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7 Iustinianus Primus L. Rev. 1 (2016)

handle is hein.journals/iusplr7 and id is 1 raw text is: 




DEFENCE CHALLENGES IN TERMS OF EQUALITY OF ARMS
BEFORE INTERNATIONAL COURTS*


Gordana Laietic - Buiarovska *




                             The world rests on three pillars: on truth, on justice[,] and on peace
                                                    Rabban Simeon ben Gamaliel, (Abot 1, 18)'


                                              Summary
       The paper deals with issues that caused problems for the defence during the preparation and
presentation of the case before the international criminal courts. Since equality of arms is broad
concept and encompasses different guarantees and rights of the accused, it was necessary to curtail
the content of the paper toward jurisprudence of ICTY, ICTR and ICC regarding different rules.
Aiming at getting overall picture regarding defence challenges before international criminal
tribunals and ICC, this paper refrains from an in-depth analysis of particular aspects of equality of
arms. Notably, according author's opinion, each equality of arms' aspect deserves much deeper and
kind-of jurisprudential approach to be fully analyzed in terms of clarification and resolving different
points of view, values and argumentation.
       A fair trial is the only means to do justice, that otherwise could not be done. Equality of
arms should be inevitably understood as a necessary condition for assessing the proceedings as
adversarial within common law criminal system's meaning and both principles are considered to be
fundamental aspects of the right to a fair trial. Fair trial principle should be linked to the rule of law.
Therefore in the paper, term equality of arms is used as a term with common meaning and
significance in human right doctrine. The main ratio of this term is balance in the rights of parties
during proceedings, equal opportunities, means and resources, budgetary issues for indigent
defendants.
       A fair balance is being struck between the competing rights of individuals suspected of
violations of international humanitarian and human rights law, from one side, and the rights of the
Prosecution in investigating and prosecuting suspected persons on behalf of the victims and the
international community, from the other side. It is true that fair trial concept is fully provided by the
statutes of the international courts, but legal text are not sufficient for having strong and effective
defence from institutional point of view.
       Unlike ICTY and ICTR created by UN Security Council, the Rome Statute adopted a state-
oriented approach. There are issues related to unequal state cooperation depending upon the
position of the accused, so that Tribunals emphasized rather procedural nature of equality of arms,


* Paper presented at 7th International Spring Course Crime Prevention through Criminal Law & Security Studies:
National vs. International Criminal Adjudication - Shadow on the Wall?, Inter-University-Centre (IUC), Dubrovnik,
23-27 March 2015.
* Gordana La~etic - Bu~arovska PhD, Full Professor, Ss. Cyril and Methodius University, Faculty of Law Iustinianus
Primus, Skopje, R. Macedonia www._pf.ukim.edu. ink, e-mail: gordana2206@gmail com.
1 M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, http://scholarship.
law.duke.edu/cgi/viewcontent cgi?article= 1013&context=lc.

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