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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, 2015. All Rights Reserved. Subscriber: null; date: 26 October 2020

Subject(s):
Prosecution — International criminal law, evidence — Defences

(p. 1007) 40  Disclosure Challenges at the ICC

40.1  Introduction

It is a familiar dynamic. The Defence complains that the Prosecution failed to make timely or complete disclosure of inculpatory or exculpatory evidence in its possession. The Prosecution responds, either disputing the claim or acknowledging error. The judges assess whether the materials should have been disclosed and whether there was malfeasance or inadvertence, but in any case they (usually) urge the Prosecution to do a better job going forward in fulfilling its disclosure obligations.

Versions of this litigation have played out again and again at the ICC, and at the ad hoc international criminal tribunals as well.1 Commentators echo the complaints of the Defence and judges, deplore the Prosecution’s repeated failures to meet its disclosure obligations, and urge reforms.2 It is a subject that seems never to go away, never seems to be resolved, and is replayed over and over in an endless loop. As David Scheffer has written, ‘one of the most reliable constants of criminal procedure—domestic or international—is the discord between the Prosecutor, defence counsel, and judges over the timing and manner of disclosure of evidence to each of them. This is, and will be, no less true for the ICC’.3 But why is that so? Why is disclosure so difficult? Why can the Prosecution not just get it right—not just mostly right, but always and consistently right? Why does disclosure seem so hard?

It is not to say that the Prosecution always fails in its disclosure responsibilities. The truth is in fact otherwise. Generally the prosecution is diligent and thorough in fulfilling its obligations. But at the same time, the Prosecution seems unable to ‘solve’ the disclosure challenge once and for all. Complaints invariably arise from the Defence (p. 1008) about disclosure, and while these complaints are not always justified, or are often overblown, there is nonetheless the sense that the prosecution continues to fall short in achieving 100% compliance.

In fact, disclosure is a problem that will likely never be solved. It can be managed—and better management is in fact critical to better compliance—but it will never be completely solved in the sense of disappearing as a source of contention between the parties or being perfectly achieved. It is a subject that will always produce some complaint, conflict, and litigation because it is embedded in the challenges that are central to the cases themselves at the ICC. Although disclosure is a precondition to fair adversarial proceedings4, it does not sit outside and apart from those proceedings, but is instead subject to the difficulties that are largely inherent to the cases prosecuted at the ICC. In other words, there are distinctive features of international criminal prosecutions that will invariably create conflicts at the margins of the disclosure regime.

The ICC, like the ad hoc international criminal tribunals before it, prosecutes complex cases of mass atrocity arising out of complete political and social upheaval. It does so with relatively few resources, relying on cooperation from States Parties and other investigative bodies. As a permanent institution, the ICC is designed to move quickly when atrocities occur. Often the prosecution must navigate unfamiliar cultures and confront language and translations issues. The cases are sprawling and layered, even when the allegations are relatively focused. They are unlike national cases in important ways. In most domestic criminal cases, the alleged criminality sits outside the norm and is aberrational. The lines of relevance are therefore more distinct. In cases of mass atrocity, often the reverse is true: the criminality has become the norm, and determining what is relevant to the case becomes significantly more challenging. Witnesses and evidence are particularly fragile, and security issues are often paramount.

All of these particular dynamics of international criminal cases pose special challenges for the conduct of the case and for disclosure. In addition to these substantive challenges, disclosure can become a litigation tactic in the hands of the parties. The prosecution can have incentives to interpret its obligations as narrowly as possible, while the defence can be motivated to shift the focus away from the accused and the substance of the alleged crimes to the prosecution and the ‘conduct’ of the proceedings. These tendencies exist in national cases as well, but may be more pronounced in international prosecutions because of the stakes and the lack of a common tradition and practice. These aspects make it difficult for the judges, who often lack experience managing complex cases and may be unfamiliar with the litigation tactics and practices of the parties, to evaluate the conduct or claims of the two sides. Finally, international criminal trials are highly public and scrutinized events, and therefore the judges will be particularly mindful to ensure that the proceedings appear fair, which may push the judges to grant broader disclosure rights than substantive fairness in fact requires.

All of these factors mean that disclosure disputes at the ICC are not likely to disappear anytime soon. From the side of the prosecution, disclosure is primarily a management problem that must be prioritized alongside its other work. For their part, the (p. 1009) judges will need to sort through the challenges and the claims to determine how to ensure that the goals of disclosure are fully realized while also making sure that the cases continue to move forward.

This chapter will proceed in two parts. The first part will sketch out the disclosure regime at the ICC, the second will seek to identify the challenges that the prosecution faces in managing disclosure; the conclusion will seek to suggest approaches for the way forward.

40.2  The Framework

The Rome Statute,5 and the accompanying Rules of Procedure and Evidence6, set forth the ‘what’ and the ‘when’ of disclosure by the prosecution. The theory of disclosure is that it underpins a fair trial. The Prosecution is considered to have superior investigative resources, and is therefore required to share the core of its investigation with the Defence in order to redress the assumed imbalance.7 The logic is derived from the model of a state (with vast resources and access to evidence) prosecuting an individual or group of individuals. In the international criminal prosecution world, however, this premise does not always hold true. In some cases, the underlying politics of the situation mean the Defence has better access to the evidence and at times even superior resources (as when the defence is supported by a state).8 The disclosure rules do not, however, adjust to these circumstances.

Furthermore, in the background of the ICC disclosure regime is the Article 54(1)(a) requirement that the Prosecution ‘extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’. Thus in principle the Prosecution will gather both incriminating and exonerating information and evidence, both of which must be disclosed (pursuant to different rules) to the accused.9 In the early days of the ICC, the OTP sought to keep its investigations narrow, which in turn should have made disclosure more manageable. Reacting in part to criticisms that the trials at the ad hoc tribunals were too expansive and too long, the first prosecutor of the ICC adopted a policy of ‘focused investigations’.10 In several instances, however, the judges have criticized the Prosecution’s investigations as being insufficiently thorough.11 The Prosecution has already announced (p. 1010) that it will adjust its practices and conduct more in-depth investigations while trying to maintain focus.12 There may not be a return to the broad investigations of the ad hoc tribunals, but the ICC’s investigations are likely to be more extensive than they have been to date. These broader investigations will invariably give rise to additional challenging questions regarding the scope of disclosure.

40.2.1  Incriminating evidence

On the side of incriminating evidence, the rules are relatively straightforward. In advance of the confirmation hearing and the trial, the Prosecution must disclose all of the incriminating information it will offer at that stage of the proceedings. Specifically, Article 61(3) requires that prior to the confirmation hearing the prosecution must provide the defence with ‘the document containing the charges’ and ‘the evidence on which the Prosecution intends to rely at the hearing’. Rule 76(1) states that ‘[t]he Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses’. Although the Rule is entitled ‘Pre-trial disclosure relating to prosecution witnesses’, it has been interpreted to require disclosure of all statements of witnesses upon which the Prosecution intends to rely at the confirmation stage, regardless of whether the Prosecution intends to call the witnesses to testify.13

Further, Rule 77 requires the prosecution to provide to the Defence any ‘books, documents, photographs and other tangible objects’ that the Prosecutor intends to use as evidence at the confirmation hearing or trial. Rule 121 further specifies that these materials must be provided no later than 30 days before the confirmation hearing. Article 64(3)(c) then requires the disclosure before trial of any evidence not previously disclosed, i.e. incriminating evidence not relied upon at the confirmation hearing but to be used at trial.

