Identifying information the prosecution is required to disclose to the defense has been a matter of contention between the parties since before the start of the trial in January 2009. More recently, the prosecution's refusal to disclose the identity of an intermediary it used to contact child soldiers led the Trial Chamber to suspend the trial of Thomas Lubanga last July and issue an order for his release. When the Appeals Chamber reversed the decision, the trial resumed.
Mr. Lubanga is on trial at the International Criminal Court (ICC) for recruiting, enlisting, and using child soldiers during the 2002-2003 conflict in the Democratic Republic of Congo (DRC). The last months of the trial have focused on defense allegations of abuse of process by the prosecution, after one witness recanted and accused prosecution intermediaries of coaching and bribing him to give false testimony.
On November 5, 2010, the Trial Chamber asked why the prosecution had redacted a particular paragraph of an investigator's internal memorandum, when it was disclosed to the defense. The paragraph concerned "the contemporaneous assessment by two investigators that questioned a person's credibility and intentions to assist the Prosecution because the person failed to provide certain documents - as 'internal work product'," Chief Prosecutor Luis Moreno-Ocampo noted in a written submission on November 17, 2010. The investigators changed their opinions after further investigation and the witness's production of the documents. Having determined that he was credible, the prosecution then called him as a witness.
The defense sought access to the investigators' earlier assessment. Ultimately, the prosecution disclosed it but not before the witness testified. The defense objected, implying the prosecution was guilty of malfeasance. The prosecution countered that the information was "work product" and not subject to disclosure.
The Trial Chamber ordered the prosecution to explain the principles and approach to disclosure that it has applied to enable the judges to determine if it has been acting appropriately with regard to disclosure. The November 17 submission was the prosecution's reply.
The Rome Statute of the ICC sets out the prosecution's disclosure obligations. Under Article 67(2) of the Statute, "The Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecution'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.". ICC Rule 77 and judicial decisions further expound on this prosecutorial duty, requiring disclosure of items material to the preparation of the defense, intended for use by the prosecutor as evidence, or obtained from or belonging to the accused.
The Rules of Procedure and Evidence also set out when disclosure is not required. Rule 81 states that "[i]nternal documents prepared by a party, its assistants or representatives in connection with the preparation or investigation of the case are not subject to disclosure." These are generally known as 'work product.'
In its submission, Mr. Ocampo criticized defense counsel for failing to set forth their defense of abuse of process in a timely, forthright, and articulated manner. Calling this defense "persistently evolving" and a "far-reaching fishing expedition," the prosecutor advised the Chamber that defense counsel had failed to cooperate or provide the information needed to conduct an ongoing search of its materials for information they had requested.
The prosecution then set forth its principles and approach to disclosure, as directed by the Chamber. "The Office of the Prosecutor has developed internal guidelines on evidence review and disclosure which seek to encompass the principles of diligence, efficiency and transparency." Exculpatory and incriminating evidence, items material to the preparation of the defense, and information obtained from or belonging to the accused are subject to disclosure under the prosecution guidelines.
However, disclosure is also subject to restrictions, Mr. Ocampo stressed; for example, when it is a party's work product or where disclosure could harm a witness or his or her family. When some but not all information in a document is subject to disclosure, the prosecution redacts (removes or obscures) the nondisclosable portion.
Showing some irritation with what it considers the Trial Chamber's ever-expanding view of material subject to disclosure, the prosecution quoted the Chamber's own decisions as to what work product encompasses, including "internal assessment on various individuals and work processes [...] clearly falls within the scope of non-disclosable material." Another opinion specifically identified conclusions and recommendations made by prosecution investigators as falling within the work product exception.
The prosecution's submission concluded: "Nothing in the paragraph questioned by the Chamber can be properly construed as falling under Article 67(2) [of the Rome Statute] or Rule 77 or even an Order of the Chamber, and was at all times covered by the bar against compelled disclosure under Rule 81(1)."
Neither the defense nor the Chamber have responded to the prosecution's filing. The Chamber has set December 10 as the deadline for the defense to file its application for dismissal of the case for abuse of process by the prosecution. While there are no hearings this week, trial will resume on Monday, December 13, 2010.