Confidential Investigations (Article 54 (3)(E) ICC Statute) vs. Disclosure Obligations - The Lubanga Case and National Law

Abstract

After a short introduction to the procedural history of the Lubanga case (infra I.) the paper analyses, in its first substantive part (II.), the disclosure regime of the ICC with particular regard to the tension between disclosure and confidentiality as displayed in Lubanga. An in-terpretation of Art. 54(3)(e) ICC Statute which pretends to be compatible with the Prosecutor’s disclosure obligations (Art. 67 (2)) is offered. In the second part (III.), the law on disclo-sure/discovery in England & Wales and the U.S.A. is examined with a view to its possible contribution to an improvement of the ICC disclosure regime. This analysis confirms that the law of disclosure is of great complexity, not least because of the underlying tension between defense rights and opposing interests of public or private security. This tension cannot be solved by blanket rules but only on a case-by-case basis that strives for an appropriate balance between the public interest of an efficient prosecution of (international) crimes and the (disclosure) rights of the accused.