Practice Relating to Rule 100. Fair Trial Guarantees

IMT Charter (Nuremberg)
Article 16(a) of the 1945 IMT Charter (Nuremberg) provides: “In order to ensure fair trial for the Defendants, the following procedure shall be followed: (a) the Indictment shall include full particulars specifying in detail the charges against the Defendants”. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 16(a).
Geneva Convention III
Article 96, fourth paragraph, of the 1949 Geneva Convention III provides: “Before any disciplinary award is pronounced, the accused shall be given precise information regarding the offences of which he is accused.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 96, fourth para.
Geneva Convention III
Article 105, fourth paragraph, of the 1949 Geneva Convention III provides:
Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language he understands, and in good time before the opening of the trial. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 105, fourth para.
Geneva Convention IV
Article 71, second paragraph, of the 1949 Geneva Convention IV provides: “Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 71, second para.
Geneva Convention IV
Article 123, second paragraph, of the 1949 Geneva Convention IV provides: “Before any disciplinary punishment is awarded, the accused internee shall be given precise information regarding the offences of which he is accused.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 123, second para.
European Convention on Human Rights
Article 6(3)(a) of the 1950 European Convention on Human Rights provides:
Everyone charged with a criminal offence has the following minimum rights: … to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 6(3)(a).
International Covenant on Civil and Political Rights
Article 14(3)(a) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone shall be entitled to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(3)(a).
American Convention on Human Rights
Article 8(2)(b) of the 1969 American Convention on Human Rights provides: “Every accused person is entitled to prior notification in detail of the charges against him.” 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(2)(b).
Additional Protocol I
Article 75(4)(a) of the 1977 Additional Protocol I provides: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4)(a). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 6(2)(a) of the 1977 Additional Protocol II provides: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2)(a). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
Convention on the Rights of the Child
Article 40(2)(b)(ii) of the 1989 Convention on the Rights of the Child provides: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (ii) to be informed promptly and directly of the charges against him or her”. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(ii).
ICC Statute
Article 55(2) of the 1998 ICC Statute provides:
Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court … that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 55(2).
ICC Statute
Article 60(1) of the 1998 ICC Statute provides:
Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 60(1).
ICC Statute
Article 67(1)(a) of the 1998 ICC Statute provides:
In the determination of any charge, the accused shall be entitled … to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks.  
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1)(a).
Statute of the Special Court for Sierra Leone
Article 17(4)(a) of the 2002 Statute of the Special Court for Sierra Leone provides:
In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: … to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(4)(a).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 12(2) of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 12(2).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Articles 15 and 16 of the 2007 Statute of the Special Tribunal for Lebanon provide:
Article 15
Rights of suspects during investigation
… He or she shall have the following rights of which he or she shall be informed by the Prosecutor prior to questioning, in a language he or she speaks and understands:
(a) The right to be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Special Tribunal;
Article 16
Rights of the accused
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Articles 15(a) and 16(4)(a).
IMT Charter (Tokyo)
Article 9(a) of the 1946 IMT Charter (Tokyo) provides: “In order to insure fair trial for the accused, the following procedure shall be followed: (a) Indictment. The Indictment shall consist of a plain, concise, and adequate statement of each offence charged.” 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 9(a).
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 10 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides: “Anyone who is arrested shall be promptly informed of any charges against him.” 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 10.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(b) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 8(b).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
ICTY Statute
Article 21(4)(a) of the 1993 ICTY Statute provides:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: … to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(4)(a).
ICTR Statute
Article 20(4)(a) of the 1994 ICTR Statute provides that the accused shall be entitled “to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(4)(a).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(b) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(1)(b).
Argentina
Argentina’s Law of War Manual (1969) provides, in a paragraph entitled “Right of defence”: “before giving a disciplinary penalty, the accused prisoner must be informed, with precision, of the acts he is charged with”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.082(2).
The manual further provides:
The accused prisoner of war will receive, as quickly as possible before the beginning of the trial, communication in an understandable language, of the bill of indictment as well as the acts which generally are notified to the accused in accordance with the laws in force in the army of the [detaining power]. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.086.
The manual also provides that the occupying power shall inform “any indicted person … without delay, of the motives of accusation that have been formulated against him, in a language he will understand”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 5.029(2).
Argentina
Argentina’s Law of War Manual (1989) provides that, at least certain guarantees shall be respected, such as: “the information of the prisoner without delay of the details of the offence of which he is charged”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 3.30.
The manual further states that any accused person shall be informed without delay of the particulars of the offences of which he is accused. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 5.09(1) (occupied territories); see also § 4.15 (civilians).
The same provision applies in non-international armed conflicts. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.10.
Australia
Australia’s Defence Force Manual (1994) states: “Notice of proceedings must be given to … the accused notifying the particulars of the charges in good time before the trial.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1042(c).
Australia
Australia’s LOAC Manual (2006) states: “Notice of proceedings must be given to … the accused notifying the particulars of the charges in good time before the trial.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.54.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999) provides: “Accused persons must be promptly informed, in writing, and in a language which they understand, of the charges brought against them.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 54.
With respect to non-international armed conflicts, the manual states: “Accused persons shall be informed of the particulars of the offence charged.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-4, § 29(a).
Canada
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “Accused persons must be promptly informed, in writing, and in a language, which they understand, of the charges brought against them.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.1.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: a. shall be informed of the particulars of the offence charged”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.a.
Indonesia
Indonesia’s Directive on Human Rights (1995) in Trikora states that respect for personal and human dignity includes the right to obtain explanation of charges. 
Indonesia, Directive concerning the Respect of Human Rights in Military Operations, issued by the Commander of the Regional Military Command of Trikora, No. Skep/96/XII/1995, 1 November 1995, § 4(a).
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees: the accused must be immediately informed of the particulars of the offence he is alleged to have committed”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual also states:
C. Judicial procedure must be regular, that is, it must include at least the following guarantees:
a. the accused must be immediately informed of the particulars of the offence he is alleged to have committed. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(C)(a).
Netherlands
The Military Manual (1993) of the Netherlands provides with respect to non-international armed conflict: “The suspect must be informed without delay of the particulars of the offences alleged.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
New Zealand
New Zealand’s Military Manual (1992) states: “Before any disciplinary punishment is awarded, the accused internee shall be given precise information regarding the offences of which he is accused”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1130(1).
The manual further provides: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(a).
The manual also specifies: “The accused must be promptly informed, in writing, and in a language which they understand, of the charges brought against them.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1330(1); see also § 1815(2)(a).
Pakistan
The Manual of Pakistan Military Law (1987) states:
Full information to be given to accused. – As soon as practicable after an accused has been remanded for trial by a district or general court martial and at least twenty-four hours before he is brought up for trial, an officer must give him a copy of the summary, or (if there is no summary of evidence) the abstract of evidence, and apprise him of his rights in connection with the preparation of his defence (PAA [Pakistan Army Act] Rule 23(2)).
As soon as practicable before he is arraigned for trial, an officer must hand over to him a copy of the charge-sheet, and, if necessary explain the charge-sheet charges to him. The officer in question must also inform him of his rights in connection with the securing of witnesses on his behalf (PAA Rule 24). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 31.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
8. Inform the troops that a child taken in custody by government forces in an area of armed conflict should be informed of his/her constitutional rights and shall be treated humanely. Some of [these] basic rights are “the right to remain silent”, “the right to be presumed innocent until proven guilty”, “the right to be notified of the charge,” “right to counsel”, “right to presence of parents or guardian”, and the “right to confront and cross examine witnesses.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 55, § 8.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW). 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13 and 16–17.
Spain
Spain’s LOAC Manual (1996) provides: “Before a [disciplinary] decision is imposed, the accused prisoner shall be informed of the acts of which he is charged.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.7.e.(2).
Spain
Spain’s LOAC Manual (2007) states: “Before any disciplinary award is pronounced, the accused must be given precise information regarding the offences of which he is accused.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.e.(2).
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Every person arrested, detained or interned for acts committed in connection with the conflict shall be informed, without delay, in a language he or she understands, of the reasons why the measures have been taken.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 175.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Before any disciplinary award is pronounced [against a prisoner of war] the accused must be given full information regarding the offence with which he is charged”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 208.
With regard to judicial proceedings against prisoners of war, the manual provides: “Particulars of the charges brought against the accused … must be given to the accused in a language which he understands.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 228.
With respect to situations of occupation, the manual states: “The accused must be promptly informed, in writing and in a language which they understand, of the charges brought against them.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
The manual also provides that before awarding any disciplinary punishment to a civilian internee, “the accused must be given full details of the offence … and be given an opportunity to explain his conduct and to defend himself”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.9.
In its discussion on judicial proceedings against prisoners of war, the manual states:
Particulars of the charge or charges, as well as any documents which have by law normally to be handed to an accused person serving in the armed forces of the detaining power, must be given to the accused in a language which he understands, and also to his defending counsel, in good time before the opening of the trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on disciplinary measures against prisoners of war, the manual states: “Before any disciplinary award is announced, the accused must be given precise information regarding the offences of which he is accused and an opportunity to explain his conduct and defend himself.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.125.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … prompt written notification, in a language that they understand, of the particulars of the charges against them”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … notification to the accused of the charges against him.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172 and 181.
The manual also contains the provisions of Articles 71 and 123 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 330 and 441.
United States of America
The US Air Force Pamphlet (1976) provides, with respect to protected persons arrested for criminal offences: “Among other rights, accused persons are assured the right to be informed promptly of the charges against them.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
United States of America
The US Air Force Commander’s Handbook (1980) provides: “A prisoner must be given notice of the charges.” 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
United States of America
The US Manual for Military Commissions (2010) states:
Arraignment
Arraignment shall be conducted in a military commission session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 904, p. II-88.
The manual also states:
Pleas
(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
(1) The nature of the offense to which the plea is offered and the maximum possible penalty provided by law. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910 (c)(1), p. II-101.
Note. Countless pieces of domestic legislation provide for the right of the accused to be informed of the particulars of the alleged offence. 
See, e.g., Ethiopia, Constitution, 1994, Article 20(2); Georgia, Constitution, 1995, Article 18(5); Georgia, Code of Criminal Procedure, 1998, Articles 12 and 74; India, Constitution, 1950, Article 22(1); Kenya, Constitution, 1992, Article 77(2)(b); Kyrgyzstan, Criminal Code, 1997, Article 18; Mexico, Constitution, 1917, Article 20(III).
These have not been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states: “At the opening of the hearing the Court reads out the act of indictment”. 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 53(3)(a).
The Code explains: “The act of indictment is comprised of the following: a. Complete identification of the suspect; b. Complete description of the crime.” 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 39(5).
The Code also states: “The suspect or the accused who does not know the language used during the investigations and the trial, or who is deaf, dumb or deaf and dumb, shall be given an interpreter for, at least, explaining to him the charge and the indictment.” 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 20.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Rights of the Accused.
(1) Persons responsible for [the processing of criminal] investigations and trial[s] are obliged, before taking any action, to inform the suspect or accused of the following rights:
2- The right to know the kind of charges and the [results of the] completion of the investigation. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 14(1)(2).
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or [who are] serv[ing] a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers:
In determining charges against the accused, the accused shall be equally entitled to the following minimum guarantees, in accordance with Article 14 of the International Covenant on Civil and Political Rights.
a. to be informed promptly and in detail in a language that they understand of the nature and cause of the charge against them. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 35(a) new.
