Obote-Odora, Alex --- "Conspiracy to Commit Genocide: Prosecutor v Jean Kambanda and Prosecutor v Alfred Musema" [2001] MurdochUeJlLaw 3; (2001) 8(1) Murdoch University Electronic Journal of Law

"Mr Jean Kambanda: This tribunal having deliberated and after verifying your guilty pleas are voluntary, unequivocal and that you clearly understand its terms and consequences; Considering the factual and legal issues contained in the agreement concluded between you and the Office of the Prosecutor and that you have acknowledged that both you and your counsel have signed, the Tribunal finds you guilty on the six counts..."[7]

Again, at this stage, the Trial Chamber did not enquire whether it was proper and sustainable in law to convict the accused, simultaneously, on both the counts of a substantive offence of committing genocide and that of a conspiracy to commit genocide. In Musema, the Swiss Government arrested the accused in Switzerland on 11 February 1995, on the basis of a warrant of arrest issued by the examining magistrate. The Swiss authorities detained Musema, confirmation of the detention being extended on a monthly basis in conformity with Article 56 and ff. of the Code of the Martial Criminal Procedure of the Swiss Federal Government. On 4 March 1996 the Prosecutor applied to the ICTR for a formal request for deferral by Switzerland concerning Musema.[8] By a decision of 12 March 1996, the Trial Chamber formally requested the Swiss Federal Government to defer to the ICTR for all investigations and criminal proceedings to be conducted in its national courts against Alfred Musema. The Trial Chamber further requested the Swiss Government to continue to detain Musema until an indictment was established and a warrant of arrest was issued against him. Pursuant to Articles 17 and 18 of the Statute, and Rules 28 and 47 of the Rules, the Prosecutor presented an indictment dated 11 July against Musema, and all the counts in the said indictment was confirmed by the decision of 15 July 1996.[9] A warrant of arrest and order for surrender addressed to the Swiss authorities was issued on the same day.[10] Musema was transferred to the ICTR's Detention Facility in Arusha on 20 May 1997. After several delays as a result of a number of preliminary issues that were raised before the Trial Chamber,[11] the accused was subsequently charged with nine counts, which includes committing genocide in count one, and conspiracy to commit genocide in count three. The accused pleaded not guilty on all the nine counts. After trial, the accused was found guilty on three counts, including count one. However, the accused was acquitted on count three, on grounds, inter alia, that an accused could not be convicted simultaneously on the substantive charge and a conspiracy to commit the said offence.

The acts alleged by the Prosecutor in support of the charges under count three (conspiracy to commit) and count one (committing genocide) was held by the Trial Chamber to constitute the same facts or single set of facts. In assessing the facts alleged by the Prosecutor in the concise statement of facts, the Trial Chamber found that the Prosecutor did not allege or adduce evidence to prove that Musema conspired with other persons to commit genocide and that he and such persons reached an agreement to act to that end..[12] Consequently, the Trial Chamber held that Musema did not incur criminal responsibility for the crime of conspiracy to commit genocide under count three because the Prosecutor failed to allege or adduce evidence of Musema´s guilt.[13] Further, the Trial Chamber held that Musema did not incur individual criminal responsibility because the Prosecutor relied on the same acts, or single set of facts to prove both counts.[14]

In analysing the decisions of the Trial Chambers in the two cases, I will commence by summarising the law on the concept of conspiracy and its application by national courts and international tribunals.

The Concept of Conspiracy

The concept of conspiracy, as applied in criminal law, originated from the law of fraud.[15] Fraud used to be equated with cheating. However, the form of cheating was restricted to: "Offences that ...affect the public. For there are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; ordinary care and caution is no guard against this."[16]

Gradually the concept of conspiracy was incorporated into the laws of war, primarily, because "The laws of war is to be found not only in treaties, but in customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts."[17] Consequently, it was during the Nuremberg Trial that the concept of conspiracy, as understood under the laws of war, developed within the context of international criminal law. During these trials, a number of individuals were prosecuted for commission of specific criminal offences as well as for having acted in pursuance of a common design, crimes that did not materially differ from that of conspiracy.[18] For instance, in the Dachu Concentration Camp Trial, forty defendants were convicted of having actively and knowingly participated in a common enterprise to abuse, starve, torture, and murder the inmates of the camp.[19] Similarly, in the Belsen Trial the Military Tribunal observed that the staff of the concentration camps of Auschwitz and Belsen deliberately took part in procedures that:

(a) were a calculated disregard of the ordinary duties which fell upon a staff to look after the well-being and health of the inmates;
(b) throughout these camps the staff quite clearly understood that the brutalities, ill-treatment, and matters of that kind would not be punished if they were inflicted on the Jews; and
(c) there was a common concerted design of the staff to do these terrible things to the Jews.[20]

The expansive scope of criminal liability reflected in the decisions of the Military Tribunals meant that defendants who knowingly participated in the "selection parades," in which those who were to be exterminated were singled out, could be held liable for having participated in "deliberately organised murders." Thus, the prosecutor successfully submitted before the Military Tribunal that: "Proof of a conspiracy could be deduced from tactics of the accused and could well arise between persons who had never seen each other and had never corresponded together. Furthermore, the accused were as guilty if they joined the conspiracy already formed as they would have been had they originated it."[21]

It is against this background that the current law of conspiracy under both civil and common law, and applied in international criminal prosecution, should be understood.

The Civil Law System

The civil law system applies in continental Europe and many of its former colonies, particularly that of France, Spain and Portugal. The result is that civil law system applies in most of Latin America, parts of Africa and Asia. However, the French criminal law is seen as reflecting the basic legal principles as generally applied under civil law. It is therefore prudent to start with an examination of the concept of conspiracy as understood and applied in the French legal system.

According to the French Penal Code, there are some inchoate offences that are generally not punishable if they relate to crimes against individuals. These inchoate offences include:

(a) decisions to commit a crime,
(b) propositions to conspire to commit a crime,
(c) acceptance of those propositions to conspire, and
(d) some material acts, preparatory to the execution of the purposes of the conspiracy.[22]

The above situations are punishable, but limited to offences where the security of the state or another comparable public interest is at stake. For example, Article 89 of the French Penal Code provides:

"The conspiracy aiming to perpetrate crimes referred to in Articles 86 and 87 [crimes against the state and assault in order to destroy or change the government, respectively], if followed by an act committed or begun in order to prepare their execution shall be punished by deportation. If it was not followed by any act committed or begun in order to prepare their execution, the punishment shall be that of detention."

Note that a greater penalty is attached if the agreement to commit the offence was followed by an overt act in furtherance of the agreement. Other offences allowing for the punishment of a mere agreement were:

(a) conspiracies to incite a civil war, or
(b) to trouble the state by devastation, massacre or plunder;[23]
(c) conspiring to form an armed band;[24] and,
(d) crimes against the public peace.[25]

At the same time, the Code also treated group criminality as an aggravating circumstance rather than as a separate substantive offence. For example, Article 109 enhanced the punishment for impeding citizens in the exercise of their civil rights if this crime was a result of a plan. In all other cases, conspirators were punished as perpetrators only if the crime was actually committed or attempted. Thus, under French law, to constitute genocide, an enumerated act must be taken within the context of a criminal enterprise having as its goal the destruction of a protected group. Under French law, the objective of the narrow definition of conspiracy, or "complot" is to protect an accused person from the possibility of being punished for mere criminal intent or preparatory acts, without actually committing the intended criminal act. In this context, preparatory acts are distinct and separate from the substantive crime. No crime is committed if the substantive crime was not actually carried out. The exception is a conspiracy to commit crimes against national security interests. For instance, conspiracy is punishable where its criminal objective is to commit categories of crimes classified as extremely serious, such as undermining the security of the State or treason. To some extent, the criminal laws of many former and current socialist states, including Hungary[26] and China,[27] mirror the French legal position.

Under the Spanish criminal law, conspiracy exists when two or more persons act in concert for the execution and implementation of a crime. Conspiracy is punishable only for certain prescribed offences, such as:

(a) offences against international community,
(b) offences committed in armed groups, and,
(c) offences committed by illegal associations.

The Spanish Penal Code provides for the punishment of conspiracy under Article 17.1. Under Spanish law, the conspiracy charge merges into the substantive offence once the latter is committed. The law imposes equal liability on all members of the conspiracy This is to be distinguished from the law of illegal associations, which imposes differential liability for those who found such an organisation vis-à-vis its members.[28]

Under Italian law, Article 110 of the Penal Code effectively considers all participants in an offence, regardless of the degree of involvement, as principals, subject to certain exceptions for aggravating or mitigating circumstances. According to Article 112, aggravating circumstances include:

(a) the collaboration of five or more persons;
(b) the promotion, organisation or direction of criminal activities;
(c) the use of authority to induce subordinates to commit a crime; and,
(d) the inducement of a minor or mentally-infirmed person to commit a crime.

