Equality of Arms in International Criminal Law: Continuing Challenges

Authored by: Charles Chernor Jalloh , Amy DiBella

The Ashgate Research Companion to International Criminal Law

Print publication date:  May  2013
Online publication date:  March  2016

Print ISBN: 9781409419181
eBook ISBN: 9781315613062
Adobe ISBN: 9781317043157


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Equality of arms is a key principle of the international criminal justice system. It encompasses many other procedural promises of a trial, such as the right to public hearings and the right of the defence to examine witnesses under the same conditions as those for prosecution. It is part of the overarching concern for fair trial which weighs into nearly every critical decision. Despite multiple judgments, decisions, briefs and scholarly articles stating the theoretical importance of equality of arms, its practical implementation is left in want. A vast disparity in resources between defence and prosecution has been well-documented in each of the ad hoc tribunals as well as in the permanent International Criminal Court (ICC). 1 1

See for example E Groulx, ‘“Equality of Arms”: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System’ (2006) 3 Oxford University Comparative Law Forum <http://ouclf.iuscomp.org/articles/groulx.shtml> last accessed 11 December 2011; JT Tuinstra, Defence Counsel in International Criminal Law (TMC Asser Press, The Hague 2009); RJ Wilson, ‘“Emaciated” Defense or a Trend to Independence and Equality of Arms in Internationalized Criminal Tribunals?’ (2008) 15 Human Rights Brief 6.

With the exception of the Special Tribunal for Lebanon (STL), the structural position of the defence has been subordinated to the prosecution, as well as to Chambers and the Registry, in each of these courts. 2 2

Groulx (n 1) (discussing the ‘basic concept’ of a third pillar).

The lobby outside of the ICC courtrooms bears symbolic testimony to this in the framed pictures of the Judges, the Registrar and Deputy Registrar alongside those of the Prosecutor and Deputy Prosecutor. The ICC does not appear to be exceptional in this as the ICTR lobby is similarly adorned with photographs of its principals without the defence.

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