23.12.06 - ICTR/JURISPRUDENCE - AGREEMENT OR CONSPIRACY ? (ENLIGHTENING COMMENTS)

Arusha December 22 2006 (FH) – Conspiracy to commit genocide or joint criminal enterprise remain the major charge the prosecution brings against defendants before the International Criminal Tribunal for Rwanda (ICTR), even though it has not succeeded in having it retained by the court in all the sentences to date. Agreement - or « conspiracy » in English - to commit genocide, is a crime under article 2.3.b) of the ICTR Status which was defined by the Trial Chamber in its judgment against Musema on 27 January 2000. The Trial Chamber first stated that this offense finds its origins in the Common Law and was included in the 1948 Convention on Genocide and defined conspiracy as « an agreement between two or more persons to commit the crime of genocide ». The objective of the Convention on Genocide was to make punishable actions likely to lead to genocide. While in the Anglo-Saxon tradition, an agreement is considered as a form of complicity in crime and punishable as such, in the Civil Law tradition, it constitutes an exception to the principle according to which criminal intent and preparatory acts are generally not punishable as such. The ICTR jurisprudence specifies that the intent required is the same as the one required for genocide, i.e. the intent « to destroy, in whole or in part, a national, ethnical, racial or religious group ». It is not so much what ensues from the agreement as the agreement itself that is reprehensible. Consequently, the crime of agreement or « conspiracy » is punished even if the major offense, genocide, does not take place. The simple negotiation that is underway doesn’t allow retaining agreement as a charge. Nevertheless, a formal or explicit agreement isn’t necessary. The evidence of the offense can be brought in any other way. The ICTR jurisprudence set out the elements of the crime of conspiracy. The actus reus of conspiracy to commit genocide is the act of entering into an agreement whose common object is to commit genocide; the mens rea is the intent to enter into such an agreement. Neither the actus reus nor the mens rea exists unless the perpetrator has, in common with his or her co-conspirators, the requisite specific intent of the crime of genocide. The evidence must show that an agreement had indeed been reached. Showing a process of negotiation will not do (The Prosecutor v. Kajelijeli, Judgment, 1 December 2003). The existence of a formal or express agreement is not needed to prove the charge of conspiracy. An agreement can be inferred from concerted or coordinated action on the part of the group of individuals. A tacit understanding of the criminal purpose is sufficient (The Prosecutor v. Nahimana et al., Judgment, 3 December 2003). In the Imanishimwe case (Judgment of 25 February 2003), the Prosecutor was even required to name all the co-conspirators. Finally, the requisite intent for the crime of conspiracy to commit genocide is the same intent required for the crime of genocide. Establishing the existence of a conspiracy can be established by all means, including circumstancial evidence. Nevertheless it is necessary to prove the existence of a formal and express agreement for the commission of the crime and to adduce evidence of a concerted or coordinated action on the part of the group of individuals, from which a reasonable trier of fact could infer the existence of a conspiracy. In light of the constitutive elements of the crime, it is clear that conspiracy to commit genocide is an inchoate offence. The actus reus is the agreement, whether or not it results in the actual commission of genocide. Following the Civil Law tradition, the Trial Chamber ruled that one defendant cannot be found guilty of both the agreement and the major offense - which is the fulfillment of the agreement - contrarily to what the Common Law tradition allows. In fact, if both conspiracy to commit genocide and genocide are established, the accused will only be found guilty of genocide, which is the main offence. However, in the Judgment against Niyitegeka, the Trial Chamber deviated from that principle and convicted the accused of both crimes. In the Judgments against Kajelijeli and Musema, the Trial Chamber acquitted the accused of the conspiracy charge on the basis that the Prosecutor failed to prove the existence of an agreement. AV/PB/MG/CC © Hirondelle News Agency