Equality of arms: the continued development of due process rights at courts of international character

Audi Alteram Partem, the Latin phrase meaning, “the other side shall be heard as well,” enshrined on the walls in City Hall of The Hague.

A fundamental principle of any fair and civilized criminal justice system is that the accused be given the opportunity to meaningfully respond to and attack the allegations against them. This idea of equality to both sides of a legal matter before a tribunal, dates back at least as far as the ancient Greeks, and can also be found in traditional Islamic law texts.(1) Though this basic due process guarantee of the right to mount a defense has been generally accepted throughout the civilized world in domestic settings for centuries, defeated war criminals have only recently begun to enjoy such protections on the international stage. Though there have been several ad hoc military tribunals throughout world history such as the Leipzig War Crimes Trials following the First World War, those tribunals are largely regarded as having been insufficient or even farcical.(2)

The proceedings at Nuremberg, in which high ranking members of Nazi leadership were prosecuted for the atrocities committed during World War II, are correctly lauded as a turning point in the handling of war criminals by the victors of hostilities. These trials marked a genuine effort on behalf of global civil society to deliver justice to suspected war criminals in a fair and principled manner. However, many legal historians agree that even at Nuremberg there were several gross violations of the defendant’s basic due process rights, including the deprivation of appellate review.(3) Perhaps the most profound injustice was the complete failure of the tribunal to allow the defense teams adequate time and facilities to properly prepare and present their defense.(4)

Though the defendants at Nuremberg were indeed represented by bright attorneys, the defense teams were exclusively comprised of German personnel who had very little experience with Anglo-American procedure.(5) Moreover, these lawyers, who were hastily struggling to familiarize themselves with a brand new legal environment, were only given thirty days between indictment and trial to prepare their defense. Fully developing an adequate defense for serious and complex charges can take months, or even years.  Consider that the prosecution in Nuremberg submitted tens of thousands of pages of evidence to the tribunal.(6) Expecting a defense team to adequately review such a mountain of materials in such a short time was indeed absurd, and clearly a breach of traditional notions of fairness and justice.

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Despite these shortcomings, the due process protections that were afforded to the defendants at Nuremberg did indeed portend the creation of a truly legitimate and fair international mechanism for prosecuting war crimes. This shift was due in no small part to the growing international influence of the United States of America, a country with a truly honorable tradition of protecting defendant’s rights. One hundred and fifty years before Nuremberg, the United States ratified the Bill of Rights, ten constitutional amendments that enshrined, among other things, an accused person’s due process rights as absolute in federal prosecution.(7)

America’s ideals of fairness and judicial process predate even its Constitution. On March 5, 1770, several British soldiers were involved in a skirmish with the citizens of Boston that resulted in gunfire, leaving five Americans dead. This tragic day has come to be known as the Boston Massacre. Though many Americans were calling for the immediate capture and hanging of the ‘red coats’, the young British soldiers were given a fair jury trial. Talented young lawyer, and future president, John Adams, represented they and even earned an acquittal for several of the soldiers.(8)

A century later, in 1865, the United States was dealing with the aftermath of an unspeakably bloody civil war. Again, many people, including military and government officials, advocated for the capture and summary execution of Confederate war criminals. However, even egregious offenders such as Captain Henry Wirz who presided over the most awful and deadly southern prisoner of war camp, Andersonville, was given a trial before a special military commission with a competent attorney, the right to confront state witnesses, and the right to present his own case.(9)