Colombia
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
h) to be informed about the charges against him or her in an understandable way and expressly indicating the way the acts underlying the charge were carried out as well as the time and place of the acts underlying the charge. 
Colombia, Criminal Procedure Code, 2004, Article 8(h).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum guarantees:
A. To be informed promptly and in detail of the content, nature and cause of the charge against him. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(4)(A).
The Law further provides:
A person against whom an indictment has been issued shall be taken into custody, pursuant to an arrest order or warrant issued by the Tribunal Investigative Judge, and shall be immediately informed of the charges against him and transferred to the Tribunal. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 20(1).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 96 and 105 of the Geneva Convention III and Articles 71 and 123 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(a), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(a), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to procedures:
At the opening of the trial, the military court shall read the indictment to the defendant, and shall explain it to him, should he so desire. The military court may refrain from doing so regarding a defendant represented by a defense attorney, if the defense attorney announces to the court that he has read the indictment to the defendant and explained its content to him, and the defendant has confirmed that announcement; these statements of the defendant and his defense attorney shall be recorded in the transcript. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 117.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Peru
Peru’s New Code of Criminal Procedure (2004) states: “Every person shall have an inviolable and unrestricted right … to be informed immediately and in detail of the accusations against him or her”. 
Peru, New Code of Criminal Procedure, 2004, Article IX(1).
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “Procedural principles and guarantees”: “Every member of the military or the police has the right to be informed of their rights, [and] of the charges made against him or her.” 
Peru, Military and Police Criminal Code, 2010, Article 148(1).
In a chapter entitled “The accused”, the Code also states:
The police, the prosecutor and the judges must inform the accused immediately and comprehensively of the following rights in order to ensure that he or she benefits from the safeguards essential for his or her defence:
4. To appear before the prosecutor or military or police judge in order to be informed of and heard on the charges against him or her. 
Peru, Military and Police Criminal Code, 2010, Article 199(4); see also Article 213.
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(b) To be informed of the nature and cause of the accusation against him. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(b).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
b) To be informed promptly and directly of the nature and cause of the charge against him, and if appropriate, through his parents or legal guardian. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(b).
Philippines
The Philippines’ Republic Act No. 9372 (2007) states:
Rights of a Person under Custodial Detention. – The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: … (b) [to be] informed of the cause or causes of his detention in the presence of his legal counsel. 
Philippines, Republic Act No. 9372, 2007, Section 21.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda] to Rwanda is guaranteed the following rights:
3° the accused shall be informed promptly and in detail in a language which he or she understands, of the nature and the cause of the charge against him. 
Rwanda, Organic law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Article 13.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
3º to be informed promptly and in detail in a language which he [or] she understands, of the nature and the cause of the charge against him [or her]. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(3º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda], by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(5) Every person who is charged with a criminal offence –
a. shall be informed at the time he is charged in the language which he understands and in detail, of the nature of the offence charged;
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(5)(a) and (10) and 29(2) and (5).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
5. Notice of trial.
(1) A court shall not try a protected prisoner of war or a protected internee unless it is satisfied that the protecting power and the legal representative of the prisoner of war or internee have been given at least twenty-one days notice of the trial by the prosecutor.
(2) The notice referred to in subsection (1) shall include –
(d) the offence with which the accused person is charged. 
Sierra Leone, Geneva Conventions Act, 2012, Section 5(1) and (2)(d).
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right –
(a) to be informed of the charge with sufficient detail to answer it;
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. 
South Africa, Constitution, 1996, as amended to 2003, Sections 35(3)(a), 37(1)(a) and (5)(c).
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)”. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.” 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states: “At the start of the examination hearing, the person being questioned shall, in a language they can understand: … be advised of the subject matter of the criminal proceedings and of the capacity in which he is being interviewed”. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 143(1)(b); see also Article 158(1)(a).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“ …
§ 948q. Charges and specifications
“(a) CHARGES AND SPECIFICATIONS.—Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state—
“(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and
“(2) that they are true in fact to the best of the signer’s knowledge and belief.
“(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges against him as soon as practicable. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2606, 2607, §§ 948b(a) and 948q.
The Military Commissions Act also states:
§ 949d. Sessions
“ …
“(f) PROTECTION OF CLASSIFIED INFORMATION.—
“(1) NATIONAL SECURITY PRIVILEGE.—
“(A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.
“(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that—
(i) the information is properly classified; and
(ii) disclosure of the information would be detrimental to the national security.
“(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.
“(2) INTRODUCTION OF CLASSIFIED INFORMATION.—
“(A) ALTERNATIVES TO DISCLOSURE.—To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—
(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission;
(ii) the substitution of a portion or summary of the information for such classified documents; or
(iii) the substitution of a statement of relevant facts that the classified information would tend to prove.
“(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES.—The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.
“(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL.—During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review of trial counsel’s claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.
“(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS.—A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
“(4) ADDITIONAL REGULATIONS.—The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60 days before the date on which such regulations or modifications, as the case may be, go into effect. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2612–2613, § 949d(f).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 948q. Charges and specifications
“ …
“(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications … the accused shall be informed of the charges and specifications against the accused as soon as practicable. 
United States, Military Commissions Act, 2009, § 948q(b).
The Act also states:
§ 948s. Service of charges
“The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense. 
United States, Military Commissions Act, 2009, § 948s.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be informed clearly and in detail of the acts of which he or she is accused.” 
Venezuela, Penal Procedure Code, 2009, Article 125(1); see also Articles 131 and 347.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be informed clearly and in detail of the acts of which he or she is accused.” 
Venezuela, Penal Procedure Code, 2012, Article 127(1); see also Articles 133 and 330.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(3) Every person who is charged with a criminal offence–
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged.
….
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(3)(b) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(b) to be informed promptly of the charge, in sufficient detail to enable them to answer it;
(2) Where this section requires information to be given to a person –
(a) the information must be given in a language the person understands; and
(b) if the person cannot read or write, any document embodying the information must be explained in such a way that the person understands it.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 70(1)(b) and (2), 86(2)(b) and (3)(e) and 87(1) and (4).
Australia
In the Ohashi case before the Australian Military Court at Rabaul in 1946, the judge advocate stated that the notion of “fair trial” supposed, inter alia, that:
–the accused should know the exact nature of the charge against him/her;
–the accused should know what is alleged against him/her by way of evidence;
–he should have full opportunity to give his own version of the case and produce evidence to support it. 
Australia, Military Court at Rabaul, Ohashi case, Statement by the Judge Advocate, 23 March 1946.
Bosnia and Herzegovina
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that a right of the accused is “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to be notified of the charges … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, March 2005, § 4.2.5.1.7
Philippines
In its judgment in the Espinosa case in 2003, the Supreme Court of the Philippines stated:
Arraignment is an indispensable requirement of due process. It consists of the judge’s or the clerk of court’s reading of the criminal complaint or information to the defendant. At this stage, the accused is granted, for the first time, the opportunity to be officially informed of the nature and the cause of the accusation. Thus, arraignment cannot be regarded lightly or brushed aside peremptorily. 
Philippines, Supreme Court, Espinosa case, Judgment, 15 August 2003.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Spain
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: … the right to be informed of the nature and cause of the accusation in a convenient manner …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “According to the new Code [of Criminal Procedure], accused persons have the following rights: to be informed of the charges against them”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 149; see also §§ 211 and 215.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
In the case of suspicion or accusation for a criminal offence, the suspected, accused or prosecuted person shall have the right:
- To be informed in detail, and in the language he or she understands, within the shortest possible term, of the nature and reasons for the charges against him or her and of the evidence incriminating him or her. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 206.
Jordan
The Report on the Practice of Jordan states that Article 75 the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated:
Any person who is arrested or detained shall immediately be told of the reasons for his arrest or detention and shall have the right to contact whomsoever he wishes to notify of the event or seek assistance from in the manner regulated by law. He must be promptly informed of the charge against him. He may lodge a complaint with the courts concerning any measure that restricts his personal freedom, as may his representative. The law shall regulate the right of complaint so as to guarantee settlement of the complaint within a set period, failing which the detainee must be released. 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, submitted 28 April 2005, § 23.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
No data.
No data.
No data.
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated:
5. Specificity of the Document Containing the Charges
81. Pursuant to articles 61(3)(a) and 67(l)(a) of the [1998 ICC] Statute, rule 121 (3) of the Rules and regulation 52 of the Regulations of the Court (“Regulations”), the suspect must be informed in detail of the facts underlying the charges against him or her at least 30 days before the commencement of the confirmation hearing. Article 74(2) of the Statute makes it clear that it is those facts and circumstances that form the basis for the charges confirmed at the pre-trial stage which are determinative of “the factual ambit of the case for the purposes of the trial and circumscribe [the trial] by preventing the Trial Chamber from exceeding that factual ambit”.
82. The Chamber is concerned by this attempt on the part of the Prosecution to keep the parameters of its case as broad and general as possible, without providing any reasons as to why other locations where the alleged crimes were perpetrated cannot be specifically pleaded and without providing any evidence to support the existence of broader charges, seemingly in order to allow it to incorporate new evidence relating to other factual allegations at a later date without following the procedure established under article 61(9) of the Statute. The Prosecution must know the scope of its case, as well as the material facts underlying the charges that it seeks to prove, and must be in possession of the evidence necessary to prove those charges to the requisite level in advance of the confirmation hearing. The DCC [Document Containing the Charges] must contain a statement of the material facts underlying the charges, to include the dates and locations of the alleged incidents to the greatest degree of specificity possible in the circumstances.
83. For these reasons, the Chamber finds that the words “include but are not limited to” are meaningless in the circumstances of this case. Accordingly, the Chamber will assess the charges only in relation to the locations specified under each count contained in the DCC.
84. With regard to the Defence challenge to the references to “Busurungi and surrounding villages” and “Busurungi and neighbouring villages”, the Chamber finds the description of the location in question to be sufficiently precise, particularly given the relatively narrow geographic area involved and the fact that the relevant details as to the wider locations surrounding Busurungi are to be found when the DCC is read in conjunction with the LoE [list of evidence].
85. In relation to the last Defence challenge, the Chamber recalls that redaction of information from witness statements must not be “prejudicial to or inconsistent with the rights of the suspect, including the right to a fair and impartial trial.” The information which has been provided to the Defence in relation to the location and dates of the incidents in question is limited to “the village of W673 and W674 in Masisi territory, during the second half of 2009.” In the view of the Chamber, such broad geographic and temporal parameters are not sufficiently detailed to inform the Suspect as to the location and dates of the alleged crimes. As highlighted above, the location and dates of the alleged crimes are material facts which, pursuant to regulation 52(b) of the Regulations, must be pleaded in the DCC. In these circumstances, the Suspect cannot be said to have been informed of the charge against him within the meaning of article 67(l)(a) of the Statute. Accordingly, the Chamber will not analyse those crimes alleged to have occurred in “the village of W673 and W674 in Masisi territory, during the second half of 2009”.
6. Rule of Speciality
86. At the confirmation hearing, the Defence argued that the Prosecution had added to the DCC the war crimes of mutilation and pillaging which were not included in the warrant of arrest, thereby infringing the rule of speciality contained in article 101 of the Statute. …
88. The Chamber is of the view that, in principle, the description of facts and their related legal characterisations, as contained in any request for a warrant of arrest and in the decision issuing such order, are provisional. There should be no requirement that the formulation of charges in the DCC strictly follow the factual and legal foundations of the warrant of arrest, especially in view of the fact that, in accordance with article 61(4) of the Statute and as the Appeals Chamber has held, the Prosecution can continue his investigations and amend or withdraw charges without the permission of the Pre-Trial Chamber prior to the confirmation hearing.
