characterised as 'anything in which information of any description is recorded.'1 Intercepts are audio communications intercepted using technical equipment2 which are transcribed into writing, audiotapes or any other type of digital records.3

D1. Intercepts can be tendered from the bar table if they are relevant and probative, and can be used to reduce the number of witnesses required, and/or corroborate other intercepts.

Keywords

procedure; relevance; probative value; bar table; witnesses

Pursuant to Rule 89(C) of the ICTY Rules of Procedure and Evidence,4 'a Chamber may admit any relevant evidence which it deems to have probative value'. In Mladić, the ICTY Trial Chamber found that admission of intercepts from the bar table requires that the Prosecution show the tendered material be relevant and probative, and that it fit into the case. As the Chamber had already taken judicial notice of the authenticity of the intercepts seized from the Mladić family residence, their relevance was established. Their probative value was enhanced by the fact that they had been recovered by the Serbian authorities. The absence of direct and precise time and date references did not deprive them of their relevance and probative value, although the Trial Chamber noted that additional evidentiary efforts may be required to give the intercepts the full weight that could be afforded to them.5

Witnesses. Pursuant to Rule 65 ter (E)(i) and (ii) of the ICTY Rules of Procedure and Evidence,6 a pre-trial judge may order the Prosecutor to file the final version of the Prosecutor's pre-trial brief and, importantly, the list of witnesses the Prosecutor intends to call not less than six weeks before the Pre-Trial Conference. In Mladić, the ICTY Trial Chamber found that counsel could file a bar table motion for its intercept operator evidence in advance of calling witnesses for that section of its case, and by doing so reducing the number of witnesses that needed to be called upon to testify about intercept evidence.7

Bar Table Intercepts Tendered to Corroborate Other Intercepts. Intercepts tendered from the bar table need not be admitted if only used to explain the probative value and the relevance of other intercepts. In Mladić, the ICTY Prosecution tendered 153 intercepts from the bar table (called the 'Bar Table Intercepts') for the purpose of proving the chain of custody of five intercepts whose admission was sought. It then filed a notice which contained, as a confidential annex thereto, a table setting out the probative value and the relevance of the Bar Table Intercepts ('Table').8 The Defence objected to the admission of the Table.9 However, the ICTY Trail Chamber found that the Defence's objections to the admissibility of the Table were unfounded since the Prosecution was not seeking to tender that document into evidence but was merely using it in order to explain the probative value and the relevance of each of the Bar Table Intercepts.10

D2. The probative value of intercepts may be enhanced by tendering the original audio recordings.

Keywords

probative value; prejudice

Pursuant to Rules 89(C) and (D) of the ICTY Rules of Procedure and Evidence,11 evidence must have probative value which should not be substantially outweighed by the need to ensure a fair trial. In its evaluation of the probative value of intercept evidence the ICTY Trial Chamber in Mladić considered that the Prosecution had tendered the original audio recordings in addition to their BCS transcripts and the corresponding English translations. Additional factors evaluated by the Trial Chamber included the Prosecution's indication that '[t]he voices on the audio tape recordings have been identified as the Accused by OTP staff', that the information in the intercepts was confirmed by witness John Wilson, and that the Defence did not object to the intercepts' origins. The ICTY Trial Chamber found that these factors enhanced the probative value of the intercepts, such that it was not substantially outweighed by the need to ensure a fair trial.12 

Original Intercepted Audio Recordings. It is not necessary for the Court to have access to the original audio recordings of intercepts when enough evidence surrounding the intercepts already exists.13 This mirrors the 'best evidence rule', meaning that 'the Trial Chamber will rely on the best evidence available in the circumstances'.14 The ICTY Trial Chamber in Blagojević and Jokić dismissed the Defence's arguments, which claimed that 'the Prosecutor should have submitted the original audio recordings [...] in order to prove the reliability and authenticity of the intercepts'.15 The Trial Chamber established that, given the corroborative testimonial evidence and the very large amount of documentary evidence, it would not be necessary to have access to the original intercept.16 The Defence further argued that many domestic jurisdictions 'view tape recordings with scepticism because they can be tampered with'.17 The Trial Chamber responded to this by noting that, indeed, certain domestic jurisdictions might be sceptical about the reliability of tape recorded material, but that the ICTY's provisions are 'more generous' on the matter.18

D3. Reliability and authenticity of intercepts may be amplified by the weight of other corroborative evidence.

