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Criminal Law Forum (2008) 19:449472 Springer 2008
DOI 10.1007/s10609-008-9084-7
SABINE SWOBODA*
THE ICC DISCLOSURE REGIME A DEFENCE PERSPECTIVE
I. INTRODUCTION
The ICC has faced its share of trouble in trying to assure fair and objective trials. On 11 June 2008, the proceedings against the ICCs rst defendant, Thomas Lubanga Dyilo from the Democratic Republic of the Congo (DRC),1 came to an abrupt halt, when Trial Chamber I decided that, due to numerous shortcomings in the disclosure process leading up to the trial, the proceedings had reached such a degree of irregularity that it was now impossible to piece together the constituent elements of a fair trial. It therefore ordered a stay of proceedings2 and the release of the accused.3 This article
* Dr. jur., University of Passau, I am very grateful to Steven Becker and Ray Migge for their corrections and comments.
1 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06; Thomas Lubanga Dyilo is accused of the war crimes of conscripting and enlisting children under the age of 15 into the Forces Patriotiques pour la Liberation du Congo (FPLC), the military wing of the Union des Patriotes Congolais (UPC), and of making use of child soldiers under the age of 15 in the hostilities in Ituri during the period between September 2002 and 13 August 2003.
2 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1401, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008 (Lubanga Dyilo, Decision on the Consequences of Non-Disclosure of Exculpatory Materials), paras. 9394.
3 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1418, Decision on the release of Thomas Lubanga Dyilo, 2 July 2008, paras. 3435; the decision is currently under appeal; Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1419, Prosecutions Appeal against Decision on the release of Thomas Lubanga Dyilo and Urgent Application for Suspensive Eect, 2 July 2008.
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SABINE SWOBODA
examines the failings and shortcomings in the ICC disclosure process that triggered the Trial Chamber Is decision. The article will rst picture the key structures of the ICC disclosure mechanism, both at the pre-conrmation hearing and...