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Equality of Arms – Guiding Light or Empty Shell?
Stefania Negri
Published
in
INTERNATIONAL CRIMINAL JUSTICE:

A CRITICAL ANALYSIS OF INSTITUTIONS AND PROCEDURES
Edited By Michael Bohlander
1 905017 44 8
CAMERON MAY LTD

EQUALITY OF ARMS – GUIDING LIGHT OR EMPTY SHELL?1
Stefania Negri*
I. Introduction
The right to a fair trial entails respect for the principle of ‘equality of
arms’, a generally recognised inherent element of the due process of
law in both civil and criminal proceedings. Strict compliance with this
principle is required at all stages of the proceedings in order to afford
both parties (especially the weaker litigant) a reasonable opportunity to
present their case under conditions of equality. At the core of the concept
of ‘equality of arms’, as elaborated in domestic and international case
law, is the idea that both parties should enjoy equal treatment and
procedurally equal positions during the whole course of the trial.
Fundamental procedural safeguards aimed at securing such equality
are guaranteed in most domestic legal orders, enshrined in human rights
treaties and other relevant international instruments,2 and set out in the
Statutes and Rules of the major international courts and tribunals.
‘Equality of arms’ is generally perceived as the minimum threshold

requirement for all judicial processes to be considered fair, impartial
and consistent with human rights standards. Furthermore, the duty
incumbent upon international courts to ensure procedural balance
*
Associate Professor of International Human Rights Law; lecturer in International
Procedural Law, Faculty of Law, University of Salerno, Italy.
1
This chapter is a revised and extended version of the article ‘The Principle of “Equality
of Arms” and the Evolving Law of International Criminal Procedure’, as published in 5
International Criminal Law Review 513 (2005).
2
Article 14 of the International Covenant on Civil and Political Rights, G.A. Res. 2200A
(XXI) of 16 December 1966, 21 U.N. GAOR Supp. (No. 16), p. 52, U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171, entered into force 23 March 1976; Article 6 of the European Convention
on Human Rights and Fundamental Freedoms, European Treaty Series No. 5, 213 U.N.T.S.
222, entered into force 3 September 1953, as amended by Protocols Nos. 3, 5, 8 and 11,
entered into force 21 September 1970, 20 December 1971, 1 January 1990 and 1 November
1998 respectively; Article 8 of the American Convention on Human Rights, O.A.S. Treaty
Series No. 36, 1144 U.N.T.S. 123, entered into force 18 July 1978; Article 7 of the African
[Banjul] Charter on Human and Peoples’ Rights, adopted on 27 June 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, entered into force 21 October 1986, reprinted in 21 Int’l Legal Mat.
58 (1982); Article 7 of the Arab Charter on Human Rights, adopted on 15 September 1994
(not yet in force), reprinted in 18 Hum. Rts. L. J. 151 (1997). See also Articles 10-11 of the
Universal Declaration of Human Rights, G.A. Res. 217 A (III) of 10 December 1948, U.N.
Doc. A/810 (1948), p. 71; Article 47 of the Charter of Fundamental Rights of the European
Union, 2000 O.J. (C 364) 1, (Dec. 7, 2000); Rule 7 of the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), G.A. Res. 40/33 of
29 November 1985, annex, 40 U.N. GAOR Supp. (No. 53) p. 207, U.N. Doc. A/40/53 (1985).
13
International Criminal Justice: A Critical Analysis of Institutions and Procedures
between the parties is amplified when related to proceedings involving

the protection of individuals. Adherence to procedural fairness, as a
means to the achievement of substantive equality, thus becomes the
critical test of international courts’ legitimacy and credibility.
Following this line of thought, this chapter will attempt to highlight the
pivotal role played by the principle of ‘equality of arms’ in the sound
administration of international justice. Assuming that the concept of
‘equality of arms’ is deeply rooted in the conscience of international
judges just as much as it inspires domestic proceedings, it is here
submitted that this principle belongs to the category of those basic rules
lying at the heart of international procedural law. To lend support to
this argument, Section II will draw upon international case law, focusing
on the jurisprudence of major international courts such as the
International Court of Justice, the European Court of Human Rights,
the Inter-American Court of Human Rights and the Court of Justice of
the European Communities.
Special attention will be devoted to international criminal proceedings,

since compliance with internationally recognised human rights has come
to be considered as a ‘super-legality’ test.3 To this end, Section III will
offer a survey of the most relevant decisions of international criminal
tribunals with reference to some of the most debated and controversial
domains where the ‘equality of arms’ tenet demands attentive
compliance (ie drafting of indictments, participation of the accused to
the proceedings and trials in absentia, access to legal assistance and legal
aid programmes, allocation of adequate resources and facilities to the
benefit of defence teams, and disclosure of ).
Section IV will explore the remedies that international criminal

procedure makes available to defendants in case of violation of their
right to fair trial as resulting from a serious disregard of ‘equality of
arms’ requirements. Existing défaillances, as emerged so far from the
practice of ad hoc Tribunals, and possible improvements in the protection
of the right to relief will be highlighted.
The ensuing discussion will suggest that the principle of ‘equality of

arms’ is one of the basic linchpins of the whole system of international
criminal justice. Judicial practice concerning its interpretation and
application, especially in proceedings before ad hoc Tribunals, can indeed
provide an important contribution to the evolving law of international
criminal procedure towards the strengthening of fair trial guarantees.
3
On the concept of ‘international super-legality’, see Alain Pellet, ‘Applicable Law’, in II
The Rome Statute of the International Criminal Court: A Commentary 1051 (Antonio Cassese,
Paola Gaeta & John R.W.D. Jones eds. 2002), at 1079-82.
14
II. The Nature and Scope of the Principle of ‘Equality of Arms’ in

International Procedural Law
International procedural law has progressively affirmed itself as ‘an

autonomous discipline of international law’.4 Although a generally
accepted theory of international procedure is still in progress, a tendency
is clearly discernible in the practice of international courts towards a
coherent recourse to a set of basic general principles of procedural law.
Such principles establish the minimum procedural standards and
guarantees lying at the core of all judicial processes. Amongst such
fundamental rules, the principle of equality between the parties is one
of the most important general principles of law governing international
judicial procedure. Its prominence was early recognised in international
law literature5 and in arbitral case law.6 As such, this principle is also
‘codified’ in the Statutes and Rules of various international courts and
tribunals.7
4
The quote is from Giuliana Ziccardi Capaldo, Répertoire de la Jurisprudence de la Cour
internationale de Justice/Repertory of Decisions of the International Court of Justice (1947-1992) (1995),
Foreword, at lxvii (hereinafter Repertory). In the same direction, see Shabtai Rosenne, who
refers to ‘the development of procedural law … which is now an autonomous branch of
international law’ (The Law and Practice of the International Court 1920-1996 (1997), Vol. III:
Procedure, at 1070). On the contribution of the Court to the development of international
procedural law, see Ziccardi Capaldo, Repertory, Vol. II: Procedural Law; Id., ‘Tendenze evolutive
della politica giudiziaria della Corte internazionale di Giustizia’, in Il Ruolo del giudice
internazionale nell’evoluzione del diritto internazionale e comunitario 257 (Francesco Salerno ed.
1995), at 260, 265, 269; Id., ‘Global Trends and Global Court: The Legitimacy of World
Governance’, 4 The Global Community YILJ 2004 127 (2005-I), at 134, 143-145. For further
investigation of the topic, with special regard to general principles of procedural law as
emerging from the Court’s case law, see Stefania Negri, I Principi Generali del Processo
Internazionale nella Giurisprudenza della Corte Internazionale di Giustizia (2002), with further
bibliographic references in footnote 4, at 14-5. This monograph represents an effort to
systematise the most relevant case-law produced by the Court and other major international
tribunals in the direction of a growing consensus on the interpretation and application of
general principles of international procedural law, and especially of the principle of equality
of the parties. In this conception and redaction much inspiration and guidance were drawn
from the suggestions of Professor Giuliana Ziccardi Capaldo and her writings cited supra.
5
See eg, J.C. Witenberg & Jacques Desrioux, L’organisation judiciaire, la procédure et la
sentence internationales (1937), at 167, 176, 213; Bin Cheng, General Principles of Law as Applied
by International Courts and Tribunals (1953), at 290 et seq.; Angelo Piero Sereni, Principi generali
di diritto e processo internazionale (1955), at 67 et seq.
6
See the relevant awards reported in Répertoire de la Jurisprudence Arbitrale Internationale
- Repertory of International Arbitral Jurisprudence (Vincent Coussirat-Coustère & Pierre-
Michel Eisemann eds. 1989, 1991).
7
Besides the provisions that will be recalled below, see Article 5 of the Statute of the
Central American Court of Justice (‘Los procedimientos previstos en este Estatuto y los
que se establezcan en los reglamentos y las ordenanzas, tendrán por finalidad … la
igualdad de las partes y la garantía del debido proceso’) and Article 15(1) of the Rules of
the Iran-United States Claims Tribunal, reproducing verbatim Article 15(1) of the Uncitral
Rules (‘1. Subject to these Rules, the arbitral tribunal may conduct the arbitration in such
manner as it considers appropriate, provided that the parties are treated with equality
and that at any stage of the proceedings each party is given a full opportunity of presenting
his case’).
15
As it emerges from international jurisprudence, ‘equality of the parties’

is at once a substantive as well as a procedural principle. In its substantive
sense, it requires that equality of treatment be ensured to the parties
during the whole course of the proceedings. From a procedural
perspective, it aims at securing them enjoyment of the same procedural
rights and guarantees, which means that the parties involved in
international proceedings are to be granted ‘equal opportunities’, inter
alia, in terms of production of pleadings and pieces of evidence within
the same terms, of submission of the same number of briefs and
comments, of allowance of equal time and means for preparation of the
defence, of entitlement to reply to and comment on the other party’s
allegations and supporting evidence, and of equal access to judicial
remedies. Actually, equality of opportunities to present one’s case
substantiates the very concept of ‘equality of arms’, its purpose being to
ensure that judicial proceedings comply both with the principle of
procedural fairness and with international law. Fair trial is in fact
recognised as ‘a requirement of customary international law’.8
The most outstanding contribution to the affirmation of the principle of

‘equality of arms’ at international level is provided by the jurisprudence
of the International Court of Justice and of the European Court of Human
Rights.
The case law of the International Court of Justice offers substantial

guidance for interpreting and applying the principle of ‘equality of arms’
in inter-State contentious proceedings. The Court in fact played a
prominent role in the reconstruction, interpretation and formulation of
what it defined as ‘general principles governing the judicial procedure’,9
‘universal and necessary … principles of procedural law’,10 ‘elementary
principles of judicial procedure’,11 or ‘general principles as to the judicial
process’.12 In outlining the contours and ambits of application of these
principles the Court often took an innovative approach, either giving a
particular interpretation of the principle under consideration, or arriving
at original solutions as to the possibility of extending its application
beyond its statutory and regulatory provisions. Sometimes the Court
8
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber, Judgment, 24
March 2000, para. 104 (as summarised by Stefania Negri in 2 The Global Community YILJ
2002 749 (2003-II), at 753; hereinafter Aleksovski Appeal Judgment).
9
Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal (Advisory Opinion of 12 July), 1973 I.C.J. 166, para. 30, at 177; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), 1986 I.C.J. 14 (Merits
Judgment of June 27), para. 60, at 40.
10
South West Africa, Second Phase (Ethiopia v. South Africa; Liberia v. South Africa), 1966
I.C.J. 6 (Judgment of July 18), at 36.
11
Application for Review of Judgement No. 273 of the United Nations Administrative
Tribunal, 1982 I.C.J. 325 (Advisory Opinion of July 20), para. 59, at 356.
12
Military and Paramilitary Activities, supra note 9, para. 58, at 39.
16
also elaborated new principles of international judicial procedure

drawing inspiration from the general theory of process.13
Special emphasis was laid by the Court on the principle of equality of

the parties as one of the most important ‘requirements of good
administration of justice’, 14 ‘a basic principle for the Court’.15 The
contribution of its case law to the progressive development and
affirmation of procedural rules enhancing protection of the ‘equality of
arms’ tenet has elsewhere been given adequate consideration.16 Suffice
it to recall, for the purposes of the present chapter, that in exercising its
jurisdiction, the Court always paid the utmost attention to the protection
of the respective rights of the parties, thus granting to both sides a fair
opportunity to present their cases. It has also endeavoured, to the best
of its ability, to counterbalance the parties’ opposing interests adopting
any such measures as deemed necessary and appropriate for the sound
administration of international justice. Although its Rules contain several
provisions aimed at ensuring respect for equal procedural rights and
observance of the principle audi alteram partem,17 the Court has often felt
the need to adapt the provisions governing its procedure to the case sub
judice in order to afford equal treatment to both parties. By way of
example, this approach was used for the purpose of achieving ‘equality
of arms’ in matters of deadlines for the submission of pleadings,18 of
13
See extensive discussion in Negri, I Principi Generali del Processo Internazionale, supra
note 4; Id., ‘The Principle of “Equality of Arms”’, supra note 1, at 523-31.
14
Judgments of the Administrative Tribunal of the I.L.O. upon Complaint made against
the U.N.E.S.C.O., 1956 I.C.J. 77 (Advisory Opinion of Oct. 23), at 86.
15
Military and Paramilitary Activities, supra note 9, para. 31, at 25; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia) 1993 I.C.J. 325 (Provisional Measures Order of Sept. 13), para.
21, at 337; Request for an Examination of the Situation in Accordance with Paragraph 63
of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France)
Case, 1995 I.C.J. 288 (Order of Sept. 22), para. 28, at 296.
16
See Negri, I Principi Generali del Processo Internazionale, supra note 4, Chapters III-IV.
17
See, eg, Article 31 on consultation with the agents of the parties; Article 35 on the
appointment of judges ad hoc; Article 44 on the right to state one’s views on the other
party’s request for an extension of time-limits; Article 56 on consent to the production
and right to comment on late documents; Article 57 on the duty to communicate in
sufficient time before the opening of the oral proceedings information regarding any
evidence which the party intends to produce; Article 60 on transmission in writing of
final submissions to the other party; Article 72 on the right to comment on additional
evidence or explanations requested by the Court; Article 76(3) on the opportunity granted
to the parties of presenting their observations on revocation or modification of interim
measures. On the maxim audi alteram partem, see Nuclear Tests (Australia v. France), 1974
I.C.J. 253 (Judgment of Dec. 20), para. 33, at 265; Nuclear Tests (New Zealand v. France),
1974 I.C.J. 457 (Judgment of Dec. 20), para. 34, at 469; see also Ziccardi Capaldo, Repertory,
supra note 4, Volume II, at 775, 797, nos. 2155, 2176.
18
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain), 1994 I.C.J. 112 (Jurisdiction and Admissibility Judgment of July 1), para. 39;
1995 I.C.J. 6 (Jurisdiction and Admissibility Judgment of Feb. 15), para. 49; 1995 I.C.J. 83
(Order of April 28); 1996 I.C.J. 6 (Order of Feb. 1).
17
allowance of additional pleadings in reply to counter-claims,19 and of

proceedings in absentia.20 This tendency to interpret statutory and
19
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), 1997 I.C.J. 243 (Counter Claims Order of
Dec. 17), para. 45, at 260; Case Concerning Oil Platforms (Islamic Republic of Iran v. United
States of America), 1998 I.C.J. 190 (Counter-Claim Order of March 10), para. 45, at 206;
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea Intervening), 2001 I.C.J. 9 (Order of Feb. 20). See also the dissenting
opinion of Judge Weeramantry appended to the 1997 order in the case of Bosnia and
Herzegovina v. Yugoslavia: ‘In exercising its discretion, the Court also needs to bear in
mind another aspect touching on the “equality of arms” of the Parties before it. However
great may be the magnitude of its subject-matter, the respondent to the counter-claim,
namely the original applicant, has in general only one opportunity to state its position on
the allegations made against itself, whereas the respondent to the original claim has the
opportunity not only to file a counter-memorial, but also to file a rejoinder. When cases
of this magnitude are joined, in the fashion requested by the Respondent in the present
proceedings, this aspect of inequality can weigh rather heavily upon its adversary,
especially in a case such as the present. … The Court has, in the present case, taken note
of this aspect, in paragraph 38 of the Order, by providing Bosnia and Herzegovina with
the right to provide its views a second time in an additional pleading, but this is an
aspect that needs to be borne in mind whenever future counter-claims are involved’.
20
Proceedings in default of appearance have represented one of the areas of major concern
in the practice of the International Court of Justice, due to the inherent difficulty of securing
‘equality of arms’ in case of absence of a party. Article 53 of the Statute of the Court
provides that before deciding in favour of the claims of the appearing party, the Court
‘must ... satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and
37, but also that the claim is well founded in fact and law’. In practice, the Court has
sometimes taken account of the legal position of each party by allowing the absent one to
submit its views by informal methods; this flexibility, however, has been resorted to with
the greatest care, in order not to place the appearing party at a disadvantage (Fisheries
Jurisdiction (U.K v. Iceland), 1974 I.C.J. 3 (Merits Judgment of July 25), para. 17, at 9-10;
Fisheries Jurisdiction (Germany v. Iceland), 1974 I.C.J. 175 (Merits Judgment of July 25),
para. 18, at 81). In the Nicaragua case, the Court ‘emphasize[d] that the equality of the
parties to the dispute must remain the basic principle for the Court. The intention of
Article 53 was that in a case of non-appearance neither party should be placed in a
disadvantage; therefore, the party which declines to appear cannot be permitted to profit
from its absence, since this would amount to placing the party appearing at a disadvantage.
The provisions of the Statute and Rules of Court concerning the presentation of pleadings
and evidence are designed to secure a proper administration of justice, and a fair and
equal opportunity for each party to comment on its opponent’s contentions. … The
vigilance which the Court can exercise when aided by the presence of both parties to the
proceedings has a counterpart in the special care it has to devote to the proper
administration of justice in a case in which only one party is present. … Article 53 obliges
the Court … to safeguard the essential principles of the sound administration of justice’
(Military and Paramilitary Activities, supra note 9, para. 31, at 26). On the principle whereby
‘the non-appearance of one of the parties cannot by itself constitute an obstacle to the
indication of provisional measures, provided the parties have been given an opportunity
of presenting their observations on the subject’, see Fisheries Jurisdiction (U.K. v. Iceland),
1972 I.C.J. 12 (Interim Protection Order of Aug. 17), para. 11, at 15; Fisheries Jurisdiction
(Germany v. Iceland), 1972 I.C.J. 30 (Interim Protection Order of Aug. 17), para. 11, at 32;
Nuclear Tests (Australia v. France), 1973 I.C.J. 99 (Interim Protection Order of June 22),
paras. 11-12, at 101; Nuclear Tests (New Zealand v. France), 1973 I.C.J. 135 (Interim Protection
Order of June 22), paras. 12-13, at 137; Trial of Pakistani Prisoners of War (Pakistan v.
India), 1973 I.C.J. 328 (Interim Protection Order of July 13), para. 5, at 329; Aegean Sea
Continental Shelf (Greece v. Turkey), 1976 I.C.J. 3 (Provisional Measures Order of Sept.
(continued...)
18
regulatory provisions with a certain degree of flexibility is perhaps the

most striking feature of the Court’s case law on ‘equality of arms’ in
contentious proceedings. It is even more marked in respect of advisory
proceedings, since the Court extended the application of this principle
to the advisory procedure despite the absence, at least technically
speaking, of ‘parties’ involved therein.21 The Court nonetheless deemed
it necessary, in order to ‘remain faithful to the requirements of its judicial
character ’, 22 that advisory proceedings comply with fundamental
principles governing contentious proceedings, and thus with the
principle of equality of the parties.23 In the words of the Court
[g]eneral principles of law and the judicial character of the Court

do require that, even in advisory proceedings, the interested
parties should each have an opportunity, and on a basis of
equality, to submit all the elements relevant to the questions which
have been referred to the … tribunal.’24
The Court thus concluded that any absence of equality inherent in

advisory proceedings could be remedied by the adoption of appropriate
procedures ensuring actual equality, stressing that it was “only
concerned to ensure that the interested parties ... ha[d] a fair and equal
opportunity to present their views ... respecting the questions on which
its opinion [was] requested and that the Court ... ha[d] adequate
information to enable it to administer justice in giving its opinion”.25
11), paras. 13-14, at 6; United States Diplomatic and Consular Staff in Tehran (U.S.A. v.
Iran), 1979 I.C.J. 3 (Provisional Measures Order of Dec. 15), paras. 9, 13, at 11-13. For the
relevant case-law of the International Court of Justice, see Ziccardi Capaldo, Repertory,
supra note 4, Volume II, at 845-55, nos. 2231-2242.
21
This “peculiarity” was aptly emphasised by Ziccardi Capaldo, ‘Tendenze Evolutive’,
supra note 4, at 269; Id., ‘Global Trends and Global Court’, ibid, at 144-5; for extensive
discussion see the contributions by Leo Gross, ‘Participation of Individuals in Advisory
Proceedings Before the International Court of Justice: Question of Equality Between the
Parties’, 52 Am. J. Int’l L. 16 (1958); David Ruzié, ‘L’avis consultatif de la Cour internationale
de Justice du 12 juillet 1973 dans l’affaire de la demande de réformation du jugement n°
158 du Tribunal Administratif des Nations Unies’, 19 Annuaire Français de Droit International
320 (1973), at 333-5; Paul Tavernier, ‘L’avis consultatif de la Cour internationale de Justice
du 20 juillet 1982 dans l’affaire de la demande de réformation du jugement n° 273 du
Tribunal Administratif des Nations Unies (affaire Mortished)’, ibid, 1982, at 392, 403-4;
Rudolf Ostrihansky, ‘Advisory Opinions of the International Court of Justice as Reviews
of Judgments of International Administrative Tribunals’, 17 Polish Y. Int’l L. 101 (1988), at
114-7. See also, more recently, Negri, I Principi Generali del Processo Internazionale, supra
note 4, at 155 et seq.
22
Judgments of the Administrative Tribunal of the I.L.O., supra note 14, at 84.
23
This approach found support in the proviso of Article 102 paragraph 2 of the Rules,
whereby the Court may ‘be guided by the provisions of the Statute and of these Rules
which apply in contentious cases to the extent to which it recognizes them to be applicable’.
24
Application for Review of Judgement No. 158, supra note 9, para. 36, at 180-1.
25
Id., para. 38, at 182.
ed...)
19
It is interesting to note that, along its main lines, the reasoning of the
International Court of Justice is basically coincident with the Strasbourg
Court’s approach as to the meaning and scope of the principle of ‘equality
of arms’. The European Court of Human Rights has by and large dealt
with individual applications complaining the alleged violation of the
right to fair trial in domestic proceedings. While elaborating extensively
on the notion of due process of law within the meaning of Article 6(1) of
the European Convention on Human Rights,26 the Court outlined the
contours of the principle of ‘equality of arms’, emphasising that ‘it is
only one feature of the wider concept of fair trial’.27 Admittedly, the
principle of ‘equality of arms’ underpins some separate rights, as
embodied in Article 6(3) of the Convention, which epitomise the body
of procedural guarantees ensuring the due process of law (ie the right
to be cognizant of the nature and cause of the charges brought by the
prosecution; the right to have adequate time and facilities for the
preparation of the defence; the right to counsel of one’s own choosing
and the right to assigned legal assistance; the right to examine or have
examined prosecution witnesses and defence witnesses under the same
conditions; and the right to have the assistance of an interpreter free of
charges). Furthermore, according to the Court’s consistent case law – as
26
Article 6 of the European Convention (supra note 2) provides:
1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public order or national security
in a democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice
the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
27
Neumeister v. Austria, 8 Eur. Ct. H.R. (ser. A) para. 22 (1968); Delcourt v. Belgium, 11 Eur.
Ct. H.R. (ser. A) para. 28, at 15 (1970). See Hélène Ruiz-Fabri, ‘Égalité des Armes et Procès
Équitable dans la Jurisprudence de la Cour Européenne des Droits de l’Homme’, in Égalité
et Equité 47 (Thierry Lambert ed. 1999); Malgorzata Wasek-Wiaderek, The Principle of
‘Equality of Arms’ in Criminal Procedure under Article 6 of the European Convention on Human
Rights and its Functions in Criminal Justice of Selected European Countries (2000). See also
Negri, ‘The Principle of “Equality of Arms”’, supra note 1, Section II, at 514-22.
20
reiterated in the recent judgment delivered by the Grand Chamber in

