作者
Stefania Negri
发表日期
2007
图书
International criminal justice: a critical analysis of institutions and procedures
页码范围
13-73
出版商
Cameron May Ltd.
简介
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. 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, and set out in the Statutes and Rules of the major international courts and tribunals. The duty incumbent upon international courts to ensure procedural balance 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, the chapter attempts 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 draws upon international case law, focusing on the jurisprudence of major international courts such as the International Court of …
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