40.2.2  Exonerating evidence and information material to the preparation of the defence

The rules governing the disclosure of exonerating evidence or information are more complicated. Article 67(2) requires the prosecution to ‘disclose to the defence evidence (p. 1011) in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence’. Although this provision refers only to ‘evidence’, it has been interpreted broadly as applying to any ‘material’ that falls within its definition.14

Rule 77 is potentially even broader in its application with respect to the disclosure of information useful to the defence. In addition to requiring the prosecution to disclose material that it intends to use at trial, Rule 77 also mandates that the prosecution turn over all ‘books, documents, photographs and other tangible objects … which are material to the preparation of the defence’. This provision has a surprising provenance for the ICC, as it derives originally from US law. When the ICTY was first being established, the US proposed a comprehensive set of Rules of Procedure and Evidence (‘ICTY Rules’), largely based on US procedure.15 Many of these proposed provisions became a part of the ICTY Rules, including Rule 66(B), which requires the prosecutor to disclose ‘any books, documents, photographs and tangible objects … which are material to the preparation of the defence’. This rule was derived from Federal Rule of Criminal Procedure 16(a)(1)(E) in the US, which similarly requires the government to disclose items that are ‘material’ to the preparation of the defence. When the ICC Rules of Procedure and Evidence were adopted, Rule 66(B) from the ICTY then migrated over and became Rule 77 in the ICC Rules.

The same rule has been interpreted differently, however, in the US, at the ICTY, and at the ICC. The central question is whether the rule requires only a showing of relevance to the case, which is an extremely low threshold and could apply to any information that has any connection at all with the issues in the case, or whether ‘material’ requires something more than relevance.

In the US, the term ‘material’ has force. It is not enough to argue that the information at issue is ‘relevant’. Rather, there must be a showing that it is ‘material’ to the Defence, which has been defined as requiring a showing not just that the information might be relevant to the case, but that it will be specifically helpful to the Defence. Cases in the US have held that ‘the requested information must have more than an abstract relationship to the issue presented; there must be some indication that the requested discovery will have a significant effect on the defence’.16

The ICTY adopted a similar approach to its version of the rule, interpreting ‘material to the preparation of the Defence’ to mean information that is ‘significantly helpful to an understanding of important inculpatory or exculpatory evidence; it is material if there is a strong indication that … it will play an important role in uncovering (p. 1012) admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal’.17 One commentator described this interpretation as ‘broad’,18 and perhaps it is in comparison to the US approach, but it nonetheless requires more than a showing of ‘relevance’.

The ICC has interpreted its version of the rule much more expansively. While citing the ICTY jurisprudence, the ICC Appeals Chamber in the Lubanga case significantly broadened the scope of what falls into material for the preparation of the defence under Rule 77. The accused in the case was charged with enlisting and conscripting child soldiers and using them in hostilities. The Defence requested material ‘relating to the use of child soldiers by other individuals or groups’ aside from the accused’s group itself.19 The Defence acknowledged that ‘the use by other armed groups of child soldiers’ could not be a basis for ‘excluding criminal responsibility’ of the accused, but nonetheless argued that the information would be ‘useful … and even necessary … to be able to understand the situation in Ituri at that time’.20 The Trial Chamber rejected this argument as follows:

[T]he Chamber is unpersuaded, on the basis of the material before it, that the evidence relating to the use of child soldiers by other individuals or groups is relevant to the charges the accused faces. Any evidence on this subject will not undermine the Prosecution case and on the basis of what has been revealed by the Defence (following an invitation from the Bench for assistance on this issue), it does not support any defence or line of argument to be relied on by the accused. Put otherwise, this area of evidence has not been demonstrated to relate to a live issue in the case and it is not one that could assist the accused.21

This approach of the Trial Chamber was very much in keeping with that of the US and at the ICTY, but the Appeals Chamber at the ICC rejected this analysis and broadened considerably the scope of disclosure required by Rule 77. Although the Appeals Chamber cited positively to the ICTY and US jurisprudence, it concluded that Rule 77 ‘should be understood as referring to all objects that are relevant for the preparation of the defence’.22 In other words, it found that the Rule covers all ‘relevant’ information to the defence without any additional qualification, and thus without any showing that it could have a ‘significant effect’ on the defence or could be ‘significantly helpful’ to the Defence.

(p. 1013) ‘Relevance’ is of course an expansive term, as was demonstrated by the outcome of the decision itself. The Appeals Chamber concluded that the Defence had sufficiently justified its entitlement to the information under Rule 77 because the information about the use of child soldiers by other groups was ‘useful’ and ‘even necessary … to understand the situation in Ituri at the time’.23 The Appeals Chamber further noted that the information might also be relevant ‘to understand the phenomenon of the use of child soldiers and their demobilization in the DRC’ and to the sentencing phase of the proceedings, if any.24 On this view, one could argue that any contextual or background information related to the conflict or events in question could be ‘relevant’, and therefore subject to disclosure. This approach might be manageable in national criminal investigations, but given the kinds of cases investigated by the ICC—complex cases arising out of broad societal conflict and breakdown—this interpretation of Rule 77 potentially requires the disclosure of vast amounts of information without a meaningful showing that it could be helpful to the Defence. The consequences are significant burdens on the Prosecution, potential conflicts with security concerns with witnesses and governments, and large volumes of information that the Defence must process.25

40.2.3  Limits on disclosure

There are five relatively narrow grounds under which disclosure can be limited or postponed: internal documents of the prosecution, witness security, ongoing investigation, confidential lead evidence, and national security.

First, Rule 81(1) states that ‘[r]eports, memoranda or other internal documents prepared by a party … in connection with the investigation or preparation of the case are not subject to disclosure’. As the judges have interpreted this provision, however, it does not in fact limit any disclosure that the Prosecution is otherwise obligated to provide under the Statute or Rules. If an ‘internal document’ of the prosecution contains any information that falls under Article 67 or Rule 77, then the prosecution must disclose that information to the defence, even if it is not required to disclose the entire document. In the Lubanga case, the prosecution contended that it was not required to disclose an internal investigator report containing an assessment of a potential witness’s credibility, but only any information contained within the document falling under the disclosure rules.26 The Chamber agreed:

The prosecution is correct in its contention that the evaluations or assessments of its investigators are not ordinarily disclosable; instead, it is the information and material that led to any relevant evaluations or assessments that, depending on the (p. 1014) circumstances, should be provided to the defence under Article 67(2) of the Statute or Rule 77 of the Rules.27

Similarly, in the Bemba case, the Pre-Trial Chamber ruled that while the Prosecution was not required to disclose screening notes in their entirety, as they do not constitute ‘statements’ under Rule 76, it does have an obligation to disclose any Article 67(2) or Rule 77 material contained within the notes.28 Therefore, Rule 81(1) excludes from disclosure no information that falls within Article 67(2) or Rule 77, but only subjective conclusions or analysis of the Prosecution or investigative staff of the OTP.

Second, pursuant to Article 68(5) and Rule 81(4), the prosecution can withhold disclosure required for any proceeding that takes place before trial if the disclosure would lead to the ‘grave endangerment of the security of a witness or his or her family’.29 The Appeals Chamber has held that there exists a presumption of disclosure, that non-disclosure must be justified on a case-by-case basis, and that the Court should select the least restrictive protective measures available.30 Since the provision applies only to proceedings before trial, it allows only for the delay of disclosure through the confirmation and up to trial, but not the ultimate denial of disclosure required under the Statute and Rules. And the Prosecution must disclose as much as it can in the meantime, consistent with protecting the security of witnesses. In other words, the Prosecution must consider whether specific redactions to the disclosure will be sufficient to meet the protection concerns before seeking to delay the disclosure of an entire document.