the case of Öcalan v. Turkey – the principle of ‘equality of arms’ also
encompasses the fundamental right to adversarial proceedings,28 which
is intended to guarantee to both parties a reasonable opportunity to
comment on each other’s submissions.29 In the Court’s opinion, it is a
fundamental aspect of the right to a fair trial that even elements of the
proceedings which merely relate to procedure should be adversarial.30
In the leading case of Dombo Beheer v. the Netherlands the Court

summarised its concept of the principle in the most-cited dictum that
‘“equality of arms” implies that each party must be afforded a reasonable
opportunity to present his case – including his evidence – under
conditions that do not place him at a substantial disadvantage vis-à-vis
his opponent’.31 This landmark statement has been often reiterated by
the Court as the most important starting-point for further developments
on the topic;32 it has also offered guidance to other international tribunals
in matters of interpretation and application of this principle.
As a matter of fact, European case law on ‘equality of arms’ has

substantially influenced the Inter-American Court of Human Rights
jurisprudence on due process requirements,33 which is largely consistent
with the main orientations expounded in Strasbourg authorities. It is
noteworthy, however, that while the European Court has mainly dwelt
28
In the sense that ‘equality of arms’ means in substance adversarial proceedings, see the
opinion of the Human Rights Committee in Communication No. 307/1988, J. Campbell v.
Jamaica (views adopted on 24 March 1993), in U.N. Doc. GAOR, A/48/40 (vol. II), at 44,
para. 6.4.
29
Öcalan v. Turkey, Eur. Ct. H.R., paras. 140-147 (2005). The Grand Chamber endorsed the
Chamber’s findings as expressed in the judgment of 12 March 2003. See Stefania Negri,
‘Interpreting the European Convention on Human Rights in Harmony with International
Law and Jurisprudence: What Lessons from Öcalan v. Turkey?’, 4 The Global Community
YILJ 2004 243 (2005-I). See also Brandstetter v. Austria, 211 Eur. Ct. H.R. (ser. A) paras. 66-
67, at 27 (1991); Lobo Machado v. Portugal, and Vermeulen v. Belgium, Eur. Ct. H.R. (EHRR
1996-I) para. 31, at 206, and para. 24, at 33 (1996) respectively; Nideröst-Huber v. Switzerland,
Eur. Ct. H.R. (EHRR 1997-I) para. 24, at 108 (1997); Belziuk v. Poland, Eur. Ct. H.R. (EHRR
1998-II), para. 37 (1998); Coëme and Others v. Belgium, Eur. Ct. H.R. (EHRR 2000-VII) para.
102 (2000); Kress v. France, Eur. Ct. H.R. (EHRR 2001-VI) para. 74 (2001); Ziegler v.
Switzerland, Eur. Ct. H.R. (EHRR 2002-I) para. 33 (2002); Steck-Risch and Others v.
Liechtenstein, Eur. Ct. H.R., para. 58 (2005).
30
Jasper v. the United Kingdom, Eur. Ct. H.R., para. 51 (2000); Edwards and Lewis v. the
United Kingdom, Eur. Ct. H.R., para. 52 (2003).
31
Dombo Beheer B.V. v. the Netherlands, 274 Eur. Ct. H.R. (ser. A) para. 33, at 19 (1993).
32
Founding its subsequent decisions on these views, the Court further developed its
interpretation of the principle of procedural equality as applied to civil litigation. See
Bönisch v. Austria, 92 Eur. Ct. H.R. (ser. A), at 14-16, paras. 29, 32-35 (1985); Yvon v. France,
Eur. Ct. H.R., paras. 32, 37 (2004).
33
See mainly The Right of Information on Consular Assistance in the Framework of the
Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, 1 October 1999, Series
A No. 16, paras. 117-119 (as summarised by Stefania Negri in 2 The Global Community
YILJ 2002 1289 (2003-II), at 1305-1306).
21
on the elaboration of the concept of ‘equality of arms’ as applied to

domestic litigation, the Inter-American Court has focused its attention
on procedural equality between the parties appearing before the organs
of the inter-American system of human rights protection. Actually, the
Court has often invoked the principle of ‘equality of arms’ when dealing
with procedural issues pertaining to proceedings before the Inter-
American Commission on Human Rights or before the Court itself.34
Suffice it to mention that compliance with ‘equality of arms’ in such
proceedings has been the subject of extensive discussion especially in
connection with preliminary objections35 and evidentiary matters.36
The Court of Justice of the European Communities has equally endorsed

the relevant Strasbourg case law on fair trial, holding that ‘the general
principle of equality of arms’37 is applicable to proceedings before the
34
For further details, see Negri, ‘The Principle of “Equality of Arms”’, supra note 1, Section
III, at 531-8.
35
19 Merchants Case, Preliminary Objections, Judgment, 12 June 2002, Series C No. 93,
paras. 28 and 31 (as summarised by Stefania Negri in 3 The Global Community YILJ 2003
1155 (2004-II), at 1158-1162). See also Gangaram Panday Case, Preliminary Objections,
Judgment, 4 December 1991, Series C No. 12, para. 18; Case of the “White Van” (Paniagua
Morales et al.), Preliminary Objections, Judgment, 25 January 1996, Series C No. 23, paras.
40, 42; Baena Ricardo et al. Case, Preliminary Objections, Judgment, 18 November 1999,
Series C No. 61, para. 41.
36
Maritza Urrutia Case, Judgment, 27 November 2003, Series C No. 103, para. 48 (as
summarised by Stefania Negri in 4 The Global Community YILJ 2004 1559 (2005-II)). Cf.
also, for relevant precedents, Cayara Case, Preliminary Objections, Judgment, 3 February
1993, Series C No. 14, para. 42; Caballero Delgado and Santana Case, Preliminary
Objections, Judgment, 21 January 1994, Series C No. 17, para. 44; Loayza Tamayo Case,
Reparations, Judgment, 27 November 1998, Series C No. 42, para. 38; Castillo Páez Case,
Reparations (Art. 63(1) American Convention on Human Rights), Judgment, 27 November
1998, Series C No. 43, para. 38; The “Panel Blanca” Case, Judgment, 25 May 2001, Series
C No. 76, para. 51; The “Street Children” Case (Villagrán Morales et al.), Reparations
(Art. 63(1) American Convention on Human Rights), Judgment, 26 May 2001, Series C
No. 77, para. 40; Cesti Hurtado Case, Reparations (Art. 63(1) American Convention on
Human Rights), Judgment, 31 May 2001, Series C No. 78, para. 21; The Mayagna (Sumo)
Awas Tingni Community Case, Judgment, 31 August 2001, Series C No. 79, para. 89;
Cantoral Benavides Case, Judgment, 3 December 2001, Series C No. 88, para. 22; Trujillo
Oroza Case, Judgment, 27 February 2002, Series C No. 92, para. 37; Hilaire, Constantine
and Benjamin et al. Case, Judgment, 21 June 2002, Series C No. 94, para. 65 (as summarised
by Stefania Negri in 3 The Global Community YILJ 2003 1163 (2004-II), at 1170); Cantos
Case, Judgment, 28 November 2002, Series C No. 97, para. 27 (as summarised by Stefania
Negri, ibid, at 1245, especially 1248-1249); “Five Pensioners” Case, Judgment, 28 February
2003, Series C No. 98, para. 65; Bulacio Case, Judgment, 18 September 2003, Series C No.
100, para. 42; 19 Tradesmen v. Colombia, Judgment, 5 July 2004, Series C No. 109, para. 65;
“Juvenile Reeducation Center” v. Paraguay, Judgment, 2 September 2004, Series C No. 112,
para. 63; Plan de Sánchez Massacre v. Guatemala, Judgment on Reparations, 19 November
2004, Series C No. 116, paras. 27-28 (the English version of the above-mentioned judgments
delivered in 2004 is not yet available at the Court’s website (last visited 28 February 2006);
it is summarised in English by Francisco Rivera and Tanner Neidhardt in 5 The Global
Community YILJ 2005 1511, 1544, 1581 (2006-II)).
37
Solvay SA v. Commission, Case T-30/91, Judgment, 29 June 1995, [1995] ECR-II 1775, para. 83;
ICI v. Commission, Case T-37/91, Judgment, 29 June 1995, [1995] ECR II-1901, para. 93.
22
Community judicature. 38 In particular, in exercising its appellate

jurisdiction, the Court has made regular reference to the judgments of
the European Court of Human Rights and to its interpretation of fair
trial requirements, thus reviewing in the light of ‘equality of arms’ both
the legality of decisions adopted in administrative procedures relating
to competition,39 and decisions delivered in disciplinary proceedings as
well as in contentious cases between the Community and its staff.40
As it will be illustrated below, the case law of the European Court has
also offered persuasive guidance to international criminal tribunals.41
This process of ‘jurisprudential cross-fertilization’42 is perhaps the most
interesting feature of international judicial practice in the current era of
38
See, eg, Team v. Commission, Case C-13/99 P, Judgment, 15 June 2000, [2000] ECR I-4671,
para. 45, and Emesa Sugar, Case C-17/98, Order, 4 February 2000, [2000] ECR I-665, paras.
17-18.
39
See recently Aalborg Portland A/S and others v. Commission, Joined Cases C-204/00 P, C-
205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, Judgment, 7 January 2004,
paras. 70, 94, 96, 105; Dansk Rørindustri A/S and others, Joined Cases C-189/02 P, C-202/
02 P, C 205/02 P to C 208/02 P and C 213/02 P, Judgment, 28 June 2005, paras. 70-71.
40
For further details, see Negri, ‘The Principle of “Equality of Arms”’, supra note 1, Section
III, at 538-42.
41
On the impact of Strasbourg case law on international criminal tribunals see mainly
Antonio Cassese, ‘The Influence of the European Court of Human Rights on International
Criminal Tribunals: Some Methodological Remarks’, in Human Rights and Criminal Justice
for the Downtrodden. Essays in Honour of Asbjørn Eide 19 (Morten Bergsmo ed. 2003). It
should be noted in this regard that the Special Court for Sierra Leone too endorses the
views of the European Court of Human Rights on the interpretation of the principle of
equality of arms: cf. eg Prosecutor against Sam Hinga Norman, Moinina Fofana, Allieu
Kondewa, Case No. SCSL-04-14-PT, Decision on inter partes motion by prosecution to
freeze the account of the accused Sam Hinga Norman at Union Trust Bank (SL) Limited
or at any other bank in Sierra Leone, 19 April 2004, at 3, footnote 1, citing the findings of
the European Court in Bulut v. Austria.
42
This incisive expression is borrowed from Antônio Augusto Cançado Trindade,
‘Introductory Note. Developments in the Case-Law of the Inter-American Court of Human
Rights (2004)’, 5 The Global Community YILJ 2005 1483 (2006-II), at 1485-6. See also Johathan
I. Charney, ‘Is international Law Threatened by Multiple International Tribunals?’, in
Collected Courses of The Hague Academy of International Law 101 (1998), at 315; Andrew
Clapham, ‘Symbiosis in International Human Rights Law: The Öcalan Case and the Evolving
Law on the Death Sentence’, 1 J. Int’l Crim. Justice 475 (2003); Rosalyn Higgins, ‘The ICJ, the
ECJ and the Integrity of International Law’, 52 Int’l & Comp. L.Q. 1 (2003); Angela Del
Vecchio, Giurisdizione internazionale e globalizzazione 223-9 (2003); Antônio Augusto
Cançado Trindade, ‘The Merits of Coordination of International Courts on Human Rights’,
2 J. Int’l Crim. Justice 309 (2004); Id., ‘Approximations and Convergences in the Case-Law
of the European and Inter-American Courts of Human Rights’, in Le Rayonnement
International de la Jurisprudence de la Cour Européenne des Droits de l’Homme 101 (Gérard
Cohen-Jonathan & Jean-François Flauss eds. 2005); Fausto Pocar, ‘The Proliferation of
International Criminal Courts and Tribunals: A Necessity in the Current International
Community’, 2 J. Int’l Crim. Justice 304 (2004); Stefania Negri, ‘Interpreting the European
Convention’ supra note 29, at 290-1; Allan Rosas, ‘With a Little Help from My Friends:
International Case-Law as a Source of Reference for the EU Courts’, 5 The Global Community
YILJ 2005 203 (2006-I); Kaiyan Kaikobad, ‘The Institutional Law of International Tribunals:
Salient Comparative and Hierarchical Aspects’, in this volume.
23
proliferation of international courts, where tribunals ‘necessarily take[]

into consideration other decisions of international courts’43 while firmly
claiming their position of absolute autonomy in relation to others.44
III. ‘Equality of Arms’ as Interpreted and Applied in International

Criminal Proceedings
Preventing infringements of fair trial guarantees is one the major

concerns in the administration of international criminal justice. Hence,
the relationship between the conduct of trials and respect for human
rights standards has been extensively discussed in legal writings,
focusing on the pivotal role of the rights of the defence.45 Compliance
43
Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as ‘Pavo’, Hazim Delic, Esad Landzo
also known as ‘Zenga’, Case No. IT-96-21-A, Appeals Chamber, Judgment, 20 February
2001, para. 24 (as summarised by Stefania Negri in 2 The Global Community YILJ 2002 805
(2003-II); hereinafter Celebici Appeal Judgment).
44
On ‘cross-fertilization’ between the International Court of Justice and other international
courts, notwithstanding the respective autonomy of the different judicial organs
considered, see Negri, I Principi Generali del Processo Internazionale, supra note 4, at 171-3.
45
See mainly Cherif M. Bassiouni, ‘Human Rights in the Context of Criminal Justice:
Identifying International Procedural Protections and Equivalent Protections in National
Constitutions’, 3 Duke J. Comp. & Int’l L. 235 (1993); The Protection of Human Right in the
Administration of Criminal Justice: A Compendium of United Nations Norms and Standards
(M. Cherif. Bassiouni ed. 1994); Virginia Morris & Michael P. Scharf, 1 An Insider’s Guide
to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and
Analysis 197-201 (1995); M. Cherif Bassiouni (with the collaboration of Peter Manikas),
The Law of the International Criminal Tribunal for the Former Yugoslavia 955-71 (1996); Joan
Sloan, ‘The International Criminal Tribunal for the Former Yugoslavia and Fair Trial
Rights: A Closer Look’, 9 Leiden J. Int’l L. 479 (1996); Antonio Cassese, ‘The International
Criminal Tribunal for the Former Yugoslavia and Human Rights’, 2 Eur. Hum. Rts L. Rev.
329 (1997); Anne-Marie La Rosa, ‘Réflexions sur l’apport du Tribunal pénal international
pour l’ex Yougoslavie au droit à un procès équitable’, 101 Revue Générale de Droit
International Public 945 (1997); Human Rights and the Administration of Justice: International
Instruments (Christopher Gane & Mark Mackarel eds. 1997); Virginia Morris & Michael
P. Scharf, 1 The International Criminal Tribunal for Rwanda 471-7 (1998); Colin Warbrick,
‘International Criminal Courts and Fair Trial’, 3 Journal of Armed Conflict Law 45 (1998);
Sara Stapleton, ‘Ensuring a Fair Trial in the International Criminal Court: Statutory
Interpretation and the Impermissibility of Derogation’, 31 N.Y.U. J. Int’l L. & Pol. 535
(1999); Patrick L. Robinson, ‘Ensuring Fair and Expeditious Trials at the International
Criminal Tribunal for the Former Yugoslavia’, 11 Eur. J. Int’l L. 569 (2000); Michaïl
Wladimiroff, ‘Chapter 11. Rights of suspects and accused’, in I Substantive and Procedural
Aspects of International Criminal Law. The Experience of International and National Courts
413-50 (Gabrielle Kirk McDonald & Olivia Swaart-Goldman eds. 2000); Cristian DeFrancia,
‘Due Process in International Criminal Courts: Why Procedure Matters’, 87 Va. L. Rev.
1381 (2001); Kriangsak Kittichaisaree, International Criminal Law 288-99 (2001); Jacob Katz
Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’, 27 Yale
J. Int’l L. 111 (2002); Steven Kay, QC & Bert Swart, ‘The Role of the Defence’, in The Rome
Statute, supra note 3, at 1421; Salvatore Zappalà, ‘Rights of Persons during an
Investigation’, ibid, at 1181; Id., ‘The Rights of the Accused’, ibid, at 1319; Id., Human
Rights in International Criminal Proceedings (2003); M. Cherif Bassiouni, Introduction to
International Criminal Law (2003), Chapter IX; Michael Bohlander, ‘The defence’, in
International Criminal Law Developments in the Case Law of the ICTY 35 (Gideon Boas &
William A. Schabas eds. 2003); Defense in International Criminal Proceedings (Michael
Bohlander, Roman Boed and Richard J. Wilson eds. 2005).
24
with human rights has indeed become the most reliable benchmark for
testing the integrity and legitimacy of international criminal proceedings.
Ever since the institution of the International Criminal Tribunal for the
former Yugoslavia (‘ICTY’), the Secretary-General of the United Nations
laid special emphasis on full respect for the ‘internationally recognised
standards regarding the rights of the accused at all stages of the
proceedings’46 as a key element enhancing the credibility of the Tribunal
and ensuring the legitimacy of its proceedings. The Tribunal itself made
the legality of international criminal justice conditional upon compliance
with the right to fair trial and procedural safeguards, as suggested by
the Appeals Chamber’s reference to Article 21 of the Statute and ‘various
other provisions in the Rules ensur[ing] equality of arms and fair trial’
as an argument in support of its conclusion that the Tribunal had been
established ‘in accordance with the rule of law’.47
The Statutes of the International Criminal Court (‘ICC’) and of ad hoc

Tribunals 48 mandate Chambers to ensure the fairness and
expeditiousness of trials while according full respect to the rights of
defendants as protected by several statutory and regulatory provisions
setting out minimum procedural guarantees (ie equality before the
tribunal; presumption of innocence; right to a fair, expeditious and public
hearing; right to be cognizant of the charges brought by the prosecution;
right to adequate time and facilities for the preparation of the defence;
right to counsel and to access to free legal assistance, right to confront
witnesses and right to present defence witnesses ‘under the same
conditions’ as witnesses summoned by the Prosecutor).49
46
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), U.N. Doc. S/25704 of 3 May 1993, para. 106. See also Prosecutor v. Dusko Tadic,
Case No. IT-94-1-T, Trial Chamber, Decision on Prosecutor’s Motion Requesting Protective
Measures for Victims and Witnesses, 10 August 1995, para. 25.
47
Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 46-47.
48
The Statute of the ICC (hereinafter ‘the Rome Statute’) has been the subject of
considerable analysis by outstanding commentators: see especially the contributions
contained in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi
ed. 1998); Commentary on the Rome Statute of the International Criminal Court (Otto Triffterer
ed. 1999); La Cour Pénale Internationale. Le Statut de Rome (William Bourdon ed. 2000);
Essays on the Rome Statute of the International Criminal Court (Flavia Lattanzi & William A.
Schabas eds. 2001); The Rome Statute of the International Criminal Court. A Challenge to
Impunity (Mauro Politi & Giuseppe Nesi eds. 2001); The Statute of the International Criminal
Court and Related Instruments (M. Cherif Bassiouni ed. 2001); The International Criminal
Court. Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed. 2001); The
Rome Statute of the International Criminal Court, supra note 3; William A. Schabas, An
Introduction to the International Criminal Court (2004). On the Statutes of ad hoc Tribunals,
see Morris & Scharf, supra note 45 (1995, 1998); Bassiouni, The Law of the International
Criminal Tribunal, ibid.
49
See Article 67 of the Rome Statute, Articles 20-21 of the ICTY Statute and Articles 19-20 of
the ICTR Statute, all drafted in the same fashion and adopting almost verbatim the wording of
(continued...)
25
International criminal tribunals’ commitment to ensure respect for these

basic safeguards was recently emphasised by the ICTY Trial Chamber
ruling in the case of Prosecutor v. Milosevic:
Within the ambit of fairness fall a number of rights, all intended

to achieve for the accused a fair trial. For the work of this Tribunal,
they are enshrined in Article 21(4) of its Statute. The Trial Chamber
reads Article 21(4) of the Statute as setting out a bundle of rights,
which are embraced within the principle that the accused must
have a fair trial, which is itself set out in Article 21(2) of the Statute.
The concept of fairness not only includes these specific rights but
also has a much wider ambit, requiring that in all aspects the
conduct of the trial must be fair to the accused. Hence, the specific
rights are described as ‘minimum guarantees’. Fairness is thus
the overarching requirement of criminal proceedings. ... If at any
stage of a trial there is a real prospect that it will be disrupted
and the integrity of the trial undermined with the risk that it will
not be conducted fairly, then the Trial Chamber has a duty to put
in place a regime which will avoid that.50
The relationship between such wider concept of fair trial and the notion
of ‘equality of arms’ was extensively discussed in Prosecutor v. Tadic. In
its submissions to the Appeals Chamber, the Defence argued that the
principle of ‘equality of arms’ ‘ought to embrace not only procedural
equality or parity of both parties before the Tribunal, but also substantive
equality in the interests of ensuring a fair trial’; the Prosecutor, by
contrast, contended that the scope of the principle is limited to procedural
equality51 and that although it
entitles both parties to equality before the courts, giving them

