¹ Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

² Friman, Hakan, ‘Rights of Persons Suspected or Accused of a Crime’ in Lee, Roy S (ed), The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International 1999) 247, 248Google Scholar (‘The general intent was that the highest international standards for protection of persons suspected or accused of a crime, being central to the concept of justice, should apply’).

³ For a general account of the ICC's dependence on state cooperation, see Bekou, Olympia and Cryer, Robert, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter?’ (2007) 56 International and Comparative Law Quarterly 49, 60–61CrossRefGoogle Scholar (‘The ICC will not be effective unless States circumvent the lack of any real supranational enforcement system by cooperating with the ICC. Practically speaking, investigations would be extremely difficult and, in essence, no trial can take place at the ICC if States do not provide assistance. No trial can take place without the defendant being surrendered by States to the custody of the Court, and no protecting victims and witnesses and the like. A strong cooperation regime is crucial for the Court's success’).

⁴ Cogan, Jacob Katz, ‘International Decision: Prosecutor v. Milutinović’ (2007) 101 American Journal of International Law 163, 167Google Scholar (observing that ‘[i]n any particular situation, the degree of a state's willingness to cooperate depends largely on the extent to which the court's intended action impinges on its interests, broadly construed’).

⁵ Bekou and Cryer (n 3) 63 (observing ‘the absence of any meaningful enforcement measures against recalcitrant States who, in contumacy of the obligations to cooperate that they have (be they under the Statute or pursuant to a Security Council resolution), still refuse to accede to the ICC's requests for assistance’); Damaška, Mirjan, ‘The International Criminal Court Between Aspiration and Achievement’ (2009) 14 UCLA Journal of International Law & Foreign Affairs 19, 22Google Scholar. This absence of ICC enforcement powers may impinge heavily upon both the effectiveness and the fairness of international criminal law enforcement.

⁶ Cogan, Jacob Katz, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’ (2002) 27 Yale Journal of International Law 111, 116Google Scholar.

⁷ MP 838/84 Livni v State of Israel 1984 PD 38(3) 729, 738 (author's translation).

⁸ Thaman, Stephen C, ‘Official Privilege: State Security and the Right to a Fair Trial in the USA’ in Roggemann, Herwig and Šarčević, Petar (eds), National Security and International Criminal Justice (Kluwer Law International 2002) 25, 32Google Scholar (observing that US courts have been using the ‘relevant and helpful to the defense’ test in deciding whether or not to allow the disclosure of classified information); United States v Yunis 867 F 2d 617 (DC Cir 1989). A similar balancing test prevails in English law: see May, Richard, Criminal Evidence (3rd edn, Sweet & Maxwell 1995) 310Google Scholar; Governor of Brixton Prison, ex parte Osman [1991] 1 WLR 281, 288 (‘A judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty ... the weight to be attached to the interests of justice is plainly very great indeed’).

⁹ See nn 35–42 and accompanying text.

¹⁰ ICC Statute (n 1) art 93(4).

¹¹ Otto Triffterer, ‘Security Interests of the Community of States, Basis and Justification of an International Criminal Jurisdiction versus “Protection of National Security Information”, Article 72 Rome Statute’ in Roggemann and Šarčević (n 8) 53, 72 (observing with regard to national security information, ‘cases in which such information and documents may be of relevance for the proceeding are not very rare, but rather the rule’).

¹² ICTY, Prosecutor v Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chambers II of 18 July 1997, IT-95-14-AR, Appeals Chamber, 29 October 1997, [64]–[65].

¹³ Triffterer (n 11) 58 (‘Neither in Article 72 nor elsewhere in the Statute is defined what precisely security interests of States are’).

¹⁴ ibid (observing that ‘the notion of this expression includes not only military or defence aspects. It rather comprehends ... “State interests”, especially the sovereignty, independence, structure and/or the protection of its inhabitants’). For a different view see Dixon, Rodney, Duffy, Helen and Hall, Christopher K, ‘Article 72: Protection of National Security Information’ in Triffterer, Otto (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, CH Beck/Hart/Nomos 2008) 1361, 1367Google Scholar (contending that ‘[t]he Court will need to give the term a strict construction that makes jurisdictional sense’).

