Written by: Tosin Osasona [1]

The concept of equality of arms has a dinstinctive European origin and can be traced back to the medieval era, when dispute was settled by ordeal of trial by battle. Because the trial would be to death, a rigid set of rules were put in place to ensure parity between contestants and each contestant was put at par in terms of armament and armor.[2] This worldview midwived the common law system of adversarial proceeding.

 

In contemporary times the European Court of Human Rights relying on the European Convention on Human Rights has been responsible for re-conceptualizing and articulating the principles of the concept of “equality of arms” at trial. Article 6 of the European Convention on Human Rights embodies the concept. The European Court of Human Rights in Bulut v Austria[3] defined the concept as “that both in criminal and non-criminal cases ‘everyone who is a party to such proceedings shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-à-vis his opponent.” The court has also come to define the concept to include access to resources and facilties, when it held in Steel and Morris v United Kingdom that the financial resources available to the accused undoubtedly impacts on the quality of legal representation he gets and that the denial of legal aid to the applicants had put them in an unacceptable state of inequality.[4]

While the concept of equality of arms is not specifically defined or mentioned in the Statutes of any international criminal tribunal or in any international human rights treaty, it is widely acknowledged to be a fundamental element of the right to fair trial principle and a scale through which the requisite procedural fairness in any criminal proceeding can be measured.[5] The Human Rights Council of the United Nations in its interpretation of article 14(1) of the International Convention on Civil and Political Rights, has established a nexus between the right to fair hearing and the right to equality before the courts.

Furthermore, The ICTY Appeal’s Chamber in Kordic averred that the principle of equality of arms is one of the features of the wider concept of a fair trial.[6] The Chamber in Tadic stated cartegorically that “The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”[7] The Chamber in Tadic conceptualized the concept in three ways: first, the right of the accused to have adequate time to prepare for his defense and this right is at par with that possessed by the prosecution; second, court engendered and enforced procedural equality of the parties before the Chamber and finally, the adoption of protective measures including the grant of limited immunity from prosecution in form of safe conduct; the utilization of evidence through deposition and video conferencing link; the issuance of binding orders to state to produce evidence in its custody; utilizing the power in the form of subpoena, in compelling a witness to produce evidence for the defense and the possibility of the court conceptualizing that a fair trial is impossible in certain instances because of the interest and involvement of state parties.[8]

Article 67 of the Statute of the International Criminal Court (ICC) which replicates article 14 of the International Covenant on Civil and Political Rights contains a number of specific rights granted to the accused person and provides for the right to adequate time and facilities for the preparation of his defense and the right to free and confidential communication with the counsel of his choice. Rule 121(3) of the Rules of Evidence ad Procedure also provides for a requisite time frame before certain procedural steps are taken. Regulations 97 and 98 of the Court protects the rights of the accused person in the areas of confidentiality of correspondence with his counsel and consular representatives.Beyond the right to mount an effective defense, the Statute of The Court equally embodies provision that allows the accused person to test the veracity of evidences adduced against him, by examining the witnesses adducing evidence against him, including witnesses called by the court.[9]

On March 14, 2012 Thomas Lubanga Dyilo had the dubious honor of being the first person tried and convicted by the ICC and the trial offers the unique template to evaluate the concept of euality of arms in international criminal justice using proportionality of resources and facilities, disparities in time and number of witnesses and state cooperation and access to evidence as measuing tools.

Although Goran have coldly opined that “full equality between the prosecution and defense is an idle aspiration from a practical perspective,”[10] the question whether the resources and facilities available to the defense is sufficient is not primarily related to the quantity or quality of the resources deployable by the defense but a question of the nature of the trial system. There seem to be a consensus among scholars that the procedure before the ICC is a mixed one in that it contains structural elements or building blocks of both the adversarial and the inquisitorial systems.[11] But the defence team in the Lubanga case are of a different opionion, stating that “Court’s procedural rules are essentially based on the common law system, in which the Prosecutor investigates and leads the prosecution at trial, whereas the Defense conducts its own investigations, challenges the evidence of the Prosecutor, calls its own witnesses and tenders it’s own evidence.”[12]

If one juxtaposes the proportionality of resourses available to the prosecution and the defense in the Dyilo Lubanga’s case and consider if this substantially affected the outcome of the fairness of the trial will help to determine the nomenclature of justice delivered by the court. Services and structures which qualitatively aid the defense in articulating its position and are sine qua non to any fair trial was skewed in the favor of the prosecution.

The Office of the prosecution is a distinct statutory organ of the court and the Office functions independently of the Judiciary and Registry of the ICC, and the Prosecutor alone has full authority over the management and administration of his office.[13]Contrastingly, The Rome Statute strangely created no independent institution or structure to represent defense interests or to support them. In 2006 in order to address the glaring structural inequality of arms, The Office of Public Counsel for the Defense was created. Administratively, the office falls under the registry.