Although witness protection only allows for delayed disclosure, it shapes both the conduct of the investigation and the disclosure process. If a witness is put into danger as a result of his or her interaction with the Court, the Court is obligated to take whatever steps are necessary, including the relocation of the witness and his or her family out of the situation country, to ensure their safety.31 But given the costs of witness protection and the limited resources of the Court, it must be a last resort option.32 Accordingly, during the investigation phase, the OTP must consider the disclosure and security implications of each piece of evidence it collects. Although it has an obligation to conduct a balanced investigation that is sufficiently broad ‘to establish the truth’,33 it must also try to minimize its witness protection obligations as much as (p. 1015) possible by collecting only evidence that is truly pertinent. But this is a challenge, because it can be difficult to know in advance whether a witness’s evidence will be significant or not, and once the OTP interviews a witness, then disclosure obligations are triggered. So the Prosecution has developed a mechanism to ‘screen’ witnesses before interviewing them in order to determine if they are in a position to provide truly pertinent evidence for the investigation.34

Witness protection also has implications in the disclosure phase. It requires the Prosecution to assess not just whether investigative material must be disclosed pursuant to the Statute and Rules, but whether disclosure could put any witnesses at risk and if so, what steps must be taken to protect the witnesses. This can be a complex assessment, and an ongoing one. Consideration must be given not just to the witness making the statement, but also to what the witness might reveal about other witnesses or potential witnesses that could put them in danger. So, if two people witness an event and both would be endangered if it were known that they were witnesses, then the Prosecution must consider redacting not just the name of each person from that person’s own statement, but also the name of the other witness if it is contained within the statement. In other words, the Prosecution must consider how information could directly affect the security of witnesses and how information that is connected to other information that has been disclosed or is otherwise known could have that effect. Moreover, this assessment will change as the security circumstances evolve and as security measures are put into place for individual witnesses. The Prosecution might disclose a heavily redacted witness statement at the beginning of the disclosure process, a less redacted version later on if witnesses mentioned within the statement are protected, and a fully unredacted version even later if the witness is protected. At each stage, the prosecution must make what can be very nuanced judgments about what must and can be disclosed.35

The third basis for withholding disclosure is to protect an ongoing investigation. Rule 81(2) allows the prosecution to apply to the Chamber ex parte if disclosure ‘may prejudice further or ongoing investigations’. The rule further specifies that if the Prosecution subsequently wishes to use the information at the confirmation hearing or trial, it must provide adequate disclosure. The Appeals Chamber has held that a chamber considering an application under Rule 81(2) must consider similar factors as when reviewing proposed measures to protect the security of witnesses.36 In (p. 1016) particular, the Prosecution has the burden ‘to establish that the potential prejudice to investigations is objectively justifiable, would result from disclosure to the Defence (as opposed to the general public) and could be overcome or reduced by redactions’.37 Presumably, if the information withheld is exculpatory, then disclosure could be withheld but not ultimately denied.38

Fourth, the Prosecution can withhold the disclosure of lead information that it collects pursuant to Article 54(3)(e) which allows the prosecutor to ‘[a]gree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents. …’ This provision was the subject of considerable litigation during the ICC’s first case, almost brought the proceedings to an end, and has been the subject of considerable discussion and writing.39 The problem arose because the prosecution collected potentially exculpatory information pursuant to Article 54(3)(e) and therefore found itself caught between the dictates of disclosure contained in Article 67(2) and the confidentiality promised pursuant to Article 54(3)(e). The Appeals Chamber ultimately held that only a chamber, and not the prosecution acting on its own, can decide if potentially exculpatory information may be withheld from the Defence and what remedy, if any, will be available if disclosure is withheld.40 The Appeals Chamber found that if the prosecution is unable to disclose potentially exculpatory information because it has been collected pursuant to Article 54(3)(e), then the chamber should consider whether ‘counter-balancing measures can be taken to ensure that the rights of the accused are protected and that the trial is fair, in spite of the non-disclosure of the information’.41 If adequate counter-balancing measures cannot be identified, then dismissal of some or all of the counts may be required.

After playing a major part in the ICC’s first case, Article 54(3)(e) is unlikely to have a starring role in future litigation. The Lubanga case made it clear that disclosure obligations will largely trump any guarantees provided under Article 54(3)(e), and that even when there is a clash between these provisions, the judges will interpret the prosecution’s disclosure duties very broadly. This decision has had the effect of dramatically diminishing the value of Article 54(3)(e). If the prosecution and information providers cannot be certain that confidentiality will be maintained while preserving the integrity of the case, there will be reluctance on all sides to provide or collect such confidential information. Since the Prosecution cannot know in advance what kinds of (p. 1017) information it will collect before it gives Article 54(3)(e) guarantees, it will always take a risk if it relies on that provision to gather lead information that it will collect potentially exculpatory information that it will be unable to disclose. For this reason, the OTP signalled after the Lubanga case that it would limit its collection of confidential information.42 As the US Supreme Court stated in a different context, ‘[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all’.43

Finally, as something of a corollary to Article 54(3)(e), Article 72 allows a state to intervene if it learns that information is about to be disclosed that it believes would ‘prejudice its national security interests’. The Government of Kenya sought to rely on this provision to support its request to be present during the confirmation hearing of Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali, arguing that ‘certain allegations may involve information impinging on the national security interests of the State of Kenya’ within the meaning of Article 72.44 The Pre-Trial Chamber rejected Kenya’s request, finding that Article 72 narrowly allows a state to intervene only to block disclosure that might prejudice its national security interests and does not provide standing to states to raise broad and generalized national security concerns.45 To date, there is no public information available that this provision has ever been invoked by a state. That is not surprising, since states will generally be proactive in taking steps to ensure that the Prosecution does not receive information in the first place that could jeopardize its national security interests.

In sum, the various limitations on disclosure are narrow. In most cases, they allow for delayed but not denied disclosure. When there is a conflict between disclosure and another imperative, disclosure will largely prevail. So not only are the prosecution’s disclosure obligations broad, they are largely absolute. Nonetheless, they do not appear on their face to be impossible to administer. What, then, makes them difficult? The next section attempts to answer that question.

40.3  The Challenges

Although the ICC combines common-law and civil-law aspects, the investigation phases and the management of disclosure follows closely the common-law model. The prosecution gathers the evidence and has the responsibility, pursuant to the rules set forth here, to disclose to the defence. The drafters of the Rome Statute could have, but did not, adopt a model whereby an investigative judge manages the investigation and creates a dossier available to both parties.46

(p. 1018) Could the OTP mimic the function of an investigative judge, create a dossier, and simply disclose all of the investigative materials to the Defence? This is not a plausible solution for three reasons. First, the challenges of witness security require the prosecution to be selective in its disclosure. Threats to witnesses will be a feature of many if not all ICC investigations and prosecutions because the ICC is poised to act quickly when atrocities occur, by nature the cases emerge from enormous social and political disruption, and the stakes for high-level suspects are high, providing strong incentives to interfere with witnesses.47 If the Prosecution need not disclose information that could jeopardize the security of a witness, then it should not.

Second, aside from security concerns, witnesses may have legitimate privacy interests in keeping their statements from being widely disseminated. Witnesses may speak about events that are traumatic or alternatively embarrassing to them. Their statements should not simply be disclosed if there is no affirmative requirement for the OTP to do so.

