Conspiracy to commit genocide

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

544. The Appeals Chamber recalls that “a concerted agreement to commit genocide may be inferred from the conduct of the conspirators” and can be based on circumstantial evidence.[1] Further, the concerted or co-ordinated action of a group of individuals can constitute evidence of an agreement.[2] […]

553. […] In this respect, the Appeals Chamber recalls that “[w]hile [the] actus reus [of conspiracy to commit genocide] can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence. In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators”.[3]

[1]           Nahimana et al. Appeal Judgement, para. 896. See Karemera and Ngirumpatse Appeal Judgement, para. 740; Nzabonimana Appeal Judgement, paras 392, 448; Seromba Appeal Judgement, para. 221.

[2]           Nahimana et al. Appeal Judgement, para. 897. See Nzabonimana Appeal Judgement, para. 391.

[3]           Nahimana et al. Appeal Judgement, para. 896. See Seromba Appeal Judgement, para. 221.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

537. In relation to crimes under different statutory provisions, as the Trial Chamber recalled, cumulative convictions for the same conduct are permissible if each statutory provision involved has a materially distinct element not contained in the other.[1] Further, the Appeals Chamber notes that the Trial Chamber correctly held that conspiracy to commit genocide and genocide involve different underlying acts or omissions and a materially distinct actus reus.[2]

538. In this case, the Trial Chamber reasoned that – as Popović’s and Beara’s participation in the JCE to Murder with genocidal intent was the basis of the convictions for genocide as well as for inferring an agreement to commit genocide – “entering a conviction for the substantive offence of genocide renders redundant a conviction for conspiracy”.[3] The Trial Chamber also concluded that “the full criminality of the Accused is accounted for by a conviction for genocide”.[4] The Appeals Chamber, however, recalls “that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[5] As conspiracy to commit genocide and genocide are distinct crimes, it was necessary to enter convictions against Popović and Beara for conspiracy to commit genocide in order to reflect their full culpability.[6] […]

[1]           Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 259 & fn. 630. See [Popović et al.] Trial Judgement, para. 2111 & fns 6103-6104.

[2]           [Popović et al.] Trial Judgement, para. 2118 & fns 6115-6116. See Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 260 & fns 632-633.

[3]           Trial Judgement, paras 2124-2126.

[4]           Trial Judgement, para. 2127.

[5]           Gatete Appeal Judgement, para. 261. See Karemera and Ngirumpatse Appeal Judgement, para. 711.

[6]           See Gatete Appeal Judgement, para. 261.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

896. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is a concerted agreement to act for the purpose of committing genocide. While such actus reus can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence.[1] In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators.[2] However, as in any case where the Prosecutor seeks, on the basis of circumstantial evidence, to prove a particular fact upon which the guilt of the accused depends,[3] the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence.

897. The Appeals Chamber takes the view that the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: as the Trial Chamber recognized, these words are “the central element that distinguishes conspiracy from ‘conscious parallelism’, the concept put forward by the Defence to explain the evidence in this case”.[4] The Appeals Chamber thus considers that the Appellants were not found guilty by association or by reason of the similarity of their conduct: rather, the Trial Chamber found that there had been a concerted or coordinated action and, on the basis inter alia of this factual finding, it inferred the existence of a conspiracy. […]

898. Turning to Appellant Barayagwiza’s argument, the Appeals Chamber considers that the agreement need not be a formal one.[5] It stresses in this respect that the United States Supreme Court has also recognized that the agreement required for conspiracy “need not be shown to have been explicit”.[6] The Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that the evidence must establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct.

906. The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide.

[1] See, in this respect, Kajelijeli Trial Judgement, para. 787 (“[t]he agreement in a conspiracy is one that may be established by the prosecutor in no particular manner, but the evidence must show that an agreement had indeed been reached”). In the Ntakirutimana, Niyitegeka and Kajelijeli cases, the Trial judges noted that the accused had attended meetings although they did not require meetings as elements of the crime of conspiracy to commit genocide: see Kajelijeli Trial Judgement, paras. 434-453, 787-788, 794; Niyitegeka Trial Judgement, paras. 423-429; Ntakirutimana Trial Judgement, paras. 799-800.

[2] In this respect, the Appeals Chamber notes that a number of legal systems explicitly recognize that the agreement can be inferred from the conduct of the parties to the conspiracy: United States: Glasser v. United States, 315 U.S. 60, 80 (1942); United Kingdom: R. v. Anderson, [1986] A.C. 27, 38; Canada: R. v. Gagnon, [1956] S.C.R. 635, para. 12.

