Ashgate Companion Symposium: DiBella on Equality of Arms in International Criminal Law

SCHABAS JKT(250X172)pathWe are delighted to welcome Amy DiBella for this guest post. Amy is a defence lawyer based in Pittsburgh, Pennsylvania. She wrote her chapter in the Ashgate Research Companion to International Criminal Law: Critical Perspectives with Charles C. Jalloh, Assistant Professor at the University of Pittsburgh. 

In our chapter, “Equality of Arms in International Criminal Law: Continuing Challenges”, we considered the meaning of equality of arms and how is it implemented in international criminal law.

The analysis reveals the disparity between the theory and practice. Although the principle evokes a broad evaluation of fairness, in practice, it is “a lofty goal … applied feebly”. The chapter offers multiple examples of courts shying away from equality and instead embracing a more conservative interpretation of the principle. Rather than require equal resources, the legal principle has been interpreted to require no substantial disadvantage, an adequate opportunity or sufficient time.  Following a brief discussion of the link between equality of arms and the public trial guarantee, the chapter considers how equality of arms is more than a trial right; it is an expansive institutional entitlement which relates to the structural independence of the defence offices.

In section II, entitled “Inequality of Resources”, equality of arms is considered in terms of investigative resources which, we assert, must be jealously guarded at the investigative stages of trial. We asked questions such as “how many prosecutors assist on a single case versus how many on a defence team?” The answers to this and other questions give us numbers which are easy to compare. We looked at the East Timor war crimes panels and the hybrid chamber in the national courts of Bosnia. We considered the staffing and other resources afforded the prosecution at the SCSL, ICTR and ICTY and the disparate treatment of the defence  In one ICTY trial, a defence team was limited to 30 witnesses, while the prosecution was permitted 50. These are simple numbers and measures and it seems that the Court could easily remedy such inequalities. In fact, our research revealed that the courts have made efforts to re-balance these in-court resources.

However, even the most accommodating of chambers cannot remedy the difficulty of getting the witnesses into the courtroom in the first place. Therefore, in addition to considering the in-court situation, we consider the out-of-court situation, in which the structural and resource inequalities are firmly rooted in history and politics. These are not questions of numbers, but instead, look to the ability of the defence to obtain witnesses and to enter countries; whether defence is protected by the privileges and immunities sufficient to conduct investigation. These out-of-court resources are not capable of manipulation by the judges, at least, not in the same way that the court can control the numbers of defence and prosecution witnesses, or time to present a case. Moreover, structural inequalities are exacerbated by politicization of the trials, as well as the political nature of the conflicts which lead to the charges. These investigative resources, and in particular those out-of-court and out-of-country, provide substantial challenges to equality of arms for international trials, and seem to evade the in-court remedies. However, the following section considers and proposes that a modest procedure—disclosure—may serve as one mechanism to improve the circumstances of the defence and bring defence teams closer to equal footing with the prosecution.

The chapter asks very basic questions: what is equality of arms and how is it implemented and attempts to provide a few answers. Our modest analysis of this broad, complex and indefinable human rights principle serves as a starting point for discussions of how we can conform practice to better fit the theory rather than sacrificing theory to justify practice.

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