Third, the Defence will complain if the Prosecution simply discloses masses of documents without any filtering or specific identification of exculpatory material.48 At the ICTY, following an amendment to the exculpatory disclosure rule (Rule 68) allowing electronic disclosure, the Prosecution sought to satisfy its duty of disclosure by placing all non-confidential materials on a searchable system called the Electronic Disclosure Suite (EDS). The Prosecution contended that the Defence was better situated than the prosecution to search the materials for exculpatory information. The defence appealed in the Karemera case, and the Appeals Chamber held that ‘the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession’.49 Thus the Prosecution risks complaint from the Defence, and rebuke from the judges, both if it discloses too little information and if it discloses too much.

For all of these reasons, therefore, the Prosecution will be obliged to make decisions about what information in its possession must be disclosed pursuant to the Statute and the Rules. It is this process of disclosure that has bedevilled all of the international tribunals. Even in national systems, disclosure can be a chronic problem. In the United States, for example, which has disclosure rules that are similar to those at the international tribunals, disclosure disputes are a regular feature of criminal litigation, and judges and commentators routinely deplore the failure of prosecutors in some (p. 1019) cases to provide full and proper disclosure.50 Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals wrote last year in United States v Olsen that ‘[t]here is an epidemic of Brady [US Supreme Court decision requiring prosecutors to disclose exculpatory information] violations abroad in the land’.51 Similar complaints have arisen in other national systems, like in the UK.52 The disclosure cases that become prominent tend to be on the extreme end of a range of disclosure battles that occur routinely in criminal cases.53 Some of the disputes across the range arise from clear failings by Prosecutors (through malfeasance, incompetence, or inadvertence), others from systemic factors or good faith disagreements about the scope of disclosure obligations in a particular case, and still others from strategic decisions by defence counsel to divert attention from the substance of the case to the conduct of the investigation and prosecution.54 Many disclosure fights combine several of these elements, and often there will be disagreement even among the judges about how a dispute should be resolved. For example, in the Olsen case in which Judge Kozinski spoke of an ‘epidemic’ of disclosure violations, the majority of judges of the Ninth Circuit concluded that the exculpatory information that the government had not disclosed was not material, and therefore there was no violation of the Prosecutor’s duties, while Chief Judge Kozinski and four other judges thought otherwise.55

For all of the disclosure disputes that arise in domestic cases, it can be expected that there will be even more such disputes at the international tribunals, including at the ICC, and that disclosure battles will continue to be a regular feature of international criminal prosecutions. That is not to say that there should be tolerance for prosecutorial failures to comply with disclosure obligations.56 Just the opposite is true. The possibility of prosecutorial malfeasance or incompetence resulting in a failure to abide by the disclosure requirements could, with the proper combination of training, management, and oversight, be reduced or even eliminated. But even putting aside these extreme cases, there will still remain a vast number of contentious fights surrounding disclosure because of the nature both of the cases at the international tribunals and the courts themselves as institutions.

The cases that are prosecuted at the ICC and other international courts are unlike domestic criminal cases in ways that complicate every stage of investigation and (p. 1020) adjudication. They erupt out of massive societal disruption and involve widespread and significant violence across space and time. They emerge from conflict on a large scale that usually has deep roots in ethnic, religious, nationalist, or political strife. Further, the crimes during such times become normalized rather than aberrational.57 As one commentator has put it, ‘[i]n this delusional context, criminal conduct that is normally characterized as “deviance” is transformed into acceptable, even desirable, behavior” ’.58 While the tribunals generally focus on those most responsible, the crimes themselves are only possible because of the participation of many actors at all levels.

The nature of the cases investigated and prosecuted by the international tribunals has implications for evidence collection and disclosure. Because of the scope of the cases, the lines between relevant and irrelevant evidence become blurred. The Prosecution often presents historical evidence, through experts or lay witnesses, to give context and background to the conflict. In the Lubanga case, for example, the prosecution called Gérard Prunier and the Chamber called Roberto Garretón to provide, among other things, evidence about the history of the conflict in the DRC.59 On its side, the Defence in many cases focuses not on the crimes, or on not just the crimes, but instead on the larger causes of the conflict and the responsibility of the different parties.60 In the prosecution of Radovan Karadžić, for example, the Defence called Momčilo Krajišnik to testify, in part, that the conflict in Bosnia was caused by the Bosnian Muslims and Croats. Krajišnik testified that ‘[t]he institutions of the Serb people were in fact formed to protect the constitutional framework and the rights of the Serb people from unconstitutional acts of Muslims and Croats’.61 This background information makes its way into the judgments, which invariably contain sections devoted to the history and causes of the conflict. Thus, although the modern international tribunals have jurisdiction only for jus in bello crimes and not jus ad bello violations, the causes of the conflict and the ‘fault’ of the different sides inevitably seeps into the cases and it becomes very difficult to draw a line between these subjects and the crimes at issue.

Further, although a tu quoque defence—which focuses on the crimes committed by the ‘other side’—is not legally valid, the Defence also often finds ways to argue the relevance of such information relating to the activities of the other parties. In the Lubanga case, for example, the Appeals Chamber found in its decision on the scope of Rule 77 that evidence relating to the use by ‘other individuals or groups’, aside from (p. 1021) the accused and his group, was relevant and should be disclosed.62 The defence in the Limaj case, a prosecution of three members of the Kosovo Liberation Army (KLA) for crimes committed against Serbs and Albanians suspected of collaborating with Serbs, focused in part on crimes committed by Serbs. One defence counsel started his opening statement by focusing on the crimes of the other side, arguing that ‘the concerted and concentrated efforts of Serb forces were bent on a campaign against both the emergent KLA and the Kosovo Albanian people as a whole’.63 The counsel conceded that he could not assert a tu quoque defence, but contended nevertheless that the actions of the Serbs were relevant:

In raising these facts, the Defense does not of course intend to raise a defence of tu quoque. We readily acknowledge that that defence, that is to say that the other parties committed atrocities, is not a defence to a charge of war crimes or crimes against humanity in this Tribunal. It is, however, submitted that in order to do justice in this case, your Honours must at all times bear in mind the appalling reality of the human rights situation in Kosovo during the time period alleged in the indictment.64

In the Kupreškić case, a prosecution of members of Bosnian-Croat forces for an attack on Ahmići, the Trial Chamber ruled that evidence that Bosnian Muslims may have also committed crimes was irrelevant to the extent it supported a tu quoque defence, but could be relevant as context evidence, to explain the behaviour of the accused, or to rebut the Prosecution’s allegations that Bosnian-Croat forces committed widespread or systematic crimes.65

Thus, given the nature of the cases prosecuted at the international tribunals, the scope of potentially relevant information can be vast. In addition to information about the alleged crimes and perpetrators themselves, the Prosecution must consider whether evidence relating to the causes of the conflict, the social and political context and background of the alleged events, and the actions of other groups might also somehow be relevant and disclosable. In the ICC prosecution of Abdallah Banda Abakaer Nourain (Banda), a rebel leader in Sudan, for crimes allegedly committed on a single day in the context of an attack on an African Union Mission in Sudan, the defence sought access to nearly all of the materials confidentially submitted by the OTP in a case prosecuting the other side, namely in support of an arrest warrant for the President of Sudan, Omar Hassan Ahmad Al Bashir (Al Bashir). The Trial Chamber rejected the request, finding that the material was too remotely related to the charges against Banda and that disclosure would be extremely burdensome on the Prosecution, but the Appeals Chamber reversed, finding that the Trial Chamber had applied too restrictive a test under Rule 77 and should not have considered the burden on the Prosecution.66 In the end, while the Prosecution may not have to disclose (p. 1022) all of the materials sought, it will have to review the materials and disclose at least of a portion of the documents supporting the Al Bashir arrest warrant. Because the ICC will often investigate both sides of a conflict, each investigation will generate potentially relevant information for all other investigations within the situation (or even for situations in neighbouring countries), further complicating the disclosure obligation.