the same access to the powers of the court and the same right to
present their cases ... the principle does not call for equalizing
the material and practical circumstances of the two parties.52
Article 14 of the International Covenant on Civil and Political Rights. The statutory provisions
of ad hoc Tribunals are buttressed by other dispositions contained in the Rules of Procedure
and Evidence, spelling out the basic rules of due process and guarantees ensuring procedural
fairness and substantial justice: the principle of ‘equality of arms’ in evidentiary matters,
whereby the Prosecution and the Defence must be put on the same footing, without any
advantage accruing to the accuser (Rules 66-68); the right to assigned legal counsel (Rule 45);
the right to a public hearing (Rule 78); the right of the accused to test the Prosecution evidence
and present evidence on his own behalf (Rule 85); the presumption of innocence (Rule 87);
and the right to be protected against self-incrimination (Rule 90). See William A. Schabas,
‘Article 67: Rights of the Accused’, in Commentary on the Rome Statute, supra note 48, at 727.
50
Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Trial Chamber III, Reasons for
Decision on Assignment of Defence Counsel, 22 September 2004, paras. 29, 33 (as
summarised by Anna Oriolo in 5 The Global Community YILJ 2005 852 (2006-I).
51
On ‘equality of arms’ as corresponding to ‘procedural equality’, see recently Prosecutor
v. Naser Oric, Case No. IT-03-68-AR73.2, Appeals Chamber, Interlocutory Decision on
Length of Defence Case, 20 July 2005.
52
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July
(continued...)
26
In its landmark judgment of 15 July 1999, the Appeals Chamber endorsed

the relevant jurisprudence of the European Court of Human Rights
thereby concluding ‘that the principle of equality of arms falls within
the fair trial guarantee under the Statute’ and that ‘equality of arms
obligates a judicial body to ensure that neither party is put at a
disadvantage when presenting its case’.53 Nevertheless, in stressing that
the human rights bodies’ case law mostly refers to ‘procedural equality’,
the Chamber held that
under the Statute of the International Tribunal the principle of

equality of arms must be given a more liberal interpretation than
that normally upheld with regard to proceedings before domestic
courts. This principle means that the Prosecution and the Defence
must be equal before the Trial Chamber. It follows that the
Chamber shall provide every practicable facility it is capable of
granting under the Rules and Statute when faced with a request
by a party for assistance in presenting its case.54
This finding seems to suggest that the Tribunal meant to construe the
principle of ‘equality of arms’ as broadly as possible, in order to be vested
with the power to adopt any such measures as necessary and adequate
for granting substantive rather than mere procedural equality. However,
to say it again with the words of the Appeals Chamber
the purpose behind the principle remains the same – to give to

each party equal access to the processes of the Tribunal, or an
equal opportunity to seek procedural relief where relief is needed.
… [T]he Rules provide that either party may apply for relief …
provided that ‘good cause’ is shown by the party applying. The
obligation to show ‘good cause’ is placed equally upon both
parties. … It cannot be ‘good cause’ for an extension of time to be
granted to [the accused] … simply because the prosecution has
shown ‘good cause’ for an extension of time … . That is to read
into the right to equality of arms a right to equality of relief, even
when the circumstances are quite different in each case and
provide no basis whatsoever for granting equal relief.55
1999, paras. 30, 37 (as summarised by Anna Oriolo in 2 The Global Community YILJ 2002
705 (2003-II); hereinafter Tadic Appeal Judgment); for extensive discussion, see Michael
Bohlander, ‘Prosecutor v. Dusko Tadic: Waiting to Exhale’, 11 Crim. L. Forum 217 (2000);
Mark C. Fleming, ‘Appellate Review in the International Criminal Tribunal’, 37 Texas J.
Int’l L. 111 (2002), at 117-42; Rafael Nieto-Navia, ‘Introductory Note [to the ICTY
jurisprudence in 1999-2001]’, 2 The Global Community YILJ 2002 663 (2003-II), at 665-71.
53
Tadic Appeal Judgment, supra note 52, paras. 44 and 48, respectively. For relevant
precedents in Strasbourg case law, see supra note 8 and accompanying text.
54
Id., para. 52.
55
Prosecutor v. Dario Kordic & Mario Cerkez, Case No. IT-95-14/2-A, Appeals Chamber,
Decision on the Application by Mario Cerkez for Extension of Time to File his Respondent’s
Brief, 11 September 2001, paras. 7, 9 (footnotes omitted).
ed...)
27
It may be submitted that the approach adopted by the Appeals Chamber

definitely answers another much debated question, that is to say, whether
‘equality of arms’ is to be conceived as a ‘unidirectional’ rule, to be
applied for the benefit of defendants alone, or whether it also
encompasses the possible disadvantages that the prosecution may claim
to suffer. It is worth recalling, in this regard, that according to the
Tribunal’s settled jurisprudence the concept of ‘equality of arms’ should
be interpreted in favour of both parties, since ‘the Prosecution acts on
behalf and in the interests of the international community’.56
A. The Basic Precondition for ‘Equality of Arms’: Presence

at Trial and Full Understanding of the Proceedings
Presence at trial is generally perceived as a crucial component of fairness.

The causal relationship between non-appearance of a party and the risk
that procedural equality may be breached is given wide consideration
in domestic as well as international case-law, even in connection with
non-criminal proceedings.57 Admittedly, full and active participation of
the interested parties throughout the whole course of the proceedings
is the truest guarantee of respect for the principle of ‘equality of arms’.
As far as criminal proceedings are concerned, it is submitted that

attendance at trial enables the defendant to exercise his procedural rights
in the best possible way.58 The established jurisprudence of the European
Court of Human Rights confirms that the right of an accused to
participate in person in the proceedings is a fundamental element of a
fair trial.59 According to the relevant Strasbourg case-law, the duty to
56
Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T, Trial Chamber I, Decision on Motion
for Prosecution Access to Defence Documents, 9 May 2005, para. 8. In Prosecutor v. Kordic
& Cerkez, the Appeals Chamber held that the ‘[t]he principle of equality of arms has been
given a liberal interpretation in its application to the Tribunal’s procedures, in recognition
of the peculiar difficulties under which both parties have to operate in this Tribunal’ (supra
note 55, para. 7, emphasis added). In Delalic, the Trial Chamber stated that to suggest a
different interpretation of the principle – ie solely in favour of the accused – would be
tantamount to a procedural inequality in favour of the Defence and against the Prosecution
(Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as ‘Pavo’, Hazim Delic, Esad Landzo
also known as ‘Zenga’, Case No. IT-96-21-T, Trial Chamber, Decision on the Prosecution’s
Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, 4
February 1998, para. 49). See also, with regard to the reciprocal obligations of the parties
in evidentiary matters, infra paragraph D.
57
See supra note 20.
58
See, in this connection, Zappalà, Human Rights, supra note 45, at 125-9. The author
criticises the approach according to which trials in absentia are per se a violation of the
rights of the accused, pointing to the fact that waiver of the right to be present at trial
may be ‘part of an intentional strategy of defence’. He also submits that in absentia
proceedings are only in principle forbidden and that – although considered inappropriate
or undesirable – they are nevertheless allowed under specific circumstances.
59
Colozza v. Italy, 89 Eur. Ct. H.R. (ser. A) at 1, para. 27 (1985); F.C.B. v. Italy, 208-B Eur. Ct.
H.R. (ser. A), at 21, para. 33 (1991); T. v. Italy, 245-C Eur. Ct. H.R. (ser. A), at 41, para. 26
(1992), Yavuz v. Austria, Eur. Ct. H.R., para 45 (2004).
28
guarantee the right of a criminal defendant to be present in the courtroom

‘ranks as one of the essential requirements of Article 6 and is deeply
entrenched in that provision’.60 Any waiver of the right to be tried in
one’s presence ‘must, if it is to be effective for Convention purposes, be
established in an unequivocal manner and be attended by minimum
safeguards commensurate to its importance’.61 Furthermore, according
to the European Court, criminal proceedings conducted in absentia
represent a ‘denial of justice’
where a person convicted in absentia is unable subsequently to

obtain from a court which has heard him a fresh determination
of the merits of the charge, in respect of both law and fact, where
it has not been unequivocally established that he has waived his
right to appear and to defend himself.62
As a matter of law, trials in absentia are in principle prohibited at

international level. Nonetheless, since international criminal justice is
constantly in the spotlight of public opinion due to the gravity of the
crimes concerned, it is often queried whether respect for the right to be
present at trial should be counterbalanced with the mandatory need
that punishment of the most heinous crimes is not obstructed. Actually,
whether trials in absentia are better than impunity for notorious suspects63
has long been the subject of lively debate.
60
Stoichkov v. Bulgaria, Eur. Ct. H.R., para. 56 (2005).
61
Poitrimol v. France, 277-A Eur. Ct. H.R. (ser. A), at 13-4, para. 31 (1993).
62
Einhorn v. France, Eur. Ct. H.R. (EHRR 2001-XI) para. 33 (2001); see also Somogyi v. Italy,
Eur. Ct. H.R., para. 66 (2004); Sejdovic v. Italy, Eur. Ct. H.R., para. 33 (2004) (both
summarised by Anna Oriolo in 5 The Global Community YILJ 2005 1331, 1406 (2006-I));
Stoichkov v. Bulgaria, supra note 59, para. 55. It is noteworthy that in order to adopt general
measures of execution, as recommended by the Court in the Somogyi and Sejdovic
judgments, Italy was prompted to amend Article 175 of the Code of Criminal Procedure
to the effect that persons who have been convicted in absentia are entitled to obtain a
reopening of the proceedings, even beyond prescribed time-limits, where it is not
unequivocally established that they have been informed of the proceedings and have
waived their right to be present at trial (Law No. 60 of 22 April 2005, published in the
Official Journal of the Italian Republic (Gazzetta Ufficiale) No. 94 of 23 April 2005). For in-
depth discussion on the obligation to comply with the European Court’s judgments
through adoption of general measures of execution intended to cure systemic defects of
the domestic legal order, see Vincenzo Starace, ‘Introductory Note. The European Court
of Human Rights in 2004’, 5 The Global Community YILJ 2005 1285 (2006-II), at 1289-94;
Anna Oriolo, ‘L’esecuzione delle sentenze della Corte europea dei diritti umani’, in
L’efficacia delle pronunce degli organi giudiziari: problematiche di diritto internazionale e di diritto
comunitario, III Incontro tra giovani cultori delle materie internazionalistiche, Atti del
Convegno, Bari, 29-30 settembre 2005 (2006, forthcoming).
63
Ratko Mladic and Ratovan Karadzic are still at large, while Ante Gotovina was only
recently arrested. The same problem frustrates the Special Court for Sierra Leone since
Charles Taylor and Johnny Paul Koroma remain at large and cannot be tried until they
appear before the Court. (The Court was established pursuant to Security Council
resolution 1315 (2000) of 14 August 2000 by the Agreement between the United Nations
and the Government of Sierra Leone on the Establishment of the Special Court for Sierra
(continued...)
29
Although the Human Rights Committee clearly stated, as far back as

1983, that ‘proceedings in absentia are in some circumstances (for instance,
when the accused person, although informed of the proceedings
sufficiently in advance, declines to exercise his right to be present)
permissible in the interest of the proper administration of justice’,64 the
Statutes of international criminal courts and mixed jurisdictions rule
out trials in absentia.65 Such a prohibition mirrors a generally recognised
human right protected by treaty law.66 Upon closer inspection, however,
this rule is not an absolute one, since exceptions are still possible. First,
the accused may have expressly or impliedly waived his right to be
present. Unequivocal waiver of this right would allow the Pre-trial
Chamber to hold confirmation hearing, or Trial Chambers to proceed,
provided that representation of legal counsel is granted in the interests
of justice.67 Second, the accused may be taken away from the courtroom
in case his behaviour causes disruption. It should be stressed, in this
connection, that Article 63(2) of the Rome Statute – requiring that the
removal be ordered only as a last resort solution, that it be limited in
time and that the accused be granted an alternative way of following
the development of the trial and instructing his counsel68 – represents a
Leone, done at Freetown on 16 January 2002, available at <http://www.sc-sl.org/scsl-
agreement.html>. The Statute of the Court is Annex 1 to the Agreement. The Rules of
Procedure and Evidence, which are shaped on those of the ICTR, were adopted on 16
January 2002 and later amended on 7 March 2003, on 1 August 2003, on 30 October 2003,
and on 14 March 2004, available at <http://www.sc-sl.org/scsl-procedure.html>). It should
also be noted, in this connection, that Rule 56 of the Rules of Procedure and Evidence of
the Iraqi Criminal Tribunal provides for trials in absentia pursuant to Article 147(a) of the
Iraqi Code of Criminal Procedure, which allows such proceedings if the accused has
absconded or is absent without legal excuse, despite having been informed of the trial.
64
Human Rights Committee, Monguya Mbenge v. Democratic Republic of the Congo,
Communication No. 16/1977, CCPR/C/18/D/16/1977, Views adopted on 25 March 1983,
para. 14.1.
65
See Article 21(4)(d) of the ICTY Statute, Article 20(4)(d) of the ICTR Statute, Articles
63(1) and 67(1)(d) of the Rome Statute, Article 17(4)(d) of the SCSL Statute. Adde, with
regard to the Special Crimes Units in East Timor, Section 5.1 of the Transitional Rules of
Criminal Procedure, as contained in UNTAET Regulation 2000/30 of 25 September 2000
(see also infra, note 157). For in-depth analysis, see Niccolò A. Figà Talamanca, ‘Trials in
Absentia and the International Criminal Court’, in The International Criminal Court (Lattanzi
ed.), supra note 48, at 209; Daniel J. Brown, ‘The International Criminal Court and Trial in
Absentia’, 24 Brook. J. Int’l L. 763 (1999); Mandiaye Niang, ‘Le Tribunal Pénal International
pour le Rwanda. Et si la contumace était possible!’, 103 Revue Générale de Droit International
Public 379 (1999); William A. Schabas, ‘Article 63. Trial in the Presence of the Accused’, in
Commentary on the Rome Statute, supra note 48, at 803; Frank Terrier, ‘The Procedure before
the Trial Chamber’, in The Rome Statute, supra note 3, at 1277, esp. at 1282-3.
66
The right to be tried in one’s presence is guaranteed expressis verbis in Article 14(2)(d) of
the International Covenant on Civil and Political Rights; it is also inferred from Article 6
of the European Convention on Human Rights and Article 8 of the American Convention
on Human Rights.
67
See Article 61(2)(a) of the ICC Statute; Rule 60 of the SCSL Rules. See Kuniji Shibahara,
‘Article 61. Confirmation of the charges before trial’, in Commentary on the Rome Statute,
supra note 48, at 783, 787.
68
Schabas, Article 63, supra note 65, at 808.
30
step forward in guaranteeing ‘equality of arms’ if compared to the similar

provisions contained in Rule 80 of the ICTY and ICTR Rules. Third, the
need to protect national security information may prompt the ICC to
conduct ex parte hearings pursuant to Rule 72(7).
Different hypotheses such as illness and mental disorder are not at all
considered by the basic legal texts governing the conduct of proceedings
before the ad hoc Tribunals and the ICC.69 This brings to another question:
what about absence of a self-represented defendant in case of health
problems? This issue was discussed in the case of Prosecutor v. Slobodan
Milosevic from a twofold perspective, namely, the disruptive effects of
the accused’s ill health on the conduct of the trial and the need to assign
him a counsel in order to proceed in his absence. In its Reasons for decision
on assignment of defence counsel, the ICTY Trial Chamber laid special
emphasis on the risk of miscarriage of justice and the need to guarantee
the integrity of the trial:
Disruption of a trial, whatever the circumstances, may give rise

to the risk of a miscarriage of justice because the whole
proceedings have not been conducted and concluded fairly.
Wherever such a risk arises, it is necessary to take steps to avoid
it. It is widely recognised in domestic jurisdictions that, where
an accused who represents himself disrupts his trial by
misbehaviour, he may be removed from the court and counsel
appointed to conduct his defence. That step is necessary to secure
the integrity of the proceedings with a view to ensuring that the
trial as a whole is fair. There is no difference in principle between
deliberate misconduct which disrupts the proceedings and any
other circumstance which so disrupts the proceedings as to
threaten the integrity of the trial. … [T]he risk to the health, and
indeed the life, of the Accused and the prospects that the trial
would continue to be severely disrupted [are] so great as to be
likely to undermine the integrity of the trial process.70
69
Id., at 807-8, with reference to the Erdemovic case as an example of mental disorder
impinging on the accused’s mental abilities and awareness of the course of his trial.
70
Prosecutor v. Slobodan Milosevic, supra note 50, paras. 33, 65, footnotes omitted. In this
case, the Tribunal’s concern with ensuring effectiveness of the defence and fairness and
expeditiousness of the trial against Milosevic prompted the Trial Chamber – relying on
extensive precedents from domestic and international criminal jurisprudence – to assign
a counsel to assist him in his exercise of the right to self-representation (Prosecutor v.
Milosevic, supra note 50, paras. 38 et seq.). The appropriateness of the Trial Chamber’s
decision was later confirmed on appeal, though it was specified that the presence of the
Assigned Counsel had to be considered as a means to enable the trial to continue in case
Milosevic is temporarily unable to participate (Slobodan Milosevic v. Prosecutor, see infra
note 71). A similar problem had come up in the ICTR in the trial against Barayagwiza,
when the Chamber appointed a counsel despite the decision of the accused not to avail
himself of any legal representation (Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR
97-19-T, Trial Chamber Decision on Defence Counsel Motion to Withdraw, 2 November
2000).
31
Notwithstanding Milosevic’s contemptuous behaviour, the Appeals

Chamber focused its attention on the accused’s poor health as the main
reason for allowing a restriction to his right of self-representation. It
thus found that the appointment of an assigned counsel, acting
subsidiarily in case Milosevic were temporarily unable to participate to
the proceedings, was a necessary and appropriate solution to enable
the trial to continue without continuous disruption. The Appeals
Chamber in fact confirmed the Trial Chamber’s decision as to the need
to strike a balance between the right to be present and to self-
representation and the exacting demand for fair and expeditious trials:
it cannot be that the only kind of disruption legitimately cognizable

by a Trial Chamber is the intentional variety. How should the Tribunal
treat a defendant whose health, while good enough to engage in the
ordinary and non-strenuous activities of everyday life, is not
sufficiently robust to withstand all the rigors of trial work …? Must
the Trial Chamber be forced to choose between setting that defendant
free and allowing the case to grind to an effective halt? In the Appeals
Chamber’s view, to ask that question is to answer it.71
The Milosevic case has been the object of a lively scholarly debate on the
appropriateness of appointing either a court assigned counsel, a ‘stand-
by counsel’72 or amici curiae to ensure the orderly conduct and the
fairness of criminal trials.73 Additionally, this problem should also be
given adequate consideration under a different viewpoint, that is from
71
Slobodan Milosevic v. Prosecutor, Case No. IT-02-54-AR73.7, Appeals Chamber, Decision
on Interlocutory Appeals of Trial Chamber’s Decision on the Assignment of Defence
Counsel, 1 November 2004, para. 14, footnotes omitted (as summarised by Anna Oriolo
in 5 The Global Community YILJ 2005 866 (2006-I)).
72
On appointment of ‘stand-by counsel’, see Prosecutor v. Vojislav Seselj, Case No. IT-03-
67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav
Seselj with His Defence, Order, 9 May 2003.
73
Stuart Beresford & Hafida Lahiouel, ‘The Right to Be Defended in Person or Through
Legal Assistance and the International Criminal Court’, 13 Leiden J. Int’l L. 949 (2000);
Nina H.B. Jørgensen, ‘The Right of the Accused to Self-Representation Before International
Criminal Tribunals’, 98 Am. J. Int’l L. 711 (2004); Id., ‘The Right of the Accused to Self-
Representation Before International Criminal Tribunals. Further Developments’, 99 Am.
J. Int’l L. 711 663 (2005); Id., ‘The Problem Self-Representation at International Criminal
Tribunals. Striking a Balance between Fairness and Effectiveness’, 4 J. Int’l Crim. Justice
64 (2006); Michael P. Scharf, ‘ICTY Appeals Chamber Decision on Slobodan Milosevic’s
Right of Self-Representation’, ASIL Insight, November 2004; Id., ‘Self-Representation
versus Assignment of Defence Counsel before International Criminal Tribunals’, 4 J. Int’l
Crim. Justice 31 (2006); Mirjan R. Damaska, ‘Milosevic’s Right to Defence. Assignment of
Counsel and Perceptions of Fairness’, 3 J. Int’l Crim. Justice 3 (2005); Göran Sluiter,
‘“Fairness and the Interests of Justice”: Illusive Concepts in the Milosevic Case’, ibid, at 9;
Anna Oriolo, ‘Il diritto di autodifesa nel processo internazionale: il caso Milosevic’, in 11
Annali della Facoltà di Economia dell’Università degli Studi del Sannio (2006); Jarinde Temminck
Tuinstra, ‘Assisting an Accused to Represent Himself: Appointment of Amici Curiae as
the Most Appropriate Option’, 4 J. Int’l Crim. Justice 47 (2006); Guenael Mettraux, ‘The
Role of a Defence Office – Some Lessons from Recent and not so Recent War Crimes
Precedents’, in this volume.
32
the perspective that respect for the principle of ‘equality of arms’ may
require that a defence counsel be in principle appointed, even in contrast
to the will of the accused, in order to guarantee a truly effective defence
and an adequate counterbalance to the legal and technical skills of the
prosecution.
The Milosevic case has also given cause for reflection on the importance
of setting guiding principles apt to distinguish between circumstances
which allow a trial to proceed even in the absence of the accused –
provided that his guarantees are strictly complied with through the
appointment of a defence counsel – and those demanding a suspension
or adjournment of the proceedings ‘in the interests of justice’ (or for
other good cause). This problem is all the more relevant in light of the
fact that presence at trial is always – also in hypotheses different from
self-representation – ‘more than mere physical presence.’74 It is assumed
that the accused is not a passive spectator of events that will determine
his destiny. Rather to the contrary, his active participation throughout
the proceedings manifests itself first and foremost in the power to
suggest, improve or amend instructions to the defence counsel, and to
agree with him the most suitable ‘defence strategy’, depending on the
course of the trial. In order to attain this goal, the fullest cognisance of
the developments and the difficulties of the trial through a direct
knowledge of all relevant events is needed.
Admittedly, however, active and aware participation in the trial presupposes

