EXPLAINER: What do ICC rules say on witnesses’ prior recorded testimony?

THE HAGUE, the Netherlands — The prosecution and defense failed to agree Monday on when to use Rule 68(2b) and 68(3) when presenting witnesses in former President Rodrigo Duterte’s trial at the International Criminal Court.

During the fifth status conference, the prosecution said it had 11 applications for witnesses under Rule 68 (3) and three witnesses for 68 (2b). Another seven witnesses will be introduced, according to the prosecution.

In the ICC Rules of Procedure and Evidence, Rule 68 governs the admission of previously recorded witness testimony. 

Under Rule 68(2b), the trial chamber may admit prior testimony in place of live testimony when a witness is unavailable because they are dead, presumed dead, cannot be found, or due to interference preventing them from testifying.

In contrast, Rule 68(3) applies when the witness appears before the court and can be examined by the parties and judges. In such cases, previously recorded statements or testimonies may be introduced into evidence to streamline proceedings and avoid unnecessary repetition.

The key distinction is that Rule 68(2b) allows prior testimony to substitute for live testimony, while Rule 68(3) permits the use of earlier statements while preserving the opportunity for in-court examination of the witness.

Trial Chamber III has yet to decide which witnesses’ testimonies will fall under which Rule 68 sub-sections.

“It’s very difficult also to decide on giving a decision. It’s all too up in the air. So we have any suggestions for an actual fixed deadline for each of these things, rather than the rather amorphous 45 days in advance of testimony,” said presiding judge Joanna Korner, addressing the prosecution and defense.

Outside the courtroom, Filipino lawyer and co-counsel for the victims Kristina Conti, who was seated in the audience gallery, explained that Rule 68(3) refers to witnesses with prior recorded testimonies.

“So kumbaga may affidavit na dati… May interview na yan online. Kung gagamitin at ipapasok ang dokumentong yun, like ang hearing sa ating judicial affidavit. Nandun na lahat ng sasabihin mo,” she said.

(There is already a previous affidavit… there has been an online interview. If the document will be sued and entered into the record, like a hearing for our judicial affidavit, everything you say will be there already.)

The advantage of applying Rule 68(3) is that the hearings would be more expedient, she said.

Meanwhile, in Rule 68(2b), the prior recorded testimony will become a replacement for the live testimony.

“So sa both 68(3) at sa 68(2b), may dokumento na. Pero sa 68(3), dagdag lang,” she explained.

(For both, there are documents already. But for 68(3), it will just be supplementary.)

In the filings of the prosecution, there will be more applications of 68(3), meaning those with prepared recorded testimonies and who will testify in person.

There are only three for 68(2b). 

In a recent filing, the prosecution asked the court to admit all three prior recorded testimonies under Rule 68(2b).

However, the defense wanted to reject two witnesses under Rule 68(2b), arguing that the evidence goes to central disputed issues and therefore cannot simply be treated as background evidence.  

They cited the example of witness P‑1393, who directly links Duterte to payments, quotas, and alleged killings during the so-called “war on drugs” campaign. The defense argued that this witness’ testimony concerns Duterte’s conduct.

The last status conference was used to finalize the preparations for trial proceedings set to start on November 30.