Moreover, the amount of information that the OTP collects or receives can be substantial. The ICTY has collected millions of documents, many of which are un-translated. Within this vast collection are entire archives of documents obtained by the ICTY. This creates enormous potential for inconsistencies among documents or statements that must be disclosed as ‘exculpatory’. As noted earlier, the first Prosecutor of the ICC sought to address the difficulties of managing large amounts of information by conducting narrow and focused investigations. But the judges have repeatedly pushed the OTP to conduct broader and deeper investigations, and in many cases it is difficult for the Prosecution to control what evidence it receives. For example, before the ICC began investigating the Kenya cases, the Waki commission had already conducted an extensive investigation. It would have been impossible for the ICC to conduct its own investigation without receiving this information. In all of the investigations being conducted by the ICC, there are also parallel investigations and inquiries being conducted by governments, commissions of inquiry, international bodies, international and local NGOs, and journalists. It is in the interest of the investigations to receive materials from these groups, but the OTP must then manage security and disclosure with respect to all of these forms of information. The scope of the prosecution’s disclosure obligation and the quantity of information it receives vastly complicates its task. The Defence and judges will have numerous opportunities to second-guess the prosecution’s assessments about how far its disclosure obligations run and specific judgments about what information must be disclosed.

Further, what constitutes exculpatory information or information material to the Defence can be highly contentious. In the Karadžić case, the Prosecution at the end of the Defence case provided statements of three witnesses it wished to call in rebuttal.67 The defence filed a disclosure violation motion, alleging that the statements contained exculpatory information and should have been disclosed years earlier.68 In the end, the defence, the Prosecution, and the judges had three different assessments on whether the statements were in fact exculpatory. One of the statements was of Ramo Hodžić, a Bosnian Muslim in the Bratunac Municipality who was arrested and then exchanged for Serb prisoners.69 The Defence claimed that this statement was entirely exculpatory because it showed that not all of the Bosnian Muslims were killed by the Serbs.70 The Prosecution responded that nothing in the statement was exculpatory because the Prosecution’s case was always that some Bosnian Muslims were killed and others were deported as part of the ethnic cleansing campaign in Bratunac, and that therefore the (p. 1023) witness’s statement was entirely inculpatory (which is why the prosecution sought to call him in rebuttal).71 The judges agreed that the deportation of the witness was not exculpatory, but the fact that the witness was not mistreated during his detention was, even though the Prosecution alleged only that some of the prisoners were abused, but not all of them.72 Thus there was no agreement on whether the statement was exculpatory at all and if it was, how it might be exculpatory. This illustrates nicely how determinations about disclosure can often require judgment calls, about which there will be differing views. At what point does a witness’s statement or a document contradict the Prosecution’s case? What if a witness is inconsistent with another witness only on minor details? If the Prosecution’s case is not categorical, i.e. does not allege that all members of a particular group were targeted, then are statements showing that some members of the group were spared exculpatory? These are just some of the many difficult and highly contextual determinations that will inevitably become the subject of litigation.

The situation is even more complicated because the Prosecution’s understanding of the evidence and its own case, as well as the defence case, is not static but is instead highly dynamic.73 Accordingly, its view of what is exculpatory or relevant will inevitably evolve during the course of the case. It is not to say necessarily that fundamental questions about core criminal responsibility shift dramatically after charges are brought against a suspect. But it is in the nature of litigation, and in many ways its purpose, that as a case unfolds and heads to trial, and even during trial, issues are further refined and honed. Key witnesses must come to court to testify, rather than simply having their statements admitted into evidence, because it is thought that the process of testifying in court, under oath, in the presence of the accused, and with cross-examination will more likely result in more reliable and precise evidence. As the defence challenges evidence and presents its witnesses, the Prosecution’s view of the evidence may develop. That is all true in domestic criminal litigation, but the potential for refinement in understanding over time is even greater in international criminal prosecutions. As already noted, the crimes at issue are enormously complex—often involving the participation of numerous actors and entities across time and space—and stem from complicated and layered trends in society. In addition, the access to information by international tribunals is ordinarily substantially lower than it is for domestic investigators and prosecutors, particularly in the short term.74 The Prosecution simply does not have the powers to access information—through witness interviews, subpoenas, searches, surveillance, or electronic interception—that domestic investigators ordinarily do. Thus while it may receive lots of information, it may not always receive, at least not immediately, the best information that would allow it to gain a complete understanding of events. Moreover, the OTP is necessarily operating in ‘foreign’ territory, that is, in an environment that is both geographically and culturally removed from the Court itself. As the OTP investigates, it must learn (p. 1024) how language and cultural norms affect what information means and how it should be interpreted. It may, as happened at the ICTY, receive vast amounts of information that is in a non-working language of the Court. Because of the volume of information, it may be impossible to translate all of it in its entirety, but the Prosecution will nonetheless be responsible for reviewing it for disclosure purposes, making mistakes or disputes about disclosure inevitable.

In addition, the defence has no obligation to disclose its case to the Prosecution before trial or even during the Prosecution’s case, and in many cases it will not necessarily fully know its case until the prosecution case is developed and revealed. Although most lines of defence can be anticipated by the Prosecution, there are some defences or (more likely) aspects of defences that may be unexpected. This further hinders the Prosecution’s ability to assess what it must disclose. Thus because of the nature of litigation, the complexity of the cases at the ICC, the prosecution’s (evolving) access to information, and the Defence’s right to remain silent about its case, the Prosecution’s understanding of the information in its possession will continually be in some state of flux.

It is not difficult to see how the dynamic nature of international criminal investigations affects disclosure. As the Prosecution reviews materials before the charging decision and even after charging, it continually gains a deeper understanding of the information in its possession and the events being investigated. As it learns and focuses more, it must continually re-review information that it has already reviewed for disclosure, even as more information is coming in (from the principal investigation as well as other investigations within the situation). This continual review increases the chance for mistakes and differing judgments, particularly at the margins. In addition, the cases are all extremely high profile and politically charged in the regions from which they derive. The judges will often (quite properly) feel enormous pressure to ensure that the cases are both fair and appear fair to the accused. In some instances, this may cause them to err on the side of providing more disclosure to the defence than is strictly required, causing the potential for a fissure between the rules as written and those as applied.