Under Article 114, attenuating circumstances include participation:

(a) of minimal importance,
(b) through reverence to a superior, and
(c) by minors or the mentally infirm.

The Italian law does not criminalize the mere agreement to commit a criminal offence, or an attempted instigation, if the primary offence is not ultimately carried out.[29] However, there are certain circumstances in which the mere agreement to commit a crime is punishable.[30] According to Article 304, the punishment is always less than that for the crime to which the agreement relates. Individuals who assist participants in a conspiracy are punishable although with sentences less than that for the conspiracy itself.

In Sweden, conspiracy is not generally an independent substantive crime. Instead, the Swedish Penal Code specifically criminalizes conspiracy to commit certain offences, such as high treason. In order to be liable for any preparatory offences, the individual must also be punishable for the substantive offence. Under the Swedish Penal Code, Chapter 2(2)(2) governs conspiracy.[31] The Chapter outlines three different kinds of acts that may constitute conspiracy. It requires that:

(a) someone must be acting in concert with another in order to decide to commit an act.
(b) someone incites another to commit the act, and
(c) someone accepts or offers to commit the crime.

Consequently, there must be more than a negligible risk that the crime would be completed, and the perpetrator must manifest the intent to commit a crime through some undertaking. Further, while the Swedish Penal Code does not require that the perpetrator act with intent to commit the crime, these acts presuppose an intent to commit or promote the commission of a crime. A person can hardly make a decision in concert with another to commit a crime, without having acted with intent to commit or promote the crime.

The German Criminal Code of 1871 criminalizes conspiracy per se only with respect to offences against the state, such as the inducement to wage war against the Reich,[32] diplomatic treason,[33] or high treason.[34] It has been noted, "The concept of conspiracy as a crime in cases where the interests of the Reich or of the German states as such were not impaired, was unknown to the German Criminal Code of 1871."[35] In 1934 the German Code was amended to augment the penalties for treasonous conspiracy. Further amendment, by decree in 1939, provided in Article 3(1) that "whoever supports, or participates in, an organisation inimical to the national defence shall be punished by confinement."[36] Article 49b provided for the punishment of any person who "participated in a combination or an agreement" which had for its purpose "the commission of major crimes against life." In 1943, these conspiracy provisions were extended to apply to agreements to commit all major crimes.

The Polish Penal Code of 1932 manifested broader notions of conspiracy than in other civil law countries. While preparation by one person did not constitute a crime, preparation by multiple persons in some cases did.[37] Under Polish law, conspiracy constituted a substantive offence under Articles 93-95 and 98. For instance conspiracy was a substantive offence where the criminal purpose amounted to an offence against the state, such as:

(a) seeking to deprive the State of independence;
(b) seeking to otherthrow the President or Diet;
(c) seeking to detach a part of the State's territory; (d) treason; or
(e) incitement to war.

Similarly, Articles 164 through 167 made it criminal to participate in an organisation that was kept secret from public authorities:

(a) an assembly or group having the purpose of committing an offence, or
(b) an illegally organised armed association.[38]

While some aspects of Israeli law are modelled on common law, it also borrows, to a certain extent, from civil law. However, the Israeli law on conspiracy to commit genocide, is one of the few national laws that fairly accurately reflect the state of the law as provided in the Genocide Convention? For instance, Israeli law criminalizes the substantive crime of committing genocide and that of conspiracy to commit genocide.[39] The legislation mirrors the definition of genocide in the Genocide Convention and provides that a person guilty of:

(a) conspiracy to commit genocide,
(b) incitement to commit genocide,
(c) attempt to commit genocide, or
(d) complicity in genocide;
shall be treated as guilty of genocide.

The provisions further provide that conspiracy; incitement; complicity or attempt is to be interpreted with respect to analogous provisions in the Criminal Code Ordinance.[40]

The law on conspiracy that emerges under civil law creates two types of actus reus:

(a) simple conspiracy that is not followed by any act at all, but only remains at the level of planning or preparation. This type of conspiracy is usually not punishable.
(b) a conspiracy that refers to a plan or preparation that is followed by material or tangible acts.

The plan, at this stage includes the putting in place of a process of implementing the conspiracy. In other words, the plan or preparation goes beyond a mere attempt at committing the substantive offence. At this point, it is necessary that some actual deed must have been undertaken to implement the conspiracy. This conspiracy is described as aggravated conspiracy and is usually punishable.

Simple conspiracy is defined as a concerted agreement to act, decided upon by two or more persons. Thus, in a conspiracy, an individual cannot conspire, or plan, alone. All acts, plans and activities that the conspirators are engaged in remain at the preparatory stage. As soon as the conspirators begin to implement their plans, that is, when the conspiracy is followed, or accompanied, by preparatory acts, the plan or simple conspiracy, transforms itself and becomes aggravated conspiracy. Both forms of conspiracy rise to the level of criminal acts when three common elements are proved to exist. These elements are:

(a) an agreement to act,
(b) concerted wills to act, and
(c) the common goal to achieve the substantive criminal act.

Under civil law systems, if a charge of conspiracy to commit a crime is prosecuted successfully and the substantive offence is proved beyond a reasonable doubt, the accused will only be convicted of the substantive criminal act and not of conspiracy to commit such an act. The rationale for this position is that there is no reason to punish the accused for his mere criminal intent, or even for the preparatory acts committed. Further, it is argued that if the substantive offence has not been realised or if the accused was part of a conspiracy, which was perpetrated by his co-conspirators, without his direct participation, it serves no useful purpose to punish him.

The Common Law System

The common law system applies in states that were former British colonies or protectorates. This includes the thirteen states that defeated the British and established the United States of America, and many of the other colonies that now form the Commonwealth. States that apply the common law system include countries that have a predominantly Muslim population, for example, Pakistan. I will therefore focus on the law as applied in the Commonwealth states.

Under common law, conspiracy, or "entente" is treated as a specific form of criminal participation and punishable in itself. Conspiracy to commit a crime is classified as a distinct and a separate crime from the substantive offence that the conspirators plan to commit. Thus, under common law, the general rules are that in a conspiracy trial, a crime is committed when two or more persons agree to conduct a common criminal act. An accused can, in principle, be convicted of both conspiracy and the substantive criminal act, in particular, where the objective of the conspiracy extends beyond the criminal acts actually committed. As indicated above, the common law system is based on the American and British legal systems - sometimes described as Anglo-Saxon. The Anglo-Saxon legal influence is extensive, particularly in countries that have been ruled or occupied by the United States, for example, The Philippines, and the former British colonies or protectorates, now under the Commonwealth.[41]

Canada, one of the states with a more advanced and developed legal systems in the Commonwealth is a good starting point for us to look at. Under Canadian law, conspiracy is defined as "an agreement between persons to pursue an illegal enterprise."[42] The agreement "must be to participate together in the co-operative pursuit of a common object."[43] In terms of the elements of criminal law, the agreement to conspire constitutes the actus reus. On the other hand, mens rea precipitates if the participant had the intent to pursue the unlawful purpose. It is therefore not sufficient that two persons agree in order for a crime of conspiracy to be established. The conspirators must also have the intent to pursue the unlawful purpose. Conversely, two persons are not conspirators in a case where both persons are pursuing the same unlawful purpose, and consequently sharing the common intent to commit a crime, because they have not formed an agreement to commit a crime by conspiracy. Mere knowledge of conspiracy or passive acquiescence to a plan of criminal conduct is not sufficient to hold someone liable for conspiracy. It is not necessary for the prosecution to demonstrate the execution of a formal agreement. One can easily find the formation of a tacit agreement in cases where the conspirators did not openly express their consent to pursue the unlawful purpose; but where their acts clearly demonstrate their agreement and their intent to pursue an unlawful purpose.[44] In terms of the relationship between conspiracy and complicity, to aid or abet does not necessarily require the existence of a conspiracy between the person who aids and the person who commits the offence. An accomplice is not necessarily a co-conspirator, but a co-conspirator is an accomplice when he aids or abets his principal in the commission of the offence or any other offence.[45] The New Zealand law of conspiracy, like that of many Commonwealth states, is similar to that of Canada.[46]

India, another Commonwealth state, defines conspiracy in section 120-A of its Penal Code as follows:

"When two or more persons agree to do, or cause to be done
(1) an illegal act, or
(2) an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement [must]...be done by one or more parties to such agreement in pursuance thereof."

