References(p. 1118) Drafting History
No provision concerning national security information was proposed by the International Law Commission. Matters contemplated by article 72 were first raised in a ‘non-paper’ by the United States, in August 1995. The issue was explained as follows:
Reference was made in the document to Rule 70 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia. At this point, then, the only real concern was disclosure by the Prosecutor of information obtained from States on a confidential basis.
In the sessions of the Preparatory Committee, the issue of national security information arose, but this was in the context of limitations upon State cooperation obligations rather than a technique to prevent disclosure of information provided confidentially to the Prosecutor:
While the view was expressed that national security interests should constitute a valid exception, as in existing conventions, concerns were expressed about recognizing a broad exception based on public or national security interests. It was suggested that consideration should be given to addressing the legitimate concerns of States regarding requests for information or evidence relating to national security interests or other sensitive information while limiting the possibility of abuse which could impede the effective functioning of the Court.6
A proposal from the United Kingdom in 1997 authorized a Trial Chamber to make appropriate orders to protect national security information, such as holding hearings in camera.7 A somewhat different text, allowing for a Trial Chamber to consider the claim of a witness to be bound to secrecy by national legislation concerning the protection of national security, was submitted for the December 1997 session of the Preparatory Committee, but it was not discussed for want of time.8 The proposal was incorporated in the Zutphen draft with ‘Confidential Information’ as a suggested title and a footnote indicating: ‘Additional discussions are needed on this article.’9 Elaborate new proposals were made in the last weeks of the work of the Preparatory Committee.10 In the final draft, the title was changed to ‘Sensitive national security information’, and two new and complex options were proposed in addition to the earlier text.11
References(p. 1119) At the Rome Conference, the United Kingdom reformulated the proposal it had advanced at the final session of the Preparatory Committee.12 By way of explanation, the head of the UK delegation said that his country had supplied intelligence information to the ad hoc Tribunal for the former Yugoslavia, and that measures were needed to ensure the effectiveness of such cooperation.13 The legal adviser to the United Nations urged that any provisions protecting national security information should also be applicable to the United Nations.14 The United Kingdom’s text was the basis of a draft that appeared on what was essentially the final working day, prior to release of the Bureau draft.15
During discussions in the Special Working Group on the Crime of Aggression, a query arose about the application of article 73 where the State whose consent was requested was the aggressor. According to the report, ‘it was recalled that the provisions on national security were the result of a delicate and difficult compromise and were best left unmodified’.16
Analysis and Interpretation
Judge Mauro Politi has explained that ‘the protection of national security information evokes a scenario wherein the sensitive interests of a State, as opposed to those of victims, are primarily at stake and which, accordingly, falls under the comprehensive regime set out in article 72 of the Statute’.17 Article 72 deals with three main concerns of States with respect to information that they consider to be relevant to their national security. The first is the provision of materials to the Court pursuant to the obligations of cooperation of a State Party. The second is the ability to provide the Prosecutor with confidential materials, confident that the Prosecutor is not required to disclose these materials to the defence. The third addresses the intervention of a State to prevent divulgation of such information by a third party, and amounts to a kind of privilege. This is not provided for at the ad hoc tribunals. The explanation for the dramatic developments in this provision, which had no antecedent in the International Law Commission draft, and which only really emerged at the end of 1997 and early 1998, is a ruling by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia.18 It made States uneasy both about the potential of proceedings at the Court to impinge upon their national security interests and the unwelcome idea that the international judges might be the arbiters of the validity of such concerns.
References(p. 1120) Other provisions of the Statute are also relevant to the issue of national security information. The Pre-Trial Chamber is given responsibility to ‘provide for … the protection of national security information’.19 Under Part 9, a State Party may deny a request for assistance ‘[i]n accordance with article 72 … if the request concerns the production of any documents or disclosure of evidence which relates to its national security’.20 National security concerns are also reflected in the Rules of Procedure and Evidence, which require the Registry to restrict the right to consult the dossier of proceedings in the case of ‘restrictions concerning confidentiality and the protection of national security information’.21
Scope of Application (Art. 72(1), (2))
The scope of application of article 72 is set out in the first two paragraphs of the provision. Although article 72(1) makes reference to several other provisions of the Statute, it is prefaced by the more general affirmation that it applies ‘in any case’ where a State considers that disclosure of the information or documents of a State would ‘in the opinion of that State, prejudice its national security interests’. The final words of article 72(1) confirm the extent of the provision. It appears to apply ‘at any other stage of the proceedings’ as well as ‘in any case’, all of this determined at the entire discretion of the State claiming ownership of the information or the document in question.
