National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

(ProQuest: ... denotes non-US-ASCII text omitted.)

Articles

1.

Introduction

In establishing the International Criminal Court (ICC), the parties to the Rome Statute of the International Criminal Court¹('ICC Statute' or 'Statute') undertook a commitment to maintain for an accused person a standard of fairness to be expected in an enlightened criminal system.²This commitment presents an extraordinary challenge in view of the peculiarities of international criminal adjudication. The ability of the ICC to secure a fair trial depends largely on the cooperation of states with the Court.³Such cooperation is often lacking when it is contrary to the interests of the state in question.⁴The ICC has no powers to enforce the fulfilment of obligations undertaken by states that are parties to the ICC Statute⁵and it is frequently dependent on the cooperation of states that are not parties to the Statute. Commentators have thus observed that 'the disjunction between authority and control, common to international institutions, is too great to allow for consistently fair criminal adjudication'.⁶

This article, however, addresses primarily a significant derogation from the requirements of a fair trial, sanctioned under the terms of the ICC Statute itself. The derogation concerns a defendant's right of access to evidence that is necessary for the determination of innocence or guilt, but which implicates the national security interests of a state. Addressing the limits of the power of the state to withhold evidence from a defendant by relying on a privilege of national security, Israeli Supreme Court Justice Aharon Barak has held that 'if the investigation material to which the privilege applies is essential for the defence, justice obviously requires its disclosure, and this consideration prevails over any possible security consideration'.⁷This approach also prevails in other Western jurisdictions,⁸but it was plainly rejected by the ICC Statute, which completely divests the ICC of any power to compel a state to disclose evidence in its possession for as long as the state opposes such disclosure on national security grounds.⁹The absence of such judicial power goes hand in hand with the explicit right conferred by the ICC Statute upon states to deny a request for assistance from the ICC 'if the request concerns the production of...