"Equality of Arms": Guiding Light or Empty Shell?

The right to a fair trial entails respect for the principle of ‘equality of arms’, a generally recognised inherent element of the due process of law in both civil and criminal proceedings. At the core of the concept of ‘equality of arms’, as elaborated in domestic and international case law, is the idea that both parties should enjoy equal treatment and procedurally equal positions during the whole course of the trial. Fundamental procedural safeguards aimed at securing such equality are guaranteed in most domestic legal orders, enshrined in human rights treaties and other relevant international instruments, and set out in the Statutes and Rules of the major international courts and tribunals. The duty incumbent upon international courts to ensure procedural balance between the parties is amplified when related to proceedings involving the protection of individuals. Adherence to procedural fairness, as a means to the achievement of substantive equality, thus becomes the critical test of international courts’ legitimacy and credibility. Following this line of thought, the chapter attempts to highlight the pivotal role played by the principle of ‘equality of arms’ in the sound administration of international justice. Assuming that the concept of ‘equality of arms’ is deeply rooted in the conscience of international judges just as much as it inspires domestic proceedings, it is here submitted that this principle belongs to the category of those basic rules lying at the heart of international procedural law. To lend support to this argument, Section II draws upon international case law, focusing on the jurisprudence of major international courts such as the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights and the Court of Justice of the European Communities. Special attention is devoted to international criminal proceedings, since compliance with internationally recognised human rights has come to be considered as a ‘super-legality’ test. To this end, Section III offers a survey of the most relevant decisions of international criminal tribunals with reference to some of the most debated and controversial domains where the ‘equality of arms’ tenet demands attentive compliance (ie drafting of indictments, participation of the accused to the proceedings and trials in absentia, access to legal assistance and legal aid programmes, allocation of adequate resources and facilities to the benefit of defence teams, and disclosure of ). Section IV explores the remedies that international criminal procedure makes available to defendants in case of violation of their right to fair trial as resulting from a serious disregard of ‘equality of arms’ requirements. Existing défaillances, as emerged so far from the practice of ad hoc Tribunals, and possible improvements in the protection of the right to relief are highlighted. This chapter suggest that the principle of ‘equality of arms’ is one of the basic linchpins of the whole system of international criminal justice. Judicial practice concerning its interpretation and application, especially in proceedings before ad hoc Tribunals, can indeed provide an important contribution to the evolving law of international criminal procedure towards the strengthening of fair trial guarantees.