full understanding of what is happening in the courtroom and of all
documents tendered to the tribunal,75 especially if the accused is without
legal representation.76 It follows that compliance with the principle of
74
The quote is from Schabas, Article 63, supra note 65, at 807.
75
However, the ICTY stated that ‘neither Article 21 of the Statute nor Rule 3 of the Rules
explicitly entitle the accused to receive all documents from the Prosecutor in a language
he understands’ and that ‘the guarantees provided in Article 21(4) of the Statute do not
extend to all documents, but only to evidence, which forms the basis of the determination
by the Chamber of the charges against the accused’ (Prosecutor v. Mladen Naletilic and
Vinko Martinovic, Case No. IT-98-34-T, Trial Chamber I, Decision on Defence’s Motion
Concerning Translation of All Documents, Order, 18 October 2001). On the contrary,
according to the European Court of Human Rights, ‘the right … to have the free assistance
of an interpreter extends to all those documents or statements in the criminal proceedings
which it is necessary for the accused to understand or to have rendered into the court’s
language in order to have the benefit of a fair trial. The interpretation assistance provided
should be such as to enable the accused to have knowledge of the case against him and to
defend himself, notably by being able to put before the court his version of the events’
(Lagerblom v. Sweden, Eur. Ct. H.R., para. 61 (2003)). The Human Rights Committee also
translates lack of comprehension into a serious risk of major obstacles to the right of
defence (General Comment No. 13: Equality before the courts and the right to a fair and
public hearing by an independent court established by law (Art. 14), 13 April 1984).
76
Prosecutor v. Miroslav Kvocka, Milojica Kos, Mladjo Radic, Zoran Zigic, Dragoljub Prcac,
Case No. IT-98-30/1-A, Appeals Chamber, Decision on Zoran Zigic’s Motion for Translation
of Documents Pertaining to His Appeal, 3 October 2002.
33
‘equality of arms’ requires that a right to have access to interpretation/

translation facilities be generally granted to defendants who do not
sufficiently master the official languages used in court. A close relationship
between this right and procedural equality was clearly established by the
Human Rights Committee, with the caveat that States parties to the Covenant
on Civil and Political Rights are compelled to make these services available
only if the accused or his witnesses have objective difficulties in
understanding or expressing themselves in the court language.77 Thus,
interpretation assistance is not to be afforded ex officio, and if the tribunal is
certain that the defendant ‘is sufficiently proficient in the court’s language,
it is not required to ascertain whether it would be preferable for the accused
to express himself in a language other than the court language.’78 However,
as the Strasbourg Court pointed out, when a criminal court is put on clear
notice of lack of full comprehension or of difficulties in communication
between the accused and his counsel, it should ensure that this condition
would not ‘prejudice the accused’s full involvement in a matter of crucial
importance for him’; it should also make proper enquiries so as to ensure
that it is the defendant’s true wish that his counsel proceed in the absence
of an interpreter.79
Articles 55(1)(c) and 67(1)(f) of the Rome Statute, Articles 18(3) and
21(4)(f) of the ICTY Statute, Articles 17(3) and 20(4)(f) of the ICTR Statute,
and Article 17(4)(d) of the Statute of the Special Court for Sierra Leone
set out the right of the accused to interpretation and translation into
and from a language he speaks and understands (not necessarily his
mother language).80 It has been observed that this right is provided for
in broader terms in the Statute and Rules of the ICC, as compared to the
ad hoc Tribunals and even to human rights treaties,81 since ‘competent’
interpretation is expressly required.82 Competence or ‘sound knowledge’
of the language is also requested from interpreters under the rubric of
Article 3 of the Code of Ethics issued by the Registrar of the Special
Court for Sierra Leone. 83 Actually, the reference to ‘competent’
interpretation and translation in the above-mentioned provisions seems
77
Human Rights Committee, Guesdon v. France, Communication No. 219/1986, CCPR/C/
39/D/219/1986, Views adopted on 23 August 1990, paras. 10.2-10.3.
78
Id.
79
Cuscani v. The United Kingdom, Eur. Ct. H.R., paras. 38-39 (2002).
80
See also Rule 42 of the ICC Rules; Rules 3 and 47(G) of the ICTY Rules; Rule 42(A)(ii) of
the ICTR Rules; Section 6.3(c) of the Transitional Rules of Criminal Procedure of the
Timorese Special Crimes Units.
81
See Article 14(2)(f) of the International Covenant on Civil and Political Rights; Article
6(3)(e) of the European Convention on Human Rights; Article 8(2)(a) of the American
Convention on Human Rights.
82
Christopher K. Hall, ‘Article 55. Rights of Persons during an Investigation’, in Commentary
on the Rome Statute, supra note 48, at 727, 730; Schabas, Article 67, supra note 49, at 860.
83
Code of Ethics for Interpreters and Translators Employed by the Special Court for
Sierra Leone, adopted on 25 May 2004, at < http://www.sc-sl.org/interpreters-
codeofethics.html>.
34
most appropriate. Moreover, it is in line with the views expressed by

the European Court of Human Rights, which point to competence as
the crucial test for practicality and effectiveness of the right to free
interpretation assistance as protected by the Convention.84
It may be queried who should be in charge of the responsibility of ensuring

that adequate professional expertise is effectively afforded. Although it is
true that ‘[s]upervision of the quality of … interpretation is a constant
difficulty,’85 it is clear that international criminal courts – as ‘the ultimate
guardian[s] of the fairness of the proceedings’, to borrow the expression
from Strasbourg case-law86 – bear the fundamental burden of ensuring high
qualification standards. After all, interpreters are for all practical purposes
officers of the court, although in the unique position of ‘an impartial third
party in furtherance of the administration of justice’.87 A solution of
compromise was adopted by the Special Court for Sierra Leone. Pursuant
to Article 3(B) juncto Article 1(B) of the Code of Ethics, responsibility for
the quality of interpretation performances lies primarily with the interpreters
themselves – to the effect that those who do not feel sufficiently competent
to perform their duties should not accept the assignment – while control is
impliedly entrusted to, and shared between, the Court and the Registrar,
who are empowered to initiate contempt and/or disciplinary proceedings
against interpreters and translators breaching the Code.
B. ‘Equality of arms’ and the prejudicial effects of defective

indictments
Fairness in international criminal proceedings mandates that the accused

be adequately informed of the charges on which the Prosecutor intends
to seek trial and of the evidence in support thereto. As a matter of fact,
prompt and detailed notification of all relevant information is needed
for the preparation of the defence case, since it enables the defendant to
object to the charges or challenge the evidence presented by the
prosecution. According to the views of the Human Rights Committee,
‘the principle of equality of arms is not respected where the accused is
not served a properly motivated indictment’.88
84
Kamasinski v. Austria, 168 Eur. C. H.R. (ser. A) para. 74, at 35 (1989). For a different
approach, based on the requirement that incompetent or poor-quality interpretation must
be complained of to the judge in order to obtain his intervention, see Human Rights
Committee, Griffin v. Spain, Communication No. 493/1992, CCPR/C/53/D/493/1992, Views
adopted on 5 April 1995, para. 9.5.
85
The quote is from Schabas, Article 67, supra note 49, at 860.
86
Cuscani v. The United Kingdom, supra note 79, para. 39.
87
Prosecutor v. Zejnil Delalic & Others ex parte Zdravko Mucic also known as “Pavo”, Trial
Chamber, Decision on the Motion ex parte by the Defence of Zdravko Mucic concerning
the issue of a subpoena to an interpreter, 8 July 1997, paras. 10-11.
88
Human Rights Committee, Communication No. 289/1988, Wolf v. Panama (Views adopted
on 26 March 1992), U.N. Doc. GAOR, A/47/40, para. 6.6, at 289-90.
35
Article 61(3) of the Rome Statute provides that suspects must be given
notice of the charges ‘within a reasonable time before the hearing’ and
must be informed of the evidence on which the Prosecutor intends to
rely.89 To this end, Pre-Trial Chambers determining the existence of a
prima facie case are empowered to issue orders concerning the disclosure
of all relevant information. The rationale behind this provision is to afford
the defendant an adequate opportunity to prepare his defence for the
confirmation hearing, so that he may rebut the charges, challenge the
incriminating evidence and offer exculpatory evidence.
The same objective is set in Articles 18(4) and 21(4) of the ICTY Statute,
complemented by Rule 47(C), which requires that the accused ‘be
informed promptly and in detail ... of the nature and cause of the charge
against him’ and that indictments set forth ‘a concise statement of the
facts of the case and of the crime with which the suspect is charged’.
Articles 17(4) and 20(4) of the ICTR Statute and Rule 47(C) of the ICTR
Rules are worded in the same fashion.90
Ad hoc Tribunals have often been confronted with the problem of

determining whether defects in the form of an indictment may imply a
violation of the rights of the accused and of the principle of ‘equality of
arms’. The assumption to start from is that ‘[t]he basic function of an
Indictment is to inform an accused of the case he has to meet, i.e. to
provide enough details to inform a defendant clearly of the charges
against him’.91 Unless the Prosecution cannot provide greater detail,92
strict adherence to the above-mentioned provisions is considered an
essential element of fairness,93 so that failure to comply with the
89
See Shibahara, supra note 67, at 788-9.
90
See in general Morris & Scharf, The International Criminal Tribunal for Rwanda, supra note
45, at 477-84, 512-8; Michael J. Keegan, ‘Legal Requirements for Indictments’, in Essays on
ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald 123 (Richard May et al.
eds. 2001); Alex Obote-Odora, ‘Drafting of Indictments for the International Tribunal for
Rwanda’, 12 Crim. L. Forum 335 (2001).
91
Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No. IT-95-9-T, Trial Chamber
II, Judgement, 17 October 2003, para. 144 (as summarised by Anna Oriolo in 4 The Global
Community YILJ 2004 832, 876 (2005-I); see Rafael Nieto-Navia, ‘Introductory Note. The
International Criminal Tribunal for the Former Yugoslavia in 2003’, ibid, at 623, esp. at
636-8).
92
In this event the indictment must clearly indicate that it provides the best information
available to the Prosecutor: see Prosecutor v. Radoslav Brdanin & Momir Talic, Case No. IT-
99-36/1, Trial Chamber II, Decision on Objections by Momir Talic to the Form of the
Amended Indictment, 20 February 2001, para. 22; Prosecutor v. Milorad Krnojelac, Case
No. IT-97-25, Trial Chamber II, Decision on Preliminary Motion on Form of Amended
Indictment, 11 February 2000, paras. 33-34, 43; The Prosecutor v. André Ntagerura, Emmanuel
Bagambiki and Samuel Imanishimwe, Case No. ICTR-99-46-T, Trial Chamber III, Judgment
and Sentence, 25 February 2004, para. 32 (as summarised by Everard O’Donnell in 5 The
Global Community YILJ 2005 959 (2006-II)).
93
See, eg, Prosecutor v. Aloys Ntabakuze & Gratien Kabiligi, Case No. ICTR-97-34-T, Trial
Chamber I, Decision on the Defence Preliminary Motions relating to Defects in the Form
(continued...)
36
obligations thereof entitles the Defence to challenge the validity of the

indictment either at the pre-trial stage – by way of preliminary motions
alleging defects in the form of the indictment, pursuant to Rule 72(A)(ii)
– at trial or even on appeal.
The need for an adequate notice of the charges was discussed by the
ICTY in Kupreskic and in Simic:
the question whether an Indictment is pleaded with sufficient

particularity is dependent upon whether it sets out the material
facts of the Prosecution case with enough detail to inform a
defendant clearly of the charges against him so that he may
prepare his defence. … [G]enerally, an Indictment, as the primary
accusatory instrument, must plead with sufficient detail the
essential aspect of the Prosecution case. If it fails to do so, it suffers
from a material defect. A defective indictment, in and of itself,
may, in certain circumstances cause the Appeals Chamber to
reverse a conviction. The Appeals Chamber, however, does not
exclude the possibility that, in some instances, a defective
Indictment can be cured if the Prosecution provides the accused
with timely, clear and consistent information detailing the factual
basis underpinning the charges against him or her. Nevertheless,
in light of the factual and legal complexities normally associated
with the crimes within the jurisdiction of this Tribunal, there can
only be a limited number of cases that fall within that category.94
In cases where an Indictment provides insufficient details as to

the essential elements of the Prosecution case, the jurisprudence
of the Tribunal accepts that a defendant may not be prejudiced
where the defence is put on reasonable notice of the Prosecution
case before trial, i.e. in the Prosecution Pre-Trial Brief, or at the
latest, in the Prosecution opening statement.95
In its earlier jurisprudence, the ICTY emphasised – for the purpose of

assessing the formal validity of indictments – the distinction between
the moment the accused is informed for the first time of the charges
brought against him and the phase devoted to the preparation of his
defence. In Prosecutor v. Djukic and Prosecutor v. Blaskic, the Trial Chamber
pointed out that while the information describing the charges is set forth
for the purpose of the accused’s initial appearance, the preparation of
and Substance of the Indictments, 5 October 1995, para. 11; Prosecutor v. Pauline
Nyiramashuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Trial Chamber II, Decision
on the Preliminary Motions by Defence Counsel on Defects in the Form of the Indictment,
28 November 1997, para. 23.
94
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Vladimir
Santic, Case No. IT-95-16-A, Appeals Chamber, Appeal Judgment, 23 October 2001, paras.
88, 114 (as summarised by Guido Acquaviva in 2 The Global Community YILJ 2002 976
(2003-II); hereinafter Kupreskic Appeal Judgment).
95
Prosecutor v. Simic, supra note 91, para. 112.
ed...)
37
his defence requires a more detailed level of information that may not
be available at the time the indictment is framed.96 A similar clarification
was made by the ICTR in Prosecutor v. Ntakirutimana, when the Chamber
stated that at the stage of the proceedings when indictments are reviewed
for confirmation their purpose
is not to put the accused in a position to prepare his defence,

since the Prosecutor’s investigations ... may not be complete, but
rather to ensure that the accused has full knowledge and
understanding of the charges against him and is able to plead to
these charges at his initial appearance.97
In ruling on defence motions challenging the form of indictments, the

ICTY sometimes deemed it necessary to cure defects in order that
indictments comply with statutory and regulatory requirements, as
interpreted by the Tribunal itself. It thus ordered the Prosecutor to file
further amended indictments providing all sufficient information or
details sought by the Defence.98 This remedy was granted under
circumstances that compelled the Tribunal to uphold the defendants’
complaints whereby the indictment either lacked specificity in respect
of the alleged criminal behaviour, or failed to state all of the material
facts and circumstances of time and place upon which the Prosecution
relied to establish the charges. In its recent decision in Prosecutor v. Talic,
for example, the Trial Chamber pointed out that ‘it is preferable that an
indictment indicate precisely and expressly the particular nature of the
responsibility alleged in relation to each individual count’.99 It therefore
censured the form of the amended indictment inasmuch as it left the
Prosecution ‘open to the criticism that it [was] attempting to make its
allegations as broad and as comprehensive as possible, even though it
ha[d] no evidence to support them, to enable it to take advantage of a
96
Prosecutor v. Djorje Djukic, Case No. IT-96-20-T, Decision on Preliminary Motions of the
Accused, Trial Chamber I, 26 April 1996, para. 16; Prosecutor v. Tihomir Blaskic, Case No.
IT-95-14, Trial Chamber I, Decision on the Defence Motion to Dismiss the Indictment
Based upon Defects in the Form Thereof (Vagueness/Lack of Adequate Notice of Charges),
4 April 1997, paras. 10-11.
97
Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-10-T, Trial Chamber, Decision on
a Preliminary Motion Filed by Defence Counsel for an Order to Quash Counts 1, 2, 3 and
6 of the Indictment, 30 June 1998, para. 10.
98
Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber, Decision on the Defence
Motion on the Form of the Indictment, 14 November 1995, para. 14; Prosecutor v. Tihomir
Blaskic, supra note 96, para. 39; Prosecutor v. Radoslav Brdanin & Momir Talic, supra note
92, para. 55(iv); Prosecutor v. Radoslav Brdanin & Momir Talic, Case No. IT-99-36/1, Trial
Chamber II, Decision on Objections by Radoslav Brdanin to the Form of the Amended
Indictment, 23 February 2001, para. 18(ii).
99
Prosecutor v. Radoslav Brdanin & Momir Talic, Decision on Objections by Momir Talic,
supra note 92, para. 28; cf. also Prosecutor v. Milorad Krnolejac, Case No. IT-97-25, Trial
Chamber II, Decision on Preliminary Motion on Form of Amended Indictment, 11
February 2000, para. 60; Aleksovski Appeal Judgment, supra note 8, para. 171, footnote
31; Celebici Appeal Judgment, supra note 43, para. 351.
38
subsequent discovery of such evidence’.100 This approach was consistent

with the Appeals Chamber’s guidelines as expounded in Kupreskic:
[i]t is of course possible that an indictment may not plead the

material facts with the requisite degree of specificity because the
necessary information is not in the Prosecution’s possession.
However, in such a situation, doubt must arise as to whether it is
fair to the accused for the trial to proceed. … It is not acceptable
for the Prosecution to omit the material aspects of its main
allegations in the indictment with the aim of moulding the case
against the accused in the course of the trial depending on how
the evidence unfolds.101
For its part, the ICTR was similarly engaged in examining preliminary
motions requesting the Trial Chamber to quash, declare null and void
or request the amendment of indictments allegedly in contrast with the
principle of ‘equality of arms’. In line with the jurisprudence of the ICTY,
and with its own statement of principle that ‘as a general rule,
indictments are expected to be drafted in a precise manner’,102 the ICTR
also developed some guiding principles concerning the form of
indictments. In the decision dismissing the Defence Motion in Prosecutor
v. Nsengiyumva, the Trial Chamber held that
[i]t is a general principle of criminal law that all the facts of a

given offence attributed to an accused person are to be set out in
the indictment against him or her. Therefore, for an indictment
to be sustainable, facts alleging an offence must demonstrate the
specific conduct of the accused constituting the offence. Rule 47(C)
of the Rules of Evidence and Procedure of the Tribunal ... reflects
this principle.103
Further, the Tribunal set some general criteria to be applied in case of

review of alleged defective indictments. In Prosecutor v. Nahimana it
interpreted the expression ‘concise statement of the facts’ contained in
Rule 47 to mean ‘a brief statement of facts but comprehensive in
expression’,104 noting that ‘lack of certain information in the allegations
of the indictment does not render the indictment defective, provided
100
Prosecutor v. Radoslav Brdanin & Momir Talic, supra note 92, para. 11.
101
Kupreskic Appeal Judgment, supra note 94, para. 10, making reference to Prosecutor v.
Milorad Krnojelac, supra note 99, para. 23.
102
Prosecutor v. Sylvain Nsabimana, Case No. ICTR-97-29A-T, Trial Chamber II, Decision
on the Defence Motion for the Amendment of the Indictment, Withdrawal of Certain
Charges and Protective Measures for Witnesses, 9 July 1998.
103
Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I, Trial Chamber III, Decision
on the Defence Motion Raising Objections on Defects in the Form of the Indictment and
to Personal Jurisdiction on the Amended Indictment, 12 May 2000, para. 1.
104
Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Trial Chamber I, Order, 24
November 1997, para. 20.
39
the accused is in a position to understand the charges against him’.105

Again in Nsengiyumva the Chamber stated that, in principle,
[i]t is misleading to raise the question of defects in the ...

indictment on the basis of isolated paragraphs. The ... indictment
must be considered in its totality and it would be incorrect to
make a conclusion as to any defect in it upon a selective reading
of only certain of its paragraphs.106
Dealing with procedural limitations on the power of Chambers in matters

of review, in Prosecutor v. Bagambiki the Tribunal upheld the Prosecutor’s
submission that examination of preliminary motions for review of the
indictment should be limited solely to the possible defects in the form
and not to those affecting the merits, noting that ‘at this stage of the
proceedings, issues concerning the merits of the indictment are not yet
ripe for consideration’. 107 Lastly, in addressing the issue of
impermissibility of appeal from decisions on motions filed pursuant to
Rule 72(A),108 the Trial Chamber ruling in Prosecutor v. Nyiramasuhuko
reiterated the views, expressed in Nsabimana, according to which
decisions on preliminary motions, including those concerning defects
in the form of the indictment, cannot be further reviewed by the Appeals
Chamber.109 This statement of principle made it clear once and for all,
contrary to the arguments submitted by the Prosecutor in Bagosora et
al., that prosecutorial powers of appeal can neither be considered as
‘unlimited and unqualified’, nor be construed and exercised in a way
that is inconsistent with the principle of ‘equality of arms’.110
105
Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Trial Chamber I, Decision on
the Defence Preliminary Motion, Pursuant to Rule 72 of the Rules of Procedure and
Evidence, 12 July 2000.
106
The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I Trial Chamber III, Decision
on the Defence Motion Raising Objections on Defects in the Form of the Indictment and
to Personal Jurisdiction on the Amended Indictment, 12 May 2000, Deliberations, para. 3;
see also The Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-A, Appeals Chamber,
Judgement, 26 May 2003, para. 304.
107
Prosecutor v. Emannuel Bagambiki, Samuel Imanishimwe, Yussif Munyakazi, Case No. ICTR-
97-36-(I), Trial Chamber II, Decision on the Defence Motion on Defects in the Form of the
Indictment, 24 September 1998, para. 5.
108
See Christopher Staker, ‘Article 81. Appeal against decision of acquittal or conviction
or against sentence’, in Commentary on the Rome Statute, supra note 48, at 1015, especially
at 1026-7.
109
Prosecutor v. Pauline Nyiramashuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T,
Trial Chamber II, Decision on Pauline Nyiramasuhuko’s Motion Seeking Review and on
Prosecutor’s Motion for Clarification and Harmonization of Court Orders, 14 February
2001, para. 15, where reference is made to the Chamber’s findings in Prosecutor v. Sylvain
Nsabimana, Case No. ICTR-97-29A-T, Trial Chamber II, Decision on the Defense Motion
for the Review of the Decision of 9 May 2000 and for the Scheduling of a Status Conference,
20 November 2000.
110
In fact, in Prosecutor v. Théoneste Bagosora and 28 Others, the Prosecutor submitted for
review under Article 17 of the Statute and Rule 47 an indictment charging individuals
(continued...)
40
To sum up, it emerges from the ad hoc Tribunals’ settled case law that
lack of clarity or specificity and/or vagueness in drafting indictments
are inconsistent with the need to enable the accused to prepare an
effective defence. Some general pleading principles have been
established thus far:
a) the right of the accused to be informed in detail of the nature and

cause of the charges against him applies to the form of indictments;
b) the Prosecution is obliged to plead all the material facts
underpinning the charges in the indictment;
c) the pleadings are sufficiently particular when they concisely set
out the material facts of the Prosecution’s case with enough detail
to inform an accused clearly (eg, mode and extent of the accused’s
participation in the alleged crime; identity of the victims; time
and place of the events; means by which the acts were committed;
acts of planning, instigating, ordering, aiding or abetting;
relationship of the accused to his subordinates; knowledge of the
subordinates’ crimes and measures of prevention and punishment
that were not taken);
d) a decisive factor in determining the degree of specificity with
which the Prosecution must particularise the facts of its case in
an indictment is the nature of the alleged criminal conduct charged
and the proximity of the accused with the alleged crime (ie
who were in part already subjects of indictments pending before the Tribunal. The
Confirming Judge dismissed this new indictment, finding that ‘the proper course to follow
would be for the Prosecutor to seek leave to amend the [original] Indictments under Rule
50, or to withdraw them pursuant to Rule 51 and resubmit the Indictment for
consideration, or to follow the procedure in Rule 72’. In the view of the Judge, ‘the use of
the procedure provided by Rule 47 ... would circumvent the express provisions of the
Rules that guarantee the right of the Defence to be heard.’ The Prosecutor later filed an ex
parte Notice of Appeal seeking to appeal from the decision of the Confirming Judge.
Counsel for Bagosora and Nsengiyumva filed additional motions seeking leave to be
heard and to make submissions on, inter alia, whether an appeal from the Decision was
admissible, whether the Appeals Chamber was competent to hear it, whether parties
affected by such an appeal should be excluded from the proceedings, and whether such
an appeal could be disposed of ex parte. The Appeals Chamber rejected the Prosecutor’s
Notice of Appeal and her argument that such a right of appeal in the case was based on
a broad reading of Article 24 of the Statute and on the theory of inherent powers. It
concluded that such an interpretation of Article 24 would broaden the scope of the right
of the Prosecutor to appeal to a dimension that was not envisaged by the drafters of the
Statute or the Rules: ‘The Prosecutor’s reading of Article 24, granting her an unfettered
right while limiting that of the accused, would violate the principle of equality of arms. It
is clear that the Prosecutor cannot have any right of appeal under the Statute or the Rules
that is greater than that of an accused. Consistent with this principle, the Appeals Chamber
finds that, in the instant case, where the matter affects the right of the accused, the
Prosecutor can have no greater power of appeal than accused persons.’ (Prosecutor v.
Théoneste Bagosora and 28 Others, Case No. ICTR-98-37-A, Appeals Chamber, Decision on
the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge
Dismissing an Indictment against Théoneste Bagosora and 28 Others, 8 June 1998, paras.
34-35).
ed...)
41
whether direct and personal commission of the crime is pleaded