Conspiracy operates in Indian law as a substantive offence. In other words, the offence of conspiracy to commit a crime is different from the crime that is the object of the conspiracy: "The conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed."[47] The above definition indicates that Indian law requires the commission of an overt act only for conspiracies to commit an act, which is not illegal, by-illegal means. In contrast, an agreement to commit an offence amounts to a conspiracy even without an overt act.[48] In order to prove the existence of a conspiracy, it is not necessary to establish by direct evidence that the accused persons did enter into such agreement.[49] However, the agreement may be inferred or deduced from certain criminal acts of the parties accused, done in pursuance of apparent criminal purposes in common between them.[50] According to one Indian legal scholar:

"If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, they will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect the object.[51]

Similarly,

"If you see several men taking several steps, all tending towards one obvious purpose, and you see them through a continued portion of time, taking steps that lead to an end, why, it is for you to see whether these persons had not combined together to bring about that end, which their conduct so obviously appears adapted to effectuate."[52]

As a general rule, such an inference can be made only where the circumstances are such that no other reasonable interpretation exists. It is not necessary that each member of the conspiracy knows all of the details of the conspiracy, but the mere presence at meetings is not sufficient to render someone a member of the conspiracy.[53] The offence is complete when there is an agreement to commit an unlawful act. It is immaterial that the details of the commission are not complete.[54] Conspiracy operates as a continuing offence, because the conspiracy exists so long as the persons constituting the conspiracy remain in agreement and act in furtherance of the conspiracy.[55] In general it is not necessary that an individual conspirator knows of the specific act or acts taken by the other members of the conspiracy.[56] If individuals who are not parties to the agreement are procured to commit illegal acts in furtherance of the criminal purpose of the conspiracy, those individuals do not become members of the conspiracy unless they are made aware of the existence and nature of the conspiracy.[57] The Pakistani conspiracy law mirrors the Indian law.[58] Under Nigerian law, criminal conspiracy alone is punishable if it has as its object an offence, but an agreement to commit a lawful act by unlawful means is punishable only if an overt act has been taken. With respect to certain serious crimes, co-conspirators are punished as abettors; otherwise co-conspirators receive mitigated sentences. Conspiracy remains a continuing offence so long as the parties remain in agreement.[59]

When the concept of conspiracy as applied in civil and common law systems is compared, the differences between the two legal systems stand out vividly. While the Genocide Convention, prima facie, adopts the common law principles, it is still necessary to examine it more closely in order to discern which aspects of both legal systems, civil or common, if any, it adopts or discards.

The Genocide Convention

The Nuremberg Trials, at which twenty-two German war criminals were prosecuted, represented a major break-through in international criminal law.[60] However, not a single defendant was indicted with the substantive crime of committing genocide, or that of conspiracy to commit genocide.[61] The Nuremberg Prosecutors were aware that while the Nazi's criminal acts in question were massive and horrific, those acts were in fact nameless and neither a subject, nor a violation, of international criminal law. It was therefore practically impossible to indict and prosecute Nazi officials for the outrageous crimes they had committed because at that point in time, international law was not sufficiently developed to take care of such crimes.[62] The international community were concerned that such massive and horrific conduct, as perpetuated by Nazi officials, or similar acts that may be committed by future government officials, should go unpunished. They, therefore, in 1946, initiated a process through the United Nations General Assembly to address this issue. By a resolution entitled "The denial of the right of existence of entire human groups,"[63] which was unanimously adopted by the United Nations, it declared that genocide is a violation of international law as well as an international crime. In 1948, the Convention on the Prevention and the Punishment of the Crime of Genocide was ratified and it entered into force on 12 January 1951.[64]

Under the Genocide Convention, genocide is established as an international crime. However, its definitional scope is restricted in comparison to the acts that the Nazi war criminals committed. For example, extermination of members of political groups is not included in the Genocide Convention. Proposals to include political groups in the definition were rejected for two main reasons:

(a) delegates feared that their respective governments would face interference in their internal affairs if genocide were defined to include acts committed to destroy political opponents or groups, particularly when the crimes are committed from within sovereign states.
(b) political groups were considered not to constitute a "permanent" group in the sense that a member may opt to leave a political group, while one may not exercise such a right to leave his ethnic or national group. [65]

To date several national governments have continued to destroy opposition political groups from within and without their sovereign states. The only recourse left for the international community is to indict persons who destroy opposition political groups with crimes against humanity, or war crimes, where possible. Similarly, the elimination of the physically-disabled and homosexuals, a class of victims killed by the Nazi regime, were not provided with legal protection under the Genocide Convention.

What the Genocide Convention does is to proscribe the more outrageous acts that shock the conscience of humanity and holds the individual against whom prosecution is directed, criminally responsible and not the state. Private individuals, public officials, and constitutionally-responsible leaders, are declared to be individually responsible for their criminal acts under the Genocide Convention.

It is therefore relevant that the conspiracy provision in the Genocide Convention must consider the objective of the Convention. As a matter of historical fact, it is doubtful whether any one person is capable of committing genocide without the support and assistance from other persons, particularly state institutions. On the contrary, acts of genocide are more likely to be successfully committed under governmental directions, pursuing genocide policies. In this context, conspiracy becomes a very important, and an integral part, of the crime of genocide. The drafters of the Genocide Convention were mindful of this fact. This must be seen as one of the justification for criminalizing the substantive crime of genocide and, simultaneously, that of conspiracy to commit genocide.

The crime of genocide may be committed during an internal or international war, or in peacetime. Thus, the Genocide Convention does not require a nexus with war. Proof of armed conflict is not necessary for establishing crimes of genocide. The lack of imposition of a war nexus therefore departs from customary international law principles and the Nuremberg precedents as regards crimes against humanity and war crimes. At the Nuremberg trials, each atrocious act was so imbibed with war, that it could not have been conceivable that a crime of the magnitude of genocide could be committed in times of peace. In Rwanda too, one finds elements of war, but proof of a nexus is not necessary for indictments of substantive crime of committing genocide and for conspiracy to commit genocide.

The removal of a nexus in genocide trial is deliberate and purposeful. It emphasises the differences between genocide, on the one hand, and crimes against humanity and war crimes, on the other. Conspiracy to commit a crime in respect of genocide should therefore be treated differently from that of crimes against humanity and war crimes.

Prosecution under the Genocide Convention requires proof of three elements. The elements are that:

(a) an accused must possess the requisite mens rea, namely, intent to destroy in whole, or in part.
(b) the victim must belong to a national, ethnical, racial or a religious group, as such.
(c) the accused must commit identifiable act or acts based on that intent.[66]

Thus, the Genocide Convention places a calculated importance on the chilling intent of the accused, and the relationship between the intent and acts that aim to destroy in whole or in part, a protected group, as such. This precise intent requirement is distinguishable from the elements of crimes against humanity or war crimes, in which emphasis is on the resulting act or acts.

Crimes against humanity and war crimes place great emphasis on the accomplishment of the criminal acts, although in certain instances, wilful conduct to commit the act is necessary for violation of war crimes. It is these differences, which place conspiracy to commit genocide apart, from for instance, conspiracy to commit other crimes that do not focus on the chilling intent of the accused. The result is that in indictments for war crimes and crimes against humanity, once the court has convicted an accused on the substantive offence, the court may not convict on the lesser conspiracy to commit the crime. On the other hand this does not and should not apply to crimes of genocide.

The systematic elimination of human groups considered "inferior" by races that claimed to be "superior" symbolizes the nadir of humanity. The drafters of the Genocide Convention were determined to unequivocally restrict its application to the depraved mens rea and heinous conduct of the crime of genocide - the intent to destroy a group in whole or in part, as such. In pursuit of that objective, it sought to criminalize the substantive crime of committing genocide and that of conspiracy to commit genocide.

In conclusion, it is submitted that the substantive crime of committing genocide and that of conspiracy to commit genocide are independent and separate offences. Once the charges have been proved beyond a reasonable doubt, it is reasonable and logical that the accused should be found guilty on both counts. The question of punishment is a separate matter and should be treated as such by the Trial Chamber at the sentencing stage. In any event, the Trial Chamber has the discretion to impose punishment within the limits provided by the law.

Conspiracy to commit genocide

Arising from the above, it follows that the concept of conspiracy as used in the Genocide Convention is different from that applied under civil law. According to the travaux preparatories of the Genocide Convention, much of the concept of conspiracy relied on is derived from the common law. It was therefore not surprising when during the Ad Hoc Committee sessions[67] the French representative submitted that conspiracy was a foreign concept in French law. Consequently, French contribution to the debate at the formative stages of the Genocide Convention was limited. This position is reinforced by submissions of other states whose legal systems are based or modelled on French law. For instance, the Venezuela's representative submitted that in the Spanish word, "conspiration" meant a conspiracy against the Government and that the English term "conspiracy" was rendered in Spanish by "asociacion" (association) for the purpose of committing a crime.[68] Thus, to the Venezuelan delegate, the concept of conspiracy to commit a crime would be applicable only if crimes are directed against the State, and not against a national, ethnic or religious group, as such, the category of persons protected under the Genocide Convention. This submission is consistent with the concept of conspiracy as applied under civil law, but departs from its use and application under common law and the Genocide Convention.