¹⁵ ICTY, Prosecutor v Kupreškić, Judgment, IT-95-16-A, Appeals Chamber, 23 October 2001, [44].

¹⁶ ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-T, Trial Chamber, 3 March 2000.

¹⁷ ibid.

¹⁸ Katz Cogan (n 6) 122.

¹⁹ ibid.

²⁰ ibid.

²¹ ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-A, Appeals Chamber, 29 July 2004, [4]. See also Gordon, Gregory S, ‘Toward an International Criminal Procedure: Due Process Aspirations and Limitations’ (2007) 45 Columbia Journal of Transnational Law 635, 679Google Scholar.

²² ICTY, Prosecutor v Tadić, Judgment, IT-94-1, Appeals Chamber, 15 July 1999, [49]–[51]. The ICTY Appeals Chamber observed that decisions of human rights treaty bodies addressing national criminal proceedings do not indicate that a defendant's right to a fair trial is breached where conditions outside the control of the adjudicating court prevented him or her from obtaining material evidence (ibid [49]). Adopting a broader perception of the right to a fair trial in international criminal proceedings, the Appeals Chamber concluded, however, that the fairness of international adjudication may be compromised by a state's refusal to allow a defendant access to evidence. Pointing to the inherent differences between national and international proceedings, the Appeals Chamber explained (ibid [51]): ‘[Domestic] courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial. It is a different matter for the International Tribunal. The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures. The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.’

It seems that the ICC Appeals Chamber has adhered to the view that the fairness of international proceedings may be undermined if conditions outside the control of the adjudicating court prevent a defendant from obtaining material evidence: see ICC, Prosecutor v Lubanga, 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, ICC-01-04-01-06-1486, Appeals Chamber, 21 October 2008, [38].

²³ Katz Cogan (n 6) 114.

²⁴ See nn 74–80 and accompanying text.

²⁵ See nn 130–31 and accompanying text.

²⁶ See ICC Statute (n 1) arts 53(1)(c) and 53(2)(c). See also nn 134–136 and accompanying text.

²⁷ ICC Statute (n 1) art 93.

²⁸ Akande, Dapo, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 299CrossRefGoogle Scholar. Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI.

²⁹ ICC Statute (n 1) art 93(4).

³⁰ ibid art 72.

³¹ ibid art 72(1)(5).

³² ibid.

³³ ibid art 72(6).

³⁴ Dixon, Duffy and Hall (n 14) 1375. See also Rose-Ackerman, Susan and Billa, Benjamin, ‘Treaties and National Security’ (2008) 40 New York University Journal of International Law and Politics 437, 476Google Scholar.

³⁵ May, Richard and Wierda, Marieke, International Criminal Evidence (Transnational 2002) 68Google Scholar.

³⁶ Knoops, Geert-Jan A and Amsterdam, Robert R, ‘The Duality of State Cooperation with International and National Criminal Cases’ (2007) 30 Fordham International Law Journal 260, 277Google Scholar. See also Chesterman, Simon, ‘The Spy Who Came from the Cold War: Intelligence and International Law’ (2006) 27 Michigan Journal of International Law 1071, 1123Google Scholar (observing with regard to national security evidence, ‘in the ICC Statute the emphasis is on the right of states to deny the court's request for assistance’).

³⁷ Matthias Neuner, ‘The Power of International Criminal Tribunals to Produce Evidence’ in Roggemann and Šarčević, (n 8) 163, 188 (‘In conclusion, if the State possesses the document, it makes the final decision as to whether national security concerns prevent disclosure. The judges of the ICC cannot simply overrule this decision and compel the State to produce the document’); Rose-Ackerman and Billa (n 34) 479; Dixon, Duffy and Hall (n 14) 1364. Article 72(7) of the ICC Statute authorises the ICC Trial Chamber only to order the disclosure of information that is already within its control, ‘for example, where this information has already been provided to the Court by another state, an intergovernmental organization, a non-governmental organization or an individual …’ (ibid)).

