YouTube, the ICTY, and Authenticity of Evidence

YouTube is everywhere. Politicians use it for campaign ads. Bands use it to promote their new music. I use it to keep abreast of The Colbert Report, which is shamefully absent from New Zealand television. And now international prosecutors are using it to collect evidence:

Prosecutors in the case against former Bosnian army chief Rasim Delic this week filed an urgent motion requesting that an audio recording of a farewell ceremony of a unit of foreign Muslim fighters, recently posted on the internet, be admitted into evidence, because they believe it could be central to their case.

The audio clip in question was part of video footage posted two weeks ago on YouTube, the popular internet site, in which General Delic allegedly says that the El Mujahed unit was part of the command and control system of the Bosnian army.

Delic is on trial for allegedly failing to take the required steps to prevent or punish foreign Muslim fighters, or mujahedin, who apparently executed and mistreated tens of captured Serb soldiers and civilians during 1995.

He is also charged with crimes mujahedin allegedly committed against captured Bosnian Croat civilians and soldiers in the villages of Maline and Bikosi in central Bosnia’s Travnik municipality in June 1993.

At the time of the indictment, Delic was commander of the main staff of the Bosnian army, ABiH. According to prosecutors, in August 1993, he ordered the creation, within the ABiH 3rd Corps area of responsibility, of the El Mujahed unit comprising foreign volunteers.

The prosecutors are trying to prove that mujahedin were under Delic’s effective command and control – a claim contested by the defence.

The footage posted on YouTube was allegedly recorded in January 1996, during a farewell ceremony for the El Mujahid unit in the town of Zenica, following its disbandment.

In the motion filed on September 25, the prosecutors said they would like to present the audio clip during the testimony of a former member of the El Mujahid unit, Aiman Awad, who was scheduled to appear in court on October 2, and ask the witness to verify its authenticity.

They also announced they are in the process of obtaining a voice analysis of the audio clip, to be conducted by the Netherlands Forensic Institute, NFI.

[snip]

However, Delic’s lawyers have strongly opposed the prosecution’s request for the recording to be included as evidence, arguing that it would jeopardise their client’s right to a fair trial.

Delic’s lead counsel Vasvija Vidovic announced this week that the defence would request their own expert opinion of the authenticity of the audio recording.

The defense is fighting an uphill battle. Rule 89(C) of the ICTY Rules of Procedure and Evidence provides that “[a] Chamber may admit any relevant evidence which it deems to have probative value” — a liberal standard that the audio recording would almost certainly satisfy. Rule 89(E) does permit a chamber to “request verification of the authenticity of evidence obtained out of court,” but the ICTY has already implied, in Kordic and Cerkez, that the burden is on the defense to prove that a conversation recorded on an audio-tape either did not take place or could have been fabricated. That will obviously be very difficult for Delic to do — and even if he can, the tribunal will still only exclude the recording “if its admission would seriously damage the integrity of the proceedings.”

That relaxed attitude toward authenticity is, unfortunately, indicative of international tribunals generally. In Krupp, for example, a Nuremberg Military Tribunal summarily rejected a defense objection to the authenticity of an unsigned Nazi document that was not accompanied by evidence of its origins or authorship, opining that “[t]he Tribunal’s feeling is that this gets to a matter of weight rather than to admissibility, as long as it is conceded that this is a captured document and that gets also to the question of probative value.” Similarly, in the Hostages Case, another Nuremberg Military Tribunal simply admitted an unsigned copy of a Nazi order “for such probative value as the Court may deem it is entitled to.”

I can almost hear the common-law lawyers shuddering now…