IBA says confidentiality and disclosure challenges in DRC cases were a major setback for the ICC, and the Court needs to press a

11 November 2008

The International Bar Association (IBA) says that despite key advances made by the International Criminal Court during July to October 2008, the stay of proceedings in the Lubanga case and other issues arising from the Prosecution’s over-reliance on confidential material during the early phase of its investigations in the Democratic Republic of Congo (DRC) cast a pall over the Court. The IBA is concerned that the delay caused by the confidentiality and disclosure challenges was a major setback which seriously prejudiced the Court’s reputation.

The IBA’s comments are contained in its latest monitoring report, The ICC under Scrutiny: Assessing recent developments at the International Criminal Court, in which the IBA examines a number of legal and practical challenges arising from the prosecution’s inappropriate use of an important provision [Article 54(3)(e)] of the Rome Statute, which allows the prosecution to receive material confidentially from sources such as the United Nations. Such material is intended for use as ‘lead’ information to assist investigations and not for use in proceedings. Difficulties arose when these sources refused to allow a significant portion of the confidential material that could tend to prove the innocence of the suspect, mitigate his guilt or undermine the prosecution’s case to be handed over to the defence or even to the judges in unedited form.

‘The prosecution erred in relying primarily on material obtained through cooperation rather than from first-hand investigations’, the IBA report notes. ‘The prosecution’s acceptance of blanket agreements was neither consistent with its responsibility to objectively investigate and disclose potentially exonerating material, nor mindful of the Chamber’s role as the final arbiter of the process.

Justice Richard Goldstone, Co-chair, IBA Human Rights Institute and former prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, comments: ‘The difficulties created by the Prosecution’s extensive reliance on confidential material during the early phase of its investigations in the DRC have proved to be costly for the Court. Regrettably, the ICC - created to end impunity for heinous crimes – has been beset by delayed proceedings and frustrated victims.’

The IBA report notes however that, despite the setbacks, it fully expects the trial to go ahead. The report welcomes efforts by the prosecution to revise its investigations strategy. It also welcomes the decision by information providers to lift confidentiality restrictions allowing the Trial Chamber full access to the material for review. Although it is unclear how long this process will take, the IBA encourages the Trial Chamber to press ahead as soon as possible to start its first trial.

‘Justice delayed is justice denied,’ says Lorraine Smith, IBA Programme Manager (ICC), adding that, ‘We are looking for the trial to commence without undue delay for the sake of all concerned-victims, the defendant, stakeholders in the DRC and the entire international community. The responsibility lies with the Trial Chamber to expedite the review process as much as possible.’

Visit the IBA website to download:

The ICC under Scrutiny: Assessing recent developments at the International Criminal Court


For further information please contact:

Romana St. Matthew - Daniel
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Background to the ICC Monitoring and Outreach Programme

In October 2005, the IBA started its ICC Monitoring and Outreach Programme funded by the MacArthur Foundation.

The IBA has a full-time monitor in The Hague who follows the work and the proceedings of the ICC, focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related
ICC documents, in the context of relevant international standards. Input is received from legal experts and other interested parties in assessing the work and proceedings of the Court.

As the ICC does not exist in a vacuum, an IBA programme lawyer, also based in The Hague, works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC through the IBA’s membership network. Thus the IBA aims to deepen the understanding of the ICC beyond the limits of the ongoing situations and cases. The IBA facilitates a proactive role for bar associations and lawyers in the implementation of the Rome Statute in key countries.

The IBA has recently launched a dedicated section on its website which contains full information on the ICC Monitoring and Outreach Programme, including programme descriptions, agendas and reports. Further information can be found here