Equality of Arms in International

Equality of Arms in International Tribunals

Since the beginning of the concept of an organized system of justice and law, as well as the public interest, the question of individual rights in relation to the need for the maintenance of peace and order has been raised; more precisely, the right of the government to use the concept of justice to temporarily, or permanently suspend the rights of the citizenry has always been a point of contention and debate among the nations of the world, and is particularly important in nations which extend substantial individual rights, such as the United States. Because of the existence of the U.S. Constitution and its accompanying Bill of Rights, individuals have come to expect, and indeed demand, that the rights provided under these documents, and reinforced with legal precedent, not only be extended to the American people, but likewise to others who are tried under the American justice system, as well as international tribunals which seek to provide fair trials and humane treatment for prisoners of war, political enemies, and the like. Herein lays a paradox, given the face of modern terrorism for example, since many terrorists do not march under the flag of an organized nation or government.

Central to an explanation of the system of international justice, human rights and so forth is the concept of Equality of Arms. This paper will begin with a definition of Equality of Arms in an international sense, and continue with a brief history of the practice, highlights of international tribunals in recent times, and conclude with a discussion of contemporary human rights issues in relation to the need for international justice, and how these issues clash and complement the United States Constitution. Upon conclusion of the paper, the researcher will have presented a solid body of research on the key elements of the topic.

Equality of Arms Defined

With the advent of organized criminal justice systems that utilize trials by judge and jury, there likewise has been the development of not only the responsibilities of individuals to obey the law but also the rights afforded to them as defendants in criminal trial when charges are brought against them. A vital component of the rights of the accused for thousands of years has been that of Equality of Arms. Simply defined, Equality of Arms is the right of the defendant(s) to receive complete details of the charges against them, the evidence that will be presented by the prosecution and the right to know who is accusing the defendant of the crime(s) in terms of a witness or witnesses; also, central to the concept of Equality of Arms is the right of the defendant to question their accusers as a means of presenting a defense against prosecution. While this would seem to be an automatic accommodation to defendants, that has not always been the case, although there have been instances when it worked as an effective tool from several points-of-view.

In retrospect, one of the most effective uses of Equality of Arms can be found in an analysis of the Nuremburg Trials, held at the conclusion of World War II to bring to justice the high command of Hitler's Third Reich, who were accused of "crimes against humanity" such as the genocide of millions of civilians, the overthrow of peaceful and legitimate governments and related crimes in a pursuit of world domination. These trials, although held in Germany itself, were presided over by judges, jury and attorneys from many varied nations, reflective of the international scope of the proceedings. When the trials were being planned, there existed several objectives in addition to the obvious intention to serve the interest of justice and determine the guilt or innocence of the defendants. Perhaps just as important was the methodology by which justice would be delivered due to several complex considerations of the nature of the case against the Nazi leaders. It was quickly realized by the legal authorities charged with building a successful prosecutorial case that if the defendants were not given full information, in advance of the trial, concerning the charges being brought and the witnesses stepping forward against them that not only would the best interest of justice not be served, but moreover, the defendants would have grounds for a possible appeal of verdicts under the guise of an unfair trial. Ultimately, the possibility likely existed that even if successfully prosecuted and punished without appeal, the defendants could be given martyr status in the court of public opinion if it was learned that these individuals were deprived due process of law via a deprivation of Equality of Arms. Thus began the modern area of a consideration of due process within the scope of international law, as well as the issues of the rights of the accused and potential backlash once verdicts were delivered under specific circumstances. Moving forward from the end of World War II, the issue of Equality of Arms has likewise manifested itself in other high level cases involving not only the human rights of the defendants, but the victims as well.

Fast forwarding to the 1980s to the present, what were alleged to be mass incidences of genocide, torture, and deprivation of the rights of common citizens emerged from the former Yugoslavia, which suffered economic and leadership crises since the dissolution of one of its largest supporters, the U.S.S.R. In response to these accusations, the International Court of Tribunal Yugoslavia, or ICTY, was convened as a means of delivering justice to both the victims and the accused. The ICTY was similar to the court convened at Nuremburg, with one notable exception. This court, unlike Nuremburg's, was much more global in terms of the nations of origin of those who sat on it, while Nuremburg was largely made up of representatives from the Allied powers of World War II. Because of this rich diversity in the makeup of the court, it was presupposed that justice would be served more rapidly and fairly than in the past. While the process may have been fairer in terms of defendants being granted Equality of Arms and a global audience to hear their pleas of innocence, the increased number of nations involved in the judicial process served to slow down the pace of the trials.

