14 UCLA J. Int'l L. Foreign Aff. 207 (2009)
Lead Evidence and Discovery before the International Criminal Court: The Lubanga Case

handle is hein.journals/jilfa14 and id is 209 raw text is: LEAD EVIDENCE AND DISCOVERY
BEFORE THE INTERNATIONAL
CRIMINAL COURT:
THE LUBANGA CASE
Alex Whiting*
In this article, the author uses the case of The Prosecutor v. Thomas
Lubanga Dyilo, the first trial of the International Criminal Court, to
discuss the conflict between the Prosecution's right to obtain confi-
dential lead evidence as stated in ICC Article 54(3) (e) and its re-
sponsibility to disclose potentially exculpatory evidence under Ar-
ticle 67(2). None of the statutes or rules of ICC tribunals provide
clear guidance on how this conflict is to be resolved or articulate
remedies when it cannot be. The author argues that the conflict will
continue to be prominent at the ICC, that the Prosecution must have
robust powers to gather lead evidence, and that therefore the court
should adopt an approach to resolve the conflict in the rules that
maximizes the Prosecution's ability to obtain lead evidence while
protecting the rights of the accused.
Assistant Clinical Professor of Law, Harvard Law School; Trial Attorney and Senior Trial
Attorney at the International Criminal Tribunal for the Former Yugoslavia (2002-2007); Trial
Attorney and Assistant U.S. Attorney at the U.S. Department of Justice (1991-2002). 1 wish
to thank the participants of Trends and Tensions in International Criminal Procedure, a
symposium sponsored by the UCLA Journal of International Law and Foreign Affairs, 20
February 2009, as well as Vladimir Tochilovsky, Sonja Starr, and Julia Gegenheimer for their
comments and assistance on this article.

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