Commentary on Sections Part 3: Other Forms of Assistance Section 39: Matters prejudicial to national security
70.This section provides that nothing in this Part or in the corresponding provisions of any Act of the Scottish Parliament requires or authorises documents or information to be disclosed where this would be prejudicial to national security. This section must be read in light of the obligations of a State Party under the ICC Statute. Under Article 93.4 of the Statute, a State Party may deny a request for assistance, in whole or part, if the request concerns the production of any documents or disclosure of evidence which would be prejudicial to its national security interests. If such an issue arises, Article 72 sets out the procedure to be followed and the obligations of the State Party, including to take all reasonable steps to seek to resolve the matter through co-operation with the ICC. It also provides that, if no solution permitting the disclosure of that information is reached and the ICC determines that the evidence is relevant and necessary, the ICC may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.