Equality of Arms in International Criminal Law: Continuing Challenges

Abstract

This chapter considers the meaning of “equality of arms” between the prosecution and defense in modern international criminal law. The analysis reveals the disparity between the theory and practice, and shows how this oft mentioned principle in the jurisprudence and the literature is a lofty goal that seems to be applied feebly. The paper starts out by examining how international criminal courts define and apply the phrase in concrete cases, and offers multiple examples of courts shying away from ensuring the substantive equality of the parties in favor of reading the right as a mere procedural guarantee. Following a brief discussion of the link between equality of arms and the right to a fair and public trial, the authors argue that equality of arms is more than a simple fair trial right; it is an expansive institutional entitlement which is impacted by the lack of structural independence of defense offices in all but one international criminal court. The chapter uses the glaring inequality in investigative resources between the prosecution and the defense as a case study to advocate for special attention to the substantive enjoyment of equality of arms during the important investigative stages of such trials. In addition, the authors assess the out-of-court structural and resource inequalities that further stack the deck against defendants. They show how greater prosecution compliance with the statutory duty to collect and disclose both incriminating as well as exculpatory evidence in the permanent International Criminal Court could serve as one mechanism to help improve the substantive position of the defense and the fairness of international criminal trials.