The enumeration of other provisions in article 72(1) assists in its interpretation, however, and especially with respect to the meaning to be given to the term ‘disclosure’. Given that some of the examples do not at all address issues of disclosure in the sense of the obligation of the Prosecutor to provide the defence with access to its file, it seems that article 72(1) employs the term in the sense of information being revealed generally. Notably, it applies to the obligation on States Parties to cooperate with the Court. But by virtue of both article 93(4) and the cross-reference to it in article 72(1), it is clear that protection of national security encompasses ‘disclosure’ of information by a State in the context of its cooperation with the Court.
The reference to article 67(2) is also of particular importance. It concerns disclosure in the more traditional sense, that is, of information in the possession of the Prosecutor that should be shown to the defence. Article 67(2) affirms a particular obligation of the Prosecutor to disclose any information tending to show the ‘innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence’. Logically, it is comprised in the provision on the rights of the accused to a fair trial. By including article 67(2) in the enumeration of article 72, the Rome Statute in effect makes this fundamental right to disclosure of exculpatory evidence and other evidence favourable to the defence subordinate to the protection of national security interests of a State. The rule is clear, and there is no balancing of competing interests on a case-by-case basis by experienced judges. Rather, the determination rests solely with the State, as subsequent paragraphs in article 72 make clear.
According to article 72(2), the provision on national security information also applies when a person requested to give information or evidence invokes concerns of national References(p. 1121) security, either by outright refusal or by referring the matter to the State. The State concerned must then confirm ‘that it is of the opinion that disclosure would prejudice its national security interests’. Article 72(2) will protect a cooperative witness from being required to reveal sensitive information in cross-examination.
Requirements of Confidentiality (Art. 72(3))
Article 72(3) declares that the entire provision is without prejudice to confidentiality requirements in accordance with article 54(3)(e) and (f), and article 73. With respect to article 54, the Prosecutor has been empowered by the Statute to receive information from various sources under the condition that it not be disclosed to the defence. This is ‘lead evidence’, in the sense that its value is its ability to generate other evidence that will then be used in Court for purposes of prosecution. This power of the Prosecutor must be used prudently, however, notably because of its potential for conflict with the right of the defendant to full disclosure of exculpatory evidence which is protected by article 67(2).22 As for article 73, it limits the cooperation obligations of States by sheltering material that they have obtained from other States, or from intergovernmental or international organizations, that has been provided in confidence.23
Objection to Disclosure (Art. 72(4), (5), (6))
Article 72(4) is very broadly formulated, and there is a serious problem of interpretation involved in defining its relationship with article 72(2). According to article 72(4), a State may intervene to object to the disclosure or the likely disclosure of information of documents that it considers to be of national security interest. The State is entitled to intervene according to the subsequent procedural provisions. The Government of Kenya invoked article 72(4) in order to claim that its legal representatives should be present in the courtroom when the Prosecutor was making submissions and leading evidence in the confirmation of charges hearing ‘so that the Government can be in a position to determine whether the disclosure of any materials would prejudice its national security interests and to take appropriate steps as provided for in the Statute’.24 The argument was rejected by the Pre-Trial Chamber because article 74(4) seeks to prevent disclosure, and the documents in question had already been disclosed.25
Where there is a problem is with a potential witness who willingly wishes to divulge material of national security interest, for example, a ‘whistle-blower’ who wishes to reveal State secrets, or an individual who has agreed to testify against his or her cohorts in exchange for favourable treatment or even a promise of immunity. Many crimes subject to prosecution by the Court will have been committed with the involvement of States, and there may be worries that these provisions could help them to protect defendants with whom they are aligned. Article 72(4) appears to be broad enough to allow the State to intervene to prevent this, whereas it does not seem to be covered by article 72(2), which References(p. 1122) only concerns witnesses who object to divulging such information and is silent on the subject of those who do not object.
