478. The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.[1] […]

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.

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]

127. The Appeals Chamber would begin by noting that Rule 45 quater of the Rules expressly states that a “Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”. However, this rule was introduced by an amendment of 6 July 2002 and was therefore not applicable to the situation of Appellant Barayagwiza before this date. Nevertheless, the Appeals Chamber finds that Article 19(1) of the Statute already at that time allowed a Trial Chamber to instruct the Registry to assign a counsel to represent the interests of the accused, even against his will, when the accused had waived his right to be present and participate at the hearings. […]In the instant case, it was open to the Trial Chamber to fulfil this obligation by requesting the Registrar to assign counsel to represent the interests of Appellant Barayagwiza.[1] The Appeals Chamber can find no error or abuse of power on the part of the Trial Chamber.  

130. The Appeals Chamber has for long recognized, pursuant to Article 20(4)(d) of the Statute, the right of an indigent accused to be represented by competent counsel.[1] It recalls that Rule 44(A) of the Rules provides:

Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.

Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel; the presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of trial counsel to succeed, an appellant must rebut the presumption of competence of said counsel by demonstrating that there was gross professional misconduct or negligence which occasioned a miscarriage of justice.[2]

131. […] [T]he responsibility for drawing the Trial Chamber’s attention, in accordance with the appropriate procedure, to what he considers to be a breach of the Tribunal’s Statute and Rules lies in the first place with the appellant[3] who claims that his right to assistance of counsel at trial has been violated.[4] Failing that, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act.[5] He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

158. As to the alleged conflict of interest between Appellant Barayagwiza and his Counsel Barletta-Caldarera, the Appeals Chamber endorses the ICTY’s view that “[a] conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1]

916. According to the Kunarac et al. Trial Judgement, an attack “can be described as a course of conduct involving the commission of acts of violence”.[1] This characterization was endorsed by the Appeals Chamber of ICTY,[2] which added the following:

The concepts of “attack” and “armed conflict” are not identical. Under customary international law, the attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it. Also, the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population.[3]

917. This position is reiterated in the Kordić and Čerkez Appeal Judgement[4] and was adopted in a number of ICTY Trial judgements^.[5] According to the Kayishema and Ruzindana Trial Judgement:

The attack is the event of which the enumerated crimes must form part. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape and deportation.[6]

918. In agreement with these authorities, the Appeals Chamber concludes that, for purposes of Article 3 of the Statute, an attack against a civilian population means the perpetration against a civilian population of a series of acts of violence, or of the kind of mistreatment referred to in sub-paragraphs (a) to (i) of the Article.[7] […]

920. […] It is well established that the attack must be widespread or systematic.[8] In particular, the Appeals Chamber has held that the conjunction “et” in the French version of Article 3 of the Statute is a translation error.[9] The Appeals Chamber further recalls that:

“widespread” refers to the large-scale nature of the attack and the number of victims, whereas “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence.” Patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence.[10]

In this particular case, the Appeals Chamber concluded that the Prosecution had not proven beyond reasonable doubt that there was a widespread or systematic attack against Tutsi civilians in Rwanda between 1 January and 6 April 1994 (paras 929-933). However, it held that “[w]hereas the crime per se must be committed as part of a widespread and systematic attack, preparatory acts, instigation or aiding and abetting can be accomplished before the commission of the crime and the occurrence of the widespread and systematic attack[11]” (para. 934).

1019. The Appeals Chamber recalls that cumulative 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.[1] The test to be applied with respect to cumulative convictions is to take account of all the legal elements of the offences, including those contained in the provisions’ introductory paragraph.[2]

1020. Moreover, like the ICTY Appeals Chamber,[3] the Appeals Chamber considers that whether the same conduct violates two distinct statutory provisions is a question of law. Accordingly, contrary to the Appellants’ contentions, the legal elements of each offence, not the acts or omissions giving rise to the offence, are to be taken into account in determining whether it is permissible to enter cumulative convictions.

1029. It is established case-law that cumulative convictions for genocide and crime against humanity are permissible on the basis of the same acts, as each has a materially distinct element from the other, namely, on the one hand, “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and, on the other, “a widespread or systematic attack against a civilian population”.[1]

1034. The Appeals Chamber recalls that the crime of incitement requires direct and public incitement to commit genocide as a material element and the intent to incite others to commit genocide (itself implying a genocidal intent) as a mental element, which is not required by Article 3(h) of the Statute. As stated supra, persecution as a crime against humanity requires the underlying act to have been committed as part of a widespread and systematic attack on a civilian population, unlike the crime of direct and public incitement to commit genocide.

1035. The argument that the Trial Chamber noted that the material and mental elements of both crimes are the same is manifestly unsubstantiated. The Appeals Chamber notes, first, that in paragraph 1077 of the Judgement the Trial Chamber noted no such thing: it merely stated that, as genocidal intent was established for the communications, “the lesser intent requirement of persecution, the intent to discriminate” had also been met.[1] Secondly, the Appeals Chamber emphasizes that, while the intent to discriminate required by persecution can in practice be considered to be subsumed within genocide, the reverse is not true. The fact remains that the crime of direct and public incitement to commit genocide, like the crime of genocide, requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, which is not required for persecution as a crime against humanity.