or whether, in the alternative, accomplice or superior liability is
alleged);
e) all legal prerequisites to the application of the offences charged
constitute material facts and must be pleaded in the indictment;
f) each of the material facts must usually be pleaded expressly,
although it may be sufficient in some circumstances if it is pleaded
by necessary implication. However, if a pleading merely assumes
the existence of the pre-requisite, this fundamental rule of
pleading has not been met.111
Successful claims of vagueness or ambiguity may cause defective

indictments to be invalidated for failure to comply with the ‘equality of
arms’ requirement, since they prevent the accused from being cognisant
of the charges against him and, consequently, deny him the possibility
to properly prepare his defence. Whenever the indictment is not so vague
as to be defective on its face, but an accused needs more information to
prepare for trial and avoid prejudicial surprise, Trial Chambers have
endorsed the practice of allowing motions for particulars.112 More serious
defects are cured through amendments requested via motions
challenging the form of the indictment, pursuant to Rule 72(A)(ii). In
111
Basic principles in matters of pleadings were enunciated in the Kupreskic Appeal
Judgment, supra note 94, para. 88 et seq., and further reiterated in subsequent decisions.
See eg Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic, Amir Kubura, Case No. IT-01-
47-PT, Trial Chamber II, Decision on Form of the Indictment, 7 December 2001, paras. 7-
12; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeals Chamber, Judgment, 17
September 2003, paras. 129-32; Prosecutor v. Mitar Rasevic, Case No. IT-97-25/1-PT, Trial
Chamber II, Decision Regarding Defence Preliminary Motion on the Form of the
Indictment, 28 April 2004, paras. 9-20; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A,
Appeals Chamber, Judgement, 29 July 2004, paras. 207-10 (hereinafter Blaskic Appeal
Judgment, as summarised by Jonas Nillson in 5 The Global Community YILJ 2005 794 (2006-
I); see Rafael Nieto-Navia, ‘Introductory Note. The International Criminal Tribunal for
the Former Yugoslavia in 2004’, ibid, at 623, esp. at 638-42); Prosecutor v. Dragovir Milosevic,
Case No. IT-98-29/1-PT, Trial Chamber II, Decision on Defence Preliminary Motion Under
Rule 72(A)(ii), 18 July 2005, paras. 7-12. See also, as far as the ICTR is concerned, Prosecutor
v. Laurent Semanza, Case No. ICTR-97-20-T, Trial Chamber III, Judgement and Sentence,
15 May 2003, para. 45; Prosecutor v. Ntagerura et al., supra note 92, paras. 31-35.
112
Prior to submitting a motion for particulars, the Defence must initially make a specific
and direct request for the information to the Prosecution, specifying the counts in question,
the reasons that the material already in the defence’s possession is not sufficient, and the
particular information that will remedy the inadequacy. If the Prosecution does not comply
with the request, failing to provide sufficient information, the defence may address its
claims to the Trial Chamber. In deciding on motions for particulars, Trial Chambers take
into consideration all the materials in possession of the defence in order to assess whether
the requested particulars are indeed necessary for the preparation of the defence case.
When such particulars are already contained in other sources, such as the Prosecutor’s
pre-trial brief, discovery materials or evidentiary matters for trial, the motion is dismissed.
See Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, Trial Chamber, Decision on Defence
Motion for Particulars, 16 December 2003.
42
this case, the consistent jurisprudence of both Tribunals shows that in

granting these motions Trial Chambers have often ordered the Prosecutor
to either withdraw the charges against the accused or, alternatively,
amend defective indictments. They have sometimes given very explicit
directions to the effect that clarifications or further information be
provided,113 specific ambiguities be resolved and manifest inconsistencies
be removed. 114 The discretionary power that Trial Chambers have
exercised in this regard is quite wide and impacts heavily on the
Prosecutor’s competences. Suffice it to mention that even in the presence
of a merely unclear or unnecessarily repetitive indictment – admittedly
not a defective one – the Chamber ruling in Hadzihasanovic et al. deemed
it opportune to direct the Prosecutor to reorganise the indictment and
redraft it according to the Chamber’s specific suggestions determining
the preferred sequence of the single sections.115
Furthermore, indictments may also be challenged at trial stage or on

appeal. Since indictments can be no longer amended at these stages of
the proceedings, Trial and Appeals Chambers must respectively
determine whether they can enter a conviction on the basis of vague
charges or whether the error of trying the accused on a defective
indictment is capable of invalidating the decision.
At trial stage, Chambers are concerned only with defects that actually
prejudice the rights of the accused. In fact, although allegations of
vagueness should normally be dealt with in pre-trial proceedings, Trial
Chambers feel the duty to warrant full consideration of the arguments
of the Defence in order to ‘ensure the integrity of the proceedings’.116 As
a result, when the indictment is unacceptably vague or even
incomprehensible, so that prejudice is caused to the preparation of the
defence case, Trial Chambers usually disregard those counts which are
not properly formulated117 or supported by a precise legal qualification.118
113
For the ICTR, see, eg, Prosecutor v. Emannuel Bagambiki, Samuel Imanishimwe, Yussif
Munyakazi, Case No. ICTR-97-36-(I), Trial Chamber II, Decision on the Defence Motion
on Defects in the Form of the Indictment, 24 September 1998; Prosecutor v. Georges Henri
Yvon Joseph Ruggiu, Case No. ICTR-97-32-T, Trial Chamber I, Decision on Defence
Preliminary Motion on Defects in the Form of the Indictment, 24 May 1999; Prosecutor v.
Joseph Kanyabashi, Case No. ICTR-96-15-I, Trial Chamber II, Decision on Defence
Preliminary Motion for Defects in the Form of the Indictment, 31 May 2000; Prosecutor v.
Édouard Karemera, Case No. ICTR-98-44-T, Trial Chamber II, Decision on the Defence
Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, inter alia,
Lack of Jurisdiction and Defects in the Form of the Indictment, 25 April 2001; Prosecutor
v. Innocent Sagahutu et al., Case No. ICTR-00-56-T, Trial Chamber II, Decision on Sagahutu’s
Preliminary, Provisional Release and Severance Motions, 25 September 2002.
114
Prosecutor v. Mitar Rasevic, supra note 111, disposition.
115
Prosecutor v. Enver Hadzihasanovic, supra note 111, para. 73.
116
Prosecutor v. Laurent Semanza, supra note 111, paras. 42-43.
117
In Prosecutor v. Ntagerura et al., supra note 92, the Trial Chamber pointed out that:
‘Although no rule specifies the content of the “count”, it is evident from the context of
(continued...)
43
Admittedly, ‘disregarding a portion of the indictment is most appropriate

where an allegation is grossly deficient or where to disregard it would
not dispose of the central allegations in the case’,119 ie in cases where
‘there is strong evidence pointing towards the guilt of the accused’.120
However, it is noteworthy that Trial Chambers have clearly addressed
an admonition to the Prosecutor, stating that ‘in light of the potential
for ambiguity, the Chamber emphasises that the Prosecutor should not
plead what she does not intend to prove.’121
An appraisal of the correct drafting of indictments is also made on appeal

when reviewing convictions returned on the basis of material facts not
pleaded in the indictment. When assessing an indictment at the appeal
stage, the relevant test applied by the Appeals Chamber is whether it is
satisfied that the accused has been properly notified of the case against
him. Since any omission may impact negatively on the defence, a
fundamental defect in an indictment may be considered harmless only
if it can be demonstrated that, in spite of the Prosecutor’s lack of diligence,
the defendant’s ability to prepare his case has not been materially
impaired. Both in the Kvocka et al. and in the Niyitegeca Appeal Judgments,
the Appeals Chamber addressed this issue and determined the
apportionment of the burden of proof:
When an accused raises the issue of lack of notice before the Trial
Chamber, the burden rests on the Prosecution to demonstrate that
the accused’s ability to prepare a defence was not materially
impaired. When an appellant raises a defect in the indictment for
the first time on appeal, then the appellant bears the burden of
showing that his ability to prepare his defence was materially
impaired.122
Rule 47 that this term refers to the legal characterisation or qualification of the crime
alleged in the concise statement of facts of the crime. This legal qualification must include
both the crime alleged and the mode of the accused’s alleged participation. Thus, a “count”
defines the nature of the charge referred to in Article 20(4)(a) of the Statute’ (para. 37, footnote
omitted).
118
Prosecutor v. Laurent Semanza, supra note 111, para. 61; Prosecutor v. Ntagerura et al.,
supra note 92, paras. 48, 69.
119
Prosecutor v. Ntagerura et al., supra note 92, para. 67.
120
Kupreskic Appeal Judgment, supra note 94, para. 125.
121
Prosecutor v. Laurent Semanza, supra note 111, para. 59, referring to Prosecutor v. Radoslav
Brdanin & Momir Talic, supra note 92, para. 11.
122
Prosecutor v. Miroslav Kvocka, Mlado Radic, Zoran, Zigic, Dragoljub Prcac, Case No. IT-98-
30/1-A, Appeals Chamber, Judgement, 28 February 2005, paras. 34-35 (footnotes omitted).
See also Eliézer Niyitegeka (Appellant) v. The Prosecutor (Respondent), Case No. ICTR-96-14-
A, Appeals Chamber, Judgement, 9 July 2004, para. 200 (as summarised by Everard
O’Donnell in 5 The Global Community YILJ 2005 974 (2006-II)).
44
However, when the vagueness of the indictment
constitutes neither a minor defect nor a technical imperfection

[but] [i]t goes to the heart of the substantial safeguards that an
indictment is intended to furnish to an accused, namely to inform
him of the case he has to meet … the conclusion must be that
such a fundamental defect in the … Indictment [does] indeed
cause injustice, since the Defendants’ right to prepare their defence
[is] seriously infringed. The trial … [is], thereby, rendered unfair.123
In case of unfairness resulting from a breach of the principle of ‘equality

of arms’, the question remains open for the Appeals Chamber to decide
whether retrial is the appropriate remedy. This brings to another
fundamental issue concerning remedies, which will be discussed
below.124
Furthermore, it is worth recalling that the jurisprudence developed on

the subject by the two ad hoc Tribunals has already played a significant
role in guiding other international criminal tribunals, such as the Special
Court for Sierra Leone, expound their principles governing the framing
of indictments.125
C. ‘Equality of arms’ Versus Equality of Means, Resources

and Facilities
Harsh criticism is brought against the manifest inequality that generally

exists between the means and the resources of the Prosecution and those
available to the Defence. Defence lawyers in international criminal courts
and internationalised tribunals126 have been often confronted with major
difficulties in obtaining proper facilities, trained investigators, and
sufficient payment to provide quality representation for their clients.
123
Kupreskic Appeal Judgment, supra note 94, para. 122.
124
See infra Section IV.
125
Prosecutor against Alex Tamba Brima, Brima Bazzy Kamar, Santigie Borbor Kanu,
Case No. SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion for Defects
in the Form of the Indictment, 1 April 2004, paras. 19-20; see also Prosecutor v. Hassan
Hissa Sesay, Case No. SCSL- 2003-05-PT, Decision and Order on Defence Preliminary
Motion for Defects in the Form of the Indictment, 13 October 2003; Prosecutor against
Santigie Borbor Kanu, Case No. SCSL- 2003-13-PT, Decision and Order on Defence
Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003;
Prosecutor against Allieu Kondewa, Case No. SCSL- 2003-12-PT, Decision and Order on
Defence Preliminary Motion for Defects in the Form of the Indictment, 27 November
2003.
126
See Cesare Romano, ‘Mixed Jurisdictions for East Timor, Kosovo, Sierra Leone and
Cambodia: The Coming of Age of Internationalized Criminal Bodies?’, 2 The Global
Community YILJ 2002 97 (2003-I); Internationalized Criminal Courts. Sierra Leone, East Timor,
Kosovo, and Cambodia (Cesare P.R. Romano, André Nollkaemper and Jann K. Kleffner
eds. 2004).
45
This situation contrasts with the common opinion that, in order to

guarantee true ‘equality of arms’, it is essential that the Defence and the
Prosecution be equally organised, funded and supported; a serious
imbalance between the two would dramatically weaken the whole
system of international justice:
One of the principal guarantees of the right to a fair trial is the

provision of adequate facilities for an accused person’s defence.
Trials can only achieve legitimacy if there is ‘equality of arms’
between defence and prosecution. The prosecution of crimes
under international law requires not only an effective prosecution
office, but also an effective defence. If this is not provided, trials
will not be regarded as having been fair, and their verdicts will
not be regarded as legitimate.127
1. Assignment of Counsel and Legal Aid Systems
International criminal proceedings should thus guarantee – in order to

comply with the ‘equality of arms’ requirement and to meet the standard
of ‘effective defence’ – that the accused be afforded adequate human
and economic resources for the proper preparation of his defence. Such
an imperative need has prompted criminal tribunals to devise, in
accordance with international human rights standards, a system of legal
aid aimed at providing material and technical support to indigent
defendants. It should be stressed, at the outset, that the success of this
system and its further improvements are conditional upon the tribunals’
ability to work out a reasonable plan of action for defence costs that
may be acceptable to their financing bodies. Admittedly, international
criminal tribunals have to face a major challenge in managing free legal
assistance, since they must be able to counterbalance the compelling
duty of securing respect for the rights of the accused and the need to
cope with budgetary constraints.128
In the ICC system, statutory and regulatory provisions pay great

attention to the effective implementation of the right to defence through
assignment of legal counsel, as enshrined in Articles 55(2)(c) and 67(1)(d)
of the Rome Statute and in Rule 21. In more general terms, Rule 20
entrusts to the Registrar the responsibility of organising his staff ‘in a
manner that promotes the rights of the defence, consistent with the
principle of fair trial as defined in the Statute.’ In this perspective, not
127
Report on Defence Provision for the Special Court For Sierra Leone of 28 February
2003, prepared by Sylvia de Bertodano at the request of the Registry of the Special Court
for Sierra Leone and of the non-governmental organisation ‘No Peace Without Justice’,
available at <http://www.specialcourt.org/SLMission/NPWJDocs/DefenceReport
SdBFEB03.html>.
128
On these issues, see the Reports cited infra notes 136, 140.
46
only has the Registrar the task of providing the defence team with all
support, assistance, and facilities needed for the performance of their
duty in full equality, but he also has to deal with the financial
administration of the Registry ‘in such a manner as to ensure the
professional independence of defence counsel’.129 Moreover, pursuant
to Regulations 69 to 71 the Registrar has the power to control that counsel
meet the professional requirements described in Rule 22 and,
accordingly, to decide whether to include, suspend or remove defence
counsel from the list of available lawyers. Surprisingly, however, such
broad responsibilities are not complemented by any explicit decision-
making power as to the appointment of defence counsel.130 It may be
assumed that this competence is impliedly entrusted to the Registrar,
though Rule 117(2) explicitly provides that assignment of defence
counsel for arrested person is decided by the Pre-Trial Chamber.131
As far as the ICTY and ICTR are concerned, their Statutes and Rules
expressly protect the defendants’ entitlement to assignment of legal
assistance,132 assuming that court appointed counsel may also be secured
‘whenever the interests of justice so demand’.133 However, contrary to
the provision of Rule 21(2) of the ICC’s Rules, the right to legal counsel
is not to be construed as entitling indigent suspects or accused persons
to a counsel ‘of [their] own choosing’.134 Both Registrars have the power
129
See Rule 20(2).
130
See Article 11 of the ICTY Directive on Assignment of Defence Counsel (Directive No.
1/94), as amended on 28 July 2004 (IT/73/REV. 10), available at <http://www.un.org/icty/
basic/counsel/IT073-rev10-e.htm>; Article 10 of the ICTR Directive on the Assignment of
Defence Counsel, as amended on 24 April 2004, available at <http://65.18.216.88/ENGLISH/
basicdocs/defence/240404.pdf>.
131
See Gerard Dive, ‘The Registry’, in The International Criminal Court (Lee ed.), supra
note 48, at 262, esp. at 282.
132
Articles 18(3) and 21(4) of the ICTY Statute, Articles 17(3) and 20(4) of the ICTR Statute,
and Rule 42(A)(i) of the ICTY Rules. See Morris & Scharf, The International Criminal Tribunal
for Rwanda, supra note 45, at 520-9; Michail Wladimiroff, ‘The Assignment of Defence
Counsel Before the International Criminal Tribunal for Rwanda’, 12 Leiden J. Int’l L. 957
(1999); John E. Ackerman, ‘Assignment of Defence Counsel at the ICTY’, in Essays on
ICTY Procedure and Evidence, supra note 90, at 167; Michael Greaves, ‘The Right to Counsel
Before the ICTY and the ICTR for Indigent Suspects: An Unfettered Right?’, ibid, at 177;
Mame Mandiaye Niang, ‘The Right to Counsel before the International Criminal Tribunal
for Rwanda’, 13 Crim. L. Forum 323 (2002).
133
Rule 45(A) of the ICTY Rules; Rule 45quater of the ICTR Rules.
134
The issue whether the right to free legal aid implies the right to choose one’s counsel
was decided upon in Prosecutor v. Gérard Ntakirutimana (Case No. ICTR-96-10-T and ICTR-
96-17-T, Decision on the Motions of the Accused for Replacement of Assigned Counsel,
11 June 1997), and was further settled by the Appeals Chamber in Kambanda v. Prosecutor
where the Chamber, making reference to the above-said decision, concluded that ‘in the
light of a textual and systematic interpretation of the provisions of the Statute and the
Rules, read in conjunction with relevant decisions from the Human Rights Committee
and the organs of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, … the right to free legal assistance by counsel does not confer
the right to choose one’s counsel’ (Jean Kambanda v. The Prosecutor, Case No. ICTR 97-23-
(continued...)
47
to admit counsel to the legal assistance services provided by the Tribunals

as well as to grant or reject requests for court appointed counsel. The
ultimate word in matters of challenge of the Registrars’ decisions is left
to the Presidency or to the Chamber; judicial review seems in this case
most appropriate to guarantee equal treatment and objectivity.
Further, in order to enhance protection of the right to defence, the two

ad hoc Tribunals have issued, and recently revised and further amended,
Directives on assignment of defence counsel. These Directives set the
basic principles and establish the conditions of exercise of the right to
counsel and to assignment of free legal assistance.135 Together with the
Statute and Rules, the Directives provide the legal basis of the Tribunal’s
system of legal aid, which is founded on the principle that ‘the accused
and the Prosecutor must have equality of procedural arms, supported
by an appropriate level of resources’.136 In the views of the Secretary-
General of the United Nations, ‘to guarantee the proper administration
of justice and the Tribunal’s credibility’,137 such an adequate level of
resources and facilities should always be granted to indigent defendants
in order that they do not perceive the system to be unfair or contrary to
the principle of ‘equality of arms’.
However, as anticipated above, implementation of the right to legal

assistance is made conditional upon availability of sufficient financial
funds, since costs of legal representation are ‘met by the Tribunal subject
to the budgetary provisions, rules and regulations, and practice set by
the United Nations’.138 To this end, in an effort to rationalise the system,
control costs, define and standardise the conditions of remuneration
and set a clear threshold for indigence, the Registries of the Tribunals
have introduced some structural changes and major reforms ‘motivated
by the need to improve the allocation of resources between cases varying
in complexity, to create incentives for counsel to work efficiently and to
explore possibilities for cost savings’.139 Legal aid programmes have
A, Appeals Chamber, Judgment, 19 October 2000, para. 33). Such firm practice was again
confirmed by the Appeals Chamber in Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-
4-A, Appeals Chamber, Judgment, 1 June 2001, paras. 60-61.
135
According to the Directive of Assignment of Defence Counsel, assigned counsel are
entitled to costs and expenses of legal representation, which include costs relating to
investigative and procedural steps, measures taken for the production of evidence to
assist or support the defence as well as expenses for ascertainment of facts, consultancy,
expert opinion, and transportation. These resources are supposed to place the defence at
equal footing with the prosecution.
136
Comprehensive Report on the Progress made by the International Criminal Tribunal
for the Former Yugoslavia in Reforming its Legal Aid System, Report of the Secretary-
General, U.N. Doc. A/58/288, 12 August 2003, at 2, para. 4.
137
Id., at para. 5.
138
Article 17(A) of the ICTR Directive and Article 22(A) of the ICTY Directive.
139
Comprehensive Report, supra note 136, at 3, para. 13.
48
therefore been reviewed in order to further improve efficiency,