As the hostilities of World War II wound down, allied leadership convened on multiple occasions to discuss the prospect of bringing Hitler and his Nazis to justice for their multiple atrocities. In the Moscow Declaration of 1943, United States President Franklin D. Roosevelt, British Prime Minister Winston Churchill, and Soviet Premier Joseph Stalin all signed a document which stated that German war criminals should be, “judged on the spot by the peoples whom they have outraged.”(10) In 1944, as people were exterminated in the concentration camps, Churchill declared that Nazi leadership should be, “hunted down and shot.”(11) Even in the middle part of the twentieth century, it is no surprise that many civilized persons throughout the world advocated for the summary execution of German war criminals given the unfathomable scope of their savagery. Nevertheless, the Americans, led by Secretary of War and prominent lawyer Henry Stimson, advocated for  proper judicial proceedings.(12)
Though the Nuremberg trials were a landmark step in the direction of civilized international tribunals that would ensure due process rights for accused war criminals, it wasn’t until July 17, 1998 that the International Criminal Court (ICC ) was established. Again, it was an American who spearheaded the creation of the ICC. Ben Ferencz, a war hero and former prosecutor at Nuremberg published a book in 1975 entitled, “Defining International Aggression: The Search for World Peace”, in which he argued for the creation of an International Criminal Court that would have served as a worldwide tribunal of last resort to prosecute instances of crimes against humanity, war crimes, and genocides.

Mr. Ferencz, and many other prominent men and women from the United Nations Member States around the world were instrumental in creating the Rome Statute, the treaty which established the ICC.

The Rome Statute contains an impressive list of due process protections to be enjoyed by all accused persons brought before the ICC such as: the right to remain silent, the right to an attorney, the right to present evidence, the right to confront the prosecution’s witnesses, the right to be present at trial, the right to have the charges proved beyond a reasonable doubt, the protection against double jeopardy, and, perhaps most importantly, the presumption of innocence.(13) In fact, former U.S. State Department Legal Advisor Monroe Leigh once said, “The list of due process rights guaranteed by the Rome Statute is, if anything, more detailed and comprehensive than the one of the American Bill of Rights.”(14)

However, even at the ICC there may be a major institutional disadvantage that unfairly prejudices defendants. The Office of The Prosecutor (OTP) is expertly trained, highly organized, and well funded. Perhaps most importantly, the OTP is a permanent organ of the ICC, while defence teams are made up of private attorneys who are not associated with the Court.(15) While the ICC does ensure that defendants receive adequate legal representation by requiring all defence counsels to be listed on and meet the strict qualifications for their attorney registry, there is no permanent defense organ at the Court. This imbalance creates some obvious concerns for advocates of true “equality of arms” (procedural equality).

The term equality of arms dates back to medieval times when disputes were often settled through violent battle. Naturally it was only fair to ensure that both combatants entered the clash with equal weaponry and armor.(16) The modern conception of equality of arms is articulated in Article 6 the European Convention on Human Rights. The language of the convention specifically bestows upon all persons who have been criminally accused the traditional due process rights which have been previously mentioned in this article. Additionally, Article 6 states that everyone charged with a crime shall be provided the free services of an interpreter and shall have adequate time and facilities for the preparation of his defense.(17)

How can it be said that the prosecution and defense are on equal footing when the attorneys at one end of the courtroom belong to a permanent organ of the Court, while the attorneys at the other do not. In an attempt to correct this obvious structural imbalance, the ICC created the Office of Public Counsel for the Defense (OPCD) in 2006. As a component of the Registry which is a permanent organ of the Court, the OPCD provides a number of services to defense teams, including, “facilitating the protection of confidentiality, providing support during the investigation’s activities conducted in the field, assisting the accused to obtain legal advice and the assistance of legal counsel.”(18)
Upon request, defense teams may also be provided with certain logistical support such as  temporary equipped office space to work on their cases.

Nevertheless, it has been highlighted that the resources of the independent appointed counsel, even with the limited assistance of the OPCD, pale in comparison to that of the prosecution. This was flagrantly visible in the Dyilo Lubanga(19) case. Mr Lubanga’s entire pre-trial defense team consisted of one attorney, one co-counsel, one legal assistant, and a case manager. The prosecution on the other hand has teams of lawyers consulting with numerous experts and special advisors. Though the defense was eventually granted a meager budget to hire a single investigator, the prosecution benefited from twenty researchers in the field making a case against Lubanga.(20)

