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]

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]

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.

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.