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Conspiracy to Commit Genocide and Its Exclusion from the ICC Statute by SONG Tianying FICHL Policy Brief Series No

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Conspiracy to Commit Genocide and Its Exclusion from the ICC Statute by SONG Tianying FICHL Policy Brief Series No POLICY BRIEF SERIES Conspiracy to Commit Genocide and its Exclusion From the ICC Statute By SONG Tianying FICHL Policy Brief Series No. 18 (2014) 1. Introduction fact that in practice genocide is a collective crime, presup- The criminal classification ‘conspiracy’ may denote either posing the collaboration of a greater or smaller number of 6 a substantive crime or a mode of liability. As a substantive persons”. During the subsequent discussion over the crime, it punishes the agreement of two or more persons draft, a number of states that did not have the concept of to commit a crime, irrespective of whether the intended conspiracy in their domestic law pointed out that the pro- crime is committed or not.1 It is generally recognized as a vision needed to be applied according to principles of 7 crime specific to the common law tradition. Conspiracy each penal system. as a form of liability attributes responsibility to co-con- The Statute of the International Criminal Court (‘ICC’) spirators where the intended crime is committed.2 It is in- adopts verbatim Article II of the Genocide Convention, cluded, for instance, in the Nuremberg Charter.3 which sets out the definition of genocide, but only par- Conspiracy to commit genocide was first set out in Ar- tially incorporates Article III and excludes conspiracy to ticle III of the 1948 Genocide Convention.4 Experts draft- commit genocide. This is a marked difference from the ing the text intended conspiracy to commit genocide to be statutes of the International Criminal Tribunals for the an inchoate crime under Anglo-American law. It was ad- Former Yugoslavia (‘ICTY’) and Rwanda (‘ICTR’), both 8 opted to punish the mere act of reaching an agreement to of which include verbatim the text of Articles II and III. commit genocide, even when no “preparatory act” had ICTY and ICTR case law reinforces the concept of con- taken place.5 The low threshold of actus reus was set both spiracy to commit genocide as an independent crime. in view of “the gravity of the crime of genocide and of the Nevertheless, a literal reading of ‘conspiracy to commit genocide’ would open to the interpretation that it is a mode 1 Antonio Cassese, International Criminal Law, Oxford Univer- of liability, as are the other punishable acts under Article sity Press, 2003, p. 196 (http://www.legal-tools.org/doc/235bac/); III of the Genocide Convention. The subsequent discus- George P. Fletcher, Amicus Curiae Brief of Specialists in Con- sion over the draft Genocide Convention also indicates a spiracy and International Law in Support of Petitioner in Hamdan v. Rumsfeld, 2006 WL 53979, p. 9 (http://www.legal-tools.org/ certain degree of reluctance among states to fully embrace doc/89ec56/). conspiracy as an independent crime. Such reluctance re- 2 Allison M. Danner and Jenny S. Martinez, “Guilty Associations: emerged at international level during the negotiation of Joint Criminal Enterprise, Command Responsibility, and the De- the ICC Statute. velopment of International Criminal Law”, in California Law Review, 2005, vol. 93, pp. 116-117 (http://www.legal-tools.org/ Against the background of an analysis of how conspir- doc/105b86/); Anna Sanders, “New Frontiers in the ATS: Con- acy to commit genocide has been applied before the ICTY spiracy and Joint Criminal Enterprise Liability After Sosa”, in and ICTR, this brief asks what could be the consequences Berkeley Journal of International Law, 2010, vol. 28, no. 2, p. for the ICC for lacking jurisdiction over such conspiracy. 624 (http://www.legal-tools.org/doc/2bc1d9/). 3 Charter of the International Military Tribunal, 8 August 1945 It concludes by addressing the implications for states that (http://www.legal-tools.org/doc/64ffdd/). The last paragraph of Article 6 reads: “Leaders, organizers, instigators and accomplices 6 UN Doc. E/794, p. 20. participating in the formulation or execution of a common plan or 7 UN Doc. A/C.6/SR.84, pp. 207–212. conspiracy to commit any of the foregoing crimes are responsible 8 Article 4, Statute of the International Criminal Tribunal for the for all acts performed by any persons in execution of such plan”. Former Yugoslavia, 25 May 1993, S/RES/827 (http://www.legal- 4 Convention on the Prevention and Punishment of the Crime tools.org/doc/dc079b/); and Article 2, Statute of the International of Genocide, 9 December 1948 (http://www.legal-tools.org/ Criminal Tribunal for Rwanda, 8 November 1994, S/RES/955 doc/498c38/). (http://www.legaltools.org/doc/8732d6/). 