89. The Chamber acknowledges, on the other hand, the rule of speciality, contained in article 101 of the Statute, which, in principle, should prevent the Prosecution from including in the DCC a crime which had not been described in any way in the warrant of arrest, on the basis of which the requested State agreed to arrest and surrender the person.
90. In the view of the Chamber, the DCC is to be understood as the document which frames the confirmation hearing. This is the document which, in accordance with article 67(1) of the Statute and rule 121 of the Rules, must establish in detail the nature, cause and content of the charges brought against the suspect and which forms the basis for preparation for the confirmation hearing. Rule 121(3) refers to the DCC as the document containing “a detailed description of the charges.” In its request for a warrant of arrest, on the other hand, the Prosecution is required, under article 58(2)(b) and (c) of the Statute, to submit to the Chamber only a “specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed”, together with a “concise statement of facts which are alleged to constitute those crimes”.
91. Therefore, in the view of the Chamber, the rule of speciality is not, in principle, violated by the inclusion in the DCC of one or more crimes, which were not explicitly described or legally characterised in the warrant of arrest, but are otherwise implicit in the description of the course of conduct underlying the crimes in relation to which a “concise statement of the facts”, in accordance with article 58(2)(c) of the Statute, has been provided by the Prosecution.
111. Pursuant to article 67(l)(a) of the Statute, rule 121(3) of the Rules and regulation 52 of the Regulations, the Prosecution was obliged to produce a DCC framing the charges in a coherent manner, providing sufficient detail of the factual allegations underlying each of the charges and supporting each of the factual allegations with sufficient evidence, in order to provide the Chamber with substantial grounds to believe that the crimes have been committed as alleged.
112. The duty of the Prosecution to provide sufficient factual details in the DCC is the corollary of the right of the suspect to be clearly informed of the charges against him, so that he is in a position to properly defend himself against these charges. The suspect cannot be expected to go through the voluminous evidence disclosed by the Prosecution in order to identify for himself the factual basis of the charges against him. The Chamber is cognizant of the fact that, in cases such as the present which involve mass criminality to which the Suspect is indirectly related, the Prosecution may not be in a position to bring detailed information as to the precise number of victims, the identity of those victims, the identity of the direct perpetrators or the means by which each of the crimes was carried out. However, this does not absolve the Prosecution from its duty to inform the Suspect of the factual allegations underlying the charges against him.
113. In view of the foregoing, given the insufficient information about the material facts underlying the charges against Mr Mbarushimana, the charges and the evidence submitted in support thereof should only be analysed with respect to locations and dates included in the charges in relation to which sufficient factual description was provided by the Prosecution in the DCC. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, §§ 81–86, 88–91 and 111–113.
[footnotes in original omitted]
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Court
In its judgment in the Lubanga case in 2012, the ICC Trial Chamber I stated:
2. Under the [1998 ICC] Statute (“Statute”) and the Rules of Procedure and Evidence (“Rules”), the charges include a description of the relevant facts and circumstances, and the facts are legally characterised. Therefore the charges are made up of factual and legal elements.
3. Pursuant to Article 74(2) of the Statute, the judgment “shall not exceed the facts and circumstances, described in the charges and any amendments to the charges”. The charges and any amendments thereto establish the factual scope of the Decision pursuant to Article 74(2).
4. By Regulation 55(1) of the Regulations of the Court (“Regulations”), “the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28”. However, it shall not exceed the facts and circumstances described in the charges and any amendments to the charges.
5. Regulation 52(b) of the Regulations establishes what needs to be included in the document containing the charges: “[a] statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court”.
6. The Appeals Chamber has defined what are “the facts” in this context:
In the view of the Appeals Chamber, the term ‘facts’ refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (1) (a) of the Statute.
7. It follows that the accused cannot be convicted on a basis that exceeds the factual circumstances that were identified in the Confirmation Decision as supporting each of the legal elements of the crimes charged. 
ICC, Lubanga case, Judgment, 14 March 2012, §§ 2–7.
[footnotes in original omitted]
The ICC Trial Chamber I also stated:
629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the [1998 ICC] Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.
630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”. Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law, because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.
631. In due course, the Chamber will consider whether these matters ought to be taken into account for the purposes of sentencing and reparations. 
ICC, Lubanga case, Judgment, 14 March 2012, §§ 629–631.
[footnotes in original omitted]
International Criminal Court
In its judgment in the Ngudjolo Chui case in 2012, the ICC Trial Chamber II stated:
Pursuant to article 74(2) of the [1998 ICC] Statute, the Chamber’s decision “shall not exceed the facts and circumstances described in the charges and any amendments to the charges”. Hence the charges as confirmed by the Pre-Trial Chamber establish the factual scope of the Judgment pursuant to article 74(2). 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, § 13.
[footnotes in original omitted]
The charges against Mr Ngudjolo Chui related to war crimes and crimes against humanity. The Trial Chamber acquitted him of all the charges. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Tribunal for Rwanda
In the Kajelijeli case before the ICTR in 2001, the accused, Juvénal Kajelijeli, who was bourgmestre (mayor) of the Mukingo commune, Rwanda, from 1988 to 1993 and was re-appointed bourgmestre in June 1994 until mid-July 1994, was charged for his alleged involvement with various crimes committed against the Tutsi population in Rwanda in 1994.
The Trial Chamber subsequently found the accused guilty of both genocide and of extermination, for which he received two sentences of imprisonment for the remainder of his life. He was also found guilty of direct and public incitement to commit genocide, for which he was sentenced to 15 years’ imprisonment. 
ICTR, Kajelijeli case, Judgment, 1 December 2003, §§ 942 and 968.
In its judgment in 2005, the Appeals Chamber considered the law regarding arbitrary detention and the deprivation of liberty:
Under international human rights law, no one shall be subject to arbitrary detention without due process of law pursuant to the right to liberty and security of person as found in Article 9 of the ICCPR [International Covenant on Civil and Political Rights]. Subsequent to arrest and detention, everyone has the right to be informed promptly in a language he or she understands of the nature and cause of the charges against him or her pursuant to Articles 9(2) and 14(3)(a) of the ICCPR. The suspect’s right to be promptly informed of the charges against him or her serves two purposes: 1) it “counterbalances the interest of the prosecuting authority in seeking continued detention of the suspect” by giving the suspect “the opportunity to deny the offence and obtain his release prior to the initiation of trial proceedings”; and 2) it “gives the suspect information he requires in order to prepare his defence.” Generally, international human rights standards view provisional detention of a suspect without charge as an exception, rather than the rule. However, such detention is lawful under international law as long as it is as short as possible, not extending beyond a reasonable period of time. The Human Rights Committee has found that pre-trial detention of a suspect without appearance before a Judge and without charge for 42 days is unreasonable under Article 9 of the ICCPR. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, § 229.
The Appeals Chamber subsequently found that the appellant had been impermissibly detained for a total of 306 days in Benin and the UN Detention Facility (UNDF), Arusha, because 1) he was not promptly informed of the reasons for his arrest or of the provisional charges against him, and 2) he was not promptly granted an initial appearance before a judge or an official acting in a judicial capacity without undue delay. It therefore set aside the sentences imposed by the Trial Chamber and converted them into a single sentence consisting of a fixed term of 45 years’ imprisonment. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, §§ 323-324.
International Criminal Tribunal for Rwanda
In its judgment in the Rutaganda case in 2003, the ICTR Appeals Chamber stated:
301. An Indictment is aimed at providing the accused with “a description of the charges against him with sufficient particularity to enable him to mount his defence.” Accordingly, the indictment must be sufficiently specific, meaning that it must reasonably inform the accused of the material charges, and their criminal characterisation. The materiality of an alleged fact depends, above all, on the nature of the alleged criminal conduct charged to the accused. Before the ICTY [sic], these principles derive from Articles 17(4), 20(2), 20(4)(a) and (b) of the [1994 ICTR] Statute, and Rule 47(C) of the Rules [of Procedure and Evidence].
302. Although, a priori, the Prosecution is required to prove the facts alleged in the Indictment, the Appeals Chamber holds the view that the Indictment cannot have the degree of specificity of the evidence underpinning it. The Appeals Chamber therefore considers that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the Trial Chamber from considering the indictment in the light of the evidence presented at trial…
303. Such doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a) and (b) of the [1994 ICTR] Statute, and take into account the specific circumstances of each case. Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be … determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment. 
ICTR, Rutaganda case, Judgment on Appeal, 26 May 2003, §§ 301–303.
International Criminal Tribunal for Rwanda
In its judgment in the Ntakirutimana case in 2003, the ICTR Trial Chamber stated:
42. According to Article 17 (4) of the [1994 ICTR] Statute, an indictment shall contain "a concise statement of the facts and the crime or crimes with which the accused are charged". Similarly, Rule 47 (C) of the Rules [of Procedure and Evidence] provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”. It follows from case law that the Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 20 (2) and (4)(a) and (b) of the Statute. These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. In the jurisprudence of the ad hoc Tribunals, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven. Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the charges against him so that he may prepare his defence. Reference is made to the ICTY Appeals Chamber’s Judgement in The Prosecutor v. Kupreskic et al. (henceforth Kupreskic), which was delivered on 23 October 2001, more than a month after the commencement of the trial in the present case.
49. As mentioned above, if follows from the Statute and the Rules that the Prosecution is under an obligation to state the material facts underpinning the charges in the Indictment, but not the evidence by which such material facts are to be proven. In Kupreskic, the Appeals Chamber interpreted the Prosecution’s obligation in the following way:
89. The Appeals Chamber must stress initially that the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes “makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes”. [footnote omitted].
90. Such would be the case where the Prosecution alleges that an accused participated, as a member of an execution squad, in the killing of hundreds of men. The nature of such a case would not demand that each and every victim be identified in the indictment. Similarly, an accused may be charged with having participated as a member of a military force in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings and forced removals. In such a case the Prosecution need not specify every single victim that has been killed or expelled in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.
92. It is of course possible that an indictment may not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession. However, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed. In this connection, the Appeals Chamber emphasises that the Prosecution is expected to know its case before it goes to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the Indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. There are, of course, instances in criminal trials where the evidence turns out differently than expected. Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.
114. The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect. A defective Indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction. The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category. 
ICTR, Ntakirutimana case, Judgment, 21 February 2003, §§ 42 and 49.
In its judgment in 2004, the ICTR Appeals Chamber further stated:
24. The law governing challenges to the vagueness of an indictment is set out in detail in the ICTY Appeals Chamber’s Judgement in Kupreškić
25. The Kupreškić Appeal Judgement stated that Article 18(4) of the ICTY Statute, read in conjunction with Articles 21(2), 4(a) and 4(b), “translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.” Whether certain “facts” are “material” depends on the nature of the case. Kupreškić discussed several possible factors that could bear on the determination of materiality. For example, if the Prosecution charges personal physical commission of criminal acts, the indictment should set forth “the identity of the victim, the time and place of the events and the means by which the acts were committed.” On the other hand, such detail need not be pleaded if the “sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters.” Even in cases where a high degree of specificity is “impractical,” however, “since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.”