The Polish representative drew the attention of other representatives to the Secretariat's recommendation criminalizing conspiracy. The recommendation stated that conspiracy: "...May involve making certain acts punishable which do not themselves constitute genocide, for example, certain material acts preparatory to genocide, an agreement or a conspiracy with a view to committing genocide, or systematic propaganda inciting hatred and thus likely to lead to genocide"[69]

A close reading of this text does not suggest that the Secretariat intended the crime of conspiracy to commit genocide be established as an alternate crime to that of committing genocide. On the contrary, the Secretariat recommended the establishment of an independent and separate crime of conspiracy to commit genocide from that of the substantive crime of genocide. Earlier in the debate, the United States representative, in his capacity as chairman, explained "in Anglo-Saxon law, conspiracy was an offence consisting in the agreement of two or more persons to effect unlawful purpose."[70] It was neither important nor relevant whether the criminal act was completed or not. In the Sixth Committee, the United States representative, this time speaking in his capacity as a representative of his country, again argued that "conspiracy" had "a very precise meaning in the Anglo-Saxon law; it meant the agreement between two or more persons to commit an unlawful act."[71] The Egyptian representative concurred and added that the notion of conspiracy had been introduced into Egyptian law by the British colonial administration, and it "meant the connivance of several persons to commit a crime, whether the crime was successful or not."[72]

Later, after considering all the issues that were discussed during the debates in the Sixth Committee, the United Nations War Crimes Commission described the doctrine of conspiracy as: "... One under which it is a criminal offence to conspire or to take part in an allegiance to achieve an unlawful object, or to achieve a lawful object by unlawful means."[73]

Thus, the objective of the Genocide Convention is not only to criminalize the act of genocide, but to also criminalize preparatory acts that tend to lead to genocide regardless of whether the intentions are, in fact carried out. In other words, the courts should convict persons charged with preparatory acts because the crimes of genocide are so serious that individuals should not be free to prepare, plan, or incite others, to commit crimes of genocide and be guilty only after the actual crime has been committed. If that were the objective of the law, then the Genocide Convention would have failed in its primary purpose of preventing the commission of genocide.

Viewed against the objective and purpose of the Genocide Convention, conspiracy to commit genocide must be treated as a distinct and separate crime from that of committing genocide. It is submitted that it is possible, and legally sustainable, to convict an individual on both counts of committing genocide and that of conspiracy to commit genocide. This conclusion requires that the drafting of indictments, through use of the technique of cumulative charges, should be tailored towards meeting that objective. However, there have been conflicting ICTR decisions on the use of cumulative charges in the drafting of indictments. A brief review on recent decisions relating to cumulative charges is therefore appropriate at this stage.

Cumulative Charges

Use of same facts or single set of facts in drafting cumulative charges is a subject of legal debate and numerous precedents. Under this section a summary of the ICTR jurisprudence is provided and thereafter the Kambanda and Musema decisions are examined against the background of the Nuremberg, Tokyo and the ICTR decisions.

Background

International criminal law is the product of the convergence of two different legal disciplines: the criminal aspects of international law and the international aspects of national criminal law.[74] The convergence of these two disciplines, while complementary, are also co-extensive and separate. This convergence is currently being played out at the ICTR, particularly as regards the drafting of indictments. The meshing of drafting an indictment based on international and national practice has led to some difficulties in addressing issues of international prosecutions while simultaneously recognising the roles of national rules of evidence, procedure and practice.

In examining the jurisprudence of the ICTR, it is noted that the decisions of Nuremberg, Tokyo and the ICTR on the drafting of indictments provide persuasive precedents though not necessarily binding on ICTR. Similarly, the format and style of drafting indictments under national law, particularly the Rwanda national law, is also taken into account, notwithstanding that the decisions of Rwanda courts are not binding on the ICTR. Rwanda national law recognises cumulative charges and use of similar facts or same set of facts to support two or more counts in an indictment. For the record, Rwanda acceded, by legislative decree, to the Genocide Convention on 12 February 1975.[75] The crime of genocide was therefore punishable in Rwanda on or before 1 January 1994. Article 2 of the Statute incorporates Article II of the Genocide Convention. Article 2(3)(b) of the Statute provides for punishment of the crime of conspiracy to commit genocide. Further, Rwanda Law provides for multiple charges based on the same facts or single set of facts in the following circumstances: -

Penal Code of Rwanda; Chapter IV - Concurrent offences

Article 92:
Where a person has committed several offences prior to a conviction on any such charges; such offences shall be concurrent.

Article 93:
1. Where a single conduct may be characterized as constituting several offences;
2. Where a conduct includes acts, which though constituting separate offences, are interrelated as deriving from the same criminal intent or as constituting lesser-included offences of one another.
3. In the former cases, only the sentence prescribed for the most serious offence shall be passed while, in the latter case, only the sentence provided for the most severely passed, the maximum of which may be exceeded only by half."

Both the Genocide Convention and some aspects of the Rwanda Law form part of the applicable law of the ICTR.

The Kambanda and Musema Decisions

Reverting to Kambanda and Musema cases, it may be recalled that, pursuant to Article 17 of the Statute, the Prosecutor charged Jean Kambanda and Alfred Musema respectively with, inter alia, committing genocide and, in the alternative, with conspiracy to commit genocide. The facts used in support of the charges in the indictment were the same or constituted single set of facts.

In the Kambanda case, as indicated earlier, the accused pleaded guilty with the result that the Trial Chamber never addressed the issue whether it was proper to convict on both counts of the substantive crime of committing genocide and that of conspiracy to commit genocide when the facts supporting both counts are based on same or similar set of facts. The Prosecutor did rely on the same facts or single set of facts in support of the counts in the indictment. On appeal, the appellant did not raise the issue that the Prosecutor relied on the same facts or single set of facts to support the counts of committing genocide and conspiracy to commit genocide. Notwithstanding the failure of the Appellant, and if one may add, the Appeal Chamber, it is submitted that the Kambanda decision is considered as reflecting a correct legal position as regards the drafting of cumulative charges and relying on same facts or single set of facts in support of two or more counts. Consequently, comments on the issue of cumulative charges focus on the Musema decision.

It may be recalled that Alfred Musema was charged with nine counts. For the purpose of the commentary, only counts one and three, are relevant because the same facts or single set of facts were relied on by the Prosecutor to prove both counts. In the indictment, count one alleges genocide and count three, conspiracy to commit genocide. The charges allege that by his acts,[76] Alfred Musema is individually responsible for crimes he is charged with pursuant to Article 6(1) and 6(3) of the Statute.

The facts attributed to Musema, allege that at various locations and times throughout April, May and June 1994, and often in concert with others, the accused brought to the area of Bisesero armed individuals and directed them to attack the people seeking refuge there. Further, that at various locations and times, and often in concert with others, the accused personally attacked and killed persons seeking refuge in Bisesero. As indicated above, the allegations the Prosecutor relied on to indict Musema in counts one and three were based on the same facts, or a single set of facts.

Under Article 2(3) of the Statute, acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide are all punishable. What is significant in Article 2(3) is that different levels of threshold are required for proof of each of the five punishable crimes. For instance, in Article 2(3)(d) while a crime of an attempt is punishable, it is also true that an attempt is an incomplete act, and by definition, an inchoate crime. Yet, an attempt is inherent in the criminal conduct per se. Thus, an attempt to commit a crime may be punishable as a separate crime irrespective of whether or not the intended crime is accomplished. Consequently, an accused may incur individual criminal responsibility for inchoate offences under Article 2(3)(d) of the Statute even when the substantive offence is not committed.

On the other hand, Article 2(3)(e) demands a much higher threshold. For an accused to be found guilty of complicity in genocide, it must be proved beyond reasonable that the crime of genocide has indeed been committed. A mere attempt in complicity to commit genocide does not suffice. An accused, facing a charge of complicity in genocide cannot therefore be found guilty unless the commission of the substantive crime has been completed. The rationale for this position is based on the ground that an individual cannot simultaneously be a principal perpetrator of a particular act and an accomplice thereto. Thus, under Article 2(3)(e), an accused may not be charged and convicted of the substantive crime to commit genocide and simultaneously of complicity in genocide because the two acts are mutually exclusive. The normal practice is that once an accused has been found guilty of the substantive offence, he may not at the same time be found guilty of complicity in that crime.