Keywords

relevance; probative value; reliability; authenticity

Intercepts can have a high degree of validity regarding the conversations recorded when the weight of other evidence supports their reliability and authenticity.19 The ICTY Trial Chamber in Tolimir held, concerning intercepted radio communications, that independent corroboration and overwhelming weight of other evidence served to establish the intercepts' reliability and authenticity in spite of a theoretical possibility that the intercepts had been tampered with.20

Internal Means of Corroboration. Intercepts are more likely to be deemed reliable by a Court when they can be authenticated, cross checked and corroborated through internal means such as multiple operators intercepting the same message.21 The authenticity and reliability of the communication is supported by the fact that two or more intercept operators have monitored the same conversation, with only slight or no variations from each other.22 This also applies when operators work from different locations.23 This was found to be the case by two separate ICTY Trial Chambers, in Krstić and Blagojević and Jokić, when single conversations were monitored by different intercept operators from different locations.24 Consequently, where corroborating evidence is of a high level of documentable detail that could not have been completely manufactured, it is more likely the intercept evidence will be accepted as reliable.

Forensic Reports. An intercept whose authenticity cannot be confirmed with certainty may nevertheless be admitted if a forensic report states that there are no traces of it having been tampered with.25 The ICTY Trial Chamber in Župljanin found that, while a forensic report analysing a telephone intercept of a conversation had clearly said that its authenticity could not be confirmed with any degree of full certainty, the report did observe that there were no traces of it having been tampered with. Once the witness confirmed that it was his voice on the intercept and that he was speaking to the accused, the intercept could be admitted.26

Ambiguous and/or Cryptic Content. Where the relevance of several intercepts, considered individually, is questionable on the basis of their ambiguous and/or cryptic content, the Trial Chamber may nevertheless take a comprehensive approach and admit them: in Mladić, the ICTY found that the intercepts related to the Srebrenica section of the Prosecution's case, some of which were ambiguous on their own, constituted a contemporaneous, chronological record of events on the ground and demonstrated a network of interaction and exchange of information concerning the alleged crimes charged in the Indictment.27 As a result, they were relevant. However, the weight the Chamber will ultimately attribute to every individual intercept it admits into evidence can only fully be assessed following further contextualization, for example by witnesses who were either participants in the intercepts or otherwise have a sufficient basis to provide such contextual testimony.28 In their absence, it appears that the intercepts will merely be afforded less weight, but still admitted. Moreover, it remains open to the Defence to challenge their authenticity.29

Witness Testimony. Judges may have a prima facie basis to admit intercepts and their transcripts where their authenticity and chain of custody can be demonstrated through witness testimony by the person who intercepted the communication. The witness must be able to testify that they recognise the intercept and its transcripts, and that they are able to identify it as the same one they had recorded.30 The ICTR Trial Chamber in Renzaho found that the tape of an intercepted phone call (recorded by a journalist),31 on which the accused allegedly talked of 'extermination', could be admitted. The Defence argued that it was not known how the intercept was made and where it originally came from, and this therefore cast 'doubt and ambiguity as to the authenticity of [the] tapes'.32 In response, the ICTR Trial Chamber considered the testimony of the journalist, who testified that he recognised the intercept and its transcript when this was shown to him during examination-in-chief, and he was also able to identify that the intercept in question was the same as the one he had made in 1994. The Court considered that the testimony provided a prima facie basis to admit the tape and the transcripts.33

D4. Relevance of intercepts, which are not in a working language of the Court, may not be assessed when there is no relevant and accurate translation. Not all mistakes in translations or transcripts are material or affect the substance and understanding of the document.

Keywords

relevance; probative value; prejudice; translation; transcription

The relevance of an intercept cannot be demonstrated if there is no translation available. The ICTY Trial Chamber in Tolimir held that since there was no English translation uploaded to the eCourt system, the Court was unable to assess the relevance of two intercepts.34

Transcripts and Translations of Detention Center Intercepts by the Defence or Prosecutor instead of a Third Party. Transcripts and translations of conversations from the Court's Detention Centre carried out by a party to the case does not inherently make them inadmissible.35 The ICC Appeals Chamber in Bemba et al established this as a well known fact, and rejected the Defence's argument that the Chamber erred when relying on transcripts and translations provided by the Prosecutor, 'a biased party to the proceedings, affecting its assessment of the recordings from the Detention Centre in its entirety.'36 The ICC Appeals Chamber held that the Office of the Prosecutor (OTP)'s role in the transcriptions and translations was 'not in itself a reason not to take them into account' and the parties could still challenge the accuracy of the transcription and translation.37