26. Kupreškić also envisioned the possibility in which the Prosecution was unable to plead with specificity because the material facts were not in the Prosecution’s possession. As a general matter, “the Prosecution is expected to know its case before it goes to trial” and cannot expect to “mould[] the case against the accused in the course of the trial depending on how the evidence unfolds.” If the Defence is denied the material facts of the accused’s alleged criminal activity until the Prosecution files its pre-trial brief or until the trial itself, it will be difficult for the Defence to conduct a meaningful investigation for trial until then. A trial chamber must be mindful of whether proceeding to trial in such circumstances is fair to the accused. Kupreškić indicated that while there are “instances in criminal trials where the evidence turns out differently than expected,” such situations may call for measures such as an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment.
27. If an indictment is insufficiently specific, Kupreškić stated that such a defect “may, in certain circumstances cause the Appeals Chamber to reverse a conviction.” However, Kupreškić left open the possibility that a defective indictment could be cured “if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.” The question whether the Prosecution has cured a defect in the indictment is equivalent to the question whether the defect has caused any prejudice to the Defence or, as the Kupreškić Appeal Judgement put it, whether the trial was “rendered unfair” by the defect. Kupreškić considered whether notice of the material facts that were omitted from the indictment was sufficiently communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. In this connection, the timing of such communications, the importance of the information to the ability of the Accused to prepare its defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.
28. In Kupreškić, the omitted facts were not clearly stated in the pre-trial brief or in the Prosecution’s opening statement; the underlying witness statement was not disclosed until “one to one-and-a-half weeks prior to trial and less than a month prior to [the witness’s] testimony in court”; and the omitted fact was indicative of a “radical transformation” of the Prosecution’s case from one alleging “wide-ranging criminal conduct … during a seven-month period” to a targeted prosecution for persecution because of participation “in two individual attacks.” Moreover, the Appeals Chamber concluded that “whether the Trial Chamber would take into account [the unpleaded facts] as a possible basis for liability in respect of the persecution count was, until the very end of trial, not settled,” and that this uncertainty “materially affected” the ability of the accused to prepare their defence. These factors eliminated the possibility that the failure to plead material facts in the indictment had not prejudiced the accused in Kupreškić; rather, their “right to prepare their defence was seriously infringed” and their trial “rendered unfair.” 
ICTR, Ntakirutimana case, Judgment on Appeal, 13 December 2004, §§ 24–28.
In particular, with regard to the required specificity of indictments as regards the form of individual criminal responsibility pleaded, the Appeals Chamber stated:
469. Article 17(4) of the [1994 ICTR] Statute provides that the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.
470. As stated earlier in this Judgement, the Prosecution’s obligation to set out a concise statement of the facts in the indictment must be interpreted in the light of the provisions of Articles 20(2), 20(4)(a) and 20(4)(b) of the Statute, which provide that in the determination of charges against him or her the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature of the charges against him or her and to have adequate time and facilities for the preparation of his or her defence. In the case law of both the ICTR and the ICTY, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven. The question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.
471. As the Appeals Chamber discussed above, the Kupreškić et al. Appeal Judgement addressed the degree of specificity required to be pleaded in an indictment. It stressed that it is not acceptable for the Prosecution to omit material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. It also considered that a defective indictment may, in certain circumstances, cause the Appeals Chamber to reverse a conviction. The ICTY Appeals Chamber, however, did not exclude the possibility that, in a limited number of instances, a defective indictment may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges. In the Rutaganda case, the Appeals Chamber found that, before holding that an alleged fact is not material or that differences between the wording of the indictment and the evidence adduced are minor, a trial chamber should generally ensure that such a finding is not prejudicial to the accused. An example of such prejudice would be vagueness capable of misleading the accused as to the nature of the criminal conduct with which he is charged.
472. At the Appeal hearing, the Prosecution sought to argue that a recent decision of the Appeals Chamber in Nyiramasuhuko and Ntahobali had expanded the Kupreškić holding. It claimed that, following that decision, in all circumstances a defective indictment can be cured by the provision in another form of timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. The Appeals Chamber does not accept this reading of that decision. Accordingly, the applicable law has not changed since the Kupreškić et al. Appeal Judgement.
473. While the Appeals Chamber accepts that it has been the practice of the Prosecution to merely quote the provisions of Article 6(1), and in the ICTY Article 7(1), the Prosecution has also long been advised by the Appeals Chamber that it is preferable for it not to do so. For example, the ICTY Appeals Chamber in the Aleksovski case stated that “the practice by the Prosecution of merely quoting the provisions of Article 7(1) in the indictment is likely to cause ambiguity, and it is preferable that the Prosecution indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.” The Appeals Chamber endorses this statement.
475. More recently, in the Krnojelac Appeal Judgement, where the Prosecution was specifically challenging the trial chamber’s conclusion that the accused could not be held liable under the third form of joint criminal enterprise set out in the Tadić Appeal Judgement with respect to any of the crimes alleged unless an “extended” form of joint criminal enterprise was pleaded expressly in the indictment, the ICTY Appeals Chamber held that:
[…] The Appeals Chamber reiterates that Article 18(4) of the Statute requires that the crime or crimes charged in the indictment and the alleged facts be set out concisely in the indictment. With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial. […] 
ICTR, Ntakirutimana case, Judgment on Appeal, 13 December 2004, §§ 469–473 and 475.
International Criminal Tribunal for Rwanda
In its judgment in the Niyitegeka case in 2004, the Appeals Chamber, in considering the appellant’s contention that the Trial Chamber had erred in law in finding that he had committed acts that were not pleaded in the indictment and then relying on those findings to convict him, noted:
193. The law governing challenges to the failure of an indictment to provide notice of material facts is set out in detail in the ICTY Appeals Chamber’s Judgement in Kupreškić. The Kupreškić Judgement stated that Article 18(4) of the ICTY Statute, read in conjunction with Articles 21(2), 4(a) and 4(b), “translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.” Kupreškić discussed several factors that may bear on the determination of materiality, although whether certain facts are “material” ultimately depends on the nature of the case. If the Prosecution charges personal physical commission of criminal acts, the indictment should set forth “the identity of the victim, the time and place of the events and the means by which the acts were committed.” On the other hand, such detail need not be pleaded if the “sheer scale of the alleged crimes ‘makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.’” Even in cases in which a high degree of specificity is “impracticable,” however, “since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.”
194. Kupreškić also addressed the possibility that the Prosecution might be unable to plead a material fact with specificity because it was not in the Prosecution’s possession prior to trial. As a general matter, “the Prosecution is expected to know its case before it goes to trial” and cannot expect to “mould the case against the accused in the course of the trial depending on how the evidence unfolds.” If the Defence is denied the material facts of the accused’s alleged criminal activity until the Prosecution files its pre-trial brief or until the trial itself, it will be difficult for the Defence to conduct a meaningful investigation prior to the commencement of the trial. The Trial Chamber must consider whether proceeding to trial in such circumstances is fair to the accused. Kupreškić indicated that there are “instances in criminal trials where the evidence turns out differently than expected,” and such situations may call for measures such as an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment.
195. Failure to set forth the specific material facts of a crime constitutes a “material defect” in the indictment. Such a defect does not mean, however, that trial on that indictment or a conviction on the unpleaded material fact necessarily warrants the intervention of the Appeals Chamber. Although Kupreškić stated that a defective indictment “may, in certain circumstances” cause the Appeals Chamber to reverse a conviction, it was equally clear that reversal is not automatic. Kupreškić left open the possibility that the Appeals Chamber could deem a defective indictment to have been cured “if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.”
196. A Trial Chamber faced with a situation in which “the evidence turns out differently than expected” may not simply find that the error has been cured, but rather should take one or more of the steps envisioned by Kupreškić, including excluding the evidence or ordering the Prosecution to move to amend the indictment. In considering a motion to amend the indictment, a Trial Chamber should naturally consider whether the Prosecution has previously provided clear and timely notice of the allegation such that the Defence has had a fair opportunity to conduct investigations and prepare its response. On appeal, however, amendment of the indictment is no longer possible. Rather, the question is whether the error of trying the accused on a defective indictment “invalidated the decision” and warrants the Appeals Chamber’s intervention.
197. Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the Prosecution pursuant to the disclosure requirements” of the Rules [of Procedure and Evidence] does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.
198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.” The defect could only have been deemed harmless through a demonstration “that the Accused’s ability to prepare their defence was not materially impaired.” Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uphold the objections” of the accused.
199. It is noteworthy, however, that Kupreškić specifically mentioned the fact that the accused in that case had made a timely objection before the Trial Chamber to the admission of evidence of the material fact in question. In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.
200. The importance of the accused’s right to be informed of the charges against him under Article 20(4)(a) of the [1994 ICTR] Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case. 
ICTR, Niyitegeka case, Judgment on Appeal, 9 July 2004, §§ 193–200.
International Criminal Tribunal for Rwanda
In its judgment in the Muhimana case in 2005, the ICTR Trial Chamber stated:
451. The jurisprudence on this issue has been set out in a number of Appeals Chamber Judgements. The Accused has a statutory right to be promptly informed in detail of the nature of the charges brought against him or her. The Prosecution has an obligation to state the material facts underpinning the charges in the Indictment. The Prosecution does not have to set out the evidence which will prove those material facts. The Prosecution is expected to know its case before going to trial. If the Prosecution does not plead material facts in the Indictment but includes them in its Pre-Trial Brief or raises them at the trial, it will be difficult for the Defence to investigate the new information before the start of the trial. The test to be applied by the Trial Chamber is whether the accused had enough details of the charges to prepare a defence to them.
452. Where the evidence turns out differently from the material facts pleaded in the Indictment, the Trial Chamber may have to take steps to ensure that the trial remains fair. Where an Indictment fails to include material facts, or sufficient detail on those material facts, this constitutes a material defect in what is the principal accusatory instrument, and curative action must be taken. Few Indictments with material defects are likely to be cured by information given to the Defence outside the Indictment, in view of the factual and legal complexity of the crimes heard by the ad hoc tribunals. It is a possibility in a few cases that the Prosecution might cure the defect by giving timely, clear, and consistent information concerning the factual basis of the charge in relatively uncomplicated cases. Disclosure of witness statements by the Prosecution does not, by itself, suffice to inform the Defence of material facts that the Prosecution intends to prove at trial. Clear notice must be given and, until that time, the Defence is entitled to assume that the material facts enumerated in the Indictment are exhaustive and represent the case it has to meet. 
ICTR, Muhimana case, Judgment, 28 April 2005, §§ 451–452.
In its judgment in 2007, the ICTR Appeals Chamber stated:
The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the Indictment so as to provide notice to the accused. The Appeals Chamber has held that criminal acts that were physically committed by the accused personally must be set forth in the indictment specifically, including where feasible “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking this precision is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. 
ICTR, Muhimana case, Judgment on Appeal, 21 May 2007, § 76.
In his Partly Dissenting Opinion, Judge Schomburg further noted:
2. The right of the accused to be informed about the charges is a fundamental guarantee of the fairness of proceedings. Reflecting this – repeating verbatim the wording of Art. 14(3)(a) and (b) International Covenant on Civil and Political Rights of 16 December 1966, to which inter alia Article 7(a) of the African Charter on Human and Peoples’ Rights of 26 June 1981 makes reference – the Statute of the Tribunal includes the following provisions:
Article 21: Rights of the accused
[…] 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause o the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; […].
3. This provision also corresponds to the rights guaranteed in many other human rights conventions. For example, Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 reads:
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence; […].
5. The Indictment is the first guiding instrument for the criminal proceedings. According to the jurisprudence of the Tribunals, however, the Indictment is not to be seen in isolation. Other sources of information have to be taken into consideration as well, such as the Pre-Trial Brief including appended witness statements.