However, under Article 2(3)(b), a provision that criminalizes conspiracy to commit genocide, the legal position is very different. It is legally sustainable to indict, prosecute and convict an accused person of the substantive count of committing genocide and that of conspiracy to commit genocide. Moreover, the Prosecutor may rely on the same facts or similar set of facts to prove both counts. The justification of this submission is based on the premise that the mere agreement to commit genocide, in itself is an independent and separate crime and such an agreement is punishable even if no preparatory act to implement the agreement is taken or successfully carried out.[77] The above interpretation is sustainable on the ground that prevention of genocide is necessary in order to pre-empt the commission of the substantive crime of genocide. It is therefore necessary to criminalize and punish certain acts that do not themselves constitute crimes of genocide but are preparatory acts to the committing of the crime of genocide. There are conspiratorial acts that are, in themselves, punishable under the Genocide Convention. For instance acts preparatory to genocide, such as an agreement, or a conspiracy with a view to committing genocide, or systematic propaganda inciting hatred and thus likely to lead to genocide.[78] It does not matter whether the crime of genocide is ultimately carried out. The concept of conspiracy as applied in the Genocide Convention is therefore fundamentally different from that applied under civil law.

In Musema, the Trial Chamber addressed, inter alia, two issues related to:

(a) forms of indictment, and
(b) cumulative charges.

However both issues are related to the applicability of the concept of conspiracy to commit genocide.

As regards the first issue, the Trial Chamber expressed its dissatisfaction with the manner in which the indictment was drafted. According to the general principles on the drafting of indictments, it need not be emphasised that the drafting of an indictment is a prosecutorial responsibility. A judge of the Trial Chamber has the authority to dismiss an indictment at the confirmation stage if not satisfied.[79] In the Musema case, it was rather strange that an indictment confirmed by a judge of the Trial Chamber became, at a very late stage of the proceedings, a subject of severe criticism from it. To raise the issue of defects or otherwise of an indictment at the trial stage, at best, is considered unfortunate. These are preliminary issues and ought to have been settled long before the trial commenced. In any event, since the Prosecutor has full control over prosecutorial responsibility, she is at liberty to decide whether, and what, to charge the accused and may choose to proceed with the indictment by way of alternative charges. However, when the prosecutor structures an indictment in a manner that the charges are read in the alternative, the Trial Chamber may only convict on one or other of the alternate charge or charges preferred, or acquit if the indictment is fatally defective. The option available to the Trial Chamber is therefore very limited. Besides an acquittal on the ground that the indictment is defective and therefore discloses no known crime under the Rwanda Statute, the Trial Chamber may only convict an accused on either of the alternate charge or charges, but not on both. The Trial Chamber therefore has an "either/or" option.

The second, and the main issue the Trial Chamber considered, was whether a conviction may be sustained on two or more charges based on the same facts, or a single set of facts. The Trial Chamber ruled that a conviction could not be sustained when evidence supporting two or more charges in the indictment is based on the same facts or a single set of facts. Consequently, the Trial Chamber held that the accused could not be found guilty on the count of conspiracy to commit genocide after a verdict of guilty has been returned on the count of committing the substantive crime of committing genocide.

It is significant that in the judgement, the Trial Chamber did not directly address the issue of alternate or simultaneous convictions for the substantive crime of committing genocide and that of a conspiracy to commit genocide. However, in paragraph 941, the Trial Chamber held that the accused could not be convicted on the substantive crime of committing genocide and that of a conspiracy to commit genocide. In obiter dicta, the Trial Chamber justified its decision by stating that a conviction could not be sustained because the two counts were based on the same set of facts. However, in arriving at that conclusion, the Trial Chamber did not distinguish earlier Nuremberg, Tokyo and ICTR precedents that addressed similar issues. This omission has serious legal consequences since there are a number of earlier precedents that contradict the position taken by the Trial Chamber. It is useful to consider some of these earlier precedents that the Trial Chamber did not consider in the Musema decision.

Prior Precedents

Starting with the Nuremberg Trials, the precedents suggest that accused persons could be convicted of two or more crimes on the basis of offences arising from the same facts or a single set of facts.[80] The indictment against the major war criminals presented to the International Military Tribunal (IMT) had a format that endorsed the use of same facts or single set of facts as the basis of charging two or more counts. Thus, in the Justice Cases, for example, the phrase adopted by the Prosecutor and accepted by the IMT stated: "The prosecution will rely upon the facts pleaded under count three (violations of the laws and customs of war) as also constituting crimes against humanity (count four) "[81]

Several accused persons were convicted of war crimes and crimes against humanity based on indictments presented in that format. The judgement of the IMT delivered at Nuremberg on 30 September and 1 October 1946 ruled that "[...] From the beginning of the war in 1939, war crimes were committed on a vast scale, which were also crimes against humanity."[82]

The IMT therefore endorsed the practice of the Prosecutor's use of the same facts or a single set of facts as a basis for indicting accused persons with two or more offences. Furthermore, in the Justice case, The IMT emphasised that: "It is clear that war crimes may also constitute crimes against humanity; the same offences may amount to both types of crimes"[83] Several judgements followed the same approach adopted by the IMT. For instance, in The Pohl case, the Tribunal held that the same acts might constitute proof of both war crimes and crimes against humanity.[84]

However, during the above trials, genocide as a crime was not charged because it did not then exist under international law. Notwithstanding that anomaly, when it was adopted in 1948, the Genocide Convention recognized genocide as a distinct and separate crime from that of conspiracy to commit genocide. Similarly, Article 2 of the Statute, adopted the definition in the Genocide Convention and by virtue of this adoption the Statute may be deemed to have recognized genocide as a distinct and separate offence from that of conspiracy to commit genocide.

The Nuremberg precedents on cumulative convictions arising from the same acts or single set of acts have been adopted and applied by the ICTR. In the Tadic case, the Trial Chamber, when confronted with the issue, I believe did correctly opted to separate the establishment of guilt at the trial stage, from that of imposing penalty, at the sentencing stage. The Trial Chamber stated:

"In any event, since this is a matter that will only be relevant insofar as it might affect penalty, it can be best dealt with if and when matters of penalty fall for consideration. What can, however, be said with certainty is that penalty cannot be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the alternative. What is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of pleading."[85]

When the matter reached the sentencing stage, the Trial Chamber dealt with the matter of cumulative charges by endorsing the practice of the IMT and thereafter imposed concurrent sentences for each of the cumulative charge.

In Zoran Kupreskic and Others the Trial Chamber in its Decision on Defence Challenges to Form of the Indictment observed that: "The Prosecutor may be justified in bringing cumulative charges when the articles of the Statute referred to are designed to protect different values and when each article requires proof of a legal element not required by the others."[86]

The Trial Chamber clarified the test to be applied in determining the different values as follows: "The test [then] lies in determining whether each offence contains an element not required by the other. If so, where the criminal act in question fulfils the extra requirement of each offence, the same act will constitute an offence under each provision." [87]

Based on the above precedents, it is reasonable and sustainable to conclude that the Nuremberg and ICTR precedents accept the practice of drafting an indictment in which the Prosecutor relies on same facts or a single set of facts to support charges in two or more counts.

The ICTR Jurisprudence

The issue of cumulative charges was first considered by the ICTR in the Akayesu Case.[88] In the amended indictment, the accused was charged cumulatively with more than one crime in relation to the same sets of facts, in all but count 4. The issue before the Trial Chamber were twofold:

(a) if the Trial Chamber is convinced beyond a reasonable doubt that a given factual allegation set out in the indictment is established, would the accused be found guilty of all the crimes charged in relation to those facts or only in respect to one of the alternate charges.
(b) having found the accused guilty, would a conviction on both counts not be construed as judging the accused twice for the same crime? In other words, would it not violate the principles of double jeopardy?

In addressing the two issues, the Trial Chamber commenced by observing that:

(a) in civil law system, including that of Rwanda, multiple convictions for the same act under certain circumstances is permissible. Rwanda Law for instance allows multiple convictions under Articles 92 and 93 of the Penal Code.
(b) as regards the ICTR Statute, the offences stipulated therein, namely, genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and Additional Protocol II, have different elements and, moreover, are intended to protect different interests.[89]

Consequently the Trial Chamber concluded that:

(a) crimes of genocide exist to protect certain groups from extermination or attempted extermination, and
(b) crimes against humanity exists to protect civilian population from persecution, and
(c) article 3 common to the Geneva Conventions protect victims of war crimes and civil wars. These crimes, the Trial Chamber observed, have different purposes and are, therefore, never co-extensive.[90]

The Trial Chamber then proceeded to hold, inter alia, that it was legitimate to charge these crimes in relation to the same set of facts or single set of facts. The Trial Chamber further stated that it might, depending on the case, be necessary to record a conviction for more than one of these offences in order to reflect what crimes an accused committed. In the judgement, the Trial Chamber stressed that the ICTR Statute does not establish a hierarchy of norms, but rather all three offences are presented on an equal footing. While genocide may be considered the gravest crime, there is no justification in the Statute for finding that crimes against humanity or violation of common article 3 and Additional Protocol II are in all circumstances alternative charges to genocide and thus lesser-included offences. These offences have different constituent elements and this consideration renders multiple convictions for these offences in relation to the same set of facts permissible.[91] Similarly, conspiracy to commit genocide may not be construed as a lesser-included offence of committing genocide.

