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Part V Fairness and Expeditiousness of ICC Proceedings, 40 Disclosure Challenges at the ICC

Alex Whiting

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 08 June 2023

Prosecution — International criminal law, evidence — Defences

This Chapter provides a prosecutorial perspective on evidence and disclosure. It proceeds in two parts: the first part sketches out the disclosure regime at the ICC; the second part identifies the challenges that the prosecution faces in managing disclosure. The contribution examines the approaches adopted by Pre-Trial and Trial Chambers and their impact on prosecutorial strategy and practice. It deals with constraints on disclosure (e.g. provider confidentiality, and witness protection) and puts the difficulties encountered in the first cases (e.g. Lubanga) into perspective. Finally, it reflects on key aspects of the emerging evidentiary regime, such as the role of documentary evidence, witness examination and testimony, and judicial questioning. The contribution argues that disclosure is not a topic that will ‘go away’ or be solved, but will instead be a recurring issue at the tribunals, in particular, in cases involving large amounts of material.

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