If the State is of the view that disclosure of information would be prejudicial to its national security interests, ‘all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the Defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means’.26 The provision seems to impose an obligation, an unusual situation given that it applies not only to States Parties, but to all States. But perhaps to the extent that non-party States might be entitled to the benefit of protection from disclosure under article 72(4), there is a quid pro quo of cooperation with the Court. If they do not cooperate, they lose their entitlement to protection. Several means of cooperation are proposed, including modification or clarification of the request, a determination by the Court on the relevance of the information, provision of the information in a different form or from a different source, and agreement on supplying the information subject to conditions, such as furnishing summaries or redactions, and in camera or ex parte proceedings. If no compromise can be found, the State is required to notify the Prosecutor or the Court of the specific reasons for its decision, ‘unless a specific description of the reasons would itself necessarily result in such prejudice to the State’s national security interests’.27
Determination by the Court that the Information is Relevant and Necessary (Art. 72(7))
When the State notifies the Prosecutor or the Court in accordance with article 72(6) that no compromise can be found, the Court may then determine that the evidence is relevant and necessary in order to establish the guilt or innocence of the accused. It may not always be a simple matter for the Court to make such a determination because assessing the relevance and necessity of evidence that the Court cannot in fact see could prove daunting. The words ‘for the establishment of the guilt or innocence of the accused’ are perhaps unfortunate, because the accused is never required to ‘establish’ his or her innocence. All that the accused is required to do is raise a reasonable doubt, as the Statute affirms elsewhere,28 and this is surely how article 72(7) should be construed.
Assuming it concludes that the information or evidence is relevant and necessary, the Statute distinguishes between two situations. The first involves a request for cooperation (that necessarily concerns a State Party) or a cooperative witness who is reluctant to testify without authorization from the State concerned. The second covers all other circumstances.
In the first of these situations, the Court may request further consultation in order to resolve the matter, including in camera and ex parte hearings. If this is still unsuccessful, the Court may then consider whether the requested State is acting in accordance with its obligations under the Statute. Reference is made to article 87(7), by which the Court refers a problem of non-cooperation to the Assembly of States Parties or to the Security Council for failure to respect an obligation under the Statute. The provision creates somewhat of a tautology, because article 93(4) seems to suggest that a State is not required to divulge matters that it considers to be of national security interest. How a State can be in violation of its obligation when it refuses to reveal such information is not obvious. As for References(p. 1123) the scenario of the cooperative witness who requires some authorization from the State, article 72(7)(a) does not really propose anything. It is particularly difficult to divine the consequences here for a non-party State, that is, after all, under no obligation to cooperate with the Court in any event. If these provisions are ever invoked before the Court, it will be required either to indulge in some judicial lawmaking in order to provide a coherent legal framework or else throw up its hands in despair and declare these provisions unenforceable.
‘In all other circumstances’ contemplated by article 72, the Court may order the disclosure of the information. Again, this surely can only apply to a State Party. Nor is it evident what these ‘other circumstances’ might consist of in practice. The issues addressed in article 72(7)(a), namely State cooperation and witness testimony, seem to cover most if not all potential difficulties in this area. As an alternative to ordering disclosure, the Court may ‘make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances’.29 The original draft referred to ‘inferences that relate to the guilt or innocence of the accused as may be appropriate in the circumstances’.30 This was later changed to ‘such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances’.31 According to Donald Piragoff, this ‘restricted the inferences that the Court may draw concerning the existence or non-existence of a fact, instead of “the guilt or innocence of the accused” as proposed earlier. It seems that such “fact” would likely be those which are relevant to the requested information. The inferences should not be to the ultimate issues of guilt of innocence …’32 But if a fact is relevant and necessary, and bears on the issue of guilt or innocence, then its non-availability should generally raise a doubt sufficient to warrant acquittal.
This is an invitation to fishing expeditions,33 but in waters where there may be no fish. The defence is in a far stronger position than it will be in the case of any other recalcitrant witness. Where the defence alleges that exculpatory evidence is in the possession, say, of a humanitarian aid organization, and where that organization or its agents refuse to cooperate, there is no law to entitle the Court to draw an evidentiary inference. The defence has simply failed to prove facts that it would like to prove. But where national security issues arise, the defence can allege that there is exculpatory material in the possession of a State. This might, for example, take the form of communications intercepts in the hands of the intelligence agencies of major world powers. A refusal to disclose is entirely predictable in such cases, and for reasons totally irrelevant to the guilt or innocence of the accused. Indeed, there is no truly logical reason to draw an inference one way or the other. But this opens the door to a request from the defence that the Court draw the appropriate evidentiary inference as to the existence or non-existence of the alleged fact or facts.
Perhaps a more appropriate result would have been to authorize the Court to order a stay of proceedings, because the real issue, at least when exculpatory evidence is concerned, is the right to a fair trial. In Lubanga, referring to the Court’s powers under article References(p. 1124) 72(7), the Prosecutor said that ‘where the evidence is so critical as to materially impact on the guilt or innocence of the accused is for the Chamber to make such inferences in the trial as to the existence or non-existence of facts as may be appropriate in the circumstances, and where the Chamber considers this remedy to be insufficient, the appropriate remedy is the dropping of the relevant charges’.34 Failure to obtain the evidence does not mean that the defence has raised a doubt about guilt, rather that it has been stymied in its attempts to do so by non-disclosure. Yet, here the defence is no worse off than the prosecution and, again, in a situation no different from the one it faces with any recalcitrant witness. Can it legitimately argue a violation of its right to a fair trial in such cases?