transparency and uniformity while taking into consideration the need
for a rational management of the available funds.140
Even so, the Tribunals’ legal aid system still has its drawbacks and while
further reforms are under consideration in order to ensure efficient use
of available resources and the ‘protection of the integrity of the Tribunal’s
judicial process’,141 other circumstances may have a negative impact on
these efforts. For example, although the ICTR has taken steps to
implement some of the recommendations addressed to it for further
improvements of its legal aid scheme,142 it is likely that allocation of
resources for payment of fees and expenses of assigned lawyers will be
affected by the increased costs that the Tribunal has to meet as a
consequence of recent measures such as the appointment of a separate
Prosecutor and of ad-litem judges.143 Adequate weight should also be
given to circumstances beyond the Tribunal’s control. United Nations
Member States’ failure to pay their assessed contribution on time and in
full is a serious issue, for which concern has been recently expressed by
the General Assembly. However, it looks like the Assembly’s major
attention focuses on the achievement of the Tribunal’s completion
strategy144 and on ‘the importance of ensuring that the Tribunal receives
140
Comprehensive Report on the Progress made by the International Criminal Tribunal
for Rwanda in Reforming its Legal Aid System, Report of the Secretary-General, U.N.
Doc. A/58/366, 12 September 2003, at 4, para. 9.
141
Id., at 5, para. 14.
142
See, in this regard, the financial Reports of the Board of Auditors containing
recommendations aimed at rationalizing resources and making the legal aid system more
efficient; the most recent one was adopted on 9 July 2004 (U.N. Doc. A/59/Add. 11). The
Tribunal was also urged by the European Union to conclude and implement new
procedures for remuneration of defence counsel and supporting teams which allow
equality of arms for indigent indictees: see in this connection the Statement on behalf of
the European Union by Ambassador Gian Luigi Valenza, Permanent Mission of Italy to
the U.N. Financing of the International Criminal Tribunals for Rwanda (ICTR) and the
Former Yugoslavia (ICTY): item 131 – item 132. Fifty-Eighth Session of the General
Assembly of the United Nations - Fifth Committee, November 24, 2003.
143
See S.C. Res. 1503 (2003) of 28 August 2003, concerning the creation of a new position
of Prosecutor of the International Tribunal for Rwanda, and S.C. Res. 1512 (2003) of 27
October 2003, concerning the authorisation for the use of up to nine additional ad litem
judges.
144
For critical examination and comments on several problems raised by the completion
strategy and their possible solutions see Michael Bohlander, The Transfer of Cases from
International Criminal Tribunals to National Courts, Paper presented at the Colloquium of
Prosecutors of International Criminal Tribunals held at Arusha on 25-27 November 2004,
available at <http://www.ictr.org/ENGLISH/colloquium04/bohlander/Bohlander.pdf>. See
also Daryl A. Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad Hoc
International Criminal Tribunals’, 99 Am. J. Int’l L. 142 (2005); Larry D. Johnson, ‘Closing
an International Criminal Tribunal While Maintaining International Human Rights
Standards and Excluding Impunity’, ibid, at 158; William A. Schabas, ‘Introductory Note
– The International Criminal Tribunal for Rwanda in 2004’, 5 The Global Community YILJ
2005 935 (2006-I), at 935-7; Sarah Williams, ‘The Completion Strategy of the ICTY and the
ICTR’, in this volume.
49
adequate financial and human resources to support its strengthened

judicial capacity’. This impression seems to be confirmed by the fact
that the Assembly has instructed the Secretary-General ‘to prioritize and
deploy resources in support of the completion strategy’. Ironically,
however, in requesting him to continue to reform the legal aid system
‘as a top priority’, the General Assembly invited the Secretary-General
to report in particular on ‘savings in defence costs’.145
2. Inequality in Human and Financial Resources
Emphasis should also be laid on the fact that inequality between the
parties may also arise independently of recourse to legal aid systems. In
circumstances where the accused is not definitely indigent, it is important
that objective criteria for assessment of unfairness be clearly set. Thus,
it should first be determined whether there is a need for an equal amount
of human and economic resources, in relative or absolute terms, for
defence lawyers as well as prosecutors; and, secondly, a clear definition
of the required standard of proof should be set in order that the defendant
may successfully complain that inequality of means and resources
detrimentally impinges on the proper preparation of the defence case.
It is useful to recall in this context the relevant jurisprudence of the two

ad hoc Tribunals.
The Appeals Chamber in Prosecutor v. Kayishema and Ruzindana took a

step backwards from the standard adopted in Tadic, holding that the
rule providing the parties with equal opportunities to present their cases
does not compel an equality of resources. In fact, in dismissing
Kayishema’s appeal against the Trial Chamber’s decision on his motion
calling for full ‘equality of arms’ between the Prosecution and the
Defence, the Appeals Chamber endorsed the Trial Chambers finding
that equality between the parties should not be confused with equality
of means and facilities. It thus held that the rights of the accused should
not be interpreted as to mean that the Defence is entitled to the same
resources as the Prosecution: ‘equality of arms ... does not necessarily
amount to the material equality of possessing the same financial and/or
personal resources’.146
145
See G.A. Res. 58/253 of 13 January 2004, paras. 6, 13 and 25, respectively. Cf. also G.A.
Res. 58/255 of 11 February 2004, paras. 11 and 13, as far as the ICTY is concerned.
146
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Appeals
Chamber, Judgement (Reasons), 1 June 2001, discussion on inequality of arms at paras.
63-71, quotation from para. 69 (as summarised by Everard O’Donnell in 2 The Global
Community YILJ 2002 1065 (2003-II), at 1070-2; see also Prosecutor v. Clément Kayishema
and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, Judgment and Sentence, 21
May 1999, discussion at paras. 55-60 (as summarised by Stefania Negri in 1 The Global
Community YILJ 2001 633 (2001), at 635-636). See, in the same direction, Prosecutor v. Ignace
(continued...)
50
In a later decision on an interlocutory appeal filed in the case of Prosecutor

v. Milutinovic et al., the Appeals Chamber reiterated in principle that the
‘equality of arms’ requirement is violated ‘only if either party is put at a
disadvantage when presenting its case’.147 It nevertheless found that, in
the circumstances of the case, the appellant could not rely on the alleged
inadequacy of funds during the pre-trial stage to establish such a
disadvantage, since he had ‘not shown how the Trial Chamber [had]
failed to address the imbalance of resources between the Prosecution
and the Defence and in that way violated the principle of equality of
arms’.148 Moreover, in rejecting the appellant’s submission that the
Registrar had failed to assess properly the request for additional funds,
the Appeals Chamber concluded that the Registrar was correct in
affirming the principle that the amount of resources allocated to each
Defence team under the legal aid system depends on specific factors,
such as the level of complexity of the case and the amount of work
required to ensure effective pre-trial preparation. In this regard, the
Chamber pointed out that ‘it is the amount of work required, rather
than the length of the pre-trial stage, which should determine the
allotment for each Defence team.’149
These cases are illustrative of a clear tendency, on the part of both

Tribunals, to construe subparagraph (b) of Articles 21(4) and 20(4) of
their respective Statutes in a rather restrictive fashion. Evidently,
however, this approach places an onerous burden of proof on the Defence
and disregards substantive equality, thus hindering the achievement of
real fairness.
Concern for failure to ensure ‘equality of arms’ because of financial and

institutional inequality between the Prosecution and the Defence has
also been voiced by those scholars who have criticised the lack of an
institutionalised Office of the Defence in ad hoc Tribunals. 150
Unfortunately, the problem comes up with mixed jurisdictions, too.
Indeed, the issue of procedural inequality, in terms of economic and
other material resources, was one of the main problems tackled in
Bagilishema, Oral decision of 17 February 2000 on the Defence motion dated 28 January
2000 on equality of arms between the parties; Prosecutor v. Dario Kordic and Mario Cerzek,
Case No. IT-95-14/2-A, Appeals Chamber, Judgment, 17 December 2004, para 176 (as
summarised by Anna Oriolo in 5 The Global Community YILJ 2005 875, 909-10 (2006-I);
hereinafter Kordic Appeal Judgment).
147
Prosecutor v. Milan Milutinovic et al., Case No. IT-99-37-AR73, Appeals Chamber, Decision
on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 24.
148
Id..
149
Id., para. 25.
150
See Kenneth S. Gallant, ‘Politics, Theory and Institutions: Three Reasons Why
International Criminal Defence Is Hard, and What Might Be Done About One of Them’,
14 Crim. L. Forum 317 (2003), at 327 et seq. See also Dive, supra note 131, at 277-8.
ed...)
51
shaping the mechanism of accountability and justice arranged for

Cambodia in the Agreement between the United Nations and the Royal
Government. 151 Although this mechanism is to be considered an
important step forward in the international community’s attempts to
bring peace, national reconciliation and social repair in the country, it is
deemed to be flawed ‘by a number of important missed opportunities
that could have substantially strengthened the process’.152 As pointed
out by alert commentators,153 one of these shortcomings pertains to legal
assistance to indigent accused, inasmuch as the Agreement provides
that the accused is free to choose his own counsel (Article 13 on the
rights of the accused) but it fails to specify who is going to bear legal
costs and provide local or foreign counsel with adequate means and
necessary resources for the fulfilment of their mandate. 154 As a
consequence, access to legal aid is subject to adequate funds allocated
by the United Nations, and freedom of choice of defence counsel cannot
apply to indigent accused persons, who will be obliged to avail
themselves of the assistance provided by the Extraordinary Chambers
according to their own rules. This situation mirrors the condition of
indigent indictees tried before the ICTY and the ICTR, who are bound
to choose their counsel from a list provided by the Registry of the
Tribunal, which is the body entrusted with the payment of legal costs
on behalf of the United Nations.155 It has been therefore suggested that
since Article 17 of the Agreement generically provides that the United
Nations is responsible for remuneration of defence counsel, lack of
clarification on the question of costs seriously affects the principle of
151
Agreement between the United Nations and the Royal Government of Cambodia
concerning the prosecution under Cambodian law of crimes committed during the period
of Democratic Kampuchea, done at Phnom Penh on 6 June 2003, available at <http://
www.cambodia.gov.kh/krt/pdfs/Agreement%20between%20UN%20and%20RGC.pdf>.
The Agreement is complemented by ‘The Law on the Establishment of the Extraordinary
Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during
the Period of Democratic Kampuchea’ of 10 August 2001, embodying the right to equality
of arms in its Article 35 (available at <http://www.cambodia.gov.kh/krt/english/
law%20on%20establishment.htm>).
152
The mechanism is based on mixed nationality chambers controlled by Cambodian
personnel having the power to prosecute former Khmer Rouge leaders; the quote is from
Suzannah Linton, Comments on the Draft Agreement Between the UN and Cambodian
Government, at <http://www.globalpolicy.org/intljustice/tribunals/cambodia/2003/
0317critic.htm>.
153
See, in this respect, the critical considerations by Suzannah Linton, supra note 152;
adde, by the same author, ‘Cambodia, East Timor and Sierra Leone: Experiments in
International Justice’, 12 Crim. L. Forum 185 (2001).
154
Pursuant to General Assembly Resolution 57/228 B of 22 May 2003, para. 3, the expenses
of the Extraordinary Chambers are to be defrayed by the United Nations in accordance
with the relevant provisions of the draft Agreement and are borne by voluntary
contributions from the international community as indicated in paragraph 9 of Resolution
57/228 A of 18 December 2002.
155
See supra note 134 and accompanying text.
52
‘equality of arms’ and implies limitations on the rights of defendants

benefiting from legal aid.156
Serious concern has also been expressed with regard to alleged

procedural unfairness in the administration of justice in East Timor,157
since equality between the Prosecution and the Defence has yet to be
fully achieved.158 As a matter of fact, ever since the beginning of their
activity the Serious Crimes Panels have experienced major problems
with funding and resources.159 As a consequence, most trials coming
before the Special Panels of the Dili District Court have been marked by
a vast difference in the resources of the Prosecution office as compared
to those available to the Defence. Lack of adequate resources was in fact
complained by the Defence and raised as the reason for not calling any
defence witness at trial in the Los Palos Case (the first major case decided
by the Special Panel, which represented the benchmark of the East
Timorese judicial system’s ability to comply with international fair trial
standards).160 The same difficulties were experienced in the second major
trial, the Lolotoe Case,161 since the international Public Defenders had to
work under extremely difficult conditions, with minimal resources
available to assist the preparation of the defence case, while the
Prosecutor had access to far greater funding giving him a distinct
advantage in the number of potential witnesses that could be
interviewed. This significant disparity of resources between the parties
placed the Defence at a substantial disadvantage and raised doubts as
156
See Lynton, supra note 152.
157
UNTAET Regulation 2000/11 of 6 March 2000 deals with the organisation of the courts
in East Timor, and provides that the District Court of Dili shall have exclusive jurisdiction
over serious crimes such as genocide, war crimes, crimes against humanity, murder, sexual
offences and torture. The substantive law under which they operate is Regulation 2000/
15 of 6 June 2000, which draws directly upon the provisions of the Rome Statute. The
procedural law, under Regulation 2000/30 of 25 September 2000, is derived partly from
the Rome Statute, but principally from the Indonesian Penal Code. Section 6 (Rights of
the Suspect and Accused) of UNTAET Regulation 2000/30 embodies the principle of
‘equality of arms’.
158
See, for in-depth analysis, the report by Amnesty International & Justice System
Monitoring Programme, Indonesia, Justice for Timor-Leste: The Way Forward, AI Index: ASA
21/006/2004, at <http://www.jsmp.minihub.org/Reports/jsmpreports/jsmp_amnety
_report_justiceforET_eng.pdf>.
159
Pursuant to Section 34 (Financial and Technical Support) of UNTAET Regulation 2000/
11 as amended by Regulation 2001/25 of 14 September 2001, during the transitional period
UNTAET provides the necessary financial and technical support to the courts in East
Timor.
160
Public Prosecutor v. Joni Marques and 9 others, Case No. 9/2000, Judgment, 11 December
2001. For a critical assessment of the trial from a human rights law perspective, see the
report of the Judicial System Monitoring Programme, at <http://www.jsmp.minihub.org/
Reports/Los%20Palos%20trial%20report.pdf>.
161
Public Prosecutor v. Joao Franca da Silva alias Jhoni Franca, Case No. 4a/2001; Public
Prosecutor v. Sabino Gouveia Leite, Case No. 4b/2001; Public Prosecutor v. Jose Cardoso Fereira
alias Mouzinho, Case No. 4c/2001, Judgment, 5 April 2003.
53
to the respect for the principle of ‘equality of arms’ in both cases. It was
submitted, in this connection, that lack of ‘equality of arms’ in Special
Panels was mainly due to the fact that the Serious Crimes Unit is funded
directly from United Nations contributions, a circumstance which causes
a substantial unbalance between prosecution and defence budgets.162
A different approach inspired the drafters of the Rules of Procedure

and Evidence of the Special Court for Sierra Leone, which provide a
detailed system of legal aid aimed at ensuring effective compliance with
the principle of ‘equality of arms’.163 To this end, a Defence Office was
established pursuant to Rule 45. Headed by a Principal Defender, the
Office fulfils its functions by providing, inter alia, initial legal advice
and assistance by duty counsel, legal assistance for indigent accused as
ordered by the Court or in the interests of justice, adequate facilities for
counsel for the preparation of the defence. The mandate of the Defence
Office is not limited to assignment of counsel: it also engages in oversight
of Defence teams, it monitors trials and provides advice and substantive
assistance to all teams in the preparation of their cases, including research
on legal issues and liaising with various governments and other entities
on matters of judicial cooperation;164 financial resources to be allocated
to this end are mainly based on voluntary contributions from the
international community.165 It should be emphasised that the institution
of this organ in the Special Court has represented an innovation in the
structure of international courts and internationalised jurisdictions. As
a matter of fact, although other international tribunals do have
administrative bodies to deal with the Defence, none have a permanent
institution within the court. This innovation is intended to ensure the
rights of suspects and accused persons, to provide a counterbalance to
the Prosecution, and to obviate problems of inadequate defence. Its main
scope is to afford respect for the principle of ‘equality of arms’, that is
interpreted by the President of the Court as requiring ‘reasonable
equivalence in ability and resources of Prosecution and Defence’.166
162
See William W. Burke-White, ‘A Community of Courts: Toward a System of International
Criminal Law Enforcement’, 24 Mich. J. Int’l L. 1 (2002), at 70.
163
Implementation of the legal aid system is based on the Directive on Assignment of
Counsel, adopted on 1 October 2003, available at <http://www.sc-sl.org/
assignmentofcounsel.html>.
164
Cf. Prosecutor against Sam Hinga Norman, Moinina Fofama, Allieu Kondewa, Case
No. SCSL-04-14-T-141, Trial Chamber, Decision on Request by Samuel Hinga Norman
for Additional Resources to Prepare His Defence, 23 June 2004.
165
Article 6 of the Agreement.
166
See First Annual Report of the President of the Special Court for Sierra Leone, December
2002 - December 2003, available at <http://www.sc-sl.org/specialcourtannualreport2002-
2003.pdf>. In his report, former President Geoffrey Robertson acknowledged the existence
of a list of defence lawyers of over 15 different nationalities as well as the adoption, on 2
October 2003, of a Directive on the Assignment of Counsel, and the immediate putting in
place of a Legal Service Contract system to regulate the payments of legal and other
related expenses involved with the defence of the Accused (at 16-7).
54
Hopefully, this experience will not remain unique. Some optimism may
be drawn from the ICC Registry’s recent steps in establishing the Office
of Public Counsel for the Defence, which will be entrusted with the task
of representing and protecting the rights of the defence during the initial
stages of the investigation and providing support and assistance both
to defence counsel and to persons entitled to legal assistance.167 As a
substantial improvement to the other existing legal aid systems, this
Office will be completely independent from the Registry, while falling
within this organ for administrative purposes solely.
D. ‘Equality of Arms’ in Evidentiary Matters: the Disclosure

Regime
One of the most important features of the probatory regime devised by

the Rules of ad hoc Tribunals and the Rome Statute is the duty of
reciprocal disclosure incumbent upon the Prosecution and the Defence.
The obligation to grant access to all materials and information is basically
meant to ensure procedural fairness and enable the other party to
properly prepare its case.168 Nonetheless, the right of suspects and
accused persons to have access to all relevant evidence is not an absolute
one, since it may be restricted by the need to strike a balance between
‘equality of arms’ and other major interests, such as the protection of
167
See Regulation 77 of the Regulations of Court; for ICC initiatives in this direction see
at <http://www.icc-cpi.int/jobs/vacancies/382.html>. On equality of arms in funding, see
ICC, Report to the Assembly of States Parties on options for ensuring adequate defence
counsel for accused persons, ICC-ASP/3/16, 17 August 2004, at 3, para. 16, available at
<http://www.icc-cpi.int/library/asp/ICC-ASP-3-16-_defence_counsel_English.pdf>. On the
Registry’s Defence Support Section, see ICC Newsletter, August 2004, at 4, at <http://
www.icc-cpi.int/library/about/newsletter/files/ICC-NL1-200408_En.pdf>.
168
See Part V, Section 4, Rules 66-70 of the ICTY Rules and Part V, Section 3, Rules 66-70 of
the ICTR Rules. For extensive discussion see Gideon Boas, ‘Creating Law of Evidence for
International Criminal Law: the ICTY and the Principle of Flexibility’, 12 Crim. L. Forum
41 (2001); Elizabeth Nahamya & Rokhayatou Diarra, ‘Disclosure of Evidence before the
International Criminal Tribunal for Rwanda’, 13 Crim. L. Forum 339 (2002); Gabrielle
McIntyre, ‘Equality of Arms – Defining Human Rights in the Jurisprudence of the
International Criminal Tribunal for the Former Yugoslavia’, 16 Leiden J. Int’l L. 269 (2003);
Vladimir Tochilovsky, ‘Prosecution Disclosure Obligations in the ICTY and ICTR’, Guest
Lecture Series of the Office of the Prosecutor, 23 July 2004, available at <http://www.icc-
cpi.int/library/organs/otp/042307_Tochilovsky.pdf>. On the limited extent to which the
obligation of disclosure binds the Defence, see the separate opinion of Judge Vohrah on
Prosecution Motion for Production of Defence Witness Statements in the case of Prosecutor
v. Dusko Tadic, 27 November 1996: ‘the application of the equality of arms principle
especially in criminal proceedings should be inclined in favour of the Defence acquiring
parity with the Prosecution in the presentation of the Defence case before the Court to
preclude any injustice against the accused. ... [T]his principle is inapplicable in the present
case to compel the Defence to make available to the Prosecution the prior statement [of a
defence witness] as it would afford the Prosecution the opportunity to peep into the
Defence Brief for any incriminating material in breach of the doctrine of privilege which
undoubtedly forbids the Prosecution access to the work product of Defence Counsel.’
55
victims and witnesses, national security, and the duty not to hinder
ongoing investigations.169
In the ICC system, Article 64(3)(c) of the Rome Statute provides that
Trial Chambers shall ‘provide for disclosure of documents or information
not previously disclosed, sufficiently in advance of the commencement
of the trial to enable adequate preparation for trial’.170 Trial Chambers
are empowered to order that disclosure obligations are complied with
at all stages of the proceedings.171 They also have competence to interpret
the scope and application of Article 67(2), concerning the duty of the
Prosecutor to disclose exculpatory or mitigating evidence, as well as
evidence that may cast doubt on the reliability of prosecution witnesses.
Although the Rome Statute seems to refer solely to disclosure for the
benefit of defendants, Rule 79 envisages the duty of communication
which is incumbent on the Defence when it intends to rely on alibi or on
other grounds for excluding criminal responsibility. This regime of
reciprocal disclosure is buttressed up by Rules 77-78, providing for an
equally reciprocal obligation to allow inspection of material in possession
or control of the parties, though, it must be stressed, the Prosecutor may
still invoke the limitations to disclosure set out in Rules 81-82.172
In the ad hoc Tribunals system, Rules 66 and 67 mandate the Prosecution

to disclose at pre-trial stage all materials supporting the indictment as
well as copies of the statements of prosecution witnesses who will be
summoned to testify; any additional piece of evidence discovered at a
later time must be equally disclosed both to the other party and to the
Chamber immediately. Additional disclosure concerns the duty of the
Defence to notify its intention to offer special defences, including alibi,
and the consequent duty of the Prosecutor to communicate the names
of witnesses to be called in rebuttal of the defence plea. Rule 69 makes
an important exception to the duty of early disclosure insofar as the
protection of victims and witnesses requires confidentiality; in such
‘exceptional circumstances’ procedural fairness is ensured by the proviso
that the identity be communicated to the Defence ‘in sufficient time prior
to the trial to allow adequate time for preparation of the defence’. It
should also be stressed that the balance struck between these competing
interests is emphasised in Rule 75, whereby measures to protect victims
and witnesses must be ‘consistent with the rights of the accused’. In
fact, as it was held by the Trial Chamber of the ICTR in Prosecutor v.
Nyaramasuhuko et al., ‘[i]t is essential for the proper administration of
169
See infra, notes 200-205 and accompanying text.
170
See Gilbert Bitti, ‘Article 64. Functions and powers of the Trial Chamber’, in Commentary
on the Rome Statute, supra note 48, at 809.
171
See Articles 61(3), 72(b)(i) and Rules 79(4) and 84.
172
For in-depth analysis, see Helen Brady, ‘Chapter 5. Disclosure of Evidence’, in The
International Criminal Court (Lee ed.), supra note 48, at 403.
56
justice to balance the interests of the victims and witnesses for protection
and the rights of the accused for disclosure’.173
According to Rule 68 on disclosure of exculpatory or other relevant