Accuracy of Translation. An intercept can be tendered once the Prosecution and the Defence agree about the accuracy of the text of its transcript and translation.38 In Mladić, the ICTY Trial Chamber confirmed that even if the parties disagree on how to interpret the words spoken, this does not deprive the intercepted conversations of their relevance for the case. The argument regarding interpretation goes to the weight, not admissibility (which is to be assessed at a later stage) in light of the totality of the evidence.39

Mistakes in Translations and Transcriptions. Not all mistakes in translations or transcripts of intercepted communication are material or impact the substance or understanding of the document.40 Typographical mistakes do not make transcripts or translations of communication inadmissible if they are corroborated by other evidence.41 The ICC Appeals Chamber in the Bemba et al case noted that when conducting its own assessment, the Chamber listens to the audio recordings together with the transcripts and translations and they are not evaluated in isolation.42

D5. For intercepts to have probative value, it may have to be shown that whoever obtained the admitted intercepts had the technical means to intercept communications.

Keywords

probative value; hardware; technical skill

State of the art equipment is not required to intercept communications worthy of probative value. In Mladić, the ICTY Trial Chamber found that there was no evidence to support the Defence's assertion that the Army of the Republic of Bosnia and Herzegovina (ABiH), the Serbian State Security Services (SDB), and the Croatian authorities were unable to intercept the Army of the Republika Srpska (VRS) communications43 solely because they 'lacked the necessary expertise and technological capacity to intercept VRS communications'.44 To that end, a Defence witness testified that a distinction must be made between professional military grade and amateur grade manufactured devices: military devices are always more sensitive, and need to meet other challenges, like the configuration of the land, weather, and/or the way in which they are being used. Whilst the ABiH's equipment may not have been military grade, it was still able to hear participants that were far away.45 As a result, the intercepts did have probative value; nonetheless, the ICTY Trial Chamber treated them with caution, and considered whether there was corroboration or further detail provided by other sources of evidence.46

D6. A detailed explanation of the process of interception and its analysis can overcome shortcomings in the interception process.

Keywords

relevance; hardware; technical skill

Where shortcomings or flaws exist, intercepts can still be considered reliable and admitted on account of a detailed explanation of the process of interception and analysis of the intercepted evidence.47 The Pre-Trial Chamber of the ICC in Ongwen found intercepted radio communications were reliable48 even though the intercepts were flawed due to shortcomings in the circumstances regarding the creation of the intercepts, for example that they had been recorded over 10 years ago with rudimentary equipment.49 The Prosecution acknowledged these flaws and gave 'a detailed explanation of how the intercepts were acquired and studied [...] and also provided statements of nine witnesses involved at all levels of the [...] interception operations', leading the Chamber to admit the evidence.50

Technical Irregularities. When evaluating the reliability of audio recordings, the technical irregularities in recording conversations, albeit potentially significant, are not of such a scale as to exclude the evidence from the outset but rather warrant a case-by-case approach.51 The ICC Trial Chamber in Bemba et al held that problems in synchronisation of speech caused by the ICC Detention Centre telephone system does not affect the Court's evaluation of the evidence concerning specific topics, names and locations.52 The ICC noted that the reliability of the recording depends on the type of information the Chamber is relying on, and that the Court does not rely on recordings in isolation but rather reviews all corresponding material together.53

D7. Transcripts of intercepts may be considered prima facie relevant and probative even when discrepancies exist between their handwritten and electronically typed versions.

Keywords

relevance; probative value; transcription

Pursuant to Rule 89(C) of the ICTY Rules of Procedure and Evidence, despite possible discrepancies between original handwritten transcripted versions of intercepts and their respective electronically-typed transcripted versions, the Court may still consider these intercepts to be prima facie relevant and probative.54 The ICTY Trial Chamber in Popović et al found intercepts as a whole to be prima facie relevant and probative, even though there were discrepancies between the handwritten and electronic versions.55 The Defence had challenged the accuracy of the Prosecution's interpretation of the contents of the intercepts, given the discrepancies56, but the ICTY Trial Chamber ultimately decided that the evidence presented by the Prosecution established at least a prima facie level of relevance and probative value of the intercepts.57

D8. The collection of intercepted communication evidence will not constitute a violation of privacy if it is provided for by law, necessary, and proportionate.