The Trial Chamber identified two exceptions to this general rule:

(a) where one of the offences in the indictment is a lesser-included offence of the other, the general rule does not apply. Examples are:

(i) charges of murder and grievous bodily harm,
(ii) robbery and theft, or
(iii) rape and indecent assault.

(b) where one offence charges accomplice liability and the other offence charges liability as a principal, for instance:

(i) genocide, and
(ii) complicity in genocide.[92]

An accused may be convicted for committing the crime of genocide, or complicity in genocide, but not on both charges. These exceptions do not apply in respect to crimes of committing genocide and that of a conspiracy to commit genocide. It is perfectly in order to convict an accused person with the substantive crime of committing genocide, and that of conspiracy to commit genocide.

I concur with the Akayesu decision and submit that it reflects good law. It is consistent with the Nuremberg and ICTR precedents. The Kambanda decision follows Akayesu decision. However, Musema decision is not only inconsistent with the Nuremberg and ICTR precedents, but also goes against the Akayesu decision. This fact deserves serious consideration since the Musema decision was delivered after the Akayesu judgement.

In Kayishema and Ruzindana[93] the indictment charged both accused persons cumulatively, inter alia, for genocide, crimes against humanity (extermination) and crimes against humanity (murder). The Trial Chamber established as a fact that, within each crime site, the three types of crimes in the indictment were based on the same facts or single set of facts. The defence counsels submitted that these crimes amounted to the same offence, and therefore to convict the two accused persons on each of the offence charged is tantamount to a double conviction on each of the count in the indictment. A conviction, the defence counsels argued, would violate the principles of double jeopardy. The issue before Trial Chamber was, inter alia, whether the Prosecutor could rely on the same facts or single set of facts to charge the accused with two or more counts. Before addressing the issue whether or not a conviction based on the same set of facts or a single set of facts constitute double jeopardy, the Trial Chamber suggested a benchmark for determining concurrence of crimes. According to the Trial Chamber, it is only acceptable to convict an accused of two or more offences in relation to the same set of facts where offences have differing elements, or where the laws in question protect differing social interests. The process of establishing whether two or more crimes charged in the indictment is considered the same offence rests on the determination whether the crimes as charged in the indictment contain the same elements, and whether the laws in question protect the same social interests.[94]

The Trial Chamber suggested three ways in which it might be determined whether an indictment contain the same elements, and whether the law in question protect the same social interests:

(a) the Trial Chamber opined that an accused might have the specific intent required to commit genocide and also to act pursuant to a policy that may fulfil the intent requirement for some crimes against humanity, while carrying out acts that satisfy the material elements of both crimes.[95] In other words, the intent of an accused to commit genocide and to simultaneously commit crimes against humanity may overlap.
(b) the Trial Chamber reasoned that in relation to protecting differing social interests, the elements of the two crimes might overlap when applied in some factual scenarios, but not in others. For instance, under the crimes of genocide and crimes against humanity the social interests protected is the prohibition of the killing of the protected class of persons. The class of protected persons is limited to the civilian population under crimes against humanity whereas under genocide it is unlimited; that is, it criminalizes attacks against the entire civilian population. Where the status of the victims and the elements of the crimes are the same however, the laws may be said to protect the same social interests.[96]
(c) the Trial Chamber re-stated the fact that since certain elements of genocide and crimes against humanity may overlap, whether such overlap exists will depend on the specific facts of the case and the particular evidence relied upon by the Prosecutor to prove the crimes.[97]

In applying the above criteria in Kayishema and Ruzindana, the Trial Chamber held that as regards actus reus the Prosecutor used the same acts or omissions as the basis of indicting the accused with all the three types of crimes in question. Thus, the Trial Chamber held that the accused persons could not be convicted on all the three counts since the Prosecutor relied on the same facts or single set of facts to charge the accused persons with the counts.

With regard to mens rea the Trial Chamber found that in order to prove a charge of intentional extermination or destruction of Tutsi population, all the killing and serious injuries that occurred must be a result of the intent as stipulated in the Rwanda Statute in respect of each specific crime referred to in the Statute. The Trial Chamber held that the Prosecutor relied on the same intent of the two accused persons to serve as the basis for all three types of crimes in the indictment. The Trial Chamber held that the two accused could not be convicted on all the three counts.

It is submitted that the Trial Chamber's analysis of the law is prima facie, accurate and sustainable, but its conclusion is flawed and probably wrong. It is pertinent to recognise that while the facts relied on by the Prosecutor may be construed as constituting the same facts or a single set of facts, it does not necessarily follow that the same facts or single set of facts may not be used by the Prosecutor to prove more than one crime alleged in two or more counts in an indictment. The conclusion arrived at by the Trial Chamber is not, it is submitted, the only reasonable inference that may be drawn from the same facts or single sets of facts produced by the Prosecutor. On the contrary, the fact of mass killing, for example, may constitute crimes of genocide or crimes against humanity (extermination), though not necessarily crimes against humanity (murder) because of the specific and special requirement needed for proof of crimes against humanity (murder). The reasons why the Statute criminalized different acts, but left room for such acts to be used as proofs of other crimes within the Statute, is based on the realization that a single set of facts may, in practice, disclose two or more crimes that may be drafted in two or more counts in an indictment. The overlap underscores the importance for analysing each set of facts against each ingredient of a specific crime referred to in each of the count in an indictment.

In justifying its decision, the Trial Chamber stated that:

1. the Prosecutor used the same elements to show genocide, crimes against humanity (extermination) and crimes against humanity (murder), and relied upon the same evidence to prove these elements.
2. the evidence produced to prove one charge necessarily involved proof of the other.
3. the culpable conduct, that is, premeditated killing relied upon to prove genocide, also satisfied the actus reus for crimes against humanity (extermination) and crimes against humanity (murder).
4. the mens rea elements in relation to all three crimes were also the same, that is, to destroy or exterminate the Tutsi population. Therefore, the special intent required for the crime of genocide also satisfied the mens rea for crimes against humanity (extermination) and crimes against humanity (murder).
5. the Trial Chamber held that the protected social interest in the case is the same. In other words, the class of protected persons, that is, the victims of attacks for which the accused are charged, were Tutsi civilians who were killed because of a genocide plan and a policy of extermination that involved mass murder.

The Trial Chamber's holding that the crimes of genocide, crimes against humanity (extermination) and crimes against humanity (murder) overlap and are therefore the same offence is based on the finding that the Prosecutor used the same elements to prove all the three types of crimes in the indictment.[98] Further, the Chamber's holding is based on the premise that the three types of crimes in question violated the same social interests and was therefore subsumed fully by the counts of genocide. The Trial Chamber concluded that the circumstances do not give rise to the commission of more than one offence because the scenario only allows for a finding of either genocide or crimes against humanity (extermination) and/or crimes against humanity (murder).[99] Therefore, because the crime of genocide is established against the accused persons, they cannot simultaneously be convicted for murder and/or extermination. The Trial Chamber emphasised that to convict accused persons on all three types of crimes

"[...] Would be improper as it would amount to convicting the accused persons twice for the same offence. This, the Trial Chamber deems to be highly prejudicial and untenable in law in the circumstances of this case. If the Prosecution intended to rely on the same elements and evidence to prove all three types of crimes, it should have charged in the alternative."[100]

It is submitted that the Trial Chamber's conclusion is flawed and not supported by the Nuremberg and ICTR precedents. The decision also conflicts with the ICTR decisions in Akayesu and Kambanda cases as discussed above.

