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Florida Journal of International Law

Abstract

This Article seeks to ascertain the following: how specific should the charges in an international crimes case be, which circumstances play a role in answering this question, and what influences specificity, or the lack thereof? The focus is therefore on case demarcation in light of an investigation or case against an identified suspect or accused and centers on the indictment phase of criminal proceedings. It does not include investigation demarcation in the sense of prosecutorial discretion regarding determining who to investigate or indict. Case demarcation can only take form and be examined fruitfully once a suspect or accused has been identified. Investigations of a preliminary nature into situations of mass atrocity, which face prosecutors with complex questions of which potentially responsible persons to focus investigative and prosecutorial efforts on lie outside the ambit of this Article. The law and practice of amending charges is also excluded. Although related, it is beyond this Article’s query, because it does not pertain to factual and evidentiary case demarcation in the strictest sense, as it should take form at the indictment stage. Rather, it relates to subsequent procedural matters of shifting boundaries, not placing them.

Part II starts with reviewing the issue of vague indictments as dealt with by the historical Nuremberg, Tokyo, and Control Council Law No. 10 trails, as well as case law from the modern day U.N. tribunals and the ICC regarding ambiguous charges and general pleading principles. This is the first type of case demarcation, which focuses on factual specificity. Part III deals with the second type of case demarcation, which may be regarded as legal demarcation of evidentiary matters, and that has never before been examined in international criminal justice scholarship. It deals with various types of facts and evidence and the importance of distinguishing them, and explores the differences between material facts and subsidiary facts, pattern evidence and evidence of similar conduct. Part IV highlights the defense’s perspective by looking at the right to be put on notice, a number of related rights and the principle of ne bis in idem, also known as double jeopardy protection. The analysis of these three issues shows that courts have developed relatively sound pleading principles over the last decades, but have mostly ignored the issue of evidentiary precision in the sense of consistently distinguishing different types of evidence and facts.

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