Aside from the nature of the cases themselves at the ICC, there are aspects of the institution that also make disclosure challenging. First, it is well known that resources at all of the international tribunals, including the ICC, are very limited.75 Particularly if the OTP collects large quantities of information, it can be challenging to devote sufficient resources to conduct continual, ongoing disclosure reviews (and to be clear, the disclosure obligations require the prosecution to review its vast materials again and again). Second, the tribunals by their very nature bring together lawyers, investigators, and judges from a range of jurisdictions and practices. They will inevitably have varying understandings and experiences about how disclosure should be effectuated and what kinds of evidence might be considered relevant or exculpatory. Third, disclosure can become a litigation tactic in the hands of the parties, which may be familiar to judges from certain common-law countries but less familiar to judges from elsewhere. (p. 1025) Prosecutors are under enormous pressure to bring successful cases with few tools and resources, and may at times interpret the disclosure rules in ways to limit disclosure in the hope of gaining a tactical advantage. In the prosecution of Radislav Krstić, the Prosecution did not disclose a damning intercept of the accused until using it to cross-examine him after he testified. The Trial Chamber excluded the evidence, and the Appeals Chamber agreed with the Defence that it constituted ‘sharp practice’ by the Prosecution but declined to impose any sanctions.76

As for defence counsel, they are advocates and will often be inclined by their roles to argue that nearly all information in the Prosecution’s possession should be disclosed (though at the same time arguing against having too much information dumped on them), and that nearly all failures to disclose information have prejudiced the defence. Further, it can be a tactic for the defence to focus on the legitimacy of the tribunal itself and the procedures of the prosecution and the court rather than on the charges themselves.77 In the Karadžić case, for example, the legal adviser to the accused has filed continual motions (over 92) alleging failures to disclose exculpatory information, contending each time that the accused suffered prejudice as a result of the failure to disclose. The Trial Chamber has regularly found either that the Prosecution did not violate the disclosure rules or, if it did, that the defence suffered no prejudice.78 It can be inferred from the frequency and nature of the legal adviser’s motions that they are designed primarily for their publicity value, with little expectation that they will succeed in court. For judges who are familiar with litigation, particularly in common-law countries, these tactics will be neither surprising nor difficult to manage. But judges who lack this familiarity may find it less easy to assess the arguments of the parties and their relative merits.

40.4  Conclusion

Combining the breadth of the disclosure rules, the ambiguity of these rules at the margins, the scope and nature of the cases at the ICC, and the features of the institution itself, it is easy to see how disclosure disputes and difficulties will likely be a regular feature of international criminal cases. Inevitably, particularly in cases involving large amounts of material, the Prosecution will make judgment calls that will be disputed by the defence and, in some cases, criticized by the judges. Even with respect to that material about which all parties might later agree should be disclosed, it will be difficult to achieve 100% compliance. Given the nature of the task and the institutional (p. 1026) limitations, some missed or late disclosure will, unfortunately, be inevitable in these complex international cases. Disclosure is not a topic that will ‘go away’ or be solved, but will instead be a recurring issue at the tribunals.

Where does this lead us? It does not lead to the conclusion that the prosecution may step back from its disclosure commitments or engage in ‘sharp practices’ with regard to these obligations. Proper disclosure is key to the fairness and legitimacy of the process and the institution, and every reasonable effort should be made to ensure that it is done. In fact, the analysis of disclosure challenges in this chapter should lead to the conclusion that more not less must be done to meet these challenges. In sum, disclosure must be made central to the work of the institution and must be better managed by all parties.

This effort must, of course, start with the Prosecution. There has been exhaustive discussion about why prosecutors fail in their disclosure obligations, but the focus is generally on the individual prosecutors themselves: are they intentionally or negligently failing in their disclosure obligations? Are prosecutors, as advocates, capable of effectuating fair and complete disclosure? What steps could be taken to ensure better compliance? These are important questions, but there is a systemic dimension as well. It is inevitable that, as a professional matter, disclosure will be often viewed as a secondary obligation by individual prosecutors and investigators. They will see their first task as investigating and prosecuting the crimes. Compared to this work, disclosure can feel like drudgery, often assigned to junior lawyers or shared among all the lawyers on the team who do their best to make time for the work after their investigation tasks are done. That is not to say that prosecutors do not take disclosure seriously, or think it is unimportant. Nothing could be further from the truth, and the reality is that investigators and prosecutors devote staggering resources to the process of disclosure. But there is no disclosure without there first being an investigation, and how disclosure is managed on a team can be a challenge because it is necessary to have the lawyers who are involved in the investigation (and who are the busiest because of the demands of the investigation) working on disclosure, as they will be the ones with the best ability to assess what information should be disclosed.

It is thus an office responsibility, as opposed to solely the responsibility of individual prosecutors, to ensure that disclosure is prioritized. The OTP must therefore find a way to ensure that sufficient resources are dedicated to the work of disclosure and that the core prosecution team is involved in managing and guiding the disclosure. To this end, it will be important to have a senior person focused on information management and disclosure, and lawyers whose first priority is disclosure but who also have an intimate familiarity with the workings of the case. In other words, the OTP must focus on devising an adequate disclosure system to manage all of the disclosure challenges outlined in this chapter, in addition to ensuring that individual prosecutors are properly trained and motivated to do their work. Elevating the status of the disclosure obligation within the institution and developing a systematic approach to disclosure will also ensure that there is a consistent approach to the work across all cases.

Further, the judges will need to develop a nuanced understanding of the disclosure obligations and challenges facing the prosecution. The point is not for the judges to ease up on the Prosecution, but rather to help manage the disclosure challenges to (p. 1027) ensure that the Defence is given sufficient time, resources, and tools to fulfil its obligations (which, at the end of the day, is the whole reason disclosure is important). The pre-trial process should be structured to give the prosecution time to best meet its obligations, and then when problems do arise, the judges must be willing to consider solutions, such as granting the defence additional time or re-calling witnesses, to protect the rights of the accused. The judges will have to accept that it will be impossible to ‘finish’ or ‘complete’ disclosure by some imposed date; while the core of the disclosure can be provided in advance, it is inevitable in these cases that there will continue to be some disclosure provided on a ‘rolling basis’ as the Prosecution continues to refine its understanding of its case and the defence case, and continues to re-review and assess its information.79 In other words, the judges should realize that perfection is unlikely to be achieved in these cases and that it will be a task of the court and the parties to manage the difficulties that arise. In addition, the judges should recognize that the confirmation process and the trial are distinct events, and that the prosecution’s investigation will necessarily continue after confirmation.80 Accordingly, the Prosecution should be required to provide the necessary disclosure for the confirmation hearing in advance of that event, and then the disclosure required for trial between the confirmation decision and the beginning of trial. The scheme set forth in the Rome Statute contemplates that the Prosecution may rely on different evidence at confirmation and at trial, and therefore the disclosure processes should be kept separate. Although many judges and the Defence repeatedly acknowledge that the confirmation process is not to be a ‘mini-trial’, more and more the push is to make it precisely that and to have the Prosecution’s case finalized, fully disclosed, and fully litigated by confirmation. The impetus is contrary to the way the Statute is designed and is not in the interest of the mission of the Court.81

Further, the judges should avoid adding to the disclosure burdens on the prosecution. In some cases, the judges have insisted that the Prosecution produce an ‘in-depth analysis chart’, or ‘IDAC’ for short, linking each piece of evidence to each element of each crime charged. These charts, which are an invention of the ICC and did not exist at the ad hoc tribunals, are extremely burdensome on the Prosecution and are of very little use to the defence and the judges.82 Evidence in a criminal case does not come in neat, little packets that can be simply linked to individual elements. Rather, the evidence supporting the elements of crimes charged is usually based on lots of pieces put together or inferences drawn from long transcripts or documents. Accordingly, when the Prosecution has attempted to produce an IDAC they have become extremely unwieldy and difficult to use.83 The primary interest of the Defence in insisting on an IDAC seems to be to attempt to freeze or lock-in the evidence before the confirmation hearing or trial. But these cases and the litigation process require that there be some (p. 1028) flexibility in how the evidence develops and is analysed, so long as the Defence has sufficient notice of the case against the accused and the core of the evidence supporting the charges. Rather than the charts, the judges should request a pre-confirmation or pre-trial brief (or a footnoted document containing the charges) in which the prosecution sets forth its theory of the case with the key evidence supporting the charges. The focus, therefore, should be on providing sufficient notice to the Defence, not trying to lock the Prosecution in on each single piece of evidence that might support each element in the case.