materials, the Prosecutor must ‘as soon as practicable, disclose to the
Defence any material, which in the actual knowledge of the Prosecutor
may suggest the innocence or mitigate the guilt of the accused or affect
the credibility of Prosecution evidence’.174 Given the special importance
attached to these materials, this obligation holds even when trial has
come to completion and in case of appeal.175 It should be noted that the
jurisprudence of the ICTY mirrors the text of Rule 68 and the standard
set by the Tribunal for characterisation of evidence as exculpatory
material (ie ‘all information which in any way tends to suggest the
innocence or mitigate the guilt of an accused or may affect the credibility
of prosecution evidence, as well as material which may put an accused
on notice that such material exists’).176
Special emphasis has been recently laid by the Appeals Chamber ruling
in Prosecutor v. Krstic on the vital role played by disclosure of exculpatory
material in ensuring fairness in the proceedings before the Tribunal. In
the words of the Chamber:
173
Prosecutor v. Pauline Nyiramashuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T,
Trial Chamber II, Decision on the Status of the Hearings for the Amendment of the
Indictments and for Disclosure of Supporting Material, 30 September 1998, para. 11.
174
See Mark B. Harmon, ‘The Disclosure of Exculpatory Material by the Prosecution to
the Defence under Rule 68 of the ICTY Rules’, in Essays on ICTY Procedure and Evidence,
supra note 90, at 315; Renée C. Pruitt, ‘Discovery: Mutual Disclosure, Unilateral Disclosure
and Non-disclosure under the Rules of Procedure and Evidence’, ibid, at 305; Mame
Mandiaye Niang, ‘Les obligations du procureur face à la défense devant le Tribunal pénal
international pour le Rwanda’, 2 Revue de Science Criminelle et de Droit Pénal Comparé 277
(2001); Salvatore Zappalà, ‘The Prosecutor’s Duty to Disclose Exculpatory Materials and
the Recent Amendment to Rule 68 ICTY’, 2 J. Int’l Crim. Justice 620 (2004). It has been
critically pointed out that the duty incumbent on the Prosecutor to disclose exculpatory
evidence is not complemented by a ‘specific duty to search for such evidence’ and that it
would be opportune that the Rules be amended accordingly (see Zappalà, Human Rights,
supra note 45, at 41, footnote 39 and corresponding text).
175
See extensive discussion on the alleged violation of the obligations stemming from
Rule 68 at the various stages of the proceedings in the Kordic Appeal Judgment, supra
note 146, section IV.D.
176
Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Appeals Chamber, Decision on
Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information
Pursuant to Rule 66(C), 27 March 2003, para. 4; Prosecutor v. Dario Kordic and Mario Cerkez,
Case No. IT-95-14/2-A, Appeals Chamber, Decision on Motion by Dario Kordic for Access
to Unredacted Portions of October 2002 Interviews with Witness ‘AT’, 23 May 2003, para.
24; Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Appeals Chamber, Judgment, 19
April 2004, para. 178 (as summarised by Anna Oriolo in 5 The Global Community YILJ
2005 728 (2006-I), hereinafter Kristic Appeal Judgment; see Rafael Nieto-Navia,
‘Introductory Note’, supra note 111, at 635-8).
57
considerations of fairness are the overriding factor in any

determination of whether the governing Rule has been breached.
The Appeals Chamber is conscious that a broader interpretation
of the obligation to disclose evidence may well increase the burden
on the Prosecution, both in terms of the volume of material to be
disclosed, and in terms of the effort expended in determining
whether material is exculpatory. Given the fundamental
importance of disclosing exculpatory evidence, however, it would
be against the interests of a fair trial to limit the Rule’s scope for
application.177
Furthermore, the obligations stemming from Rules 66 to 68 are so

essential to the integrity of the proceedings that Rule 68bis of the ICTY
Rules – no corresponding provision is to be found in the Rules of the
ICTR – empowers pre-trial judges or Trial Chambers, even motu proprio,
to impose sanctions on the parties for failure to comply with the duty of
reciprocal disclosure. Nonetheless, according to the Tribunal’s consistent
jurisprudence, the minimum threshold for application of Rule 68bis is
sufficient proof of consequential prejudice; in other words, not only must
the Defence provide adequate proof that the Prosecution acted in
violation of its obligations of disclosure, but it must also satisfy the
Tribunal that material prejudice was suffered as a result. Failing these
prerequisites, the Tribunal seems not to be inclined to adopt formal
sanctions against the Prosecution.178
This approach is manifest in the extensive discussion contained in the

above-mentioned Krstic appeal judgment, where the Appeals Chamber
had to deal with two core issues: whether the principle of ‘equality of
arms’ had been breached due to the pre-trial judge’s refusal to order the
disclose of prosecution exhibits before trial, and whether the Prosecutor
had withheld probatory materials for tactical reasons. The first question
at issue required determining whether the pre-trial judge had erred in
endorsing the Prosecution’s interpretation of Rule 65ter(E) – as
formulated prior to the amendments adopted in 2001179 – as not implying
177
Krstic Appeal Judgment, supra note 176, para. 180.
178
Id., paras. 153, 199, making reference to the Blaskic Decision on the Appellant’s Motion
for the Production of Material (Appeals Chamber, 26 September 2000, para. 38). See also
Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Trial Chamber II, Decision on ‘Motion
for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed
pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and
a Fair Trial Can Be Resolved’, 30 October 2002, para. 23; Blaskic Appeal Judgment, supra
note 111, paras. 268, 299.
179
According to the text of Rule 75ter(E), as amended on 17 November 1999, the pre-trial
Judge may order the Prosecutor to file ‘(v) a list of exhibits the Prosecutor intends to
offer stating where possible whether the defence has any objection as to authenticity’. As
a result of the amendments to the Rules of 13 December 2001, the same provision became
sub-paragraph (iii) and was integrated as follows: ‘the list of exhibits the Prosecutor
intends to offer stating where possible whether the defence has any objection as to
authenticity. The Prosecutor shall serve on the defence copies of the exhibits so listed.’
58
any duty of disclosure in the absence of a reciprocal obligation incumbent

upon the Defence pursuant to Rule 67(C). The Appellant submitted that
the Defence had to be granted access to those exhibits in order to assess
their authenticity and to make any possible objections thereto, as
envisaged in sub-paragraph (iii) of the same provision. He relied on the
Trial Chamber’s interpretation of Rule 65ter(E), as proposed in Prosecutor
v. Krajisnik & Plavsic. On that previous occasion, the Chamber had
rejected the Prosecution’s characterisation of the reciprocal disclosure
provisions as substantive rules having primacy over Rule 65ter(E)(iii) –
which was regarded as purely procedural – and stated that
[t]o do so would mean that the only way that an accused could
obtain disclosure of the Prosecution case would be by incurring
a disclosure obligation. This would be to allow a narrow
interpretation of the Rules to override elementary notions of a
fair trial.180
The Chamber had therefore concluded that
[t]he only way in which a defence can properly prepare for trial
is by having notice in advance of the material on which the
Prosecution intends to rely, including exhibits. The Prosecution,
by not disclosing the documents prior to trial, places the defence
in a position in which it will not be able to prepare properly; and
it is this fact that is likely to lead to a violation of the principle of
equality of arms.181
Actually, the first question raised before the Appeals Chamber was
threefold: whether the amendment to Rule 65ter could be regarded as
reflecting a consensus as to the proper interpretation of the former Rule;
whether the Trial Chamber in Krajisnik & Plavsic had accurately described
that interpretation, and whether the Appeals Chamber was bound to
endorse the same approach. At the outset, the Appeals Chamber
conceded that ‘[p]rior to the amendment ... the actual scope of the Rule
was open to interpretation, as shown by the contrasting decisions of the
Krstic pre-trial conference and of the Trial Chamber in Krajisnik &
Plavsic’.182 It nonetheless dismissed the Appellant’s submission that he
had been denied a fair trial holding that
[t]he text of the former Rule 65ter(E) did not expressly require exhibits
themselves to be disclosed, but referred only to them being ‘listed’,
suggesting that Rule 65ter(E) was not a means by which the disclosure
180
Prosecutor v. Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39/40, Trial Chamber,
Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter,
66(B) and 67(C), 1 August 2001, para. 7.
181
Id., para. 9.
182
Krstic Appeal Judgment, supra note 176, para. 162.
59
of exhibits could be secured. The subsequent amendment to the Rules

suggests, however, that the judges of the Tribunal have recognised
that this practice may lead both the Defence and the Prosecution
into difficulties when it comes to contesting the authenticity of
exhibits. Where the parties contest exhibits, delays to the trial could
occur while adjournments are granted in order to permit the parties
to investigate those exhibits as they are tendered. As such, the
subsequent amendment may have been a matter relevant to the
efficient management of the trial itself, and not the result of any
perceived unfairness to the Defence. ... [I]nitial compliance by the
Defence with the disclosure regime can[not] be a basis for refusing
to allow the Defence to argue on appeal that it was unfair. However,
to succeed on this ground of appeal, the Defence would have to
establish that it was prevented from properly investigating the
authenticity of the exhibits by the Trial Chamber’s interpretation of
the Rule, and that it suffered prejudice as a result. The Defence has
not established this.183
As mentioned above, the second question at issue in Krstic concerned

the Appellant’s complaint that the Prosecutor had deliberately employed
‘sharp trial tactics’ amounting in substance to prosecutorial misconduct
and damage to the Defence. The Appeals Chamber found that there
were sufficient grounds to question the propriety of the Prosecution’s
conduct, but it did not considered that re-trial would be an appropriate
remedy, in light of the absence of material prejudice to the Defence. Nor
did the Chamber deem it necessary to apply Rule 68bis and impose
sanctions on the Office of the Prosecutor for its failure to comply with
disclosure obligations. Nonetheless, the Appeals Chamber felt it
opportune to make clear that its findings were not to ‘be mistaken for
the Appeals Chamber’s acquiescence in questionable conduct by the
Prosecution’ and that it would not ‘tolerate anything short of strict
compliance with disclosure obligations’ while considering its discussion
of the issue ‘to be sufficient to put the Office of the Prosecutor on notice
for its conduct in future proceedings’.184
Be that as it may, mere admonitions to the Prosecution seem to be the

only measure adopted so far by ad hoc Tribunals. In fact, the same
cautious approach is to be found in the ICTR case law, though such a
stance may find its justification in the lack of any regulatory provision
corresponding to Rule 68bis. Thus, even when the Prosecution’s breach
of its obligations was apparent from dilatory tactics or deliberate non-
observance of disclosure orders, the Tribunal limited itself to ‘censur[ing]
the Prosecutor for its failure to disclose the statements of witness[es] ...
183
Id., paras. 163-164.
184
Id., paras. 174, 210-215.
185
Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva,
Case No. ICTR-98-41-T, Trial Chamber III, Decision on the Defence for Bagosora’s Motion
(continued...)
60
on time, pursuant to the Rules’185 or to ‘deplor[ing] the prosecution’s

non compliance with the Rules and decisions of the Trial Chamber, which
could undermine a fair and expedient administration of justice’.186 In
the alternative, the Tribunal either found that the Prosecutor ’s
infringement of her duties was not so serious a violation of the Rules, or
relied on the failure of the Defence to prove that material prejudice had
been suffered as a consequence of non disclosure.187
These considerations apart, adequate attention should also be paid to

other situations, different from prosecutorial misconduct, which are
likely to frustrate respect for procedural equality in evidentiary matters.
In fact, it may occur that prosecutorial failure to abide by the duty of
disclosure is accompanied by objective difficulties in obtaining material
evidence – such as lack of cooperation by States188 – which are beyond
the Tribunal’s control. In such circumstances it becomes even more
difficult for the Defence to satisfy the Tribunal that the alleged inequality
of arms and the ensuing disadvantages are attributable to it. It is equally
burdensome to prove to what extent each or both concurring obstacles
adversely affect the preparation of the defence case.
It is interesting to recall, in this connection, that in its first ground of

appeal against the Trial Chamber’s judgment in Prosecutor v. Tadic, the
Defence alleged that lack of cooperation and obstruction by the
Government of the Republika Srpska and the civic authorities in Prijedor
had prevented it from properly presenting its case at trial. It contended
that such an uncooperative stance had had a disproportionate impact
on the defence and that the ensuing effect – resulting in a breach of the
‘equality of arms’ requirement and in a denial of adequate time and
facilities to prepare for trial – had been serious enough to frustrate the
Appellant’s right to a fair trial. As a matter of fact, the Defence agreed
with the Prosecution that there is no case law supporting the inclusion,
within the scope of ‘equality of arms’, of matters outside the control
either of the Prosecution or of the Trial Chamber. It nevertheless
submitted that lack of fault on their part did neither serve to correct
such inequality nor to ensure that the trial was fair. By contrast, the
Prosecutor claimed that the Defence had not proven a violation of the
principle of ‘equality of arms’ merely by showing that relevant evidence
was not presented at trial. In her views, a higher standard of proof was
for Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF, 30
September 2002.
186
Prosecutor v. Théoneste Bagosora, Case No. ICTR 97-7-T, Trial Chamber II, Decision on
the Defence’s Motion for Inadmissibility of Disclosure based on the Decision of 11 June
1998, 7 December 1998.
187
See, mutatis mutandis, Prosecutor v. Jean-Paul Akayesu, supra note 134, para. 340.
188
See generally Göran Sluiter, International Criminal Adjudication and the Collection of
Evidence: Obligations of States (2002).
ed...)
61
called for, according to which the burden was on the Defence to prove
that the Trial Chamber had acted inappropriately in the conduct of the
trial. In discussing the submissions of the parties, the Appeals Chamber
pointed out that
lacking independent means of enforcement, the ultimate recourse

available to the International Tribunal in the event of failure by a
State to cooperate, in violation of its obligations under Article 29
of the Statute, is to report the non-compliance to the Security
Council.189
Secondly, it stressed that ‘provisions under the Statute and the Rules
exist to alleviate the difficulties faced by the parties so that each side
may have equal access to witnesses’,190 emphasising the powers of the
Tribunal to issue orders, summonses, subpoenas, warrants and transfer
orders for the purposes of an investigation or for the preparation or
conduct of the trial. Although it conceded that there may be ‘situations
where a fair trial is not possible because witnesses central to the defence
case do not appear due to the obstructionist efforts of a State’,191 the
Chamber stated that it had adopted several measures designed to assist
the Defence in the preparation and presentation of its case, consistently
with its statement of principle that the Tribunal must ‘provide every
practicable facility it is capable of granting under the Rules and Statute
when faced with a request by a party for assistance’. 192 It therefore
concluded that it was up to the Defence either to request a stay of
proceedings or, in the alternative, to bring its difficulties to the attention
of the Trial Chamber in order to obtain any possible relief; in the absence
of these initiatives on the part of the Defence, the Appeals Chamber
found that the appellant had failed to show that the protection offered
by the principle of ‘equality of arms’ had not been extended to him by
the Trial Chamber.
Another case in point was discussed by the ICTR in Prosecutor v.

Nahimana, where the Defence alleged that the trial was unfair on grounds
of lack of cooperation by the Rwandan Government. Relying on the
principle of ‘equality of arms’, the accused also submitted that the
different treatment afforded by the Rwandese public authorities to the
Prosecutor, who had been granted access to probatory materials,
amounted to inequality in obtaining evidence. The Defence complained
that the Chamber was not able to remedy such a situation of unbalance
and that ‘[a]s a result, the Chamber [was] not in a position to fairly assess
189
Tadic Appeal Judgment, supra note 52, para. 51; see also discussion at paras. 43-56.
190
Id., para. 52.
191
Id., para. 55.
192
Id., para. 52.
62
the culpability of Nahimana because evidence to answer the charges

against him [had] not been released by the Rwandan authorities’.193
Further, it also complained that ‘[t]he late disclosure of documents by
the Prosecution, which it relied on or which were exculpatory, deprived
[it] of the opportunity to prepare its case properly before the trial
commenced.’194 Recalling the Tadic Appeal Judgment, the Chamber
‘accept[ed] that the principle of equality of arms falls within the fair
trial guarantee under the Statute’;195 it therefore endorsed the Appeals
Chamber’s conclusion as to the scope and application of the principle,
stating that it would be
guided by the opinion of the Appeals Chamber 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 and that
a fair trial must entitle the accused to adequate time and facilities
for his defence.196
The Chamber also concurred with the reasoning in Tadic that under the
Statute of the ICTR the principle of ‘equality of arms’ must be given a
more liberal interpretation.197 In this respect, the Chamber observed that
it had acted within the limits of its powers in issuing formal requests for
cooperation198 and for access to material sought by the Defence, and
that the latter had had ‘ample opportunity and resources to defend the
193
Prosecutor v. Ferdinand Nahimana, Hassan Ngeze, Jean Bosco Barayagwiza, Case No. ICTR-
99-52-T, Trial Chamber I, Decision on the Motion to Stay the Proceedings in the Trial of
Ferdinand Nahimana, 5 June 2003, para. 2.
194
Id., para. 3.
195
Id., para. 4.
196
Id., para. 5.
197
Id., making reference to the Tadic Appeal Judgment, supra note 52, para. 50. The
Chamber also laid down the criteria to be followed in making applications for the
Tribunal’s assistance: ‘The Appeals Chamber holds the view that any request for an order
for production of documents issued under Article 29, paragraph 2, of the Statute, whether
before or after the commencement of a trial, must fulfil four criteria, namely, the requested
materials must appear to the Trial Chamber to be relevant, admissible and not be in
broad categories; must be identified with sufficient specificity; must succinctly provide
the reasons why such documents are deemed relevant to the trial and not be unduly
onerous. Hence, a party cannot request hundreds of documents, particularly when it is
evident that the identification, location and scrutiny of such documents by the relevant
national authorities would be overly taxing and not strictly justified by the exigencies of
the trial’ (Id., para. 11).
198
The Chamber took advantage of the occasion to share the views expressed by the
Appeals Chamber in Blaskic in matters of cooperation by States pursuant to Article 29 of
the Statute, which prescribes that States must ‘comply without undue delay with any
request for assistance or an order issued by a Trial Chamber’. The Chamber held that
‘this obligation, which is set out in the clearest of terms in Article [29], is an obligation
incumbent on every Member State of the United Nations, that is, an “obligation erga
omnes partes”.’ It nevertheless also made it clear that its powers are limited to the issuance
of requests or binding orders and that it is not empowered to enforce its orders neither to
prevail upon States to cooperate (Id., paras. 7-9).
63
Accused under the same procedural conditions and with the same
procedural rights as were accorded to the Prosecution’.199 Therefore, since
it was not satisfied that the right of the accused to a fair trial had been
violated by any lack of cooperation on the part of the authorities of the
Republic of Rwanda, the Tribunal denied the motion for stay of
proceedings.
Turning now to the exceptions to the general rule on disclosure, it should

be stressed that Sub-rules 66(C) and 68(iv) allow the Prosecutor to apply
to the Chamber sitting in camera to be relieved from any such obligation,
and to be authorised to withhold confidential information if ‘disclosure
may prejudice further or ongoing investigations, or for any other reason
may be contrary to the public interest or affect the security interests of
any State’. Equally, in the ICC system, evidence can be withheld for the
sake of witnesses’ protection200 or on grounds of national security
interests.201
The legitimacy of restrictions on disclosure of evidence in favour of

defendants was discussed at length by the European Court of Human
Rights. While asserting that compliance with the ‘equality of arms’
requirement implies the obligation incumbent upon the prosecution
authorities to disclose all material evidence in their possession, both
exculpatory and inculpatory,202 the Court conceded that observance of
such a duty cannot disregard the need to balance competing individual
or public interests of fundamental relevance. In the case of Jasper v. the
United Kingdom, the Court held that
[t]he entitlement to disclosure of relevant evidence is not ... an

absolute right. In any criminal proceedings there may be
competing interests, such as national security or the need to
protect witnesses at risk of reprisals or keep secret police methods
of investigation of crime, which must be weighed against the
rights of the accused. In some cases it may be necessary to
withhold certain evidence from the defence so as to preserve the
fundamental rights of another individual or to safeguard an
important public interest. Nonetheless, only such measures
restricting the rights of the defence which are strictly necessary
are permissible under Article 6 § 1. Furthermore, in order to ensure
that the accused receives a fair trial, any difficulties caused to the
199
Id., para. 16.
200
Article 68(5) of the Rome Statute. See also Rule 69 of the Rules of the ICTY and ICTR.
The witness protection system brings to another sensitive issue which has been the object
of lively debate, namely the admissibility of anonymous testimony, which allegedly
impinges on the principle of ‘equality of arms’ on grounds that it prevents defence lawyers
from adequately prepare their cross-examination.
201
Article 72 of the Rome Statute.
202
Edwards v. the United Kingdom, 247-B Eur. Ct. H.R. (ser. A) para. 36 (1992).
64
defence by a limitation on its rights must be sufficiently

counterbalanced by the procedures followed by the judicial
authorities […]. In cases where evidence has been withheld from
the defence on public interest grounds, it is not the role of this
Court to decide whether or not such non-disclosure was strictly
necessary since, as a general rule, it is for the national courts to
assess the evidence before them. In any event, in many cases,
including the present, where the evidence in question has never
been revealed, it would not be possible for the Court to attempt
to weigh the public interest in non-disclosure against that of the
accused in having sight of the material. It must therefore scrutinise
the decision-making procedure to ensure that, as far as possible,
the procedure complied with the requirements to provide
adversarial proceedings and equality of arms and incorporated
adequate safeguards to protect the interests of the accused […].203
Admittedly, the limitations imposed by the ad hoc Tribunals’ Rules on

the disclosure regime affect to a certain extent the right of the accused
to challenge the evidence presented by the Prosecution. In fact, pursuant
to Sub-rules 70(C) and 70(D), confidential information obtained by the
Prosecutor and ‘used solely for the purpose of generating new evidence’
is considered not subject to disclosure or notification. The Trial Chamber
cannot make use of its power to order the production of any additional
evidence from the person or entity providing the initial information,204
nor itself summon that person as a witness or order his attendance in
order to compel the production of such additional evidence. In any case,
in order to be placed on an equal footing with the Prosecution, the
Defence may request the Trial Chamber to apply mutatis mutandis, and
in the interests of justice, the same restrictive regime to information in
possession of the accused.
It is evident however, that in circumstances which differ from those

envisaged so far the right of the accused to be communicated all relevant
evidence is guaranteed for the sake of full procedural equality by the
Chamber’s use of its power to order immediate disclosure of evidentiary
materials. As it emerges from the case law of ad hoc Tribunals, such a
power has often been exercised in order to compel the Prosecution to
provide defence counsel with all relevant information. It is also
interesting to notice, in this connection, the attention paid in the Celebici
case to compliance with the principle of procedural fairness also in
circumstances where the addressee of the order of disclosure was not
the Prosecutor.205
203
Jasper v. the United Kingdom, supra note 30, paras. 52-53; Edwards and Lewis v. the United
Kingdom, ibid, paras. 53-54.
204
See also Article 64(3)(c) juncto Article 54(3)(e) of the Rome Statute.
205
In directing the Registrar to disclose confiscated material to the Prosecutor (ie notes
exchanged by Delalic and Mucic while awaiting trial in the United Nations Detention
(continued...)
65
IV. Legal Consequences of the Violation of the Principle of

‘Equality of Arms’ and Possible Remedies
Special attention should be devoted to the legal consequences stemming

from the violation of the principle of ‘equality of arms’ in consideration
of its multifaceted nature. In fact, it being a generally accepted principle
of international law (both substantive and procedural) enshrined in the
Statutes and Rules of the major international courts, failure to comply
with this principle qualifies either as an error of law or as a procedural
error. Thus, trials conducted in disregard of the ‘equality of arms’ tenet
may in principle be invalidated and their outcomes challenged on appeal.
As discussed above, the relevant provisions of the Statutes and Rules of

international criminal tribunals entitle suspects and accused persons,
whose rights have been impaired, to challenge the validity of
indictments, interlocutory decisions and judgments either at pre-trial
stage, by way of preliminary motions, during trial or seeking review on
appeal.
In the ad hoc Tribunals system, both Statutes envisage the right of

convicted persons as well as the Prosecutor to file an appeal against
decisions handed down by Trial Chambers either on ground of ‘an error
on a question of law invalidating the decision’, or of ‘an error of fact
which has occasioned a miscarriage of justice’ (Article 25 ICTY Statute
and Article 24 ICTR Statute).206
On the relationship between ‘equality of arms’ and the right to relief in

case of unfair trial, the Appeals Chamber held in Prosecutor v. Kordic and
Cerzek that
The right to equality of arms is not a right to equality of relief.