³⁸ Triffterer (n 11) 77 (‘Article 72 establishes, albeit as an exception, the right of a State to claim that its security interest would be prejudiced by the disclosure of national security information, and, thus, the right to “deny a request for assistance in whole or in part”, Article 93(4). Independent of the fact whether this assertion is true or the State merely pretends such a danger, States cannot be forced to produce or disclose security information or documents ... they may resist and, insofar, are privileged by Article 72 in connection with Article 93(4)’). See also Markel, Asa W, ‘The Future of State Secrets in War Crimes Prosecutions’ (2007) 16 Michigan State Journal of International Law 411, 435Google Scholar (observing that art 93(4) grants states ‘an absolute right to withhold military secrets’).

³⁹ Donald K Piragoff, ‘Protection of National Security Information’ in Lee (n 2) 270, 275.

⁴⁰ ibid 279.

⁴¹ Fowler, Jerry, ‘Review Essay – “Not Fade Away: The International Criminal Court and the State of Sovereignty”’ (2001) 2 San Diego International Law Journal 125, 143Google Scholar (‘On its face, the standard proposed by the United Kingdom would have empowered States. Relatively minimal efforts to cooperate would result in respect even for assertions of national security that were “manifestly without foundation”’).

⁴² Scheffer, David J, ‘The United States and the International Criminal Court’ (1999) 93 American Journal of International Law 12, 16CrossRefGoogle Scholar (‘Our view prevailed: a national government must have the right of final refusal if the request pertains to its national security pursuant to Article 93(4)’). For a review of the US proposal see Piragoff (n 39) 276–77, 280.

⁴³ ICC Statute (n 1) art 72(7)(a)(ii).

⁴⁴ ibid.

⁴⁵ William A Schabas, ‘National Security Interests and the Rights of the Accused’ in Roggemann and Šarčević (n 8) 105, 106. See also Hans-Jörg Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’ in Roggemann and Šarčević (n 8) 115, 125 (observing that a decision made by the ASP ‘would have moral rather than practical consequences’).

⁴⁶ Schabas, ibid 106; Akande (n 28) 307–8.

⁴⁷ Neuner (n 37) 187 (‘At the ICTY the judges always make the final decision as to whether [national security] documents sought must be produced for trial. In the ICC, the possessor of the document makes this crucial decision’); Wartanian, Annie, ‘The ICC Prosecutor's Battlefield: Combating Atrocities While Fighting for States' Cooperation’ (2005) 36 Georgetown Journal of International Law 1289, 1298Google Scholar (observing that ‘[u]nlike the ICTY and ICTR statutes ... the Rome Statute ultimately leaves that final determination in the hands of the state’); Knoops and Amsterdam (n 36) 277 (‘While the ICTY and ICTR emphasize obliging States to hand over information to these tribunals, the ICC system ... emphasizes the right of States to refuse to cooperate with the ICC’).

⁴⁸ Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808(1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993), art 29(2).

⁴⁹ Prosecutor v Blaškić (n 12) [29].

⁵⁰ ibid [61]–[66].

⁵¹ ibid [67].

⁵² ibid; see also May and Wierda (n 35) 61 (‘Having examined the materials and heard the objection, it is a matter for the discretion of the Trial Chamber to determine whether an order should be made despite the objection or not and, if so, in what form. The exercise of this discretion will require the Trial Chamber to balance the cogency of the relevant national security concerns against the significance and importance of the material to the issues in the particular trial’).

⁵³ Prosecutor v Blaškić (n 12) [67].

⁵⁴ ibid [68].

⁵⁵ ibid.

⁵⁶ ibid. Such measures may include: (a) hearing the state's objection to disclosure in camera and ex parte; (b) allowing documents to be submitted in redacted form, accompanied by an affidavit signed by a senior state official explaining the reasons for the redaction; (c) ordering that no transcripts be made of the hearing and that documents no longer required by the Tribunal be returned directly to the state without being filed with the Registry or otherwise retained; (d) the designation of a single Judge from a Chamber to examine the documents or hear submissions; (e) allowing the state to provide its own interpreters for the hearing and its own translations of sensitive documents. Moreover, the Appeals Chamber envisioned exceptional cases ‘where a State, acting bona fide, considers one or two particular documents to be so delicate from the national security point of view, while at the same time of scant relevance to the trial proceedings, that it prefers not to submit such documents to the judge’ (ibid). The decision whether or not to grant a state's request not to submit such documents to the ICTY judge is vested with the judge, and the Appeals Chamber prescribed a procedure by which the judge would consider the request (ibid).