In Gacumbitsi the Appeals Chamber held [ICTR, Gacumbitsi case, Judgement on Appeal, 7 July 2006, § 49]:
The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the Indictment so as to provide notice to the accused. The Appeals Chamber has held that “criminal acts that were physically committed by the accused personally must be set forth in the indictment specifically, including where feasible ‘the identity of the victim, the time and place of the events and the means by which the acts were committed.’”[Footnote 117: Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89] An indictment lacking this precision may, however, be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge. [Footnote 118: Ntakirutimana Appeal Judgement, para. 27, referring to Kupreškić et al. Appeal Judgement, para. 114] When an appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. [Footnote 119: Niyitegeka Appeal Judgement, para. 200; Kvočka et al. Appeal Judgement, para. 35] In cases where an accused has raised the issue of lack of notice before the Trial Chamber, in contrast, the burden rests on the Prosecution to demonstrate that the accused’s ability to prepare a defence was not materially impaired. [Footnote 120: Niyitegeka Appeal Judgement, para. 200; Kvočka et al. Appeal Judgement, para. 35]
In Naletilić and Martinović the Appeals Chamber even more precisely held [ICTY, Naletilić and Martinović case, Judgement on Appeal, 3 May 2006, § 33]:
As to whether the defects were cured, the information in the Prosecution Pre-Trial Brief, filed on 11 October 2000, as well as in its Chart of Witnesses and List of Facts, filed on 18 July 2000, was provided to Naletili[ć] and Martinovi[ć] in a timely manner, as these documents were filed eleven and fourteen months prior to the commencement of trial, respectively. With regard to unlawful labour in locations other than the frontline, the Prosecution Pre-Trial Brief states that “prisoners were forced to work at the premises of Martinovi[ć]” and that “detainees were forced by Martinovi[ć] to loot the homes of Bosnian Muslims who had been evicted across the front-line into East Mostar”. The Prosecution Chart of Witnesses and List of Facts provides that Martinovi[ć] forced Muslim detainees to perform “work such as construction, maintenance, repairs on the front line or at other locations either in support of the military effort of the Croatian forces or for their personal gain”.
6. The European Court of Human Rights has dealt with the possible violation of Article 6(3)(a) and (b) of the Convention. In this context it held [ECtHR, Case of Borisova v. Bulgaria, Judgment, 21 December 2006, § 41]:
The Court reiterates that in criminal matters the provision of full, detailed information to the defendant concerning the charges against him – and consequently the legal characterisation the court might adopt in the matter – is an essential prerequisite for ensuring that the proceedings are fair. Additionally, as regards the complaints under Article 6 § 3 (b) of the Convention, the Court considers that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of a defendant’s right to prepare his defence.
In another case, the European Court of Human Rights stated [ECtHR, Case of Pélissier and Sassi v. France, Judgement, 25 March 1999, §§ 52–54]:
The scope of the above provision must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. The Court considers that in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt the matter, is an essential prerequisite for ensuring that the proceedings are fair.
Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him.
Lastly, as regards the complaint under Article 6 § 3 (b) of the Convention, the Court considers that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence.
7. Consequently, according to the above cited cases, the Indictment is not the only way to inform the appellant about the charges against him. In many cases, the Prosecution will not be in a position to know all the evidence at the early stage of proceedings in which the Indictment is filed. It is unrealistic to believe that the Prosecution is not confronted with changing evidence throughout the whole course of the proceedings. It would be incredible or, at the very least, surprising, if the factual basis of an Indictment remained unchanged after the finalization of investigations. Even in cases where trial proceedings are already ongoing, it has to be and is possible to add fresh information to the case.
8. As it is at the same time still important to keep the accused informed about the charges against him, it is a generally accepted principle in criminal law, both in Anglo-Saxon and Romano-Germanic influenced jurisdictions, that such additional information can also be given by an indication that the factual basis and/or the legal assessment might be varied. 
ICTR, Muhimana case, Judgment on Appeal, 21 May 2007, Partially Dissenting Opinion of Judge Schomburg, §§ 2–3 and 5–8.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Kamuhanda case in 2005, the ICTR Appeals Chamber stated:
11. Under the first ground of appeal, the Appellant submits that the Indictment did not properly inform him about the nature and cause of the charges against him. The Appellant alleges that: … (2) the Indictment lacked precision regarding the allegations that he distributed weapons in Gikomero.
17. An indictment is defective if it does not state the material facts underpinning the charges. Whether a fact is material depends upon the nature of the Prosecution’s case. In Kupreškic, the ICTY Appeals Chamber held as follows:
A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail.
21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:
In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.
Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument … However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.
24. The prejudicial effects of a defective indictment can be remedied if the Prosecution “provided the accused with clear, timely and consistent information detailing the factual basis underpinning the charges against him or her, which compensates for the failure of the indictment to give proper notice of the charges”. 
ICTR, Kamuhanda case, Judgment on Appeal, 19 September 2005, §§ 11, 17, 21 and 24.
International Criminal Tribunal for Rwanda
In its judgment in the Gacumbitsi case in 2006, the ICTR Appeals Chamber stated:
The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the Indictment so as to provide notice to the accused. The Appeals Chamber has held that “criminal acts that were physically committed by the accused personally must be set forth in the indictment specifically, including where feasible ‘the identity of the victim, the time and place of the events and the means by which the acts were committed.’” [ICTR, Ntakirutimana case, Judgement on Appeal, § 32, quoting ICTY, Kupreškic et al. case, Judgement on Appeal, § 89] An indictment lacking this precision may, however, be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge [ICTR, Ntakirutimana case, Judgement on Appeal, § 27, quoting ICTY, Kupreškic et al. case, Judgement on Appeal, § 114]. When an appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. In cases where an accused has raised the issue of lack of notice before the Trial Chamber, in contrast, the burden rests on the Prosecution to demonstrate that the accused’s ability to prepare a defence was not materially impaired. 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, § 49.
In particular, the Appeals Chamber stated regarding the requirements of charges of individual criminal responsibility as part of a “joint criminal enterprise” (JCE):
161. … This Tribunal’s leading precedent on pleading practice with respect to JCE is the Ntakirutimana Appeal Judgement, which invokes this passage from the Krnojelac Appeal Judgement:
With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment--for instance in a pre-trial brief--the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial. Krnojelac case, Judgement on Appeal, § 138; Ntakirutimana case, Judgement on Appeal, § 475.]
162. More recently, the ICTY Appeals Chamber elaborated in The Prosecutor v. Kvocka et al.:
An indictment which merely lists the charges against the accused without pleading the material facts does not constitute adequate notice because it lacks “enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence”. Whether or not a fact is considered material depends on the nature of the Prosecution’s case. The Prosecution’s characterization of the alleged criminal conduct and the proximity of the accused to the underlying crime are decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case in the indictment in order to provide the accused with adequate notice.[…] If the Prosecution relies on a theory of joint criminal enterprise, then the Prosecutor must plead the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise. Therefore, in order for an accused charged with joint criminal enterprise to fully understand which acts he is allegedly responsible for, the indictment should clearly indicate which form of joint criminal enterprise is being alleged.
[…]
The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise. [Kvočka case, Judgement on Appeal, §§ 28, 42.]
Thus, Kvocka unambiguously established that failure to plead a JCE theory, including the category of JCE and the material facts supporting the theory, constitutes a defect in the indictment. It held, however, that the defect in that case was cured by the Prosecution’s subsequent submissions.
163. The Appeals Chamber adopts the holding and rationale of the ICTY Appeals Chamber in Kvocka. The mode of liability under Article 6(1) (including the JCE theory) must be pleaded in the indictment, or the indictment is defective. As Krnojelac makes clear, however, such defects may be cured by the provision of timely, clear, and consistent information – for example, in a pre-trial brief. This approach is consistent with the Appeals Chamber’s approach to all other pleading failures. 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, §§ 161–163.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Imanishimwe case in 2006, the ICTR Appeals Chamber stated:
22. If an accused is not properly notified of the material facts of his alleged criminal activity until the Prosecution files its Pre-Trial Brief or until the trial itself, it will be difficult for his Defence to conduct a meaningful investigation prior to the commencement of the trial. The question of whether an indictment is pleaded with sufficient particularity is therefore dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the charges against him so that he may prepare his defence. An indictment which fails to plead material facts in sufficient detail is defective.
27. An indictment may also be defective when the material facts are pleaded without sufficient specificity, for example, when the times mentioned refer to broad date ranges, the places are only vaguely indicated, and the victims are only generally identified. It is of course possible that material facts are not pleaded with the requisite degree of specificity in an indictment because the necessary information was not in the Prosecution’s possession. In this respect, the Appeals Chamber emphasises that the Prosecution is expected to know its case before proceeding to trial and may not rely on the weaknesses of its own investigation in order to mould the case against the accused in the course of the trial depending on how the evidence unfolds. Other defects in an indictment may arise at a later stage of the proceedings because the evidence turns out differently than expected. In such circumstances, the Trial Chamber must consider whether a fair trial requires an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment.
28. In reaching its judgement, a Trial Chamber can only convict the accused of crimes which are charged in the indictment. If the indictment is found to be defective because of vagueness or ambiguity, then the Trial Chamber must consider whether the accused was nevertheless accorded a fair trial, or, in other words, whether the defect caused any prejudice to the Defence. In some instances, a defective indictment may be deemed “cured” and a conviction entered if the Prosecution provides the accused with timely, clear and consistent information from the Prosecution detailing the factual basis underpinning the charges against him or her. Where the failure to give sufficient notice of the legal and factual reasons for the charges against the accused has violated the right to a fair trial, no conviction may result. 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, §§ 22 and 27–28.
The Appeals Chamber further emphasized:
[T]he indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, § 113.
In his Dissenting Opinion, Judge Wolfgang Schomburg stated the two main functions of an indictment as:
– informing the accused of the charges against him or her (information function which enshrines the fundamental right to be heard) and
– limiting the individual and material scope of the charges (limitation function) 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006; Dissenting Opinion of Judge Wolfgang Schomburg, § 2.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Mpambara case in 2006, the ICTR Trial Chamber noted:
29. Article 20 (4)(a) of the [1994 ICTR] Statute requires that an accused “be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her”. An accused can be convicted of only those crimes with which he or she is charged in the Indictment. [ICTY, Naletilić and Martinović case, Judgement on Appeal, 3 May 2006, § 26; ICTY, Kvočka case, Judgement on Appeal, 28 February 2004, § 33] The level of specificity required to describe the accused’s mode of participation in a crime has been explained as follows: If an indictment merely quotes the provisions of Article [6 (1)] without specifying which mode or modes of responsibility are being pleaded, then the charges against the accused may be ambiguous. When the Prosecution is intending to rely on all modes of responsibility in Article [6 (1)], then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective either because it pleads modes of responsibility which do not form part of the Prosecution’s case, or because the Prosecution has failed to plead material facts for the modes of responsibility it is alleging. [ICTY, Kvočka case, Judgement on Appeal, 28 February 2004, § 29; ICTY, Kordić and Čerkez case, Judgement on Appeal, 17 December 2004, § 129] A vague indictment may be remedied by giving the accused timely, clear and consistent information concerning the nature of the charges or material facts so as to remedy the ambiguity. [ICTR, Ntakirutimana case, Judgement on Appeal, 13 December 2004, § 27] Where such clarifying information has been communicated, if a party raises an objection during trial, the Chamber must still consider whether fairness requires amendment of the indictment, an adjournment, or the exclusion of evidence. [ICTY, Kvočka case, Judgement on Appeal, 28 February 2004, § 31] Even in the absence of any objection, no conviction can be entered against an accused if he or she was not in a reasonable position to understand the charges against him or her. [ICTY, Naletilić and Martinović case, Judgement on Appeal, 3 May 2006, § 27]
30. The types of communication which can remedy an unclear indictment were recently canvassed by the Appeals Chamber:
[T]he Appeals Chamber has in some cases looked at information provided through the Prosecution’s pre-trial brief or its opening statement. The Appeals Chamber considers that the list of witnesses the Prosecution intends to call at trial, containing a summary of the facts and the charges in the indictment as to which each witness will testify and including specific references to counts and relevant paragraphs in the indictment, may in some cases serve to put the accused on notice. However, the mere service of witness statements or of potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform an accused of material facts that the Prosecution intends to prove at trial. [ICTY, Naletilić and Martinović case, Judgement on Appeal, 3 May 2006, § 27] 
ICTR, Mpambara case, Judgment, 11 September 2006, §§ 29–30.