At the end of the day, there is no question that the prosecution can always do better when it comes to disclosure, and making it a priority within the institution will go a long way towards accomplishing that goal. But, given the challenges of the cases and the institution, it must also be understood that disclosure is a problem that will likely always be with us and must be managed by the parties and the judges.

Footnotes:

Professor of Practice, From 2010 until 2013, Investigation Coordinator and then Prosecution Coordinator with the OTP, ICC. From 2002 until 2007, Trial Attorney and then Senior Trial Attorney with the ICTY. From 1991 until 2002, federal prosecutor in the United States.

1  See e.g. Decision on Accused’s Ninety-First Disclosure Violation Motion, Karadžić, IT-95-5/18-T, TC III, ICTY, 7 May 2014; Decision on Defence Interlocutory Appeal against the Trial Chamber’s Decision on EDS Disclosure Methods, Mladić, IT-09-92-AR73.2, TC I, ICTY, 28 November 2013; Decision on Defence Application Pursuant to Art 64(4) and Related Requests, Kenyatta, Situation in the Republic of Kenya, ICC-01/09-02/11-728, TC V, ICC, 26 April 2013.

2  See also Khan and Buisman, Chapter 41, this volume; K Gibson and C Lussiaà-Berdou, ‘Disclosure of Evidence’ in K Khan et al. (eds), Principles of Evidence in International Criminal Justice (Oxford: Oxford University Press 2010) 306 ; S SáCouto and K Cleary, ‘Expediting Proceedings at the International Criminal Court’, War Crimes Research Office, Washington College of Law at American University (2011), 61 (‘Late disclosure of material by the Prosecution to the Defense has been one of the principal causes of delay at the ICC’).

3  D Scheffer, ‘A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence’ (2008) 21 Leiden Journal of International Law 151.

4  Gibson and Lussiaà-Berdou (n 2) 306.

5  Rome Statute of the ICC (signed 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (‘ICC Statute’).

6  Rules of Procedure and Evidence, Official Records of the ASP to the Rome Statute of the ICC, First session, New York, 3–10 September 2002 (ICC-ASP/1/3 and Corr.1), part II.A (adopted and entered into force 9 September 2002).

7  Gibson and Lussiaà-Berdou (n 2) 306 ; L Büngener, ‘Disclosure of Evidence’ in C Safferling (ed.), International Criminal Procedure (Oxford: Oxford University Press 2012) 346–7.

8  For example, defence counsel were well supported and resourced in the Croatia and KLA cases at the ICTY and continue to be so in the Kenya cases at the ICC.

9  Büngener (n 7) 345 (linking the Prosecutor’s obligation to investigate both sides to stronger inquisitorial approach at ICC).

10  Prosecutorial Strategy 2009–12, OTP, 1 February 2010, 4ff.

11  Judgment Pursuant to Art 74 of the Statute, Ngudjolo, Situation in the Democratic Republic of the Congo, ICC-01/04-02/12-3-tENG, TC II, ICC, 18 December 2012, paras 115–23; Judgment Pursuant to Art 74 of the Statute, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-2842, TC I, ICC, 14 March 2012 (‘Lubanga trial judgment’), paras 178–484; Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Art 61(7)(c)(i) of the Rome Statute, L Gbagbo, Situation in the Republic of Côte d’Ivoire, ICC-02/11-01/11-432, PTC I, ICC, 3 June 2013; C Buisman, ‘The Prosecutor’s Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?’ (2014) 27 Leiden Journal of International Law 205.

12  Strategic Plan: June 2012–15, OTP, 11 October 2013, 6.

13  See e.g. Decision Setting the Regime for Evidence Disclosure and Other Related Matters, Ntaganda, Situation in the Democratic Republic of the Congo, ICC-01/04-02/06-47, PTC II, ICC, 12 April 2013, para. 12. Rule 76(3) also requires the prosecution to provide the statements in their original language as well as in ‘a language which the accused fully understands and speaks’. In the Ntaganda case, however, the Pre-Trial Chamber sought to minimize the translation burden and therefore required the Defence to identify which statements needed to be translated into Kinyarawanda, the language of the accused. Ibid., paras 21–2.

14  Decision on the Consequences of non-disclosure of exculpatory materials covered by Art 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, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-1401, TC I, ICC, 13 June 2008, paras 88–9.

15  G Boas and W Schabas, International Criminal Law Developments in the Case Law of the ICTY (Leiden: Martinus Nijhoff 2003) 3–4.

16  United States v Dzhokhar Tsarnaev, Order (D. Ma., 27 November 2013). See also United States v Zhen Zhou Wu, 680 F.Supp.2d 287, 290 (D. Ma. 2010) (‘Evidence “material to preparing a defense” includes any evidence that could significantly refute the Government’s case in chief’).

17  Decision on the Motion by the accused Zejnil Delalić for the disclosure of evidence, Delalić, IT-96-21-T, TC II quater, ICTY, 26 September 1996, para. 7.

18  H Brady, ‘Disclosure of Evidence’ in R Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational Publishers 2001) 411.

19  Transcript, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-T-71-ENG ET WT, TC I, ICC, 18 January 2008, 8.

20  Transcript, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-T-69-ENG ET WT, TC I, ICC, 10 January 2008, 62.

21  Transcript, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-T-71-ENG ET WT, TC I, ICC, 18 January 2008, 8.

22  Judgment on the Appeal of Mr Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-1433, AC, ICC, 11 July 2008, para. 77.

23  Ibid., para. 82.

24  Id.

25  See Gibson and Lussiaà-Berdou (n 2) 330.

26  Redacted Decision on the Prosecution’s Disclosure Obligations arising out of an Issue Concerning Witness DRC-WWWW-0031, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-2656-Red, TC I, ICC, 20 January 2011, para. 12 (‘the prosecution has determined that although material may be subject to restrictions on disclosure (e.g. Rules 81 and 82 of the Rules), it is appropriate to “isolate information that ought to be disclosed from that which constitutes non-disclosable internal work product” in order to provide it to the accused’).

27  Ibid., para. 16.

28  Public Redacted Version of ‘Decision on the Defence Request for Disclosure of Pre-Interview Assessments and the Consequences of Non-Disclosure’, Bemba, Situation in the Central African Republic, ICC-01/05-01/08-750-Red, TC III, ICC, 9 April 2010, paras 33–4.

29  Art 68(5) ICC Statute.

30  Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-568, AC, ICC, 13 October 2006, paras 36–7.

31  Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Request for Authorisation to Redact Witness Statements’, Katanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/07-475, AC, ICC, 13 May 2008, paras 1 and 44.

32  D Chaikel and L Smith van Lin, ‘Witnesses before the International Criminal Court, International Bar Association Report’ (2013), 27 (‘Protection and witness support come at a massive cost to the Court’).

33  Art 54(1)(a) ICC Statute.

34  Public Redacted Version of ‘Decision on the Defence Request for Disclosure of Pre-Interview Assessments and the Consequences of Non-Disclosure’, Bemba, Situation in the Central African Republic, ICC-01/05-01/08-750-Red, TC III, ICC, 9 April 2010, para. 3 (describing screenings as an assessment of whether a witness can provide relevant information).

35  The suggestion made by Khan and Buisman in Chapter 41 of this volume that the Prosecution uses witness security for strategic purposes is unfounded. First, as they themselves acknowledge, any redactions or delayed disclosure based on witness security must be approved by the judges. Second, managing witness security and its impact on disclosure is a burden for the Prosecution, and its interest is not to increase this burden but rather to minimize as much as possible its witness security obligations.