⁵⁷ ICTY Rules of Procedure and Evidence of the International Tribunal (ICTY RPE), (entered into force 14 March 1994), UN Doc IT/32/Rev 45, 8 December 2010, r 54 bis, http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev45_en.pdf.

⁵⁸ ibid r 70.

⁵⁹ ibid r 70(B).

⁶⁰ ibid r 70(F).

⁶¹ ICTY, Prosecutor v Milutinović, Decision on Request of the United States of America for Review, IT-05-87-AR, Appeals Chamber, 12 May 2006, [33].

⁶² In examining evidence provided initially under the terms of rule 70(B), the Trial Chamber may not: (a) order either party to produce additional evidence received from the state providing the initial information; (b) summon a person or a representative of that state as a witness or order their attendance for the purpose of obtaining additional evidence; (c) order the attendance of witnesses or require the presentation of documents in order to compel the production of additional evidence; or (d) compel a witness introducing into evidence any information provided by a state under rule 70 to answer any question relating to the information or its origin if the witness declines to answer on grounds of confidentiality: see ICTY RPE (n 57) r 70(C)–(D); Prosecutor v Milutinović, ibid [33]. But if evidence is submitted pursuant to rule 70 by way of a departure from regular court procedures, the Court may exclude such evidence ‘if its probative value is substantially outweighed by the need to ensure a fair trial’ (ICTY RPE (n 57) r 70(G)).

⁶³ ICTY RPE (n 57) r 54bis. Rule 54bis further provides that in requesting the Trial Chamber to issue such a disclosure order directed at a state, the party must also (a) identify as far as possible the documents or information to which the application relates, and (b) indicate how they are relevant to any matter before the judge or Trial Chamber, and how they are necessary for a fair determination of that matter. The requirements of specificity, relevance and necessity stipulated by rule 54bis have been applied by the Tribunal rather loosely, allowing a party to request the disclosure of broad categories of documents if it has no means of identifying specific ones (Prosecutor v Milutinović (n 61) [15]–[25]).

⁶⁴ ibid [37].

⁶⁵ ibid. The Appeals Chamber warned, however, that ‘Rule 70 should not be used by States as a blanket right to withhold, for security purposes, documents necessary for trial from being disclosed by a party for use as evidence at trial as this would jeopardize the very function of the International Tribunal and defeat its essential object and purpose’ (ibid [38]). Not persuaded by this warning, one commentator has nevertheless observed that in view of the decision in Milutinović, ‘a party does not have any other option than to accept the conditions placed by the state on disclosure of evidence’: see Klip, André, ‘Confidentiality Restrictions’ (2012) 10 Journal of International Criminal Justice 645, 650CrossRefGoogle Scholar.

⁶⁶ ICC Statute (n 1) art 67(2) (‘In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide’).

⁶⁷ ibid art 54(3)(e).

⁶⁸ ICC Rules of Procedure and Evidence (entered into force 9 September 2002) ICC-ASP/1/3.

⁶⁹ See nn 64–65 and accompanying text. In Prosecutor v Milutinović, the Appeals Chamber noted that although the Trial Chamber has the power to issue a binding order requiring a state to produce information in its possession, there are ‘two modes of interaction [by a state] with the International Tribunal in fulfilling its obligations: cooperative and mandatory compliance … it is sound policy for the Prosecutor as well as defence counsel to first seek the assistance of States through cooperative means’ (Prosecutor v Milutinović (n 61) [32]).

⁷⁰ Ambos, Kai, ‘Confidential Investigations (Article 54(3)(E) ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law’ (2009) 12 New Criminal Law Review 543, 553Google Scholar (observing that the Appeals Chamber ‘confirmed the Trial Chamber's restrictive interpretation of Article 54(3)(e)’).

⁷¹ Prosecutor v Lubanga (n 22) [55].

⁷² ibid.

⁷³ In Prosecutor v Lubanga, the ICC Appeals Chamber held that Article 54(3)(e) does not relieve the Trial Chamber of its duty to assess ‘whether a fair trial could be held in spite of the non-disclosure to the defence of certain documents’ (ibid [45]). Thus, if the Prosecutor obtains information under the condition of confidentiality, the final assessment as to whether that material is relevant to the adjudication of the case ‘will have to be carried out by the Trial Chamber and therefore the Chamber should receive the material’ (ibid [46]).

