II. Specific provisions

B. Judicial assistance; procedural provisions

Article 20
Disclosure and transmission of photocopies and information

(2) Should the documents relate to national security, the International Criminal Court shall be consulted to ascertain whether the information could be provided by another source or in another form.

(3) Should the matter not be settled through the consultations in paragraph 2 above, the Government, prior to granting access to records or the transmission of photocopies, shall check whether the interests of confidentiality significantly outweigh the interests of providing evidence for an international prosecution. Should that be the case, the International Criminal Court shall be asked to ensure the maintenance of confidentiality and for details as to how it will be maintained. This manner of proceeding shall be followed mutatis mutandis for International Tribunals, when documents are subject to particular confidentiality restrictions or relate to national security.

(4) The Government shall check whether the assurance given as to maintaining confidentiality is to be deemed sufficient. Access to records or the transmission of photocopies is to be refused where confidentiality cannot be ensured and if there are concerns that disclosure could prejudice national security.

(5) Paragraphs 2 to 4 above shall also apply where a person who has been called upon to provide information or evidence refuses to do so on the grounds that disclosure would prejudice national security.

(6) Prior to being questioned on the basis of a request for judicial assistance from the International Criminal Court, a person shall be informed of his or her right to refuse to answer in order to prevent the disclosure of confidential information relating to national security. This shall be noted in the record. The admissibility of the request for judicial assistance in such cases shall be decided upon in the light of paragraphs 2 to 4 above.

Article 54
Duties and powers of the Prosecutor with respect to investigations
3. The Prosecutor may:
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and
(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Article 72
Protection of national security information
3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.

Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.