International Criminal Tribunal for Rwanda
In its judgment in the Muvunyi case in 2006, the ICTR Trial Chamber noted:
22. … In any case, the Chamber will consider the Defence submission that the Prosecution failed to specifically plead the forms of participation under Article 6(1) [of the 1994 ICTR Statute]. In the Chamber’s view, while it is desirable that forms of participation under Article 6(1) be specifically pleaded in the Indictment, there is no rule of law requiring such a form of pleading except where the Prosecution alleges joint criminal enterprise. [ICTR, Gacumbitsi case, Judgement on Appeal, 7 July 2006, §§ 166-167] In Semanza, the Appeals Chamber referred to the Prosecutor’s long established practice of merely quoting the provisions of Article 6(1) and added that it would be “advisable” to plead the specific form of 6(1) responsibility in relation to each individual count of the indictment. However, the Appeals Chamber did not state that this was a mandatory requirement. [ICTR, Semanza case, Judgement on Appeal, 20 May 2005, § 259] The majority in Gacumbitsi indicated that in determining whether the form of participation has been adequately pleaded so as to give the accused clear and timely notice, the indictment must been considered as a whole. [ICTR, Gacumbitsi case, Judgement on Appeal, 7 July 2006, § 123] …
24. An accused has the right “[t]o be informed promptly and in detail … of the nature and cause of the charges against him” according to Article 20(4)(a) of the Statute. According to the Appeals Chamber, when considered in light of Rule 47(C) of the Rules, this provision translates into a prosecutorial obligation “to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.” [ICTR, Semanza case, Judgement on Appeal, 20 May 2005, § 85; ICTR, Ntakirutimana case, Judgement on Appeal, 13 December 2004, § 25; ICTR, Gacumbitsi case, Judgement on Appeal, 7 July 2006, § 49; ICTY, Kupreškić case, Judgement on Appeal, 23 October 2001, § 88] It also implies that the Prosecution must know its case before going to trial and to plead all the material facts in the Indictment with as much specificity as possible. [ICTR, Simba case, Judgement, 13 December 2005, § 14] 
ICTR, Muvunyi case, Judgment, 12 September 2006, §§ 22 and 24.
International Criminal Tribunal for Rwanda
In its judgment in the Rwamakuba case in 2006, the ICTR Trial Chamber stated regarding the right of the accused to be informed of charges against him:
13. Article 17(4) of the [1994 ICTR] Statute and Rule 47(C) of the Rules [of Procedure and Evidence] require the Prosecution to set forth in the Indictment a concise statement of the facts of the case and of the crime(s) with which the suspect is charged. This obligation must be interpreted in light of the rights of the accused to a fair trial, to be informed of the charges against him, and to have adequate time and facilities for the preparation of his defence. According to the jurisprudence of both ad hoc Tribunals, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the Indictment, but not the evidence by which such material facts are to be proven.
14. The Indictment, therefore, has to fulfil the fundamental purpose to inform the Accused of the charges against him with sufficient particularity to enable him to mount his defence. Failure to set forth the specific material facts of a crime constitutes a material defect in the Indictment. This defect may nonetheless be cured, and a conviction entered, where the accused has received timely, clear, and consistent information from the Prosecution which resolves the ambiguity or clears up the vagueness. In assessing whether a defective indictment was cured, the Chamber must determine whether the accused was in a reasonable position to understand the charges against him or her and to confront the Prosecution’s case. 
ICTR, Rwamakuba case, Judgment, 20 September 2006, §§ 13–14.
International Criminal Tribunal for Rwanda
In its judgment in the Ndindabahizi case in 2007, the ICTR Appeals Chamber stated:
Article 20(4) of the [1994 ICTR] Statute [enshrines], inter alia, an accused’s right to be informed promptly and in detail of the nature and cause of the charge against him or her. An indictment is defective if it does not state the material facts underpinning the charges with enough detail to enable an accused to prepare his or her defence … The Appeals Chambers of both the ICTR and the ICTY have specified several factors that can determine the materiality of facts: for example, if the personal physical commission of criminal acts is charged, the indictment should set forth the victim’s identity, the place and time of the events and the means by which the acts were committed. 
ICTY, Ndindabahizi case, Judgment on Appeal, 16 January 2007, § 16.
International Criminal Tribunal for Rwanda
In its judgment in the Nahimana case in 2007, the ICTR Appeals Chamber stated:
322. Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the [1994 ICTR] Statute and Rule 47(C) of the Rules [of Procedure and Evidence], the Prosecutor must state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved. The indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence. An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective. The Appeals Chamber emphasises that the issue as to whether a fact is material or not cannot be determined in the abstract: whether or not a fact is considered “material” depends on the nature of the Prosecution’s case.
324. An indictment may also be defective when the material facts that the Prosecutor invokes are pleaded without sufficient specificity. In this regard, the Prosecutor's characterization of the alleged criminal conduct and the proximity between the accused and the crime charged are decisive factors in determining the degree of specificity with which the Prosecutor must plead the material facts of his case in the indictment.
325. Where the Appeals Chamber finds that the Trial Chamber tried the accused on the basis of a defective indictment, it must consider whether the accused has nevertheless been accorded a fair trial, in other words, whether the defect noted caused prejudice to the Defence. In some cases, a defective indictment can indeed be “cured” and a conviction handed down if the Prosecutor provided the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him. This information could, inter alia and depending on the circumstances, be supplied in the Prosecutor’s pre-trial brief or opening statement. The Appeals Chamber would nonetheless emphasize that the possibility of curing defects in the indictment is not unlimited. A clear distinction has to be drawn between vagueness or ambiguity in the indictment and an indictment which omits certain charges altogether. While it is possible to remedy ambiguity or vagueness in an indictment by providing the defendant with timely, clear and consistent information detailing the factual basis underpinning the charges, omitted charges can be incorporated into the indictment only by formal amendment under Rule 50 of the Rules.
326. The Appeals Chamber reaffirms that a vague or imprecise indictment which is not cured of its defects by providing the accused with timely, clear and consistent information constitutes a prejudice to the accused. The defect can be deemed harmless only if it is established that the accused's ability to prepare his defence was not materially impaired. Where the failure to give sufficient notice of the legal and factual reasons for the charges against him violated the right to a fair trial, no conviction can result. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, §§ 322 and 324–326.
International Criminal Tribunal for Rwanda
In its judgment and sentence in the Karera case in 2007, the ICTR Trial Chamber stated:
9. The Chamber recalls that “[a]n indictment that fails to ‘indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged’ may be ambiguous and could be found defective. In particular, it is essential that the indictment specifies on what legal basis of the [1994 ICTR] Statute an individual is being charged (Article 6(1) and/or 6(3)).”
12. Article 20(4)(a) of the Statute guarantees an accused the fundamental right “to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charges against him or her”. The Appeals Chamber has interpreted this provision as placing an obligation on the Prosecution “to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven”.
13. The appropriate enquiry is whether the Indictment sets out the Prosecution case in sufficient detail “to inform an accused clearly of the charges against him or her so that the accused may prepare a defence”. Allegations of physical perpetration of a criminal act by an accused must appear in an Indictment. The legal basis on which an individual is being charged, meaning individual criminal responsibility under Article 6(1) of the Statute or command responsibility under Article 6(3), must also be explicitly set forth in the Indictment.
14. The nature of the Prosecution case will determine the level of specificity with which material facts must be pleaded:
Where the Prosecution alleges that an accused personally committed the criminal acts in question, it must, so far as possible, plead the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed “with the greatest precision”. However, less detail may be acceptable if the “sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes”. Where it is alleged that the accused planned, instigated, ordered, or aided and abetted the alleged crimes, the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.
15. Defects in an Indictment may be “cured” in exceptional circumstances if the Prosecution subsequently provides the accused with “timely, clear and consistent information detailing the factual basis underpinning the charges against him or her”. Omission of a count or charge from the Indictment cannot be cured but “omission of a material fact underpinning a charge in the Indictment can, in certain cases, be cured by the provision of timely, clear and consistent information”. Finding that a defect in the Indictment has been cured depends on “whether the accused was in a reasonable position to understand the charges against him or her”. The presence of a material fact somewhere in the Prosecution disclosures during the course of a case does not suffice to give reasonable notice; rather, it must be evident that the material fact will be relied upon as part of the Prosecution case. Mere service of witness statements by the Prosecution as part of its disclosure requirements is generally insufficient to provide notice to an accused. However, the Prosecution Pre-Trial Brief (together with any annexes and charts of witnesses) and the Prosecution’s opening statement are adequate sources of disclosure.
16. The Appeals Chamber has found that a defect in the Indictment may also be cured through a Prosecution motion for the addition of a witness, “provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness”. It further recognized that defects in an indictment “may arise at a later stage of the proceedings because the evidence turns out differently than expected”. In these instances, the Chamber must assess the timing of the information designed to cure the defect, the impact of the newly-discovered information on the Prosecution case, and the importance of the new information to the ability of the accused to prepare his or her defence. The Chamber must then decide “whether a fair trial requires an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment”. 
ICTR, Karera case, Judgment and Sentence, 7 December 2007, §§ 9 and 12–16.
International Criminal Tribunal for Rwanda
In the Ntawukulilyayo case, the accused, a senior public official, was charged, inter alia, with various counts of genocide under Article 2 of the 1994 ICTR Statute. In its judgment and sentence in the case in 2010, the Trial Chamber considered whether defective indictments could be cured by reference to pre-indictment documents, and stated that “the Chamber has doubts that a Pre-Trial Brief and its annexed witness summaries, which were filed almost three months prior to the Indictment and refers to a prior indictment, could provide clear or consistent notice sufficient to cure defects in the operative Indictment”. 
ICTR, Ntawukulilyayo case, Judgment and sentence, 3 August 2010, § 47.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2001, the ICTY Appeals Chamber stated:
79. The Appeals Chamber understands [the] complaint on appeal to be that the Trial Chamber erred in law by returning convictions on the basis of material facts not pleaded in the Amended Indictment. They argue that the trial against them was thereby rendered unfair, since they were deprived of fair notice of the charges against them …
87. In order to address the complaint … , the Appeals Chamber has to determine (i) whether the Trial Chamber returned convictions on the basis of material facts not pleaded in the Amended Indictment; and (ii) if the Appeals Chamber finds that the Trial Chamber did rely on such facts, whether the trial … was thereby rendered unfair …
88. An indictment shall, pursuant to Article 18(4) of the [1993 ICTY] Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”. Similarly, Rule 47(C) of the Rules [of Procedure and Evidence] provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”. The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute. These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven. Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.