[…] Only when the moving party has shown ‘good cause’ may it
be granted relief under that principle. […] It is of course open to
that party […] to allege that his right to equality of arms has been
violated, but where such allegations have already been
Unit notwithstanding the Prosecutor’s request that there be no contact nor communication
between the two accused and in breach of the Rules of Detention), the President of the
Tribunal, Judge Cassese, ordered that a copy of the notes in question also be forwarded
to the defence counsel for the two detainees. He held ‘the view that the application by
analogy of Article 12 of the Communications Regulations [was] fully warranted. In the
case at issue, as much as in the case of outgoing or incoming mail, it is necessary to put
the Defence on the same footing as the Prosecution, in keeping with the basic principle of
‘equality of arms’.’ (Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as ‘Pavo’, Hazim
Delic, Esad Landzo also known as ‘Zenga’, Decision of the President on the Prosecutor’s
Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic,
11 November 1996).
206
See Morris & Scharf, The International Criminal Tribunal for Rwanda, supra note 45, at
603-13.
66
adjudicated, the requisite good cause for the requested relief must
be shown. The Appeals Chamber [must be] persuaded that [the
appellant] has shown good cause for relief for any alleged
violation of his right to a fair trial by the Trial Chamber.207
As far as the ICC is concerned, Articles 81-83 of the Rome Statute and
Rules 150-158 are the relevant provisions regulating appellate
proceedings.208 Pursuant to Article 81(1)(b) the convicted person, or the
Prosecutor on his behalf,209 may challenge his conviction on grounds of
procedural error (subpara. (b)(i)), error of law or fact (subparas. (b)(ii)
and (iii)), and on ‘any other ground that affects the fairness or reliability of
the proceedings or decision’210 (subpara. (b)(iv)). The violation of the
principle of ‘equality of arms’ – consisting of a breach of the accused’s
defence rights or of any other mandatory procedural requirement
connected thereto – may be alternatively subsumed under the rubrics
of procedural error or error of law.211 Additionally, a conviction resulting
from a trial plagued by procedural or substantive inequality may also
be challenged under subparagraph (1)(b)(iv), arguing that inequality
between the parties undoubtedly affects the fairness of the whole
proceedings.212 This fourth ground of review seems to be indicative of
the overriding concern that international criminal justice be served fairly
and in accordance with the strictest due process guarantees.
Nevertheless, the impossibility for the Prosecutor to invoke this ground
for appeal, unless acting on behalf of the convicted person, may seem in
contradiction with his recognised role of ‘impartial truth-seeker’ who
‘serve[s] the interests of abstract justice’.213 Indeed, the Prosecutor’s
entitlement to seek review of convictions on grounds of unfairness or
unreliability of the proceedings would be most appropriate in light of
his duty to contribute to the proper administration of justice.
207
Kordic Appeal Judgment, supra note 146, paras. 176-177.
208
For extensive comment see Robert Roth & Marc Henzelin, ‘The Appeal Procedure of
the ICC’, in The Rome Statute, supra note 3, at 1535.
209
The Prosecutor’s entitlement to appeal on behalf of the convicted person reflects ‘the
prosecution’s non-partisan duty to truth and justice’ (quote from Staker, supra note 108,
at 1018).
210
Emphasis added.
211
In Staker’s view there may be an overlap between the two grounds of appeal whenever
the Trial Chamber interprets or applies erroneously the statutory and regulatory
provisions mandating procedural requirements (Staker, supra note 108, at 1019).
212
‘Equality of arms’ is deemed to relate to the grounds for appeal concerning elements
impinging on the fairness and reliability of the proceedings: see in this direction Roth &
Henzelin, supra note 208, at 1545.
213
Quotes from Antonio Cassese, ‘The Statute of the International Criminal Court: Some
Preliminary Reflections’, 10 Eur. J. Int’l L. 144, 168 (1999) and from Roth & Henzelin,
supra note 208, at 1543, respectively. It is noteworthy that Article 54(1)(a) the Statute
mandates the Prosecutor to investigate incriminating as well as exonerating circumstances
equally (see the commentary by Morten Bergsmo & Pieter Kruger, ‘Article 54. Duties and
powers of the Prosecutor with respect to investigations’, in Commentary on the Rome Statute,
supra note 48, at 715, especially 717-8).
67
In the opposite direction – ie where the Prosecutor alone is mentioned

in the Statute as the party entitled to appeal (eg against interim decisions
adopted by the Trial Chamber pursuant to Article 56(3)(b)) – it is indeed
the application of the principle of ‘equality of arms’ that allows for a
broad interpretation of statutory provisions in favour of the defendant.214
Standards have been set forth thus far for defendants to be successful in
a claim for review on grounds of violation of the principle of ‘equality
of arms’. The settled jurisprudence of ad hoc Tribunals in fact requires
that appellants succeed in showing ‘good cause’ for relief. Then, it is up
to the Appeals Chambers to evaluate the degree of gravity of the error
incurred by the Trial Chamber as well as the overall impact of the alleged
inequality of arms on the fairness and outcome of the proceedings.
Depending on the success of these tests, the Appeals Chamber decides
as to the appropriate redress, either reversing or amending the original
decision, or even ordering a retrial, depending on the circumstances of
the case.215
In this regard, the discretionary power of the Appeals Chamber is quite

wide. Suffice it recall that, amazingly, the Appeals Chamber in
Barayagwiza sanctioned prosecutorial misconduct and the ensuing
violations of the basic rights of the accused by dismissing the indictment
with prejudice to the Prosecutor.216 In this connection, the Appeals
Chamber stated that
The Tribunal – an institution whose primary purpose is to ensure

that justice is done – must not place its imprimatur on such
violations. To allow the Appellant to be tried on the charges for
which he was belatedly indicted would be a travesty of justice.
Nothing less than the integrity of the Tribunal is at stake in this
case. Loss of public confidence in the Tribunal, as a court valuing
human rights of all individuals – including those charged with
unthinkable crimes – would be among the most serious
consequences of allowing the Appellant to stand trial in the face
of such violations of his rights. As difficult as this conclusion
may be for some to accept, it is the proper role of an independent
judiciary to halt this prosecution, so that no further injustice
results.217
214
Roth & Henzelin, supra note 208, at 1550.
215
Id., at 1554-5; see also Christopher Staker, ‘Article 83. Proceedings on appeal’, in
Commentary on the Rome Statute, supra note 48, at 1033.
216
Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19, Appeals Chamber,
Decision, 3 November 1999, paras. 101, 113.
217
Id., para. 112.
68
This strong reaction prompted the most alert commentators to stigmatise

the deplorableness of the solution adopted, while at the same time
denouncing the absence of specific remedies and sanctions in case of
serious violations of defence rights.218
The Appeals Chamber’s decision in Barayagwiza was also noteworthy to

the extent that it affirmed the principle that reparation is due in case of
injustice to the accused, even in the form of financial compensation.219
This statement of principle was ever more important if related to the
lack of any specific provision in both Statutes of ad hoc Tribunals, it being
a serious shortcoming that was remedied in the ICC Statute. Article 85
of the Rome Statute, in fact, deals with the right to compensation for,
inter alia, unjust conviction.220 Indeed convictions resulting from an unfair
trial – ie a trial conducted in contrast with the principle of ‘equality of
arms’ – are per se unfair and open to challenge. However, it was suggested
that, in order to strengthen the effectiveness of the right to relief, a
corresponding right to compensation should be granted to accused
persons irrespective of conviction.221 It may further be submitted that
besides providing for a generally enforceable right to compensation,
additional forms of reparation (including restitution, rehabilitation,
satisfaction and guarantees of non-repetition) could be envisaged in the
event that a miscarriage of justice has resulted from a violation of human
rights standards and ‘equality of arms’.
V. Conclusions
It is general and undisputed opinion that ‘equality of arms’ is a key

element of the due process of law. Being one of the cornerstones of the
right to a fair trial, it needs to be accorded adequate weight both in
national and in international judicial proceedings. General recognition
of the principle – complemented by consistent elaboration and
application in domestic legal systems as well as in international practice
218
Zappalà, Human Rights, supra note 45, at 189, 254-8. See, however, Rule 68bis of the
ICTY Rules, supra note 178 and accompanying text.
219
Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Appeals Chamber,
Decision, 31 March 2000, paras. 74, 75(3)(a). See Zappalà, Human Rights, supra note 45, at
188-9. On the ‘moral obligation’ borne by the international community, see Stuart
Beresford, ‘Redressing the Wrongs of the International Justice System: Compensation for
Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals’, 96
Am. J. Int’l L. 628 (2002), at 633; Geert-Jan Alexander Knoops, An Introduction to the Law of
International Criminal Tribunals: A Comparative Study 196-9 (2003).
220
See Christopher Staker, ‘Article 85. Compensation to an arrested or convicted person’,
in Commentary on the Rome Statute, supra note 48, at 1041; Gilbert Bitti, ‘Compensation to
an arrested or convicted person’, in The International Criminal Court (Lee ed.), ibid, at 623;
Salvatore Zappalà, ‘Compensation to an arrested or convicted person’, in The Rome Statute,
supra note 3, at 1577; Id., Human Rights, supra note 45, at 257.
221
Zappalà, Human Rights, supra note 45, footnote 31 at 257.
69
– supports the view that ‘equality of arms’ is at once a general principle

of law and a general principle of international procedural law. It may therefore
be considered as included in those few general rules concerning
international procedure which qualify as being part of customary law.222
As such, the concept of ‘equality of arms’ should find application in any
judicial proceedings, irrespective of whether or not an explicit provision
mandating equal treatment before the court exists. Recourse to this
principle, either by way of analogy or through extensive interpretation
of basic legal texts, enables international judges to remedy, at whatever
stage of the proceedings, the lack of specific procedural guarantees
ensuring a fair trial between the parties. This approach seems to be
validated by the fact that international courts often resort to extensive
and evolutive treaty interpretation in order to strengthen human rights
protection or to achieve other major collective goals.223 Indeed, as
witnessed by a settled international case law, a clear tendency is
discernible in the practice of international courts to apply the principle
of ‘equality of arms’ beyond the strict confines of their governing Statutes
and Rules, as well as to extend by analogy its application to non-
contentious proceedings.224
In order to grant effective protection to the rights of the parties – with

major concern for the rights of weaker litigants – the principle of
procedural equality has to be understood as a basic rule of law and not
222
On the nature and content of general principles of international procedural law, with
special emphasis on the principle of equality of the parties, see Negri, I Principi Generali
del Processo Internazionale, supra note 4, especially Chapters III-IV.
223
As it was emphasised by Professor Schabas with regard to the ICC, ‘[t]he general right
to a “fair hearing” established in the chapeau of Article 67 provides defendants with a
powerful tool to go beyond the text of the Statute, and to require that the Court’s respect
for the rights of the accused keep pace with the progressive development of human rights
law’ (An Introduction, supra note 48, at 79). On extensive treaty interpretation allowing a
widening of the judicial powers of the International Court of Justice for the protection of
fundamental global values, see Ziccardi Capaldo, ‘Global Trends and Global Court’, supra
note 4, at 147-60; Id., ‘Tendenze globali della Corte internazionale di giustizia: la
legittimazione del governo mondiale’, in I Scritti in onore di Vincenzo Buonocore 847 (2005);
Id., ‘A New Dimension of International Law: The Global Law’, 5 The Global Community
YILJ 2005 xvi (2006-I), at xxv; Id., ‘Expanding Functions of the International Court of
Justice to Protect Global Constitutional Values’, in Essays in Honour of Laity Kama
(forthcoming); Id., ‘La tutela giudiziale dei valori costituzionali globali’, in Scritti in onore
di Giorgio Badiali (forthcoming). On extensive and evolutive interpretation of human rights
treaties, see Rudolf Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the European
Convention on Human Rights’, 42 German Y. Int’l L. 11 (1999), at 24-5; Giorgio Gaja, ‘Does
the European Court of Human Rights Use Its Stated Methods of Interpretation?’, in I
Divenire sociale e adeguamento del diritto. Studi in onore di Francesco Capotorti 213 (1999). On
expansion of human rights courts’ judicial powers and extension of their jurisdiction
ratione personae, temporis and loci, see Stefania Negri, Interpreting the European Convention,
supra note 42, at 290-1; Id., ‘L’applicazione extraterritoriale delle convenzioni sui diritti
umani nella giurisprudenza internazionale’, in Scritti in onore di Vincenzo Buonocore, supra,
at 559, esp. 586-7.
224
See supra Section II.
70
merely as a guiding principle that inspires judicial proceedings with

limited or relative binding force. It is also evident that strict compliance
with the principle of procedural fairness is especially felt as an ever
compelling need in proceedings where individuals appear as parties. A
case in point are proceedings instituted pursuant to the control
machinery created by regional human rights treaties, actions brought
by individuals before the European Community judicature, and,
evidently, international criminal proceedings.
As far as international criminal justice is concerned, it is essential that

the principle of ‘equality of arms’ is construed and applied in a fashion
that best serves the purpose of achieving substantive equality. Procedural
equality, in fact, is not always enough for judicial bodies to properly
perform their duties while preserving their integrity and avoiding any
miscarriage of justice. As a consistent domestic and international
jurisprudence clearly shows, what is required ‘in the interests of justice’
is actual and effective equality.
Furthermore, the role played by the principle of ‘equality of arms’ in the

elaboration of a common set of basic procedural guarantees and its
specific contribution to the evolving law of international criminal
procedure also deserve consideration. Common and harmonised due
process norms and standards applicable to international and national
judicial proceedings are felt to be at the basis of an improved
international cooperation in criminal matters and, consequently, of an
effective system of international criminal justice in the age of
globalisation.225 In order to achieve this objective it is an overriding legal
imperative to develop a consensus on fundamental rules of international
criminal procedure. 226 However, no international code of criminal
procedure has been adopted to date, although the Statute of the
International Criminal Court is considered both as ‘a code of criminal
225
M. Cherif Bassiouni, ‘International Criminal Justice in the Age of Globalization’, in
International Criminal Law: Quo Vadis?, Proceedings of the International Conference held
in Siracusa, Italy, 28 November – 3 December 2002, 19 Nouvelles Études Pénales 79, 80, 88
(2004). In highlighting the contribution of general principles of law, Professor Bassiouni
asserts that ‘The process of globalization of international criminal justice is a slow and
gradual process that has already started with enhanced international cooperation in penal
matters, and will evolve into a complementary system of international criminal justice. ...
[T]he philosophy and policy of international criminal justice derives in large part from
‘general principles of law’, which are identified from international and national legal
norms.’ (at 82). In this sense see also M. Cherif Bassiouni, ‘A Functional Approach to
“General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990).
226
See Zappalà, Human Rights, supra note 45, at 247-51; Christoph J. M. Safferling, Towards
an International Criminal Procedure (2001); Knoops, supra note 218, Chapter VI; Donald K.
Piragoff & Paula Clarke, ‘The Emergence of Common Standards of “Due Process” in
International and National Criminal Proceedings’, in International Criminal Law: Quo Vadis?,
supra note 225, at 363 et seq.
71
procedure’ and the first instrument of codification of general principles

of international criminal law as well.227 It has been observed that the
procedure of the Court is ‘very largely framed by its Statute (ie
established ne varietur in reality)’, and that the inclusion of procedural
provisions into the Statute is a rather unfortunate solution, since it confers
greater rigidity and frustrates possible adaptations.228 Procedural rules
should in fact allow the adoption of solutions which best guarantee the
rights of the accused. Indeed, a need for flexibility may be felt in the
practical application of procedural provisions in trials before the Court,
especially with regard to issues concerning human rights protection. It
is worth emphasising, in this connection, that ad hoc Tribunals have often
found it necessary to modify and amend their Rules so as to provide
better solutions to the difficulties encountered in their practice. Suffice
it to recall that the application of provisions granting the accused a set
of minimum procedural guarantees ‘in full equality’ – although
apparently clear and unambiguous – has not been without difficulty in
the case law examined so far.
If lessons are to be drawn from the past, it may be assumed that the
jurisprudence of ad hoc Tribunals is going to provide a fundamental
contribution to the evolution and harmonisation of international criminal
procedure. Their legacy will offer substantial guidance to other criminal
courts in the interpretation and application of procedural norms and
safeguards stemming from the principle of ‘equality of arms’.229 In
particular, the case law of ad hoc Tribunals, though not mentioned in
Article 21 of the Rome Statute, may indeed be relied upon by the ICC as
an ‘extra-hierarchical’ source of reference and inspiration.230 Two recent
decisions adopted by the Court in connection with the situations in
Uganda and Congo seem indeed to lend support to this view.231 Thus,
227
The quote is from Pellet, supra note 3, at 1054-5; see also Raimo Lahti, ‘Towards
Harmonization of the General Principles of International Criminal Law’, in International
Criminal Law: Quo Vadis?, supra note 225, at 345, esp. 346-7.
228
Quote from Pellet, supra note 3, at 1064.
229
See, eg, Article 20(3) of the Statute of the Special Court for Sierra Leone, providing that
the Appeals Chamber of the Court ‘shall be guided by the decisions of the Appeals
Chamber of the International Tribunals for the former Yugoslavia and for Rwanda’. It is
also interesting to note that in the case of Prosecutor against Brima et al., the Court
emphasised the special relationship existing with the ad hoc Tribunals as all ‘belong[ing]
to a unique and still emerging system of international criminal justice’, and equally
stressed the role played by their case law on the evolution of its jurisprudence as well as
the persuasive value it acknowledged to those Tribunals’ authorities despite the absence
of any statutory imperative binding it to follow such precedents (Prosecutor against Alex
Tamba Brima, supra note 125, paras. 22-26). For elaboration on the concept of ‘emerging
system of international criminal justice’, see Burke-White, supra note 162.
230
The expression is borrowed from Pellet, supra note 3, at 1078, who defines the
jurisprudence of the ICC as an ‘extra-hierarchical’ source, ie a subsidiary means at the
disposal of the Court.
231
Case No. ICC-02/04-01/05, Pre-Trial Chamber II, Decision on Prosecutor’s Application
(continued...)
72
building on the foundation laid by the practice of the ICTY and the ICTR,
and benefiting from their experience, the ICC and other international
criminal tribunals will have the opportunity of enhancing the credibility
of international criminal justice with a firm commitment to the protection
of both procedural and substantive equality.
for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor ’s
Applications for Warrants of Arrest under Article 58, 19 August 2005, paras. 30, 36, 48,
54; Case No. ICC-01/04, Prosecution’s Application for Leave to Appeal Pre-Trial Chamber
I’s Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2,
VPRS 3, VPRS 4, VPRS 5 and VP, Pre-Trial Chamber I, 23 January 2006, paras. 12, 29, 37-
38.
ed...)
73
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"Equality of Arms": Guiding Light or Empty Shell?

Chapter · January 2007

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INTERNATIONAL CRIMINAL JUSTICE:

Edited By Michael Bohlander

CAMERON MAY LTD

‘Equality of arms’ is generally perceived as the minimum threshold

between the parties is amplified when related to proceedings involving

Special attention will be devoted to international criminal proceedings,

Section IV will explore the remedies that international criminal

The ensuing discussion will suggest that the principle of ‘equality of

II. The Nature and Scope of the Principle of ‘Equality of Arms’ in

International procedural law has progressively affirmed itself as ‘an

As it emerges from international jurisprudence, ‘equality of the parties’

The most outstanding contribution to the affirmation of the principle of

The case law of the International Court of Justice offers substantial

also elaborated new principles of international judicial procedure

Special emphasis was laid by the Court on the principle of equality of

allowance of additional pleadings in reply to counter-claims,19 and of

regulatory provisions with a certain degree of flexibility is perhaps the

[g]eneral principles of law and the judicial character of the Court

The Court thus concluded that any absence of equality inherent in

reiterated in the recent judgment delivered by the Grand Chamber in

In the leading case of Dombo Beheer v. the Netherlands the Court

As a matter of fact, European case law on ‘equality of arms’ has

on the elaboration of the concept of ‘equality of arms’ as applied to

The Court of Justice of the European Communities has equally endorsed

Community judicature. 38 In particular, in exercising its appellate

proliferation of international courts, where tribunals ‘necessarily take[]

III. ‘Equality of Arms’ as Interpreted and Applied in International

Preventing infringements of fair trial guarantees is one the major

The Statutes of the International Criminal Court (‘ICC’) and of ad hoc

International criminal tribunals’ commitment to ensure respect for these

Within the ambit of fairness fall a number of rights, all intended

entitles both parties to equality before the courts, giving them

In its landmark judgment of 15 July 1999, the Appeals Chamber endorsed

under the Statute of the International Tribunal the principle of

the purpose behind the principle remains the same – to give to

It may be submitted that the approach adopted by the Appeals Chamber

A. The Basic Precondition for ‘Equality of Arms’: Presence

Presence at trial is generally perceived as a crucial component of fairness.

As far as criminal proceedings are concerned, it is submitted that

guarantee the right of a criminal defendant to be present in the courtroom

where a person convicted in absentia is unable subsequently to

As a matter of law, trials in absentia are in principle prohibited at

Although the Human Rights Committee clearly stated, as far back as

step forward in guaranteeing ‘equality of arms’ if compared to the similar

Disruption of a trial, whatever the circumstances, may give rise

Notwithstanding Milosevic’s contemptuous behaviour, the Appeals

it cannot be that the only kind of disruption legitimately cognizable

Admittedly, however, active and aware participation in the trial presupposes

‘equality of arms’ requires that a right to have access to interpretation/

most appropriate. Moreover, it is in line with the views expressed by

It may be queried who should be in charge of the responsibility of ensuring

B. ‘Equality of arms’ and the prejudicial effects of defective

Fairness in international criminal proceedings mandates that the accused

Ad hoc Tribunals have often been confronted with the problem of

obligations thereof entitles the Defence to challenge the validity of the

the question whether an Indictment is pleaded with sufficient

In cases where an Indictment provides insufficient details as to

In its earlier jurisprudence, the ICTY emphasised – for the purpose of

is not to put the accused in a position to prepare his defence,

In ruling on defence motions challenging the form of indictments, the