The integrity of international criminal justice depends upon a fair balance being struck between the rights of individuals suspected of violations of international humanitarian and human rights law and the rights of the Prosecution in investigating and prosecuting those suspected of committing such violations, on behalf of victims and the international community.
There are a number of identifiable objectives of the international criminal justice system. Those objectives can be categorised into overlapping subheadings such as discovering truth, bringing justice for victims, and maintaining the rights of the accused. How those objectives are achieved involves considering the role played by such matters as: the presumption of innocence and the standard of proof, the defendant’s right to silence, transparency and public justice, the roles of the judge, the prosecutor, defence counsel, investigators and respect for fair trial principles. The principle of fairness in international criminal litigation constitutes a fundamental human right reflected in the jurisprudence of international institutions.
The principle of equality of arms is classified as a sub-principle of fairness, whereby the accuser and the accused must be treated equally before the law. This approach is clearly endorsed in various instruments of international tribunals, and is reflected in the right to legal counsel at the expense of the Tribunal where the accused is indigent, the presumption of innocence and the requirement that guilt must be proven beyond reasonable doubt.
What then is equality of arms? As the ICTY stated in the Prosecutor v. Tadic, (Appeals Chamber), July 15, 1999 para. 43, 44, 48, 52: “equality of arms is an expression that means that each party must have a reasonable opportunity to defend its interests “under conditions which do not place him at a substantial disadvantage vis-a-avis his opponent.” The Appeals Chamber went further to state that “this principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every practical facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.” For the Prosecution and the Defence to be equal before the Chamber, we have to look at the issues from two angles:
A. Scope of the principle of equality of arms:
The first issue to be examined is whether equality of arms is to be construed as embracing not only procedural equality but also substantive equality. Equality between the parties entails equal opportunities to prepare for a trial. An essential element of a fair trial is that the defence must have adequate time to prepare their case. What time is considered adequate depends on the circumstances of the case.
A more difficult question is whether equality of arms also requires equality of resources between the parties. This has been a problem for all the international tribunals, including the Nuremberg Tribunal, Tokyo Tribunal and ICTR, ICTY,and in East Timor and Kosovo. In general, the defence has not received the institutional support that has been received by the Prosecutor. The Defence Office of the Special Court presents an improvement on the other courts in this respect.
Although it is clear that the question of equality of arms cannot be reduced to an exact equation, there must, in the least, be an approximate equality in terms of resources. Any substantial inequality will call into question the fairness of the trial. This is not a question of mathematics but, rather, of ensuring that the accused has adequate resources to defend the particular case.
Other situations of inequality may occur where a government or international organisation may have granted the prosecution access to archives or materials, but is unwilling to do the same for the defence. This has sometimes been the case in the past, particularly with humanitarian organizations such as the ICRC (International Committee of the Red Cross).
Although the accused’s right to examine witnesses does fall under the rubric of equality of arms principle, the effect of protective measures on that principle is not usually examined by the Tribunals. The reasoning of the Tribunals is usually focused on the broader concept of a “fair trial” and the necessity of balancing that general right with the Tribunals’ obligations under the various statutes. In terms of its effect on equality of arms between the parties, the regime of protective measures is available to the defence as to the prosecution. But as the defence does not have the same obligations to disclose as the prosecution, the prosecution is not as disadvantaged in the preparation of its case. In most instances where protective measures are granted to the defence, these measures will be limited to non-disclosure by the prosecution to third parties and the public in general but not non-disclosure to the prosecution.
A further crucial issue is the extent to which the reliance by international tribunals on human rights principles which were formed in the domestic context is really fair in the context of an international trial. Given the complexity of international proceedings, and the volume of documentary material on which the cases rely, such proceedings cannot be equated with those of domestic criminal proceedings from which that interpretation of equality of arms arises.
B. Institutional structure and personnel of the prosecution and defence offices:
Does the principle of equality of arms require that the prosecution and defence be represented by lawyers of equal standing (both in criminal law and international criminal law.)? In international settings, proper qualifications and experience are as important as before national courts. While national criminal proceedings may be as complex and intellectually challenging for an attorney, it is fair to say that international criminal proceedings add a further dimension to the functions and requirements of all lawyers involved in the proceedings.
Is there a need for an autonomous Defence office in the structure of a tribunal like the Special Court, able to conclude its own agreements, etc.? Defence counsel and investigators need freedom to operate in the States in which evidence is located. In the Statutes of international criminal tribunals, they are often given far fewer powers, privileges and immunities than their prosecutorial counterparts. In the definition Section of the Statute of the ICC, Defence counsel are not even mentioned.
As international prosecution becomes more established and professional, international defence that remains ad hoc. Consequently, efforts at expanding the role of international criminal law are hampered by criticisms that defendants are being denied the right to equality of arms. International criminal prosecutions are a distinct breed , they should not be regulated merely by reference to analogous international conventions and national laws. More thought should be given to how to strengthen the Defence in these trials.