89. The Appeals Chamber must stress initially that the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes “makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes”.
90. Such would be the case where the Prosecution alleges that an accused participated, as a member of an execution squad, in the killing of hundreds of men. The nature of such a case would not demand that each and every victim be identified in the indictment. Similarly, an accused may be charged with having participated as a member of a military force in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings and forced removals. In such a case the Prosecution need not specify every single victim that has been killed or expelled in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.
92. It is of course possible that an indictment may not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession. However, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed. In this connection, the Appeals Chamber emphasises that the Prosecution is expected to know its case before it goes to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. There are, of course, instances in criminal trials where the evidence turns out differently than expected. Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.
114. The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect. A defective indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction. The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category. 
ICTY, Kupreškić case, Judgment on Appeal, 23 October 2001, §§ 79, 87–90, 92 and 114.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Stakić case in 2003, the ICTY Trial Chamber discussed persecution as a crime against humanity. With regard to one of the persecutory acts charged by the Prosecution (denial of fundamental rights), the Trial Chamber stated:
770. In the present case, the Accused is charged with persecutions of the non-Serb population of the Municipality of Prijedor for several acts, including the denial of fundamental rights such as (i) employment, (ii) freedom of movement, (iii) proper judicial process, and (iv) medical care. The Prosecution submits that these rights are fundamental rights and violations thereof amount to persecutions.
771. In relation to the specificity of the charges, the Trial Chamber recalls the Kupreškić et al. Appeals Judgement which states that the Prosecution must charge particular acts as persecutions – as already discussed above. The Appeals Chamber reasoned that “the fact that the offence of persecutions is a so-called ‘umbrella’ crime does not mean that an indictment need not specifically plead the material aspects of the Prosecution case with the same detail as other crimes. The crime of persecutions cannot, because of its nebulous character, be used as a catch-all charge” and the Trial Chamber rejects any attempt by the Prosecution to do so by using the open-ended term “including”.
772. For this reason, the Trial Chamber will not consider any other denial of fundamental rights not expressly mentioned by the Prosecution in the Indictment. The Accused is not sufficiently informed of, and therefore unable to defend himself against, any charges other than those explicitly stated in the Indictment. 
ICTY, Stakić case, Judgment, 31 July 2003, §§ 770–772.
[emphasis in original]
In its judgment in 2006, the ICTY Appeals Chamber held regarding the requisite particularity of indictments:
116. The Appeals Chamber has stated that the question of whether an indictment is pleaded with sufficient particularity depends upon whether it sets out the material facts of the Prosecution case “with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.” [Kupreškić, Judgement on Appeal, 2001, § 88] There is thus a clear distinction between the material facts upon which the Prosecution relies, which must be pleaded, and the evidence proffered to prove those material facts.
117. The indictment must be read in its entirety when determining whether material facts have been pleaded. The Appeals Chamber has previously held that:
the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. [Kupreškić, Judgement on Appeal, 2001, § 89] 
ICTY, Stakić case, Judgment on Appeal, 22 March 2006, §§ 116–117.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber stated that the rights to a fair trial are encompassed in common Article 3 of the 1949 Geneva Conventions and that such rights include, inter alia, “to be informed promptly of the nature and cause of the accusation against him or her”. 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Hadžihasanović case in 2006, the ICTY Trial Chamber stated in relation to the right of the accused to be informed on the nature and cause of the accusation:
262. The Chamber will now examine issues related to the interpretation of the Indictment and their possible implications on the rights of the Accused. As the formal charging document, the Indictment guides the deliberations of the Chamber which must vote separately on each charge it contains. In this case, the arguments and evidence put forth by the Prosecution during the trial lead the Chamber to consider to what extent it can base its assessment of the guilt or innocence of the Accused on facts which were not, or were but only implicitly, set out in the Indictment.
263. Each Accused has the right to a fair trial pursuant to Articles 20(1) and 21(2) of the [1993 ICTY] Statute. Pursuant to Article 21(4)(a) of the Statute, each Accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. Article 18(4) of the Statute provides that an Indictment must contain a concise statement of the facts and the crime or crimes with which the Accused is charged under the Statute. Rule 47(C) of the Rules [of Procedure and Evidence] provides, inter alia, that an Indictment shall set forth “a concise statement of the facts of the case and of the crime with which the suspect is charged”.
264. The Appeals Chamber in Kupreškić affirmed that the aforementioned provisions of the Statute and Rules require the Prosecution to set forth in the Indictment the material facts which form the basis of the charges against the Accused. The Prosecution must set out the material facts with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence. The Appeals Chamber in Kupreškić noted that “the materiality of a particular fact cannot be decided in the abstract” and that “a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused.” According to the Appeals Chamber in Rutaganda, the prejudice which may be caused to the Accused must be examined before holding that a fact charged is not material:
“Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment.”
265. The Appeals Chamber in Blaškić held that the following essential facts, inter alia, must be set out in the Indictment when charging an Accused with responsibility under Article 7(3) of the Statute: “(i) that the accused is the superior of (ii) subordinates sufficiently identified, (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and (iv) for whose acts he is alleged to be responsible”. These material facts must be pleaded with sufficient particularity. Regarding the identity of the subordinates alleged to have committed the crimes, the Blaškić Appeals Chamber endorsed the finding of the Krnojelac Trial Chamber which held that “if the prosecution is unable to identify those directly participating in such events by name, it will be sufficient for it to identify them at least by reference to their ‘category’ (or their official position) as a group.”
266. Regarding the degree of specificity with which the material facts must be pleaded in the Indictment, Tribunal case law has established that the Indictment “is to be read as a whole, not as a series of paragraphs existing in isolation,” meaning that “each of the material facts must usually be pleaded expressly, although it may be sufficient in some circumstances if it is expressed by necessary implication.”
267. Tribunal case law has adopted a two-step approach: first, it determines whether the Indictment sufficiently pleaded the material facts of the case and, second, it determines whether the Prosecution’s failure in that duty renders the trial unfair, which should not be presumed. The Appeals Chamber in Kupreškić did not exclude the possibility that a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him. Nevertheless, it noted that there can only be a limited number of cases that fall within that category.
268. The Chamber concurs with Tribunal case law according to which the identity of subordinates is a material fact of a charge brought under Article 7(3) of the Statute. It must be pleaded with sufficient detail to enable the Accused to prepare his defence. The Chamber notes that not all of the facts regarding the identity of the perpetrators may be characterised as material, and recalls that the materiality of a particular fact cannot be decided in the abstract. Generally speaking, the Indictment must sufficiently inform the Accused of the military unit or armed group to which the perpetrator of the crime allegedly belonged, but it is not necessary that it provide the name of the perpetrator or the exact position of the implicated unit within the chain of command.
269. The Chamber notes that the Kupreškić Appeals Chamber adopted a two-step approach to determine whether the rights of the Accused had been violated. Nonetheless, this Chamber notes that the above case law dealt with a lack of specificity in the Indictment, and not errors regarding the material facts of the case. When an Indictment is imprecise, its language lends itself to several interpretations and leaves the Accused uncertain of the charges against him. Although not wrong, it does lack specificity. Conversely, when the material facts pleaded in the Indictment do not correspond with those presented by the Prosecution during the trial, there is an error. While a defective indictment lacking specificity can be cured if the Prosecution provides the accused with timely, clear, consistent information detailing the material facts of the case, an indictment that is defective because it contains an error of material fact cannot be cured in the same manner. In that case, the Prosecution must request leave of the Chamber to amend the Indictment, failing which the Chamber does not consider itself seized of the facts pleaded by the Prosecution during the trial. Should the Prosecution fail to make such a request, the Chamber would rule only on the facts pleaded in the Indictment. As the Prosecution made no attempt to prove those facts, but different ones not pleaded in the Indictment, the Chamber would have to acquit the Accused of the facts alleged therein. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 262–269.
International Criminal Tribunal for the former Yugoslavia
In the Martić case, the accused, who had held various leadership positions in the so-called “Serbian Autonomous District (SAO) Krajina” and the “Republic of Serbian Krajina (RSK)”, was convicted of, inter alia, murder and torture as violations of the laws and customs of war and as crimes against humanity. In its judgment in the case in 2008, the ICTY Appeals Chamber considered the effect of a defective indictment on an accused’s right to be informed on the nature and cause of the accusation against him or her, stating:
162. The Appeals Chamber recalls that, in accordance with Article 21(4)(a) of the [1993 ICTY] Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. The Prosecution is required to plead in an indictment all the material facts underpinning the charges in an indictment, but not the evidence by which the material facts are to be proven.
163. The prejudicial effect of a defective indictment may only be “remedied” if the Prosecution provided the accused with clear, timely and consistent information that resolves the ambiguity or clarifies the vagueness, thereby compensating for the failure of the indictment to give proper notice of the charges. Whether the Prosecution has cured a defect in an indictment and whether the defect has caused any prejudice to the accused are questions aimed at assessing whether the trial was rendered unfair. In this regard, the Appeals Chamber reiterates that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. The defect may only be deemed harmless through demonstrating that the accused’s ability to prepare his defence was not materially impaired. 
ICTY, Martić case, Judgment on Appeal, 8 October 2008, §§ 162–163.
[footnotes in original omitted]
The appellant’s convictions for crimes relating to charges of which he did not have notice were reversed.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case, two of the three accused, officers in the Yugoslav People’s Army (JNA), were convicted of, inter alia, torture as a violation of the laws or customs of war. In its judgment in the case in 2009, the ICTY Appeals Chamber reaffirmed its view on what constituted adequate notice to the accused of the charges against him or her, stating:
[I]n considering whether an appellant received clear and timely notice, the indictment must be considered as a whole. Although it is preferable that each individual count precisely and expressly indicates the particular nature of the responsibility alleged, even if this is not the case, an accused might have received clear and timely notice of the form of responsibility pleaded by virtue of other paragraphs of the indictment. 
ICTY, Mrkšić case, Judgment on Appeal, 5 May 2009, § 138.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Brima case before the SCSL, the three accused, all former non-commissioned officers in the Sierra Leone Army who became senior members of the Armed Forces Revolutionary Council (AFRC) that seized power from the elected Government of the Republic of Sierra Leone in May 1997, were convicted, inter alia, of the crimes against humanity of murder, extermination and enslavement, pursuant to Article 2 of the 2002 Statute of the Special Court for Sierra Leone. In its judgment in the case in 2008, the Appeals Chamber, in considering the role of specificity in ensuring the right to a fair trial, stated:
37. In order to guarantee a fair trial the Prosecution is obliged to plead material facts with a sufficient degree of specificity. The question whether material facts are pleaded with the required degree of specificity depends on the context of the particular case.
38. In particular, the required degree of specificity varies according to the form of participation alleged against an accused. Where direct participation is alleged in an indictment, we opine that the Prosecution’s obligation to provide particulars in an indictment must be adhered to fully.
39. Where superior responsibility is alleged, the liability of an accused depends on several material factors such as the relationship of the accused to his subordinates, his knowledge of the crimes and the necessary and reasonable measures that he failed to take to prevent the crimes or to punish his subordinates. Therefore, these are material facts that must be pleaded with a sufficient degree of specificity.
40. In considering the extent to which there is compliance with the specificity requirement in an indictment, the term specificity should not be understood to have any special meaning. It is to be understood in its ordinary meaning as being specific in regard to an object or subject matter. An object or subject matter that is particularly named or defined cannot be said to lack specificity.