⁷⁴ ICC Statute (n 1) art 72(7)(a)(iii).

⁷⁵ Behrens (n 45) 125.

⁷⁶ Schabas (n 45) 108 (‘[I]f a fact is relevant and necessary, and bears on the issue of guilt and innocence, then its non-availability should generally raise a doubt. The result should be acquittal’).

⁷⁷ ICC Statute (n 1) art 66; Schabas (n 45) 109.

⁷⁸ Schabas, ibid.

⁷⁹ Prosecutor v Lubanga (n 22) [76]–[77].

⁸⁰ ibid [80–81] (distinguishing between a conditional and a permanent stay of proceedings).

⁸¹ Moranchek, Laura, ‘Protecting National Security Evidence While Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY’ (2006) 31 Yale Journal of International Law 477, 489Google Scholar.

⁸² ibid.

⁸³ ibid.

⁸⁴ Damaška, Mirjan, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10 Journal of International Criminal Justice 611, 613Google Scholar.

⁸⁵ See nn 3–6. Moranchek (n 81) 485 observes: ‘[T]he ICTY's rules came to reflect the cold reality of the Tribunal's dependence on state cooperation to obtain certain kinds of crucial witnesses and evidence. Compelling production of documents is not a realistic option for international prosecutors who often neither know what intelligence evidence states may have collected, nor have any realistic means of enforcing production orders against powerful states … International criminal courts, in being almost wholly dependent on states to provide this kind of crucial evidence, are particularly vulnerable to pressures for protection and secrecy.’

⁸⁶ Damaška (n 84) 613.

⁸⁷ ICC Statute (n 1) Preamble.

⁸⁸ Damaška (n 84) 613.

⁸⁹ ibid; Gordon (n 21) 639–40. Addressing the relationship between the subject matter of ICC adjudication and the requirements of due process, Gordon observes that ‘international criminal tribunals are not established to handle garden-variety crime. To the contrary, they exist to prosecute the most heinous crimes ever committed – genocide, crimes against humanity and war crimes. When weighed against the gravity of these horrific offenses, the otherwise compelling mandate to enforce criminal procedure protections may lose some of its urgency’).

⁹⁰ Stephen, Chris and Fietta, Volterra, ‘Book Review, Nancy A. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions’ (2011) 22 European Journal of International Law 602, 604CrossRefGoogle Scholar.

⁹¹ ibid. See also Katz Cogan (n 6) 133 (observing that ‘despite the best inclinations of those involved, including judges, it is not too difficult to imagine that [international criminal] courts could have an institutional bias against defendants because their continued existence depends on producing convictions’); Starr, Sonja B, ‘Rethinking “Effective Remedies”: Remedial Deterrence in International Courts’ (2008) 83 New York University Law Review 693, 710Google Scholar (observing that ‘the costs, length, and political prominence of their trials make it prohibitively costly for the [international criminal] tribunals to order the standard remedies for serious and prejudicial criminal procedure violations, namely release or retrial’).

⁹² See sources cited in nn 7–8.

⁹³ See, for example, Prosecutor v Milutinović (n 61) (a request to order the disclosure of information gathered by US intelligence).

⁹⁴ See nn 30–33 and accompanying text.

⁹⁵ ibid.

⁹⁶ paras (6) and (7) of art 72 of the ICC Statute indicate that the power of the Trial Chamber to draw factual inferences arises only where, having taken ‘all reasonable steps ... to resolve the matter through cooperative means’, the state still considers ‘that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests’ (ICC Statute (n 1) art 72(6) and (7).

⁹⁷ Dixon, Duffy and Hall (n 14) 1370.

⁹⁸ ibid.

⁹⁹ See n 55 and accompanying text.

¹⁰⁰ paras (5) and (6) of art 72 of the ICC Statute indicate that a state may even refuse disclosure of the information to the Court through the use of ex parte proceedings. Art 72(6) provides that if a state decides, having completed its discourse with the Court, to withhold the information from the Court altogether, the state ‘shall notify the Prosecutor or the Court of the specific reasons for its decision’. The Statute recognises an exception to this notification obligation where ‘a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests’. One commentator (Behrens (n 45) 124) has observed that this exception ‘will be the rule rather than the exception’.