Keywords

prejudice; privacy

Pursuant to Article 69(7) of the Rome Statute, evidence obtained in violation of the ICC's statutory scheme or international human rights is not admissible. The admission of such evidence would be antithetical to and would seriously damage the integrity of the proceedings. The collection of intercepted communication would not be considered a violation of the right to privacy if measures impacting this right are lawful, necessary and proportionate. The ICC Appeals Chamber in Bemba et al held that intercepted communication received in the course of normal, administrative activities of the ICC Detention Centre would not violate the human right to privacy.58 The ICC Appeals Chamber affirmed the Pre-Trial Single Judge's decision to provide the judicial authorisation necessary for the Prosecution to receive the accused's non-privileged phone calls from the Detention Centre collected by the Registry, relying on Article 57(3)(a) of the Rome Statute as its legal basis.59 The ICC Appeals Chamber added that the authorisation of the transmission of the telephone communications for the purpose of the Prosecution's investigations into possible offences under Article 70 of the Rome Statute was rooted in sufficient factual basis.60

Illegally Obtained Intercepts. Pursuant to Rule 95 of the ICTR Rules of Procedure and Evidence, 'no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings'.61 Nevertheless, illegally obtained intercepts will not necessarily contradict the Rule. The ICTR Trial Chamber in Renzaho found that the tape of an intercepted call of Rwandan authorities (intercepted by Rwandan Patriotic Front (RFP) soldiers using a walkie-talkie and simultaneously recorded by a journalist on a small Sony tape)62 recorded 'by eavesdropping on an enemy's telephone calls during the course of a war' was 'certainly not within the conduct which is referred to in Rule 95'. However, the ICTR Trial Chamber determined it was not 'antithetical to and certainly would not seriously damage the integrity of the proceedings'.63 The ICTR Trial Chamber found that the telephone call could be admitted, particularly in light of the fact that the journalist testified that he had actually obtained consent from the RPF soldiers to make recordings of the conversations they were allegedly able to hear over the walkie-talkies.64 While there was no information about any Rwandan law that was applicable to calls intercepted in April 1994, when the recording was made, and hence whether the interception was illegal, the ICTR Trial Chamber considered that this 'would not in itself lead to exclusion [of the intercepts] under human rights law or Tribunal case law'.65

Similarly, the ICTY Trial Chamber in Brdjanin found that it could admit intercepts that the Defence alleged had been obtained illegally in contravention of domestic law.66 While admission of illegally obtained intercepts might indeed contravene Rule 95 of the ICTY Rules of Procedure and Evidence (which is identical to Rule 95 of the ICTR Rules of Procedure and Evidence)67 and the right to privacy of those whose private conversations have been intercepted, such a right is not absolute.68 It may be derogated from in times of emergency: that the intercepts had been obtained during the course of a war 'is an example par excellence'.69 The ICTY Trial Chamber asserted that 'communications intercepted during an armed conflict are not as such subject to exclusion under Rule 95 and should therefore be admitted'.70 Intercepts obtained illegally are not, a priori, inadmissible: the manner and surrounding circumstances in which they are obtained, as well as their reliability and effect on the integrity of the proceedings, will determine their admissibility.71 The ICTY Trial Chamber, moreover, found that its jurisprudence had never endorsed the exclusionary rule as a matter of principle.72 Particularly in situations of armed conflict, intelligence which may be the result of illegal activity may prove to be essential in uncovering the truth; particularly when this information is not available from other sources.73 In applying the provisions of Rule 95, the Tribunal considered all the relevant circumstances and would exclude evidence only if the integrity of the proceedings would otherwise be seriously damaged.74 As that was not the case here, the intercepts were admitted.75

D9. Using independent counsel assigned by a Pre-Trial Judge to review intercepted communication to exclude potential privileged communication does not violate the right to privacy.