In applying the criteria formulated by the Trial Chamber in Kayishema and Ruzindana, one recognises that under crimes of genocide and crimes against humanity, the social interests protected are the prohibition of the killing of a protected class of persons. That class of protected persons, however, is limited to the civilian population under crimes against humanity whereas under genocide it is the entire national, ethnical, racial or religious group, as such, who are threatened with destruction, in whole or in part. As a result, where the status of the victims and the elements of the crimes are the same, the laws may be said to protect the same social interests. For instance, persons protected under the Genocide Convention may also be protected persons in respect of crimes against humanity. It is however, important to recognise that the law on genocide protects a wide class of persons than that of persons protected under crimes against humanity. Thus one may commit crimes against humanity but its ingredients may fall short for those required for the proof of crimes of genocide. An attempt by the Trial Chamber to restrict the application of the Kayishema and Ruzindana decision by emphasising that whether cumulative convictions may be justified will depend on the specific facts and evidence of each case as adduced by the Prosecutor during trial[101] is not successful. The attempt is further invalidated by the Trial Chamber's insistence in Kayishema and Ruzindana that the Prosecutor used the same elements to prove all three types of crimes. Further, the Trial Chamber ruled that the circumstances of the case do not give rise to the commission of more than one crime,[102] and that the scenario only allows for a finding of genocide or crimes against humanity for extermination and/or murder. While this decision is easily distinguishable from cases where an accused is charged with committing genocide and conspiracy to commit genocide, it is still our view that Kayishema and Ruzindana is bad judgement.

Rutaganda[103] is another important decision. In that case, the accused was cumulatively charged with committing the crime of genocide, crimes against humanity (extermination), crimes against humanity (murder) and violations of article 3 (murder). The Trial Chamber endorsed the Akayesu Judgement's test of concurrence of crimes.[104] However, the Trial Chamber also ruled that the cumulative charges in the Kayishema and Ruzindana judgements were legally improper and untenable. The Trial Chamber held that all elements including the mens rea element requisite to show crimes of genocide, crimes against humanity (extermination) and crimes against humanity (murder) established by the Prosecutor in Rutaganda were the same or consisted of similar set of facts. The Trial Chamber also held that the evidence relied upon by the Prosecutor to prove the crimes were the same or consisted of similar set of facts. Furthermore, in the opinion of the Trial Chamber, the protected social interests were also the same. Finally, the Trial Chamber opined that the Prosecutor should have charged the accused in the alternative[105]

After having very carefully considered the reasoning of the Trial Chamber, including the legal basis of its conclusion, it is submitted that Rutaganda's decision is flawed and bad in law. Consequently I concur with the better view expressed in the dissenting opinion of Judge Khan.

Relying on consistent jurisprudence of Nuremberg and ICTR, Judge Khan, in my view correctly, pointed out that the Trial Chamber should have placed less emphasis on the overlapping elements of the cumulative crimes. Judge Khan opined:

"What must be punished is culpable conduct; this principle applies to situations where the conduct offends two or more crimes, whether or not the factual situation also satisfies the distinct elements as proven."[106]

Judge Khan emphasises that the full assessment of charges and the pronouncement of guilty verdicts are important in order to reflect the totality of the accused culpable conduct. Again, Judge Khan correctly states:

"[...] Where the culpable conduct was part of a widespread and systematic attack specifically against civilians, to record a conviction for genocide alone does not reflect the totality of the accused culpable conduct. Similarly, if the majority [of the trial judges] had chosen to convict for [crimes against humanity] extermination alone instead of genocide, the verdict would still fail to adequately capture the totality of the accused conduct."[107]

In Musema, as indicated earlier, the Prosecutor alleged the same facts in count one (conspiracy to commit genocide) and count three (genocide), but charged the accused in the alternative. The Trial Chamber acquitted the accused on count three holding that Musema did not incur individual criminal responsibility for the crime of conspiracy to commit genocide. The reason the Trial Chamber gave was that the Prosecutor relied on the same acts as presented in evidence of Musema's participation in the commission of genocide.[108] The Trial Chamber would have received some support for their decision had the reason for the said decision been the fact that the charge of conspiracy to commit genocide was an alternate charge to the substantive count of crime of committing genocide.

The position taken by Trial Chamber in Musema is inconsistent with the test for cumulative convictions enunciated and applied by Nuremberg, and other decisions of the ICTR. The Nuremberg and ICTR jurisprudence do not require that multiple convictions be sustained by different factual situations. Instead, the principle of cumulative convictions allows for a single factual situation to give rise to two or more charges where the offences under consideration have distinguishable elements. That is, the principle recognizes that a single criminal act or transaction may properly offend two or more criminal provisions and may justify a finding of guilt on multiple counts.

Conclusion

The main objective of the Genocide Convention is to criminalize and punish the substantive crime of genocide and that of conspiracy to commit genocide. The nature of the crime of genocide is such that the conspiracy element is always present. It is nearly impossible to commit the crime of genocide, as perceived in the Genocide Convention, without having conspired to kill persons in a massive and systematic manner. Genocide as a crime encompasses mass killing that is preceded by secret planning by individuals in positions of leadership, authority or both. This is particularly true of individuals who plan, incite, instigate and execute the crime of genocide as defined in Article II of the Genocide Convention, and reproduced in Article 2 of the Statute.

It is submitted that the Musema decision is bad law. On the other hand, the Kambanda decision is consistent with the Nuremberg, and other ICTR decisions including Akayesu and therefore reflects good law. Since the Kambanda decision was not reversed on appeal, it should become a precedent to be followed by ICTR for future similar cases even in instances where the specific issues as discussed above is absent.

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Notes

[1] Legal Advisor, Office of the Prosecutor, the International Criminal Tribunal for Rwanda. The views expressed in this article are personal and do not reflect the legal position of the International Criminal Tribunal for Rwanda, or that of the Office of the Prosecutor.

[2] The Prosecutor v Jean Kambanda, Case No: ICTR 97-23-S, Judgement of 4 September 1998

[3] Jean Kambanda v The Prosecutor, Case No. ICTR 97-23-A, Judgement of 19 October 2000

[4] The Prosecutor v Alfred Musema ,Case No: ICTR-96-13-T, Judgement of 27 January 2000

[5] Rule 40 bis (F) provides: "At the Prosecutor's request indicating the grounds upon which it is made and if warranted by the needs of the investigation, the Judge who made the initial order, or another Judge of the same Trial Chamber, may decide,subsequent to an inter partes hearing and before the end of the period of detention, to extend the provisional detention for a period not exceeding 30 days."

[6] Rule 40 bis (G) provides: "At the Prosecutor's request indicating the grounds upon which it is made and if warranted by special circumstances, the Judge who made the initial order, or another Judge of the same Trial Chamber, may decide, subsequent to an inter partes hearing and before the end of the period of detention, to extend the detention for a further period not exceeding 30 days."

[7] See: Official transcript of hearing of 1 May 1998 before Trial Chamber 1, International Criminal Tribunal for Rwanda, United Nations.

[8] See: "Application by the Prosecutor for a formal request for deferral by Switzerland concerning Musema Alfred", Case No: ICTR-96-5-D, (4 March 1996)

[9] See: "Decision on the review of the Indictment", Case No:ICTR-96-13-1, (15 July 1996).

[10] See: "Warrant of Arrest. Order for Surrender." Case No: ICTR-96-13-1

[11] Reasons for accused difficulties in obtaining legal counsel are detailed in paragraphs 19,20 and 21 of Judgement of 27 January 200. Case No:ICTR-96-13-T

[12] Ibid., Paragraph 940

[13] Ibid., Paragraph 941

[14] Ibid.

[15] See: Harison, Conspiracy as a Crime & Tort in English Law 20 (1920)

[16] Ibid., at p.22-23

[17] See: International Military Tribunal (Nuremberg) Judgement and Sentences (October 1, 1946) reprinted in 41 American Journal of International Law (1947) 172, at p.219

[18] See: Trial of Martin Gottfried Weiss & Thirty-Nine Others, 11 Law Reports of War Criminals 5, 14(United Nations War Crime Commission, United States Military Government Court, Dachau, Germany, 1945)

[19] Ibid., at pages 5 and 8

[20] Trial of Joseph Kramer & Forty-Four Others (Case No.10), 2 Law Reports of Trials of War Criminals 1, 121 (United Nations War Commission, British Military Court, Luneburg, Germany, 1945)

[21] Ibid., at p.139

[22] Wienczyslaw J. Wagner: "Conspiracy in Civil Law Countries" 42 Journal of Criminal Law, Criminology and Political Science 171 (1951). I opted to use older materials (those that were applicable on or before the adoption of the Genocide Convention) because I consider it relevant and important to compare the law as they existed at the time, or proximate to the time, when the Genocide Convention was adopted. In my view the use of these materials assist in a better understanding of the objective and purpose of the Genocide Convention.