¹⁰¹ See nn 56–57 and accompanying text.

¹⁰² Claus Kreß and Kimberly Prost, ‘Article 93: Other Forms of Cooperation’ in Triffterer (n 14) 1569, 1582 (observing that art 93(4) of the ICC Statute ‘is the only explicit reason for denial in the Statute’).

¹⁰³ Akande (n 28) 305.

¹⁰⁴ See n 5 and accompanying text.

¹⁰⁵ Morten Bergsmo and Jelena Pejić, ‘Article 16: Deferral of Investigation or Prosecution’ in Triffterer (n 14) 595, 600.

¹⁰⁶ Olásolo, Héctor, ‘The Lack of Attention to the Distinction Between Situations and Cases in National Laws on Co-operation with the International Criminal Court with Particular Reference to the Spanish Case’ (2007) 20 Leiden Journal of International Law 193, 194CrossRefGoogle Scholar; ICC, Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, ICC-01/04, Pre-Trial Chamber, 17 January 2006, [65].

¹⁰⁷ ibid.

¹⁰⁸ Danner, Allison Marston, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97 American Journal of International Law 510, 538CrossRefGoogle Scholar.

¹⁰⁹ ICC, Regulations of the Office of the Prosecutor (entered into force 23 April 2009) ICC-BD/05-01-09 29, 33.

¹¹⁰ But see Goldston, James A, ‘More Candor about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court’ (2010) 8 Journal of International Criminal Justice 383, 396CrossRefGoogle Scholar (‘… can the ICC Prosecutor help but take into consideration his dependence on states for his own effectiveness in deciding whether, when and whom to charge?’).

¹¹¹ ibid (quoting Office of the Prosecutor of the ICC, Criteria for Selection of Situations and Cases 3 (June 2006) (unpublished draft policy paper)).

¹¹² Dixon, Duffy and Hall (n 14) 1367.

¹¹³ Drumbl, Mark A, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’ (2005) 99 Northwestern University Law Review 539, 585Google Scholar.

¹¹⁴ ibid 586–87.

¹¹⁵ Gwen Barnes, P, ‘The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’ (2011) 34 Fordham International Law Journal 1584, 1587Google Scholar (providing an account of the ICC's failure to secure the execution by its member states of its warrants for the arrest and surrender of El-Bashir, and arguing that the ‘refusal to arrest President Al Bashir thus illustrates the lack of enforcement mechanisms available to the ICC’ and ‘exemplifies the impotence of the ICC when its member states refuse to cooperate’).

¹¹⁶ Damaška (n 5) 22.

¹¹⁷ See Cryer, Robert, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press 2005) 195CrossRefGoogle Scholar (arguing that equality before the law ‘is by no means exhaustive of the critical principles that ought to be applied to the law, but it is an immensely important one’).

¹¹⁸ See ICTY, Prosecutor v Delalić, Judgment, IT-96-21-A, Appeals Chamber, 20 February 2001, [605] (recognising ‘a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law’); International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171, arts 14, 26 (art 14 of the Covenant states: ‘All persons shall be equal before the courts and tribunals ...’; art 26 explicitly provides that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law…’).

¹¹⁹ Zemach, Ariel, ‘Reconciling Universal Jurisdiction with Equality Before the Law’ (2011) 47 Texas International Law Journal 143, 153–55Google Scholar.

¹²⁰ See, for example, Burke-White, William W, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53, 66Google Scholar.

¹²¹ Louise Arbour, the former Prosecutor at the ICTY, thus noted that the challenge that the ICC Prosecutor will confront is actually ‘to choose from many meritorious complaints the appropriate ones for international intervention, rather than to weed out weak or frivolous ones’: Louise Arbour, ‘Statement to the Preparatory Commission on the Establishment of an International Criminal Court’ [1997] ICTY Yearbook 229, 232. See also Greenawalt, Alexander KA, ‘Justice Without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) 39 New York University Journal of International Law and Politics 583, 610–11Google Scholar.

¹²² Danner (n 108) 521 (quoting Charles Breitel, D, ‘Controls in Criminal Law Enforcement’ (1960) 27 University of Chicago Law Review 427, 429CrossRefGoogle Scholar).