(b) Exception to Specificity
41. The pleading principles that apply to indictments at international criminal tribunals differ from those in domestic jurisdictions because of the nature and scale of the crimes when compared with those in domestic jurisdictions. For this reason, there is a narrow exception to the specificity requirement for indictments at international criminal tribunals. In some cases, the widespread nature and sheer scale of the alleged crimes make it unnecessary and impracticable to require a high degree of specificity.
44. … Where the Appeals Chamber holds that an indictment is defective, the options open to it are to find that the accused waived his right to challenge the form of an indictment, to reverse the conviction, or to find that no miscarriage of justice had resulted notwithstanding the defect. In this regard the Appeals Chamber may also find that any prejudice that may have been caused by a defective indictment was cured by timely, clear and consistent information provided to the accused by the Prosecution.
45. The Appeals Chamber must ensure that a failure to pose a timely challenge to the form of the indictment did not render the trial unfair. 
SCSL, Brima case, Judgment on Appeal, 22 February 2008, §§ 37–41 and 44–45.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Fofana and Kondewa case before the SCSL in 2007, the accused, senior members of the Civil Defence Forces (CDF), were convicted, inter alia, of the crimes of murder, cruel treatment and pillage, pursuant to Article 3 of the 2002 Statute of the Special Court for Sierra Leone. In its judgment in 2008, the Appeals Chamber, in considering the issue of defective indictments, stated:
[C]ase law at the ad hoc Tribunals recognizes that in limited circumstances, a defect in the indictment may be “cured” if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge. While a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused, the defect may be deemed harmless if the Prosecution can demonstrate that the accused’s ability to prepare his defence was not materially impaired. Factors to be considered in this respect include, among others, information provided in the Prosecution’s pre-trial brief or its opening statement, the timing of the communications, the importance of the information to the ability of the accused to prepare his defence and the impact of the newly-disclosed material facts on the Prosecution’s case. The Appeals Chamber adopts these principles. 
SCSL, Fofana and Kondewa case, Judgment on Appeal, 28 May 2008, § 443.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering an accused’s right to be informed of the nature and cause of the accusation against him or her, specifically in relation to defective indictments, stated:
318. Under Article 17(4)(a) of the [2002] Statute [of the Special Court for Sierra Leone], an accused has the right to be informed promptly and in detail in a language that he or she understands of the nature and cause of the charge against him or her. … Rule 47(C) of the Rules of Procedure and Evidence of the Special Court (“the Rules”) states:
The Indictment shall contain, and be sufficient if it contains, the name and particulars of the suspect, a statement of each specific offence of which the named suspect is charged and a short description of the particulars of the offence. It shall be accompanied by a Prosecutor’s case summary briefly setting out the allegations he proposes to prove in making his case.
320. … The Indictment is the foundational-charging instrument upon which each prosecution rests and “must embody a concise statement of the facts specifying the crime or crimes preferred against the accused.” [SCSL, Sesay case, Decision on Form of Indictment, § 6]
321. The Appeals Chamber has held that the Prosecution must plead material facts with a “sufficient degree of specificity” which requires that an Indictment contain “a concise statement of the facts of the case and of the crime with which the suspect is charged.” [SCSL, Brima case, Judgement on Appeal, § 37] Nevertheless, “there is a minimum level of information that must be provided by the Indictment; there is a floor below which the level of information must not fall if the indictment is to be valid as to its form.” [SCSL, Brima case, Judgement on Appeal, § 37]
322. An indictment must state the material facts underpinning the charges, but need not elaborate on the evidence by which such material facts are to be proven. What is material depends on the facts of the particular case and cannot be decided in the abstract.
323. In addition, this Chamber has held that the following factors are relevant to determining the degree of specificity required in an Indictment: [SCSL, Sesay case, Decision on Form of Indictment, § 8]
(i) The nature of the allegations;
(ii) The nature of the specific crimes charged;
(iii) The circumstances under which the crimes were allegedly committed;
(iv) The duration of time over which the said acts or events constituting the crimes occurred;
(v) The totality of the circumstances surrounding the commission of the alleged crimes; and
(vi) The Indictment as a whole and not isolated and separate paragraphs.
324. The Chamber is strongly of the view that it must evaluate the adequacy of an Indictment considering all of the circumstances of this particular case. In the final analysis, the Chamber cannot require the Prosecution to have done the impossible when it drafted the Indictment, but the Prosecution bears the burden of proving the case that it pleaded beyond reasonable doubt.
332. Where an Indictment is impermissibly vague and lacking in specificity, the Appeals Chamber has directed that the Trial Chamber must inquire if the Prosecution has remedied the prejudice caused by “timely, clear and consistent information provided to the accused by the Prosecution.” [SCSL, Fofana and Kondewa case, Judgement on Appeal, § 443] Where such timely, clear and consistent notice is not provided, the prejudice caused to the accused by this defect still may be “deemed harmless if the Prosecution is able to show that the ability of the accused to prepare his defence was not materially impaired.” [SCSL, Fofana and Kondewa case, Judgement on Appeal, § 443]
333. … When determining whether the Prosecution has cured a defect in the Indictment the Chamber will take account of “the timing of the communications, the importance of the information to the ability of the accused to prepare his defence and the impact of the newly-disclosed material facts on the Prosecution’s case.” [SCSL, Fofana and Kondewa case, Judgement on Appeal, § 443] In essence, the Chamber will consider and resolve these questions on a case-by-case basis.
334. The Chamber finds no merit in the Defence submission that it ought to wholly disregard evidence where it diverges materially from a relevant witness statement. Material differences between a prior statement and oral testimony go to the credibility and the weight to be attached to such evidence, not to question of a defect in the Indictment.
336. Generally, if defects in the form of Indictment are alleged and an accused objected in a timely manner at trial, the Prosecution has the burden of demonstrating that the Accused’s ability to prepare his case has not been materially impaired. Where the Defence has raised no objections during the course of the trial, however, and raises the matter only in its closing brief, the burden shifts to the Defence to demonstrate that the Accused’s ability to defend himself has been materially impaired, unless it can give a reasonable explanation for its failure to raise the objection at trial.
338. Where the Defence has not objected at the pre-trial stage or at the time the impugned evidence was introduced, however, the Chamber considers that a belated objection raised at a later stage of the trial will not automatically lead to a shift in the burden of proof. In such a case, the Chamber will “consider relevant factors, such as whether the Defence provided a reasonable explanation for its failure to raise the objections at the trial”. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 318, 320–324, 332–334, 336 and 338–338.
[footnotes in original omitted]
In its judgment in 2009, the Appeals Chamber, in considering what was required of indictments alleging different forms of individual criminal responsibility, stated:
139. When alleging forms of liability pursuant to Article 6(1) [of the 2002 Statute of the Special Court for Sierra Leone] other than personal commission, international criminal tribunals have required the Prosecution “to identify the ‘particular acts’ or ‘the particular course of conduct’ on the part of the accused which forms the basis for the charges in question.” Where possible, the Prosecution should specify “the form of participation, such as ‘planning’ or ‘instigating’ or ‘ordering’ etc”. [ICTY, Blaškić case, Judgement on Appeal, § 214]
830. As a general matter, the location of the crimes alleged to have been committed should be specified in an indictment. However, the degree of specificity required will depend on the nature of the Prosecution’s case. The specificity required for the pleading of the location of an alleged crime will depend on factors such as: the form of [the] accused’s participation in the crime; the proximity of the accused person to the events at the location for which he is alleged to be criminally responsible; the nature of the crime itself, such as whether the crime is characterized by the movement of the victim; whether the victim’s identity provides specificity; and whether the crime was committed at numerous locations within a defined geographic area that was pleaded.
831. As the form of the accused’s participation in the crime is relevant to the specificity required, the material facts to be pleaded will vary according to the particular form of Article 6(1) liability averred. For example, the Appeals Chamber has indicated that the material facts for pleading personal commission are distinct from those pleaded for JCE [joint criminal enterprise] liability. As stated by the ICTR Appeals Chamber, there may well be “situations in which the specific location of criminal activities cannot be listed, such as where the accused is charged as having effective control over several armed groups that committed crimes in numerous locations. In cases concerning physical acts of violence perpetrated by the accused personally, however, location can be very important.” [ICTR, Ntakirutimana case, Judgement on Appeal, § 75]
832. This distinction between the specificity requirements for the pleading of locations in relation to different modes of liability is consistent with our holding in the Brima et al. Appeal Judgment. There, we held that the Trial Chamber’s decision to reconsider an earlier form of indictment decision was a proper exercise of its discretion in the interests of justice. The Brima et al. Trial Chamber held that the indictment had not pleaded locations with sufficient specificity and they therefore declined to find the accused liable for crimes committed at unnamed locations. 
SCSL, Sesay case, Judgment on Appeal, 26 October 2009, §§ 139 and 830–832.
[footnotes in original omitted; emphasis in original]
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber stated:
498. The European Court of Human Rights, whose founding document contains similar fair trial provisions, has stated that while a criminal court may change the legal characterisation of facts over which it has jurisdiction, it must afford the accused the possibility of exercising his or her defence rights “in a practical and effective manner and, in particular, in good time.” In practice, it has found that this entails ensuring that the accused is aware of the possibility of the legal re-characterisation and provided with a sufficient opportunity to defend against it.
499. Similarly, Regulation 55 adopted by the ICC allows that Court’s Trial Chambers to change the legal characterisation of facts without a formal amendment of the charges in accordance with the following procedural safeguards:
1. In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall:
(a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1 (b); and
(b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).
500. The Appeals Chamber of the ICC has confirmed that a change in the legal characterisation of facts pursuant to Regulation 55 is not inherently in breach of an accused’s right to a fair trial. It has further stated that the manner in which the procedural safeguards provided for in Regulation 55(2) and (3) are to be applied, and whether any additional safeguards may be required to fully protect the rights of the accused, will depend on the circumstances of the case. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 498–500.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee held:
The right of all persons charged with a criminal offence to be informed promptly and in detail in a language which they understand of the nature and cause of criminal charges brought against them, enshrined in paragraph 3 (a) [of the 1966 International Covenant on Civil and Political Rights], is the first of the minimum guarantees in criminal proceedings of article 14. This guarantee applies to all cases of criminal charges, including those of persons not in detention, but not to criminal investigations preceding the laying of charges. Notice of the reasons for an arrest is separately guaranteed in article 9, paragraph 2 of the Covenant. The right to be informed of the charge “promptly” requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally – if later confirmed in writing – or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, § 31.
Human Rights Committee
In Bee and Obiang v. Equatorial Guinea in 2005, the Human Rights Committee held:
The Committee takes note of the authors’ complaint that the alleged victims were not notified of the grounds for the charges against them until two days before the trial, depriving them of sufficient time to prepare their defence and making it impossible for them to select their defence lawyers, that the court was partially composed of military personnel and that they were forcibly compelled to sign their confessions. In the absence of a reply from the State party contradicting these allegations, the Committee finds that the facts described disclose a violation of article 14, paragraphs 1 and 3 (a), (b), (d) and (g), in conjunction with article 2, paragraph 3 (a) and (b) of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Bee and Obiang v. Equatorial Guinea, Views, 30 November 2005, § 6.3.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly in a language understandable to him of the reasons for the measure taken.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 201.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including that: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him or her.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(a), IRRC, No. 282, 1991, p. 334.