[23] Article 91

[24] Articles 96-100

[25] Articles 265-267

[26] The Hungarian Code criminalizes conspiracy only with regard to offences against the state. According to Section 139, "A person who participates in a conspiracy for the overthrow or weakening of the state, social or economic order of the Hungarian People's Republic, or gives support to such activity, commits a felony and shall be punished with deprivation of liberty from one to five years." (See: The Statute of the Hungarian People's Republic, Act IV of the 1978 on Criminal Code 97[1983]). If the conspiracy seriously endangers the state or if it occurs in wartime, the participants are punished more severely.

[27] Chinese law criminalizes conspiracy at Article 91 only with respect to serious charges against the state. It provides: "Whoever colludes with foreign states in plotting to harm the sovereignty, territorial intergrity and security of the motherland is to be sentenced to life imprisonment or not less than ten years of fixed term imprisonment."

[28] Derecho Penal Espanol, Article 517

[29] Italian Penal Code(1978), Article 115(1)

[30] Ibid., Article 305

[31] Swedish Penal Code (1990)

[32] Article 87

[33] Article 92

[34] Article 83, for example, reads:"If several persons have made an agreement to carry out an understanding of high treason, but no punishable act under article 82 has taken place, such persons shall be punished by confinement."

[35] Wienczyslaw J.Wagner, "Conspiracy in Civil Law Countries" 42 Journal of Criminal Law, Criminology and Political Science (1951) at p.176

[36] Ibid.,

[37] Wienczyslaw J.Wagner, "Conspiracy in Civil Law Countries" (Supra note 28) at p.179

[38] Ibid., at p.181

[39] Crime of Genocide, Prevention and Punishment Law, 5710-1950

[40] Ibid.

[41] There are few exceptions, for instance, Mozambique, a former Portugese colony and now a member of the Commonwealth.

[42] R v Lorentz-Aflalo, [1991]14 W.C.B.2d 323

[43] P.MacKinnon, "Developments in the Law of Criminal Conspiracy" 59 Canadian Bar Review (1981) 301

[44] R v Lorentz-Aflalo (supra note 35)

[45] Koury v. The Queen [1964] 2 C.C.C.97, 43 D.L.R (2d) 637

[46] Conspiracy in New Zealand is defined at Article 61(1) as follows: "A person conspires to commit an offence where: (a) That person agrees with any other person that an act will be done or omitted to be done, and that act or omission, if it occurs, will constitute that offence; and (b) That person and at least one other party to the agreement intended that the act will be done or omitted to be done." And Article 62 counsels that: "A person may be convicted of conspiracy to commit an offence even though: (a) No other person has been charged with or convicted of conspiracy with him or her; or (b) The identity of any other party to the agreement is unknown; or (c) Any other person alleged to have been a party to the agreement has been or is acquitted unless his or her conviction would be inconsistent with that acquittal."

[47] V.B Raju, Commentaries On The Indian Penal Code 456 (1966)

[48] See: Mulcahy v. The Queen, 1868 Law Report 3 House of Lords 306, at p.317

[49] V.B. Raju, Commentaries On The Indian Penal Code (supra note 40), citing Barindra Kumar, 37 CAL 467

[50] Rex v Brissac, [1803] EngR 655; 4 East 164, 102 E.R.792

[51] V.B Raju, Commentaries On The Indian Penal Code (supra, note 40) at p461

[52] Ibid.

[53] Ibid. at p.459

[54] Ibid.

[55] Ibid., at p.458

[56] Ibid., at 464

[57] Ibid.

[58] Under Pakistani conspiracy provisions, no express agreement need be proved. Conspiracy can be implied by subsequent conduct, by acts performed, by things said, and by facts and circumstances indicating presence of agreement (see C.M. Hanif, The Pakistani Penal Code 106 [Act.No.XLV of 1860). The execution of the purpose of the conspiracy is irrelevant as the offence of conspiracy is complete as soon as the agreement is made. The code incorporates the cumulative liability principle, such that each accused is liable for the acts of the other accused co-conspirators no matter what part of the conspiracy is performed.(See: C.M.Hanif, The Pakistani Penal Code, at p.1080). Conspiracy can be proved by circumstantial evidence, because, by its nature, it is secret and surrepitious and if rule of evidence is laid down that it should positively be proved, then proof of conspiracy would become impossible(See C.M.Hanif, The Pakistani Penal Code, at p.108). Moreover, if several steps are taken by several persons tending towards one obvious purpose, they can be presumed to have combined together to bring that end which there conduct obviously appears to attain. (See C.M.Haniff, The Pakistani Penal Code, at p.108).

[59] See, Alan Gledhill, The Penal Codes of Northern Nigeria and The Sudan 61 (1963), at pp.64-67 and cases cited therein.

[60] See The Agreement (between the United States, the United Kingdom, France and the Soviet Union) for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, August 8, 1945, Article 6, Stat.1546, 78 U.N.T.S. 1021 (hereafter "Nuremberg Charter")

[61] The difficulties of indicting and prosecuting the major war criminals are discussed in many books and articles. Perhaps the best two books are: Telford Taylor, The Anatomy of the Nuremberg Trials, Little, Brown and Company, New York (1992); and Robert E.Conot, Justice at Nuremberg, Carroll & Graf Publishers, Inc. New York (1983)

[62] Ibid., Telford Taylor, The Anatomy of the Nuremberg Trials, and Robert E. Conot, Justice at Nuremberg.

[63] See: General Assembly Resolution 96(1), of 11 December 1946, A/231, which urged Member States of the United Nations to promulgate legislation for the prevention and prosecution of genocide.

[64] See: Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, 78 U.N.T.S. 277 (hereinafter "The Genocide Convention")

[65] L. Kuper, Genocide 29 (1982); See also Diane Orentlicher, "Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime" 100 Yale Law Journal (1991) 2537

[66] Supra (note 64) Genocide Convention, Article II

[67] See: The Ad Hoc Committee Report (1948)

[68] See: UN Doc E/AC.25/SR.16, p.5

[69] See: Note by Secretariat (1948) 8

[70] Ibid., at p.4

[71] See: Sixth Committee Report Article III(b) at p.10 [Lippman (1994), p.40]

[72] Ibid.

[73] See: United Nations War Crimes Commission (1948) p.196

[74] M. Cherif Bassiouni, "The Penal Characteristics of Conventional Criminal Law" in International Criminal Law and Procedure (published in Case W.Res. J.Int´l L.Vol 15 p.27)

[75] See: Legislative Decree of 12 February 1975, Official Gazette of the Republic of Rwanda, 1975, p.230. While Rwanda acceded to the Geneva Convention, she entered reservation with respect to Article 9 of the Convention.

[76] See: Ibid., Paragraphs 4.1 to 4.11 of the amended indictment, annex A to the Judgement of 27 January 200.

[77] See: Summary Records of the meetings of the Sixth Committee of the United Nations General Assembly, 21 September to 10 December 1948. Official Records of the General Assembly.

[78] Ibid.

[79] Rule 47 (F) provides: "The reviewing Judge may: Request the Prosecutor to present additional material in support of any or all counts, or to take any further measures which appear appropriate; Confirm each count; Dismiss each count; or adjourn the review so as to give the Prosecutor the opportunity to modify the indictment."

[80] Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.10, Volume III. See particularly The Justice Case; Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.10, Volume V, See particularly The Pohl Case.

[81] Ibid., Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.10 Volume III

[82] Ibid.

[83] Ibid., Justice case

[84] Supra (note 82), The Pohl Case at p.998

[85] See Decision on Defence Motion on Form of the Indictment, at p.10 (Case No. IT-94-I-T, Trial Chamber II, 14 November, 1995)

[86] The Prosecutor v. Zoran Kupreskic and Others, Decision on Defence challenges to Form of the Indictment, IT-95-16-PT, 15 May 1998.

[87] Ibid., paragraph 682-85

[88] The Prosecutor v. Jean-Paul Akayesu, Judgement, ICTR-96-4-T, 2 September 1998.

[89] Ibid Paragraph 469

[90] Ibid.

[91] Ibid paragraph 470

[92] Ibid.

[93] The Prosecutor V. Kayishema and Ruzindana, Judgement, ICTR-95-I-T, 21 May 1999

[94] Ibid., paragraphs 628-633

[95] Ibid., paragraph 634

[96] Ibid., paragraph 635

[97] Ibid., paragraph 636

[98] Ibid., paragraph 647

[99] Ibid., paragraph 649

[100] Ibid.

[101] Ibid.,paragraphs 628-636

[102] Ibid., para 649

[103] Case No.ICTR-96-3-T

[104] Ibid., paragraph 627

[105] Ibid., paragraphs 645,646, and 650

[106] See: Separate and Dissenting Opinion of Judge Tafazzal Hussain Khan, paragraph 13.

[107] Ibid.,paragraph 33

[108] Supra (note 4) The Prosecutor v Alfred Musema paragraphs 940 and 941