Progress on the Disclosure of Documents to Lubanga?

by Kevin Jon Heller

It appears that there may have been some progress regarding the Prosecutor’s ability to disclose the potentially exculpatory information to the defense — progress that is not reflected in yesterday’s decision.  According to a recent motion, the Prosecutor has received permission to turn over all of the disputed documents to the Trial Chamber in unredacted form, so that the judges can engage in an “unfettered review” of what information needs to disclosed to the defense.  If so, the odds that the Trial Chamber will lift the stay have improved considerably.

That said, problems remain. As the motion makes clear, the UN and the NGOs that have provided the 228 disputed documents have still not agreed to disclose all of the documents — or, more precisely, all of the documents the Trial Chamber ultimately concludes are discoverable — to the defense, whether in unredacted or redacted form.  The breakdown of the UN documents is as follows:

  • 135 of the 173 documents can be disclosed directly to the defense in unredacted form.
  • 35 of the 173 documents can be disclosed directly to the defense with redactions.
  • 3 of the 173 documents cannot be disclosed to the defense, directly or indirectly.

And here is the breakdown of the NGO documents:

  • None of the 55 documents can be disclosed to the defense in unredacted form.
  • 53 of the 55 documents can be disclosed to the defense in redacted or summarized form.
  • 2 of the 55 documents cannot be disclosed to the defense in any form.

As this point, we have no way to know whether letting the Trial Chamber review all of the documents in unredacted form will solve the problem. The overwhelming majority of the NGO documents still cannot be given to the defense in unredacted form, and the Prosecutor is recommending that 22 documents from one NGO be disclosed to the defense only in summary form.

There is also a cryptic paragraph in the motion (20) that says “[f]or the Trial Chamber’s information and ease of reference, the Prosecution — at this stage — can submit 19 NGO documents in redacted form, with redactions applied pursuant requests [sic] from the respective NGOs.”  That statement seems to contradict the Prosecutor’s assertion that it will provide the Trial Chamber with unredacted versions of all of the disputed documents.

Would the non-disclosure of five documents and the disclosure of more than 50 documents in redacted or summarized form satisfy the defendant’s right to receive all potentially exculpatory evidence?  It will depend on how critical the non-disclosable documents are and whether the Trial Chamber thinks the redacted or summarized versions of the other documents are an adequate substitute for the unredacted versions.  We will see.  Expect the defense to fight the issue — with justification — tooth and nail.

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