Equality of Arms: Difference in Interpretations of the ad hoc Tribunals and European Court of Human Rights

The International Criminal Justice system, as is known, is based on the essentials of fairness, reasonableness, and equality. Human Rights compliance, on the other hand, is the fundamentals of gauging the legitimacy, acceptability, and rationality of this system. Since the right to fair trial in the quest of promoting the fairness, is an integral element of any justice system, it is not humanly possible to impart justice in the absence of a procedure that is fair and acceptable to both parties to a conflict.

In furtherance to the above reasons i.e. in the context of the right to a fair trial,  the principle of ‘equality of arms’ was formulated as a jurisprudential principle. It is a concept that focuses upon a fair trial, including opportunities to be provided to either party to present its case before the court. It is deemed to be the duty of the judge to take all possible steps in assuring that there is an equilibrium between the fundamental rights of the perpetrator and the duty of the prosecution to convict an accused. Essentially, it is a procedural aspect which ensures the effective participation of the defence during the proceedings. However, over the years, inconsistency from difference in interpretation of this principle by different courts and ad hoc tribunals created a divergence of opinion leading to a rather liberal interpretation. This blog broadly describes the two different modes of contradictory interpretations of the term ‘Equality of Arms’ and discusses examples of decisions of different courts and tribunals which demonstrate the application of these interpretations. It also provides a general overview of the various arguments in support of, and in opposition to, the use of such interpretations followed by a few suggestions to treat these contradictions.

Historical Background

It is a well-established fact that the principle of ‘equality of arms’ was propounded under Article 6 of the European Convention on Human Rights (ECHR). However, in reality, the concept originated even before the adoption of the Convention wherein it was referred to as a reflection of the age-old principle of audi alteram partem meaning ‘hear the other side’. The European Commission of Human Rights (Commission) employed the term in the criminal cases of Ofner and Hopfinger v. Austria and Pataki and Dunshirn v. Austria, wherein the Commission observed that the principle of equality of arms is an inherent element of a fair trial and cannot be avoided.

In the case of Prosecutor v. Dusko Tadic, the International Criminal Tribunal of the former Yugoslavia (ICTY) observed that equality of arms implies having procedural equality in a criminal trial as it is a minimum prerequisite for unbiased and harmonious proceedings. Currently, the rights of accused preserved in the International Covenant on Civil and Political Rights, the European Court of Human Rights, the Rome Statute and other International Instruments signify protections similar to those provided under the sacred principle of equality of arms.

Differences in Interpretation 

While it is a well-established fact that the development of the principle of equality of arms led to the foundation of ad hoc tribunals such as the ICTY and ICTR, the interpretation adopted by the ECtHR and these tribunals are at variance with each other. For example, although the ICTY had relied upon the principle enshrined in the ECHR, the liberal interpretation and contextual approach given to the same seems to be thwarting the essential meaning of equality of arms. The judicial pronouncements of the ECtHR have explicitly upheld that the principle of equality of arms should be inclined towards favouring the accused. This would imply that the accused should never be put in a disadvantageous position vis-à-vis the prosecution and should be given the fundamental rights inherent for conducting a just and fair trial. However, the ICTY, as can be seen from its judicial pronouncements, has gone far apart from being a tribunal that ought to execute the globally recognised fundamental rights of perpetrators. The Tribunal has rejected the idea that by virtue of being an International Criminal Justice forum, it should be bound by the Jurisprudence of human rights owing to its unexampled dispute redressal forum as an international tribunal tagged with jurisdiction with respect to the subject matter. So, the ICTY can be appropriately compared to a military tribunal, which frequently restricts due process and observes more lenient rules of evidence. The elucidation of ICTY with respect to contexture slant of human rights principles has to be appropriately comprehended as a euphemism for disagreeing to patronize the universal human rights jurisprudence. Such an approach towards perpetrators seems to be absolutely uncalled for. Hence, the ICTY should not deny the procedural equality granted to the accused through the principle of equality of arms under the guise of its ‘contextual approach’.

According to the ECHR, it is an obligation upon the court to ensure the proper implementation of procedural fairness whereas ad hoc tribunals impose upon prosecution the power to ensure the same, thereby indicating their own powerlessness. When a tribunal characterises the prosecution as a ‘minister of justice’, it bereaves the accused of its rightful access to its own rights under international instruments. In the case of Prosecutor v. Aleksovski, the Tribunal seemed to have relied upon the understanding that if an accused is favoured over the prosecution, the trial would never be fair and just because the prosecution represents not only the international community but also the victims. Therefore, the Tribunal seemed to have suggested that the application of the principle of equality of arms meant essentially providing equal treatment to both prosecution and defence, and not to favour the latter over the former. On the other hand, in accordance with the dissenting opinion of Judge Vohrah, the accurate interpretation of Article 6(3) of the ECHR implied that the application of the concept should be made to favour the accused so as to put him at par with the prosecution.

Looking closely, ad hoc tribunals seemed to apply the principle of equality of arms in a broader and liberal sense due to some issues such as their dependence upon states for the treatment of evidence and their limited territorial jurisdiction. Even the ICTR in Prosecutor v. Kayishema & Ruzindana has held that rights of perpetrators should not be given an upper hand over the authority of the prosecution due to the inherent inequality between the parties. Ad hoc tribunals, therefore, have no established procedural equality between prosecution and defence, which destroys the essential meaning of the principle. They have mostly converted the principle of equality of arms into inequality of arms by rejecting the actual interpretation of Article 6 the ECHR, showing an unwillingness to bring the perpetrator at par with the prosecutor.


It is essential to safeguard the rights of the accused and to provide him with the benefit of the doubt until proven guilty beyond a reasonable doubt by the prosecution. This is a prerequisite promote the idea of a healthy and just criminal justice legal system which upholds the sanctity of justice, equity and good conscience. In cases where the rights of the accused are not protected, the defence suffers due to a lack of an opportunity to properly examine the evidence or to present his case in an appropriate manner. Understandably, courts sometimes lack the adequate resources to uphold the principle of equality of arms in its real sense. It is therefore essential to at least identify the loopholes in the law and legal system to overcome them through cooperation among states. To achieve this objective, all stakeholders, i.e. courts and tribunals, must adopt the jurisprudential interpretation propounded by the ECtHR that will allow the parties concerned to thrive within a conflicting system. Fortunately, the Rome Statute seems to have overcome these factors by going in the right direction and has been gauged to take a big step towards the establishment of a fair justice system. The Rome Statute seems to have relied upon the interpretation of the ECHR in upholding the principle of equality of arms. Article 64(8)(b) of the Statute gives the President of the Trial Chamber, the right to determine the procedural model to be followed, provided that the trial is conducted in a reasonably fair manner. Further, the parties are to submit evidence as per the provisions of the Statute and the Rules of Procedure and Evidence. Moreover, in its very first judicial pronouncement, the International Criminal Court (ICC) Appeals Chamber elaborated upon the importance of fair trial and the dire consequences of its breaches. Thus, the Statute has laid down laws that give an equal opportunity to the accused to represent himself, to hold the trial in a transparent manner, to adopt a less liberal interpretation of the principle and to prevent abuse to the rights of the accused in any manner. Therefore, it is suggested in line with this blog that this method of application of the principle of ‘Equality of Arms’ should be followed by courts and tribunals when dealing with such cases.

Leave a Reply

Your email address will not be published. Required fields are marked *