The Lubanga’s defense team is meagerly composed of of one counsel, one assistant and one case manager at the pretrial stage and this resulted in the resignation of the lead counsel and the appointment of a new counsel, Ms Catherine Mabille, who only accepted her designation as the lead counsel following a Registrar’s decision granting to the Defence team of Mr Lubanga additional resources especially the appointment of a co‐counsel, one additional legal assistant and an investigation’s budget.[14] This team had to deal with approximately 700 exhibit (disclosed between the warrant of arrest and the decision on the confirmation of charges), around 2 500 (disclosed between the confirmation of charges and the beginning of the trial) and around 2 900 throughout the trial itself. The Registry recorded 796 filings between the warrant of arrest and the decision on the confirmation of charges, 848 between the decision on the confirmation of charges and the opening of the trial, and 1190 throughout the trial itself and 70 hearings took place before the opening of the trial.[15]

The composition of the defense team pales into insignificance when contrasted with the prosecution team that benefits from teams of professional investigators, and in Court, of a higher number of prosecutor’s representatives, but also benefits from the support of specialized sections in different fields, services of external consultant on various specific questions, and has at its disposal its own translation and interpretation units. Or how does one justify the fact that the prosecutor has had twenty researchers out in the field making a case against Lubanga, whereas his defense was only able to afford a single person.[16]

The integrity and acceptability of the international criminal justice process depends upon a fair balance being struck between the competing 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 the victims and the international community. This fair balance requirement enjoins the respect for the basic human rights thresholds in criminal trial that are found in the criminal jurisprudence of domestic legislations and in international jurisprudence at the expense of any other competing end. If the trial at the ICC would not be perceived as the judicial lynching of yesterday’s men of power by a world complicit in their crimes, then the requirements of the principle of equality of arms must adhered to.

Equality of arms is a basic right in criminal trial and not a dispensable ideal to be approached in careful incremental steps.

 

 

 

 

 

 

[1]Works as a research associate in a think-tank based in Lagos, Nigeria. He has crosscutting experience in legal practice, human rights research, advocacy and civil society engagement. He is interested in the use of juridical procedures, research and advocacy towards the enhancement of human rights and the rule of law.

[2]Jay Sterling Silver, “Equality of Arms and the Adversarial Process: A New Constitutional Right” (1990 Wisconsin Law Review) 1007, p. 44

[3] ECHTR, NO. 17358/90

[4] (2005) EMLR 314

[5]R.J Toney “English Criminal Procedure Under Article 6 of the European Convention on Human Rights: Implications for Custodial Interrogation Practices” (2002) 24 Houston Journal of International Law 411,p. 438

[6] Prosecutor v Dario Kordic & Mario Cerkez , it-95-14/2-a, decision on application by mario cerkez for extension of time to file his respondent’s brief, para 5

[7] Judgement, Tadic (Case No. It-94-1-a),para 44

[8] Id para 52-54

[9] Article 67(1)(e)

[10] Zahar, Alexander And Sluiter, Goran, International Criminal Law: A Critical Introduction (Oxford UK;: Oxford University Press, 2008), p. 293

[11]Fernandez de Gurmendi, “The Elaboration of the Rules of Procedure and Evidence”, in: Lee (ed.), ICC. Elements of Crimes and Rules of Procedure and Evidence, (2001), p. 251: Kai Ambos, International criminal procedure: “adversarial”, “inquisitorial” or mixed?, International Criminal (Law Review 3,2003), p.3

[12]Response from the defense teams of Mr. Lubanga, Mr. Bemba, Mr. Mbarushimana, Mr. Ngudjolo and Mr. Banda & Mr. Jerbo to the Registry’s “discussion paper on the review of the ICC’s Legal Aid System,” sourced from www.iccnow.org/documents/Joint_Observations_re_Legal_Aid_ET1.pdf- accessed on12/06/2012

[13] Article 34 of the ICC Statute.

[14] ICC‐01/04‐01/06‐845, ICC‐01/04‐01/06‐927, ICC‐01/04‐01/06‐928.

[15]Response from the defense teams of Mr. Lubanga, Mr. Bemba, Mr. Mbarushimana, Mr. Ngudjolo and Mr. Banda & Mr. Jerbo to the Registry’s “discussion paper on the review of the ICC’s Legal Aid System,” sourced from www.iccnow.org/documents/Joint_Observations_re_Legal_Aid_ET1.pdf- accessed on12/06/2012

[16] Sourced from www.iccwatch.org/iccfaq.html- accessed on 12/06/2012