5 UN Doc. E/447, p. 31. www.toaep.org seek to import genocide into national criminal law. For the offence of conspiracy”.12 the purposes of this brief, ‘conspiracy to commit geno- The new issue raised in Popović was the relevancy of cide’ is used to indicate an independent crime unless oth- the genocide conviction through the mode of liability of erwise specified. joint criminal enterprise (‘JCE’). When first invoking the JCE theory, the Tadić Appeals Chamber explained that 2. Role of Conspiracy to Commit Genocide Before “most of the time international crimes do not result from the ICTY and ICTR the criminal propensity of single individuals but constitute 2.1. Cumulative Convictions of Genocide and Con- manifestations of collective criminality: the crimes are of- spiracy to Commit Genocide ten carried out by groups of individuals acting in pursu- 13 According to settled jurisprudence of the ICTY and ance of a common criminal design”. The objective side ICTR, conspiracy to commit genocide consists of an of JCE comprises three requirements: a plurality of per- agreement between two or more persons to commit geno- sons; a common purpose which amounts to or involves the cide. The individuals involved in the agreement must commission of a crime within the jurisdiction of the tribu- nal; and the accused’s significant contribution to the have the intent to destroy in whole or in part a national, 14 ethnic, racial or religious group as such.9 The dispute sur- crimes. The ICTY Appeals Chamber, when comparing rounding the subject, rather, is on why there is a need to JCE and the crime of conspiracy, stated that “[w]hilst con- convict for a crime of conspiracy where the substantive spiracy requires a showing that several individuals have crime of genocide has been established. The prior agree- agreed to commit a certain crime or set of crimes, a joint ment is often inferred from the subsequent co-ordinated criminal enterprise requires, in addition to such a showing, that the parties to that agreement took action in furtherance manner of genocidal activities. The same acts serve as the 15 basis for genocide conviction. The pertinent rule, as pro- of that agreement”. In theory, where genocide is convict- nounced by the Čelebići Appeals Chamber, states that ed through JCE, a conspiracy charge can almost certainly be proved. Such correlation was seen in Popović and later multiple criminal convictions entered under different 16 statutory provisions but based on the same conduct are in Gatete. In Popović, the Trial Chamber considered con- permissible only if each statutory provision involved has viction of conspiracy alongside a JCE-based genocide a materially distinct element not contained in the other.10 conviction redundant and unfair to the accused, since the basis for both convictions was the accused’s participation Genocide and conspiracy to commit genocide appar- in an agreement to murder with the requisite intent.17 The ently have different objective elements, so convictions of Gatete Trial Chamber referred to the Popović reasoning both may be entered simultaneously under the Čelebići when rejecting cumulative convictions.18 test. While the rule seems clear-cut, some trial chambers have rejected cumulative convictions by referring to the 12 Prosecutor v. Popović et al. (‘Popović Trial Judgment’) ICTY Case inchoate nature of conspiracy. According to the Musema No. IT-05-88-T, Trial Judgment, 10 June 2010, paras. 2123–2124 Trial Chamber, the travaux préparatoires of the Genocide (http://www.legal-tools.org/doc/481867/). Convention showed that “the crime of conspiracy was in- 13 Prosecutor v. Tadić (‘Tadić Appeal Judgment’) ICTY Case No. IT- cluded to punish acts which, in and of themselves, did not 94-1-A, Appeal Judgment, 15 July 1999, para. 191 (http://www. legal-tools.org/doc/8efc3a/). constitute genocide”. The converse implication, said the 14 Prosecutor v. Gatete (‘Gatete Trial Judgment’) ICTR Case No. Chamber, was that no purpose would be served in con- 2000-61-T, Trial Judgment, 31 March 2011, para. 577 (http:// victing an accused who had already been found guilty of www.legal-tools.org/doc/f6c347/); Prosecutor v. Brđanin, ICTY genocide, for conspiracy to commit genocide on the basis Case No. IT-99-36-A, Appeal Judgment, 3 April 2007, para. 364 of the same acts.11 In Popović, the Trial Chamber held (http://www.legal-tools.org/doc/782cef/); Prosecutor v. Kvočka et al., ICTY Case No. IT-98-30/1-A, 28 February 2005, Appeal Judg- that the fundamental principle underlying the decision of ment, para. 96 (http://www.legal-tools.org/doc/006011/); Prosecu- multiple convictions was “one of fairness to the accused”. tor v. Ntakirutimana et al., ICTR Cases Nos. 96-17-A and 96-10- It considered that with the crime of genocide already A, Appeal Judgment, 13 December 2004, para. 466 (http://www. proven, the justification for punishing the prior conspira- legal-tools.org/doc/af07be/); Prosecutor v. Vasiljević, ICTY Case No. IT-98-32-A, Appeal Judgment, 25 February 2004, para. 100 cy was “less compelling”, in light of the “unique nature of (http://www.legal-tools.org/doc/e35d81/); Prosecutor v.
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