The Non-Disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial

Katzman, Rachel | January 1, 2009

This article explores the nature of the International Criminal Court (ICC) defense system and examines how the structure helped facilitate the stay of proceedings. In this first case before the ICC, the prosecution failed to turn over to the defense potentially exculpatory evidence because information providers supplied this evidence on the condition of confidentiality. However, the Court held that the failure to disclose to the defense potentially exculpatory evidence precluded the possibility of Lubanga receiving a fair trial. The case not only demonstrates concerns over the investigatory methods used by the prosecution, but also exposes how the disjointed nature of the ICC’s defense system affects the accused’s right to a fair trial. Confusion over the relationship between the Office of Public Counsel for the Defence, the appointed “situation” counsel, and the individual “case” attorneys has created a gap in defense advocacy.