An Introduction To The International Criminal Court - Institute for ...

154 introduction to the international criminal court
a special rule dealing with unreliable evidence, as it should not be admitted
in any case.
A distinct regime operates in the case of what is known as ‘national
security information’. 65 In national legal systems, special rules apply for the
production of evidence deemed to raise major concerns of State security. 66
In some countries, the evidence is allowed but subject to a mechanism
that protects its confidential nature. In others, it is prohibited altogether.
Although generalisations are always hazardous, it is probably fair to say that
the heart of litigation on this subject under domestic legal systems concerns
attempts by the defence to have access to information in the possession of
State authorities. Prosecutors are less likely to find themselves in such an
antagonistic relationship with State authorities.
The drafters of the Rome Statute began with much the same orientation.
Thus, the initial concerns in this area, which first arose in the Ad
Hoc Committee of the General Assembly in 1995 and continued during
the work of the Preparatory Committee in 1996 and 1997, were directed
to denying access by the defence to confidential information in the possession
of the Prosecutor and, ordinarily, subject to disclosure as part of
the preparation for a fair trial. 67 A decision by the Appeals Chamber of
the International Criminal Tribunal for the Former Yugoslavia in October
1997 68 seems to have redirected the attention of the drafters, who realised
that, given the nature of the crimes to be tried by the Court, the heart of
the problem was likely to lie with conflict between the Prosecutor and State
authorities.
The provision that ultimately resulted, Article 72, is lengthy and confusing.
Its complexity is exacerbated by the fact that much of its language
was concocted during the Rome Conference itself, and did not benefit from
the years of reflection provided by the Preparatory Committee process. The
final version differs substantially from the various models considered during
the Preparatory Committee phase. As a result, language is employed whose
consequences are uncertain. Donald K. Piragoff, one of the experts involved
65 Ibid., Art. 72.
66 Prosecutor v. Blaskic (CaseNo. IT-95-14-AR108bis), Objection to the Issue of Subpoenae Duces
Tecum, 29 October 1997, (1998) 110 ILR 677, paras. 109, 124–6 and 141–6.
67 Donald K. Piragoff, ‘Protection of National Security Information’, in Lee, The International
Criminal Court, pp. 270–94 at p. 274.
68 Prosecutor v. Blaskic (Case No. IT-95-14-AR108bis), Objection to the Issue of Subpoenae Duces
Tecum, 29 October 1997, (1998) 110 ILR 677.