[3] Ntagerura et al. Appeal Judgement, paras. 306, 399; Stakić Appeal Judgement, para. 219; Krstić Appeal Judgement, para. 41; Vasiljević Appeal Judgement, paras. 120, 128, 131; Čelebići Appeal Judgement, para. 458.

[4] Judgement, para. 1048. See also paras. 1045, 1047.

[5] As held by common law courts with respect to conspiracy: see for example, R. v. Anderson, [1986] A.C. 27, 37 (United Kingdom).

[6] Iannelli v. United States, 420 U.S. 770, 777, footnote 10 (1975), reaffirming Direct Sales Co. v. United States, 319 U.S. 703, 711-713 (1943). 

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

907. The Appeals Chamber is of the opinion that in certain cases the existence of a conspiracy to commit genocide between individuals controlling institutions could be inferred from the interaction between these institutions. As explained above, the existence of the conspiracy would, however, have to be the only reasonable inference to be drawn from the evidence.

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

894. Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been defined as “an agreement between two or more persons to commit the crime of genocide”.[1] The existence of such an agreement between individuals to commit genocide (or “concerted agreement to act”[2]) is its material element (actus reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea).[3]

[1] Ntagerura et al. Appeal Judgement, para. 92. See also Kajelijeli Trial Judgement, para. 787; Niyitegeka Trial Judgement, para. 423; Ntakirutimana Trial Judgement, para. 798; Musema Trial Judgement, para. 191.

[2] The jurisprudence of the Tribunal refers to an “agreement” and to a “concerted agreement to act”, in which a number of individuals join (Ntagerura et al. Appeal Judgement, para. 92; Kajelijeli Trial Judgement, paras. 787‑788; Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 191).

[3] Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 192. 

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

344. […] Defined as an agreement between two or more persons to commit the crime of genocide,[1] the crime of conspiracy as set forth in Article 2(3)(b) of the Statute comprises two elements, which must be pleaded in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[2] […]

[1] Ntagerura et al. Appeal Judgement, para. 92.

[2] See infra XIV. A.

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

259. The Appeals Chamber observes that this is the first time that it has been called upon to adjudicate the issue of whether an accused can be convicted both of genocide and conspiracy to commit genocide. The Appeals Chamber recalls that convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.

260. The Appeals Chamber recalls that genocide and conspiracy to commit genocide are distinct crimes under Articles 2(3)(a) and 2(3)(b) of the Statute. As the Trial Chamber correctly observed, the crime of genocide has a materially distinct actus reus from the crime of conspiracy to commit genocide and both crimes are based on different underlying conduct. The crime of genocide requires the commission of one of the enumerated acts in Article 2(2) of the Statute, while the crime of conspiracy to commit genocide requires the act of entering into an agreement to commit genocide.The Appeals Chamber finds that the Trial Chamber did not err in concluding that the crimes are distinct and that the conduct underlying each crime is not the same.

261. […T]he Appeals Chamber considers that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person. Accordingly, the Appeals Chamber finds, Judge Agius dissenting, that by convicting Gatete only of genocide while he was also found criminally responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him responsible for the totality of his criminal conduct, which included entering into the unlawful agreement to commit genocide.

262. […] The Appeals Chamber recalls that criminalising conspiracy to commit genocide, as an inchoate crime, aims to prevent the commission of genocide. However, the Appeals Chamber considers that another reason for criminalising conspiracy to commit genocide is to punish the collaboration of a group of individuals resolved to commit genocide. The danger represented by such collaboration itself justifies the incrimination of acts of conspiracy, irrespective of whether the substantive crime of genocide has been committed. Thus, the Appeals Chamber finds, Judge Agius dissenting, that the inchoate nature of the crime of conspiracy does not obviate the need to enter a conviction for this crime when genocide has also been committed by the accused, since the crime of genocide does not punish the agreement to commit genocide.

263. Finally, the Trial Chamber inferred from the evidence establishing that Gatete participated in a joint criminal enterprise that he also entered into an agreement to commit genocide. On this basis, it found that entering a conviction for the crime of genocide would render a conviction for conspiracy redundant. The Appeals Chamber recalls that conspiracy to commit genocide is a crime under the Statute, while joint criminal enterprise is a form of criminal responsibility. The Appeals Chamber considers, Judge Agius dissenting, that a comparison of the evidence underpinning these two elements is irrelevant when deciding whether convictions can be entered for both crimes of genocide and conspiracy to commit genocide, as the issue of cumulative convictions arises only between crimes.