¹²³ Office of the Prosecutor of the ICC, ‘Report on Prosecutorial Strategy’, 14 September 2006, 5, http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-2D363E07274B/143708/ProsecutorialStrategy20060914_English.pdf.

¹²⁴ Statement of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593 (2005), 14 June 2006, 2, http://www.iccnow.org/documents/OTP_3rdReportUNSC_14Jun06_en.pdf. For an extensive review of the ICC Prosecutor's statements regarding the gravity criterion, see Schabas, William A, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’ (2008) 6 Journal of International Criminal Justice 731, 737–40CrossRefGoogle Scholar.

¹²⁵ See generally Schabas, ibid.

¹²⁶ Office of the Prosecutor of the ICC, ‘Prosecutorial Strategy 2009–2012’, 1 February 2010, 6, http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf; see also Office of the Prosecutor of the ICC, ‘Paper on Some Policy Issues before the Office of the Prosecutor’, 7 September 2003 7, http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905_policy_paper.pdf (‘[T]he Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for the crimes’).

¹²⁷ Greenawalt (n 121) 631.

¹²⁸ ibid 628–29.

¹²⁹ Danner (n 108) 519–20.

¹³⁰ Brady v Maryland 373 US 83 (1963), 87 (Justice Douglas stated: ‘The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution’).

¹³¹ United States v Bagley 473 US 667 (1985), 682 (The Supreme Court held that a prosecutor is governed by a ‘reasonable probability’ test. Hence, in fulfilling disclosure obligations a prosecutor must assess whether there is a ‘reasonable probability’ that the exculpatory evidence would influence the outcome of the trial). In Kyles v Whitley 514 US 419 (1995) 434, Justice Souter explained that a ‘reasonable probability’ does not require a preponderance of evidence but rather, as the language suggests, something less.

¹³² Triffterer (n 11) 58.

¹³³ See nn 50–56 and accompanying text.

¹³⁴ See ICC Statute (n 1) art 53(2)(c) (stating that the ICC Prosecutor may determine after investigation that ‘[a] prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime’).

¹³⁵ Danner (n 108) 542. See also Robinson, Darryl, ‘Serving the Interests of Justice: Amnesties, Truth Commissions, and the International Criminal Court’ (2003) 14 European Journal of International Law 481, 488CrossRefGoogle Scholar (‘Article 53(1)(b) specifically juxtaposes the traditional criminal justice considerations – the gravity of the crime and the interests of the victims – with the broader notion of “interests of justice” and clearly indicates that the latter might trump the former’).

¹³⁶ Office of the Prosecutor of the ICC, ‘Policy Paper on the Interests of Justice’, September 2007, 8, http://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09-73422B.B23528/143640/ICCOTPInterestsOfJustice.pdf.

¹³⁷ Once investigation into a situation has been initiated, the Pre-Trial Chamber has broad powers to review a decision of the Prosecutor to indict a suspected perpetrator. The Pre-Trial Chamber also is empowered to review a decision of the Prosecutor not to prosecute alleged perpetrators whose crimes were the subject of investigation: see ICC Statute (n 1) arts 15, 19, 53(2)–(3).

¹³⁸ See nn 16–20 and accompanying text.

¹³⁹ See nn 149–50 and accompanying text.

¹⁴⁰ Colangelo, Anthony J, ‘The New Universal Jurisdiction: In Absentia Signaling over Clearly Defined Crimes’ (2005) 36 Georgetown Journal of International Law 537, 543Google Scholar.

¹⁴¹ ibid 576; see also Rabinovitch, Ryan, ‘Universal Jurisdiction in Absentia’ (2005) 28 Fordham International Law Journal 500, 525Google Scholar (arguing that the exercise of universal jurisdiction in absentia ‘would increase the likelihood of conviction, since it would facilitate the gathering of evidence and testimony’).

¹⁴² See Kreß, Claus, ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’ (2006) 4 Journal of International Criminal Justice 561, 578CrossRefGoogle Scholar (noting that ‘the state of universal jurisdiction will preserve the evidence secured through the investigation’).

¹⁴³ ICTY RPE (n 57) r 61.

