DEFENCE CHALLENGES IN TERMS OF “EQUALITY OF ARMS” BEFORE INTERNATIONAL COURTS
Abstract
The paper deals with issues that caused problems for the defence during the preparation and presentation of the case before the international criminal courts. Since equality of arms is broad concept and encompasses different guarantees and rights of the accused, it was necessary to curtail the content of the paper toward jurisprudence of ICTY, ICTR and ICC regarding different rules. Aiming at getting overall picture regarding defence challenges before international criminal tribunals and ICC, this paper refrains from an in-depth analysis of particular aspects of equality of arms. Notably, according author’s opinion, each equality of arms’ aspect deserves much deeper and kind-of jurisprudential approach to be fully analyzed in terms of clarification and resolving different points of view, values and argumentation.
A fair trial is the only means to do justice, that otherwise could not be done. Equality of arms should be inevitably understood as a necessary condition for assessing the proceedings as adversarial within common law criminal system’s meaning and both principles are considered to be fundamental aspects of the right to a fair trial. Fair trial principle should be linked to the rule of law. Therefore in the paper, term “equality of arms” is used as a term with common meaning and significance in human right doctrine. The main ratio of this term is balance in the rights of parties during proceedings, equal opportunities, means and resources, budgetary issues for indigent defendants.
A fair balance is being struck between the competing rights of individuals suspected of violations of international humanitarian and human rights law, from one side, and the rights of the Prosecution in investigating and prosecuting suspected persons on behalf of the victims and the international community, from the other side. It is true that fair trial concept is fully provided by the statutes of the international courts, but legal text are not sufficient for having strong and effective defence from institutional point of view.
Unlike ICTY and ICTR created by UN Security Council, the Rome Statute adopted a state-oriented approach. There are issues related to unequal state cooperation depending upon the position of the accused, so that Tribunals emphasized rather procedural nature of equality of arms, by accepting notions from Prosecutor regarding equality of arms. However, there is material inequality between the prosecutor and the defence before international courts in respect of preparation of the case, since defence is not an organ of the court, it lacks material, human and financial resources, has difficulties in undertaking proper investigations, lacks state cooperation. Prosecutor has whole machinery behind him – personnel, money, state cooperation, advantages in undertaken investigation years before the defence has be actually involved in the whole case. Due to this inequality, it is very difficult to justify interpretations that only equality before the court in respect of equal opportunity for presenting the case (s.c. formal or procedural equality) is enough for understanding the equality of arms as a principle that Prosecutor can be entitled with.
