Prosecution Disclosure and the Imbalance of Rights at the ICC: A Case for Greater Judicial Control

Abstract

The Preamble of the Rome Statute of the International Criminal Court (Statute) acknowledges that “during this century, children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”. Accordingly, the International Criminal Court (ICC or Court) was established to put an end to the impunity of perpetrators of the most serious crimes of concern to the international community. The first case to come before ICC, the trial of Thomas Lubanga Dyilo (Lubanga Trial), presented challenging issues regarding the procedure for the disclosure of potentially exculpatory material by the prosecution established by the Statute and the ICC Rules of Procedure and Evidence (Rules). Central to these issues is whether the judges have interpreted the Statute and the Rules in a way that adequately balances the rights, interests and obligations of the Office of the Prosecutor, the accused, and the witnesses that appear before the Court. It is the author’s contention that achieving the right balance in this respect is integral to establishing and maintaining the legitimacy of the ICC and thus enabling it to effectively perform its function of holding the perpetrators of international crimes to account.