¹⁴⁴ ibid r 61(C).

¹⁴⁵ ibid r 61(D).

¹⁴⁶ ibid.

¹⁴⁷ Thieroff, Mark and Amley, Edward A, ‘Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61’ (1998) 23 Yale Journal of International Law 231, 251Google Scholar.

¹⁴⁸ ibid 234.

¹⁴⁹ Damaška (n 5) 20 (‘For the ICTY, outside assistance worked: albeit reluctantly and intermittently, successor states of the former Yugoslavia cooperated with the Tribunal, largely satisfying the Tribunal's need for both custody of suspects and incriminating evidence. It should not be overlooked, however, that such cooperation was the result not of the Tribunal's moral authority, or its “soft power”, but rather the result of internal political changes in successor states and successful outside pressures on them’); Scharf, Michael P, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’ (2000) 49 DePaul Law Review 925, 949Google Scholar (‘Croatia's cooperation, induced by the conditionality of financial assistance, resulted in the surrender of half of the indicted war criminals in custody at The Hague. Positive economic incentives have been used in the past to induce parties to make peace, as for example, in the mideast. The ICTY precedent suggests that the same type of approach can be used to successfully coax parties into cooperating with the ICC’). Scharf further observed (ibid 978) that ‘in the absence of voluntary cooperation, the international community has generated an impressive arsenal of indirect enforcement mechanisms for the ICTY, which are potentially of great use to the ICC’.

Similarly, impunity from domestic proceedings initially granted by a state to perpetrators of grave human rights violations often gives way to prosecutions later on. For example, commentators have pointed to the increased willingness of Chilean authorities, as well as other states throughout Latin America, to prosecute and punish perpetrators belonging to former dictatorial regimes in the wake of the proceedings undertaken in several European countries against former Chilean dictator Augusto Pinochet under a doctrine of universal jurisdiction; Ryngaert, Cedrik, ‘Complementarity in Universality Cases: Legal-Systemic and Legal Policy Considerations’ in Bergsmo, Morten (ed), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Torkel Opsahl Academic EPublisher 2010) 165, 173–74Google Scholar.

¹⁵⁰ See n 149. See also Wartanian (n 47) 1306 (observing that one of the most effective means of procuring state cooperation with international tribunals ‘is the use of economic aid inducements (where foreign aid is made conditional upon cooperation) and the use of diplomatic and economic sanctions against uncooperative governments’). The use of such measures by the US and (to a lesser extent) by the European Union has greatly facilitated the compliance of the republics of the former Yugoslavia with ICTY orders (ibid 1304–08).

¹⁵¹ See nn 16–20 and accompanying text.

¹⁵² ICC Statute (n 1) art 29.

¹⁵³ See United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (entered into force 11 November 1970) 754 UNTS 73.

¹⁵⁴ See nn 74–76 and accompanying text.

¹⁵⁵ See n 80 and accompanying text.

¹⁵⁶ See nn 149–53 and accompanying text.

¹⁵⁷ See, for example, UNSC Res 1970(2011), 26 February 2011, UN Doc S/RES/1970 (2011), para 5. Resolution 1970 referred the situation in Libya to the ICC. In para 5 of that resolution, the Security Council ‘decide[d] that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’.

¹⁵⁸ Akande (n 28) 309.

¹⁵⁹ ibid 307–08.

¹⁶⁰ Office of the Prosecutor of the ICC, ‘Informal Expert Paper: Fact-finding and Investigative Functions of the Office of the Prosecutor, including International Cooperation’, 2003, http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281983/state_cooperation.pdf (cited in Akande (n 28) 307).

¹⁶¹ Arbour, Louise and Bergsmo, Morten, ‘Conspicuous Absence of Jurisdictional Overreach’ (1999) 1 International Law Forum du Droit International 13, 18–19CrossRefGoogle Scholar.

¹⁶² Scharf (n 149) 944 (observing that ‘the experience of the ICTY indicates that, even in the most egregious of situations, the Security Council is unlikely to impose sanctions in the event of non-cooperation with the ICC’).

¹⁶³ Wartanian (n 47) 1303.

¹⁶⁴ ibid 1304–08.

¹⁶⁵ Cassese, Antonio, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 13CrossRefGoogle Scholar.