Keywords

prejudice

Pursuant to Article 69(7) of the Rome Statute, to avoid violations of privacy in the case of potential privileged intercepted communications, the Court may appoint independent counsel tasked with filtering the recordings collected before they are transmitted to the Prosecutor.76 The ICC Appeals Chamber in Bemba et al held that using independent counsel to verify intercepted recordings by Dutch authorities did not violate the privacy of the accused.77 The measures were taken with the view that independent counsel would 'ensure that recordings of communications protected by privilege as envisaged in the Court's legal framework would not be accessed by the Prosecution.'78

  1. Prosecutor v Musema (Judgement And Sentence) ICTR-96-13-A (27 January 2000) (TC I) [53]; Prosecutor v Karemera et al (Decision on the Prosecutor's Motion for Admission of Certain Exhibits into Evidence) ICTR-98-44-T (25 January 2008) (TC III) [5]. ↩

  2. Diletta Marchesi, 'Intercepted Communications in the Ongwen Case: Lessons to Learn on Documentary Evidence at the ICC' 2021 International Criminal Law Review. ↩

  3. Prosecutor v Musema (Judgement And Sentence) ICTR-96-13-A (27 January 2000) (TC I) [53]. ↩

  4. cf Article 69(4) of the Rome Statute. ↩

  5. Prosecutor v Mladić (Decision on Prosecution Motion to Admit Evidence from the Bar Table: Excerpts from Mladic's Audio Tapes) IT-09-92 (18 September 2013) (TC) [9]. ↩

  6. cf Rule 121(3) of the ICC Rules of Procedure and Evidence. ↩

  7. Prosecutor v Mladić (Transcript) IT-09-92 (3 May 2012) (TC) 372. ↩

  8. Prosecutor v Mladić (Decision on the Admission of Intercepts and Authentication Charts) IT-09-92 (6 February 2014) (TC) [1], [3]. ↩

  9. Prosecutor v Mladić (Decision on the Admission of Intercepts and Authentication Charts) IT-09-92 (6 February 2014) (TC) [3]. ↩

  10. Prosecutor v Mladić (Decision on the Admission of Intercepts and Authentication Charts) IT-09-92 (6 February 2014) (TC) [8]. ↩

  11. cf Article 69(4) of the Rome Statute. ↩

  12. Prosecutor v Mladić (Decision on Prosecution Motion for Admission of Documents from the Bar Table) IT-09-92 (19 July 2013) (TC) [11]-[12]. ↩

  13. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]. ↩

  14. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]; Prosecutor v Martic (Decision Adopting Guidelines on the Standards Governing the Admission of Evidence) IT-95-11-T (19 January 2006) (TC I) [7]. ↩

  15. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]. ↩

  16. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]. ↩

  17. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]. ↩

  18. Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [25]. ↩

  19. Prosecutor v Tolimir (Judgement) IT-05-88/2-T (12 December 2012) (TC II) [63], [66]. ↩

  20. Prosecutor v Tolimir (Judgement) IT-05-88/2-T (12 December 2012) (TC II) [64]-[66]. ↩

  21. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [108]; Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [24]. ↩

  22. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [108]; Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [24]. ↩

  23. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [108]; Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [24]. ↩

  24. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [108]; Prosecutor v Blagojević and Jokić (Decision on the Admission into Evidence of Intercept-Related Materials) IT-02-60-T (18 December 2003) (TC I Section A) [24]. ↩

  25. Prosecutor v Župljanin (Transcript) IT-08-91 (30 October 2009) (TC) 2339-2342. ↩

  26. Prosecutor v Župljanin (Transcript) IT-08-91 (30 October 2009) (TC) 2339-2342. ↩

  27. Prosecutor v Mladić (Decision on Prosecution's Bar Table Motion for the Admission of Intercepts: Srebrenica Segment) IT-09-92 (2 May 2013) (TC) [24]. ↩

  28. Prosecutor v Mladić (Decision on Prosecution's Bar Table Motion for the Admission of Intercepts: Srebrenica Segment) IT-09-92 (2 May 2013) (TC) [29]. ↩

  29. Prosecutor v Mladić (Decision on Prosecution's Bar Table Motion for the Admission of Intercepts: Srebrenica Segment) IT-09-92 (2 May 2013) (TC) [29]-[30]. ↩

  30. Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T (20 March 2007) (TC I) 5. ↩

  31. Prosecutor v Renzaho (Transcript) ICTR-97-31-T (2 March 2007) (TC I) 7. ↩

  32. Prosecutor v Renzaho (Transcript) ICTR-97-31-T (8 January 2007) (TC I) 47. ↩

  33. Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T (20 March 2007) (TC I) [13]. ↩

  34. Prosecutor v Tolimir (Decision on Prosecution's Motion for Admission of 28 Intercepts from the Bar Table) IT-05-88/2-T (20 January 2012) (TC II) [13]. ↩