36  Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Request for Authorisation to Redact Witness Statements’, Katanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/07-475, AC, ICC, 13 May 2008, para. 97.

37  Ibid., para. 98.

38  Given the time that generally elapses between charging and trial, it is difficult to imagine a scenario where exculpatory information would still pose a danger of prejudicing an ongoing investigation at the time of trial.

39  A Whiting, ‘Lead Evidence and Discovery before the International Criminal Court: The Lubanga Case’ (2009) 14 UCLA Journal of International Law & Foreign Affairs 207.

40  Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled ‘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’, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-1486, AC, ICC, 21 October 2008, paras 46–7.

41  Ibid., para. 48.

42  Prosecutorial Strategy 2009–12, OTP, 1 February 2012, para. 34(b).

43  Upjohn Co. v United States, 449 US 383, 393 (1981).

44  Decision on the ‘Request by the Government of Kenya in Respect of the Confirmation of Charges Proceeding’, Muthaura et al., Situation in the Republic of Kenya, ICC-01/09-02/11-340, PTC II, ICC, 20 September 2011, para. 4.

45  Ibid., para. 11.

46  Gibson and Lussiaà-Berdou (n 2) 311–12 (comparing civil-law to common-law system regarding disclosure).

47  R Goldstone and G Bass, ‘Lessons from the International Criminal Tribunals’ in S Sewall and C Kaysen (eds), The United States and the International Criminal Court (Lanham: Rowman & Littlefield 2000) 51, 52–3 (‘By having a court [the ICC] already set up, the world can make the timely delivery of justice more likely’); Gibson and Lussiaà-Berdou (n 2) 313 (witness protection and disclosure).

48  S Zappalà, ‘The Prosecutor’s Duty to Disclose Exculpatory Materials and the Recent Amendment to Rule 68 ICTY RPE’ (2004) 2 Journal of International Criminal Justice 620, 625–6 (‘ … the core of the provision does not lie in the disclosure of materials per se, but rather in the duty of the Prosecutor to enable the defence to effectively use those materials to prepare its case. The very heart of disclosure of exculpatory materials is their identification and characterization as exculpatory’).

49  Gibson and Lussiaà-Berdou (n 2) 331 (quoting Decision on Joseph Nzirorera’s 21st Notice of Rule 66 Violation and Motion for Remedial and Punitive Measures: Théophile Urikumwenimana), Karemera, ICTR-98-44-T, TC III, ICTR, 22 April 2009.

50  See K McMunigal, ‘The (Lack of) Enforcement of Prosecutor Disclosure Rules’ (2010) 38 Hofstra Law Review 847, 847 (‘Criminal defense lawyers and academics have long complained of failures by prosecutors to honor their constitutional and ethical obligations to disclose exculpatory information’).

51  United States v Olsen, Ordering denying petition for rehearing, No. 10-36063 (9th Circuit, 10 December 2013) (Kozinski, C J, dissenting).

52  See e.g. B Emmerson, ‘Prosecution in the Dock’, The Guardian, 14 November 1999 (‘The reputation of the criminal justice system has been badly damaged over the last 10 years by a series of miscarriages of justice, many arising out of non-disclosure of evidence to the defence’).

53  J Moore, ‘Democracy and Criminal Discovery Reform after Connick and Garcetti’ (2012) 77 Brooklyn Law Review 1329, 1345–6.

54  See K McMunigal, ‘Prosecutorial Disclosure Violations: Punishment vs. Treatment’ (2013) 64 Mercer Law Review 711.

55  United States v Olsen, Ordering denying petition for rehearing, No. 10-36063 (9th Circuit, 10 December 2013).

56  For example, there was no excuse for the disclosure failure discussed in the opening paragraphs of Khan and Buisman, Chapter 41, this volume.

57  A Whiting, ‘In International Criminal Prosecutions, Justice Delayed Can be Justice Delivered’ (2009) 50 Harvard Journal of International Law 323.

58  P Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95 American Journal of International Law 7, 11.

59  Lubanga trial judgment (n 11) paras 67–91.

60  Some defendants appear to focus on making appeals to their domestic constituency rather than the judges. D Rieff, ‘Milošević in Retrospect’ (2006) 82 Virginia Quarterly Review 8, 13 (‘[Milošević’s] oral and written denunciations of the entire proceeding were directed at the public back home in Serbia and Montenegro rather than at the Court itself’).

61  V Šarić, ‘Karadžić Witnesss Says Serbs “Provoked” into War’, Institute for War & Peace Reporting, 15 November 2013.

62  Judgment on the Appeal of Mr Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-1433, AC, ICC, 11 July 2008, para. 82.

63  Transcript, Limaj, IT-03-66-T, TC II, ICTY, 18 November 2004, 433.

64  Ibid., 435–6.

65  Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, Kupreškić, IT-95-16-T, TC II, ICTY, 17 February 1999.

66  Judgment on the Appeal of Mr Abdallah Banda Abakeer Nurain and Mr Saleh Mohammed Jerbo Jamus against the Decision of Trial Chamber IV of 23 January 2013 entitled ‘Decision on the Defence’s Request for Disclosure of Documents in the Possession of the Office of the Prosecutor’, Banda, Situation in Darfur, Sudan, ICC-02/05-03/09-501, TC IV, ICC, 28 August 2013.

67  Decision on Accused’s Eighty-Ninth and Ninetieth Disclosure Violation Motions, Karadžić, IT-95-5/18-T, TC III, ICTY, 16 April 2014, para. 6.

68  Ibid., para. 7.

69  Ibid., para. 8.

70  Id.

71  Ibid., paras 10–11.

72  Ibid., para. 17.

73  A Whiting, ‘Dynamic Investigative Practice at the International Criminal Court’ (2013) 76 Law & Contemporary Problems 163.

74  See Whiting (n 57).

75  Ibid., 174–9.

76  Judgment of the Appeals Chamber, Krstić, IT-98-33-A, AC, ICTY, 19 April 2004, paras 172–5.

77  E Suljagić, ‘Justice Squandered? The Trial of Slobodan Milošević’ in E Lutz and C Reiger (eds), Prosecuting Heads of State (Cambridge: Cambridge University Press 2009) 176, 183.

78  See e.g. Decision on Accused’s Ninety-First Disclosure Violation Motion, Karadžić, IT-95-5/18-T, TC III, ICTY, 7 May 2014. In their chapter, Khan and Buisman complain that in many instances the prosecution provided ‘tardy’ disclosure in the Karadžić case, but at the same time they concede that the Trial Chamber almost always found no prejudice to the Defence because either the Defence received the information in time to use it or the information was cumulative. Khan and Buisman, Chapter 41, this volume. Where the Defence is not prejudiced, disclosure has worked, achieving its objectives of ensuring that the Defence receives the information in time to use it. Khan and Buisman suggest that there may also be a cumulative effect, but that has not been substantiated.

79  See Prosecution’s Response to Karadžić’s Motion to Set Deadlines for Disclosure, Karadžić, IT-95-5/18-PT, TC III, ICTY, 17 September 2009 (providing defence for practice at ICTY to allow ongoing disclosure before and during trial).

80  Whiting (n 73).

81  Id.

82  Transcript, Muthaura and Kenyatta, Situation in the Republic of Kenya, ICC-01/09-02/11-T-18-ENG CT WT, TC V, ICC, 12 June 2012, 38–42 (setting forth objections to IDAC).

83  Ibid., 40.