[1] The Appeals Chamber notes that trial chambers have dealt with this issue in various ways, from considering that the test on permissibility of cumulative convictions was applicable to finding that it did not apply and from entering convictions on both crimes to entering a conviction on only one. See Nzabonimana Trial Judgement, fn. 2184 (where the trial chamber considered that it did not need to address the issue of whether cumulative convictions may be entered for conspiracy to commit genocide and genocide because the conduct that served as the basis for conspiracy to commit genocide was different from the conduct that served as the basis for genocide); Karemera and Ngirumpatse Trial Judgement, para. 1713 (where the trial chamber concurred with the Musema, Popović et al., and Gatete trial chambers and decided not to enter a conviction of conspiracy considering the conviction of genocide); Nyiramasuhuko et al. Trial Judgement, paras. 5678, 5970, fn. 14634 (Nyiramasuhuko was convicted of conspiracy to commit genocide and genocide; the trial chamber considered that it did not need to address whether convictions may be entered simultaneously for conspiracy to commit genocide and for genocide because the conduct that served as the basis for conspiracy to commit genocide is different from that forming the basis for genocide); Nahimana et al. Trial Judgement, paras. 1043, 1090 (where the trial chamber found that the test on cumulative convictions applied and that cumulative convictions were permissible as both crimes comprise materially distinct elements); Kajelijeli Trial Judgement, paras. 787-793, 798 (where the trial chamber noted the discrepancies between Niyitegeka and Musema Trial Judgements but did not feel called upon to express a preference as Kajelijeli was found not guilty of conspiracy to commit genocide); Niyitegeka Trial Judgement, paras. 420, 429, 480 (where the accused was convicted of both crimes); Musema Trial Judgement, paras. 198, 940, 941, p. 276 (where the trial chamber stated “that [it] has adopted the definition of conspiracy most favourable to Musema, whereby an accused cannot be convicted of both genocide and conspiracy to commit genocide on the basis of the same acts” without finding the accused guilty of the crime of conspiracy to commit genocide in the absence of any evidence presented by the Prosecution); Kambanda Trial Judgement, paras. 3, 39, 40 (where the accused pleaded guilty to both conspiracy to commit genocide and genocide).

[2] Čelebići Appeal Judgement, para. 412. See also Ntabakuze Appeal Judgement, para. 260; Bagosora and Nsengiyumva Appeal Judgement, para. 413; Nahimana et al. Appeal Judgement, para. 1019; Ntakirutimana Appeal Judgement, para. 542.

[3] See Trial Judgement, para. 654.

[4] Nahimana et al. Appeal Judgement, para. 492.

[5] Seromba Appeal Judgement, para. 218; Nahimana et al. Appeal Judgement, para. 894; Ntagerura et al. Appeal Judgement, para. 92.

[6] Cf. Strugar Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 358.

[7] See Ad Hoc Committee on Genocide, Note by the Secretariat, Economic and Social Council, E/AC.25/3, 2 April 1948, p. 8.

[8] A reading of the travaux préparatoires of the Genocide Convention [Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force on 12 January 1951 (“Genocide Convention”)] shows that the Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, presupposing the collaboration of a greater or smaller number of persons. See Ad Hoc Committee on Genocide, Report of the Committee and Draft Convention Drawn up by the Committee, Economic and Social Council, E/794, 24 May 1948, p. 20.

[9] Trial Judgement, para. 661.

[10] See Article 2(3)(b) of the Statute [Statute of the International Criminal Tribunal for Rwanda]; Nahimana et al. Appeal Judgement, para. 896.

[11] Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. See, e.g., Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 462.

[12] However, this factor may be relevant when it comes to sentencing as “a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted”. See Ntakirutimana Appeal Judgment, para. 562; Rutaganda Appeal Judgement, para. 591.

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ICTR Statute Article 2(3)(c);
Article 2(3)(b)
ICTY Statute Article 4(3)(a);
Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

529. […] The Appeals Chamber recalls that the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element[…] [1] […].

[1]  In order for the mens rea for conspiracy to commit genocide to be satisfied “the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea)”. Nahimana et al. Appeal Judgement, para. 894. Likewise, for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. Munyakazi Appeal Judgement, para. 141.

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Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NZABONIMANA Callixte
(ICTR-98-44D-A)

398.  The Appeals Chamber is not persuaded that premeditation or the existence of a pre-existing agreement is an element of the crime of conspiracy to commit genocide […].

See also paras. 255, 391, 448.

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […]

[…]

473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.

474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4]

[1] Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344.

[2] See Trial Judgement, para. 5661.

[3] See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894.

[4] Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121.

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