More recently, the atrocities that took place in Rwanda led to the formation of yet another international court, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, or ICTR for short. While this body has elements of Nuremburg and ICTY engrained in it, there is likewise one important difference- the lack of support by the Rwandan government. Unlike Germany and Yugoslavia, who held international tribunals in the midst of virtual anarchy, Rwanda has an established government, which opposed the ICTR for several reasons, including the lack of a death penalty in the system and other considerations for defendants. Paradoxically, however, some of Rwanda's governmental officials were also on trial for genocide and related offenses. Ultimately, the ICTR also boasted the first true international conviction for genocide- the previous courts were not truly international due to lack of widespread representation from across the globe.

In another part of the African continent, namely Sierra Leone, the question of Equality of Arms, and indeed the most basic tenets of human rights have collided since the outbreak of civil war in the early 1990s. This war has been categorically dismissed by many outsiders as a battle for the control of the priceless diamond mines that dot the countryside, but a closer look at the internal dynamics of the nation shows something altogether different and substantially more brutal. In Sierra Leone, the large numbers of people living in tribal seclusion, far from the eye of any form of centralized government, has led to the uprising of powerful and wealthy warlords who take it upon themselves to interpret justice and kill, rape and torture countless numbers of people, which has led many to rather quickly consider the importance of human rights and the need of outside intervention to address the needs of the people and deliver effective and equal justice. As a chilling example of the need for this type of action, it should be understood that many within Sierra Leone's chaotic power structure have made the argument that the term "human rights" is relative, since many of those who live in tribes are unfamiliar to the ways of the modern world to such an extent that one can effectively debate whether or not they are human beings to begin with; hence, their entitlement to human rights is questionable. Of course, no rational person would attempt to even make such an argument, only magnifying the need for internationally comprised legal bodies to take action in Sierra Leone.

Taking a look at Southeast Asia, more specifically the nation of Cambodia, a 30-year plus record of human rights violations and the subsequent pursuit of international justice has likewise existed. Historically, since the end of the Vietnam War in 1975, Cambodia has suffered under the oppression of dictators such as Pol Pot, who instituted Communism and its related rights violations of law. As a result, the question of the future of Cambodia has become vitally important and likewise, international law has had to step in to remedy the situation.

Statutes and Charters from the United Nations Tribunals

The evolution of international tribunals from the post World War II period to the present has likewise resulted in the development of United Nations statutes and charters in the interest of equality, justice and peace on a global scale, even beyond those such as the ICTY and ICTR. Chief among these, in the opinion of many, is the United Nations Human Rights Committee, which blends the consideration of the rights of all of the peoples of the world with the responsibility of international tribunals to deliver swift and equal justice

Overall, the net effect of the U.N. statutes and charters has been a globalization of the criminal justice system, indicative of the increased awareness of the rights of the individual and the fact that violations of human rights cannot hide behind borders or corridors of quasi-power.

European Charter Statues Incorporated with International Law

The movement to promote international justice on the part of the United Nations and other organizations, in collaboration with most of the governments of the world, has led to the incorporation of several major tribunals with global scope in the modern era of world justice, including the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. These tribunals have made it possible for laws to be uniformly enforced and the people of the world to be protected en masse from those that would oppress, torture and kill them.

With international bodies of law enforcement and justice in place, the rise of global terrorism in the last several decades has given rise to additional legislation on the part of individual nations which at times clashes with international law and causes intense debate. An excellent example of this will now be presented.

Military Commission Act of 2006

With the following words, in 1996, President George W. Bush signed into law what has become one of the most controversial pieces of legislation in the modern annals of international law and human rights, the Military Commission Act:

It is a rare occasion when a President can sign a bill he knows will save American lives. I have that privilege this morning. The Military Commissions Act of 2006 is one of the most important pieces of legislation in the War on Terror.... And now, in memory of the victims of September the 11th, it is my honor to sign the Military Commissions Act of 2006 into law."

On the surface, this legislation seems important, as it is designed to assist American military and law enforcement personnel in obtaining information from suspected terrorists; information, which it is argued, can save millions of innocent lives as it directly corresponds to terrorist plots and the like; in defense of the Act, it has also shown its validity and results by allowing for the arrest and detainment of people who were later identified as terrorist bent on destroying American and its allies with terrorism. However, the consideration of the rights of individuals suspected of criminal activity seems to have been lost in the shuffle and deserves consideration, especially since the United States, one of the pillars of freedom in the world, is the key antagonist in these detentions and aggressive arrests.

It is fair to ask the question of what rights an accused- not proven-criminal will be given under the Military Commission Act. A key to the rights of accused criminals under the U.S. Constitution is the right of habeus corpus, or protection from arrest and physical removal from one's home without a valid warrant for arrest and just cause for that arrest; in other words, no one can be arrested, taken into custody, and held for indefinite periods of time simply on a hunch that they may be a criminal. However, because of the sensitive nature of the possibility of terrorist attacks, habeus corpus has been killed by the Military Commission Act, symbolically opening the floodgates for people to be detained on the slimmest of evidence, if any at all.