The situation is reversed when it is the Prosecutor who seeks evidence from the State, a situation that is probably far more likely. Here, the defence will almost surely have a major complaint with drawing of an unfavourable evidentiary inference. For the evidence to be ‘relevant’, it will form a component of the Prosecutor’s case. Its absence will, as a general rule, result in a hole in the case, that is, in the creation of a reasonable doubt. In effect, then, the prosecution will be able to complete its case and establish guilt with an unproven fact, one whose credibility and validity the defence will be unable to contest. Suppose, for example, that it is the prosecution that alleges an incriminating fact in the possession of the intelligence services of a non-party State. Can the quite predictable refusal to disclose lead to an inference that the ‘fact’ actually exists?
1 Reference to ‘the Defence’ was changed to ‘the defence’ pursuant to C.N.577.1998 of 10 November 1998.
2 The word ‘Rules’ in the original version was replaced by ‘Rules of Procedure and Evidence’ pursuant to C.N.604.1999 of 12 July 1999.
3 The word ‘this’ replaced ‘the’ pursuant to C.N.577.1998 of 10 November 1998.
4 Donald K. Piragoff, ‘Protection of National Security Information’, in Lee, The Making of the Rome Statute, pp. 270–94, at p. 294.
5 US Non-Paper on Rules of Investigation, Procedure and Evidence for the International Criminal Court, 21 August 1995, p. 23.
6 Preparatory Committee 1996 Report, Vol. I, para. 332.
7 Proposal of the United Kingdom, Non-paper/WG.4/No.10.
8 Decisions Taken by the Preparatory Committee at its Session Held from 1 to 12 December 1997, UN Doc. A/AC.249/1997/L.9/Rev.1, p. 32.
9 Zutphen Report, p. 120, fn. 221.
10 Proposal submitted by the United Kingdom of Great Britain and Northern Ireland, Protection of sensitive information the disclosure of which would prejudice the national security interests of States, UN Doc. A/AC.249/1998/WG.4/DP.20.
11 Preparatory Committee Draft Statute, pp. 112–15.
12 United Kingdom of Great Britain and Northern Ireland: proposal regarding article 71, UN Doc. A/CONF.183/C.1/WGPM/L.12. For other proposals, see: Croatia: proposal regarding article 71, UN Doc. A/CONF.183/C.1/WGPM/L.32; France and United States of America: proposal regarding article 71, UN Doc. A/CONF183/C.1/WGPM/L.39; Singapore: proposal regarding article 71, UN Doc. A/CONF.183/C.1/WGPM/L.49.
13 UN Doc. A/CONF.183/SR.6, para. 28.
14 UN Doc. A/CONF.183/SR.8, para. 94.
15 Working paper on article 71, UN Doc. A/CONF.183/C.1/WGPM/L.76/Rev.1.
16 Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, New Jersey, United States, from 13 to 15 June 2005, ICC-ASP/4/SWGCA/INF.1, para. 54.
17 Situation in Uganda (ICC-02/04), Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 10 August 2007, para. 97.
18 Blaškić (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997.
19 Rome Statute, art. 57(3)(c).
21 Rules of Procedure and Evidence, Rules 121, 131.
22 See this Commentary, arts 54(3)(e) and 67(2).
23 See this Commentary, art. 73.
24 Muthaura et al. (ICC‐01/09‐02/11), Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings, 16 September 2011, paras 17–18.
25 Muthaura et al. (ICC‐01/09‐02/11), Decision on the ‘Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings’, 20 September 2011, para. 11.
26 Rome Statute, art. 72(5).
29 Ibid., art. 87(7)(b)(ii).
30 Proposal Submitted by Singapore, UN Doc. A/CONF.183/C.1/WGPM/L.49, p. 3.
31 Working Paper on Article 71, UN Doc. A/CONF.183/C.1/WGPM/L.76/Rev.1, p. 4.
32 Donald K. Piragoff, ‘Protection of National Security Information’, in Lee, The Making of the Rome Statute, pp. 270–94, at p. 287.
33 Blaškić (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras 99ff.
34 Lubanga (ICC- 01/04-01/06), Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008, para. 48.