Unmasking Equality of Arms

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Unmasking Equality of Arms

Yolanda C. Rondon^Bio

Abstract

The principle of equality of arms provides all parties the protection of a fair trial. What is fair? The courts’ answer is to afford every party a reasonable opportunity of presenting its case to the court under conditions which do not place it at a substantial disadvantage vis-à-vis its opponent. However, procedural equality does not always equate to actual and effective equality. Under the current “substantial disadvantage” standard, violation of the right itself is not enough to afford protection. The principle is enforced only when a party can prove it has suffered irreparable prejudice.

Arbitrary application of the principle at international criminal tribunals constrains the purpose of equality of arms. This article discusses three alternative standards to the “substantial disadvantage” standard. This Note concludes that the “substantial disadvantage” standard plus an appearance of equality of arms may resolve the problems under the current standard and provide actual realization of the right to equality of arms.

Introduction

“Justice must not only be done, it must also be seen to be done.”¹

 The principle of “equality of arms” is violated if the party is not afforded a reasonable opportunity to present its case in conditions that place it at a substantial disadvantage vis-à-vis its opponent.² To date, international criminal tribunals³ have applied this substantial disadvantage standard to decide claims of inequality of arms.⁴ Yet, as applied, the substantial disadvantage standard is nearly unattainable. In addition, the standard provides no clear definition or guidance to Appeals Chamber judges in reviewing trial chamber decisions and judgments. Furthermore, in practice, international criminal tribunals find ways to navigate around the principle of equality of arms and refrain from ruling that the principle is violated even when the tribunals recognize there was inequality.

This Note demonstrates why automatic acquiescence to the current standard of equality of arms in international criminal proceedings may not be optimal in comparison to a broader application of the “appearance of equality of arms.” Part I, provides a brief history of the development and recognition of the principle of equality of arms. Part II, critiques the substantial disadvantage standard currently applied at international criminal tribunals. Part II continues by briefly examining two alternative standards of equality of arms. The first is the current “substantial disadvantage” standard with the addition of an objective test. The second is a “disadvantage” standard. Part III, examines and endorses the “substantial disadvantage” standard plus the “appearance of equality of arms” as enumerated by the European Court of Human Rights (“ECtHR”).⁵ The analysis of these alternatives leads to the conclusion that the International Criminal Court (“ICC”) should adopt the ECtHR approach of the “appearance of equality of arms.”

I. Once Upon a Time Fair Trial Rights

1. A.             Genesis of Equality of Arms

The term “equality of arms” was coined in European human rights law.⁶ One of the first cases to address the principle was Kaufman v. Belgium. In this case, the European Commission of Human Rights (“European Commission”) examined a claim of inequality of arms in a civil proceeding.⁷ The European Commission noted that the right to a fair trial includes the principle of equality of arms.⁸ In an off-cited passage the European Commission established that the principle of equality of arms “entails a party shall have a reasonable opportunity of presenting [its] case to the court under conditions which do not place [it] at a substantial disadvantage vis-à-vis its opponent.”⁹ Applying the “substantial disadvantage” standard, the European Commission in Kaufman held that the petitioner’s right to equality of arms was not violated where the petitioner was unable to respond to opposing counsel’s memorandum in reply.¹⁰ The European Commission concluded that the petitioner failed to establish that it suffered prejudice.¹¹ Consequently, the petitioner’s claim of inequality of arms was ill founded.¹² The European Commission concluded that the petitioner’s failure to defend his interests even though he was provided reasonable opportunity to do so did not equate to violation of his right to a fair trial.¹³

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