  35. Prosecutor v Bemba et al (Public Redacted Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute) ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1339]. ↩

  36. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1336]. ↩

  37. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1339]. ↩

  38. Prosecutor v Mladić (Transcript) IT-09-92 (27 August 2012) (TC) 1657. ↩

  39. Prosecutor v Mladić (Decision on Prosecution Motion to Admit Evidence from the Bar Table: Excerpts from Mladic's Audio Tapes) IT-09-92 (18 September 2013) (TC) [9]. ↩

  40. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1338]. ↩

  41. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1338]. ↩

  42. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [1335]. ↩

  43. Prosecutor v Mladić (Judgment, Volume IV of V) IT-09-92 (22 November 2017) (TC) [5307]. ↩

  44. Prosecutor v Mladić (Judgment, Volume IV of V) IT-09-92 (22 November 2017) (TC) [5305]. ↩

  45. Prosecutor v Mladić (Transcript) IT-09-92 (13 August 2015) (TC) 37746-37747. ↩

  46. Prosecutor v Mladić (Judgment, Volume IV of V) IT-09-92 (22 November 2017) (TC) [5307]. ↩

  47. Prosecutor v Ongwen (Decision on the confirmation of charges against Dominic Ongwen) ICC-02/04-01/15-422-Red (23 March 2016) (PTC II) [51]. ↩

  48. Prosecutor v Ongwen (Decision on the confirmation of charges against Dominic Ongwen) ICC-02/04-01/15-422-Red (23 March 2016) (PTC II) [51]. ↩

  49. Prosecutor v Ongwen (Transcript) ICC-02/04-01/15-T-20-Red-ENG (21 January 2016) (PTC II) 44, lines 8-24. ↩

  50. Prosecutor v Ongwen (Decision on the confirmation of charges against Dominic Ongwen) ICC-02/04-01/15-422-Red (23 March 2016) (PTC II) [51]. ↩

  51. Prosecutor v Bemba et al (Judgment pursuant to Article 74 of the Statute) ICC-01/05-01/13-1989-Red (19 October 2016) (TC VII) [227]. ↩

  52. Prosecutor v Bemba et al (Judgment pursuant to Article 74 of the Statute) ICC-01/05-01/13-1989-Red (19 October 2016) (TC VII) [227]. ↩

  53. Prosecutor v Bemba et al (Judgment pursuant to Article 74 of the Statute) ICC-01/05-01/13-1989-Red (19 October 2016) (TC VII) [227]. ↩

  54. Prosecutor v Popović et al (Decision on Admissibility of Intercepted Communications) IT-05-88-T (7 December 2007) (TC II) [75], [78]. ↩

  55. Prosecutor v Popović et al (Decision on Admissibility of Intercepted Communications) IT-05-88-T (7 December 2007) (TC II) [75], [78]. ↩

  56. Prosecutor v Popović et al (Decision on Admissibility of Intercepted Communications) IT-05-88-T (7 December 2007) (TC II) [75]. ↩

  57. Prosecutor v Popović et al (Decision on Admissibility of Intercepted Communications) IT-05-88-T (7 December 2007) (TC II) [78]. ↩

  58. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [381]. ↩

  59. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [379] [381]. ↩

  60. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [390]. ↩

  61. cf Article 69(7) of the Rome Statute. ↩

  62. Prosecutor v Renzaho (Transcript) ICTR-97-31-T (2 March 2007) (TC I) 7. ↩

  63. Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T (20 March 2007) (TC I) [15]; Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [53]. ↩

  64. Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T (20 March 2007) (TC I) [16]. ↩

  65. Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T (20 March 2007) (TC I) [16]. ↩

  66. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [5]. ↩

  67. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [11]. ↩

  68. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [30]. ↩

  69. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [30]. ↩

  70. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [53]. ↩

  71. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [55]. ↩

  72. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [55]. ↩

  73. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [61]. ↩

  74. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [61]. ↩

  75. Prosecutor v Brdjanin (Decision on the Defence "Objection to Intercept Evidence") IT-99-36-T (3 October 2003) (TC II) [63]. ↩

  76. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [404]. ↩

  77. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [454]. ↩

  78. Prosecutor v Bemba et al (Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala and Mr Narcisse Arido against the Decision of Trial Chamber VII entitled "Judgment pursuant to Article 74 of the Statute") ICC-01/05-01/13-2275-Red (8 March 2018) (AC) [455]. ↩