In January of  20092 the Special Tribunal for Lebanon Court for Sierra Leone (STL)(SCSL) was established to prosecute those responsible for the 2005 assassination of the former Lebanese Prime Minister and 21 others. gross violators of humanitarian law during the Sierra Leone Civil War. The Court was unique in that it established a permanent defense organ, independent from the Registry called the Defense Office.  This is certainly a bold step towards true equality of arms. Chad Mair, a defense attorney at the STL SCSL describes the situation as follows; “One constant in international tribunals is the existence of a permanent prosecution, with experienced lawyers and investigators, a wealth of institutional knowledge, and the capacity to share information and documents from a single evidence database.  The existence of an independent defense organ helps to balance this by providing institutional insight and support, the capacity to conduct research and maintain a legal library available to all defense teams, and a budget created and maintained solely by an independent organ of the court. Thus, an independent defense organ is important for equality of arms as it improves the imbalance inherent in international tribunals.”
As one can see, the protection of due process rights have undoubtedly expanded at courts of international character since Nuremburg. However, the principle of a true equality of arms is still a challenge in international criminal law.

 

The author

Bradley Fuller is an associate attorney with Illinois Advocates, a prominent general litigation firm in the heart of Chicago, Illinois.  Mr. Fuller focuses his practice on criminal defense and has successfully litigated thousands of cases from simple traffic matters to serious felonies including multiple first degree murder trials.

References

  1. E.g. Aeschylus, The Eumenides 431, 435, See also: Imam Abu Dawud. 2008. Sunan Abu Dawud Vol. 3 (Translated to English by Ahmad Hasan). Riyadh: Darussalam, Hadith No. 3575, Grade: Hasan.
  2. http://ww1.habsburger.net/en/chapters/leipzig-trials-1921-1927-between-national-disgrace-and-juridical-farce.
  3. Simpson, above n 115, at 115; Jonathan A Bush “Lex Americana: Constitutional Due Process and the Nuremberg Defendants” (2001) 45 St Louis U LJ 515 at 530.
  4. Charles Anthony Smith, “The Rise and Fall of War Crimes Trials from Charles I to Bush II” (Cambridge University Press, New York, 2012).
  5. Andreas Krieg “The Nuremberg Trials: An Attempt of Bringing War Criminals to Justice” (2009), The Pica Project.
  6. Hans Laternser “Looking Back at the Nuremberg Trials” in Guenael Mettraux (ed) Perspectives on the Nuremberg Trial (Oxford University Press, New York, 2008).
  7. U.S. Const. amend. V.
  8. Zobel, Hiller B. The Boston Massacre. [1st ed.]. New York: W. W. Norton, 1970.
  9. Trial of Henry Wirz, A Congressionally Mandated Report Summarizing the Military Commission’s Proceedings, United States. 40th Congress, 2d Session. 1867-1868. House Executive Document No. 23, December 7, 1867.
  10. United Nations Documents 1941-1945. Oxford University Press for the Royal Institute Of International Affairs. 1946.
  11. Kazmi, Salman, Is Victor’s Justice in Nuremberg Trial Justified or Not, http://www.academia.edu/6881861/Is_Victors_Justice_in_Nuremberg_Trial_Justified_or_not.
  12. Hodgson, Godfrey. “The Colonel: The Life and Wars of Henry Stimson, 1867-1950” (New York: Knopf, 1990)
  13. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 15 June 2017]
  14. Human Rights Watch, “Myths and Facts about the International Criminal Court”, http://www.hrw.org/campaigns/icc/facts.htm
  15. https://www.icc-cpi.int/about/defence
  16. Jay Sterling Silver, “Equality of Arms and the Adversarial Process: A New Constitutional Right” (1990 Wisconsin Law Review) 1007.
  17. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html [accessed 16 June 2017].
  18. https://www.icc-cpi.int/about/defence.
  19. Mr. Dyilo Lubanga was the former President of the Union des Patriotes Congolais. He was found guilty by the ICC, on 14 March 2012, of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He was sentenced on 10 July 2012 to a total of 14 years of imprisonment. The verdict and sentence was confirmed by the Appeals Chamber on 1 December 2014. Mr Lubanga was transferred to a prison facility in the DRC to serve his sentence of imprisonment.
  20. Osasona, Toson. “Equality of Arms” And Its Effect On the Quality of Justice at the ICC. https://acontrarioicl.com/2014/04/10/equality-of-arms-and-its-effect-on-the-quality-of-justice-at-the-icc/#_ftn14.