In this regard, the Trial Chamber noted that there is a clear dividing line between, on the one hand, the accused\s obligation to disclose in advance the material he anticipates using during the trial, and, on the other, the accused’s right to remain silent and not to incriminate himself.
The Chamber found that, as the Defence does not intend to utilise the photographs as part of its evidence, there is no proper basis under the Rome Statute that would justify an order for their disclosure to the Prosecution. They are simply part of the Defence background preparatory materials, which are ordinarily protected from inspection.
Lubanga, Redacted Second Decision on Disclosure by the Defence and Decision on whether the Prosecution may Contact Defence Witnesses, Case No. ICC-01/04-01/06, T. Ch., 20 January 2010.