As we have seen in previous chapters, the relationships between fairness, rights and procedure are theoretically complex. In this chapter and those that follow, we see how these issues are addressed within trials, through procedural decisions – revealing how fairness, rights and procedure interact in practice, as well as theory. This chapter examines the links between fairness, the rights of the accused, and procedural rules, in relation to a particular case study: the disclosure of information from the prosecution to the defence. The rights of the accused that are particularly affected by disclosure are the right to time and facilities to prepare a defence, and the right to know the case alleged by the prosecution, as well as the principle of equality of arms. In examining the relationships between these rights, trial fairness, and the way that disclosure is undertaken in international criminal trials, I ask: how has fairness been considered by Chambers when making decisions on issues of disclosure? What have been some of the outcomes of these procedural decisions? And how do these outcomes reconcile with the rights of the accused? These questions allow an examination of how fairness and the rights of the accused are connected – or separated – in procedural decisions in international criminal trials.

In the first part of this chapter, I outline the significance of disclosure in examinations of fairness and rights, and how disclosure interacts with both the rights of the accused, and the fairness of the trials. I then analyse how the concept of fairness has been used by the parties and the Trial Chambers when reaching determinations on disclosure. This analysis focuses on three issues regarding the way that disclosure is undertaken in international criminal trials. First, I briefly outline the challenges posed by the electronic nature of disclosure. Secondly, I demonstrate that Trial Chambers may be unable to adequately manage large volumes of disclosure provided in violation of the prescribed time limits and that this inability has a detrimental effect on the rights of an accused. Thirdly, I argue that at the ICC, there is an emerging environment that permits non-disclosure of material (including, particularly, exculpatory material) that is in the possession of both victims and the prosecution.