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Conspiracy is one of the four "punishable acts" of genocide, in addition to the crime of genocide itself, declared punishable in Article III of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The other three acts are direct and public incitement, attempt, and complicity. Subsequent instruments of international criminal law, such as the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, have maintained this distinction between genocide itself and the four other punishable acts. The distinction reflects similar provisions in many domestic criminal law codes that define a crime, such as murder or rape, and then set out various forms by which an individual may participate in the crime other than as the primary or principal perpetrator.

The word conspiracy is derived from Latin and means, literally, to breathe together. By its very nature, therefore, conspiracy is a crime that must be committed collectively, involving a minimum of two offenders. The reference to conspiracy to commit the crime of genocide in Article III of the Genocide Convention is somewhat enigmatic, and there is nothing further in the text to suggest exactly what is meant. It is not necessarily helpful to look at national legal provisions for guidance, because the term conspiracy means different things in different criminal codes. In some, notably those based on continental European models like the Napoleonic penal code, conspiracy refers to a form of conspiracy. It entails collective planning or organization of a crime that is actually committed. Under the common-law system, on the other hand, conspiracy is a crime that can be committed once two or more persons meet and agree to commit a crime, even if it is not committed. It is thus an "inchoate" or incomplete crime.

Two factors suggest that the common-law approach should be followed in defining the crime of conspiracy to commit genocide. First, the published record of the General Assembly and the other United Nations (UN) bodies involved in drafting the Genocide Convention make it quite clear that this is what was intended. To an extent, it is acceptable under international law to refer to the debates surrounding adoption of a text as a way to interpret it. Second, if the rival interpretation is adopted, whereby conspiracy is treated as a form of complicity, then there is no need for the provision at all. Complicity to commit the crime of genocide is also a punishable act recognized by Article III of the Convention. Because the common-law concept of conspiracy was unfamiliar to lawyers from the continental tradition, there was difficulty finding an appropriate term for the French version of the Convention. Ultimately, the drafters opted for entente instead of complot, but they admitted there was no entirely appropriate term.

In a late 1990s ruling, the International Criminal Tribunal for Rwanda confirmed that conspiracy to commit genocide is an inchoate or incomplete offense, committed even when there is no evidence that the underlying crime of genocide has actually taken place. In the Musema case, the Trial Chamber said it was "of the view that the crime of conspiracy to commit genocide is punishable even if it fails to produce a result, that is to say, even if the substantive offense, in this case genocide, has not actually been perpetrated." Musema had been the director of a Rwandese tea factory during the 1994 genocide. He was convicted by the international criminal tribunal for his role in the killings.

The tension between the two major criminal law systems with respect to the concept of conspiracy had emerged at Nuremberg, three years before the Genocide Convention was adopted. The Charter of the Nuremberg Tribunal had recognized conspiracy as a distinct crime with respect to aggression, referring to "participation in a common plan or conspiracy for the accomplishment" of "a war of aggression, or a war in violation of international treaties, agreements or assurances." At the London conference, where the charter was adopted, the French and Soviet delegations agreed with the British and Americans that conspiracy was a common-law concept, because this was appropriate to the type of crimes being prosecuted. However, the intent of the drafters was not fully grasped by the judges at Nuremberg, who ruled that conspiracy could not stand alone as an autonomous crime and that, instead, it was a form of participation in a crime that had actually been committed. The prosecutor at Nuremberg had indicted Nazi leaders for conspiracy with respect to war crimes and crimes against humanity, as well as aggression, but this was rejected by the judges as being inconsistent with the Charter of the Nuremberg Tribunal.

Difficulty on the issue still persists. The much more recent Rome Statute of the International Criminal Court, adopted in 1998, does not entirely succeed in incorporating the common-law approach to conspiracy to commit genocide. Instead of listing the four other punishable acts together with the definition of genocide, as is the approach in the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, the Rome Statute presents the definitions of three categories of crime—genocide, crimes against humanity, and war crimes—together in a series of provisions, Articles 6 through 8. In a totally separate section of the Rome Statute, Article 25, the various ways in which a person other than the principal offender may actually participate in the crime are enumerated.

The problem with the Rome Statute is that although conspiracy, at least in its inchoate or common-law formulation, was already recognized in international law with respect to the commission of genocide, there is nothing similar for crimes against humanity or war crimes. The same situation exists with respect to another of the punishable acts, direct and public incitement. In the latter case, Article 25 of the Rome Statute resolves this with a separate paragraph, making direct and public incitement to commit genocide a distinct form of the offense, but does not do the same for crimes against humanity and war crimes. It does not, however, do the same with respect to conspiracy to commit genocide. Nowhere does Article 25 actually use the word conspiracy. This is the best example of a failure in the Rome Statute to translate faithfully the terms of the Genocide Convention. Thus, the crime of conspiracy to commit genocide, while a punishable act under the 1948 Convention, cannot be prosecuted before the International Criminal Court.

Although it may be rather exceptional to prosecute crimes that do not actually occur, but that are only discussed and planned, the listing of conspiracy to commit genocide as a punishable act is a way of underscoring the seriousness of the crime and the intention of the world community to prevent it. After all, the 1948 Convention includes the word prevention as well as punishment in its title. Making punishment of conspiracy a distinct offense also provides criminal justice with a tool that can strike at criminal organizations, especially their leaders. Similar approaches are used in various domestic legal systems in order to deal with other particular forms of criminal behavior that elude prosecution, such as organized crime and gangsterism.

It would probably not be acceptable to convict an individual of genocide simply because that person was a member of an organization which had been involved in genocidal activity, such as the Nazi SS or Rwandan interahamwe. The Nuremberg Tribunal acquitted some Nazi leaders of conspiracy—Wilhelm Frick, Martin Bormann, and Karl Dönitz—because there was no evidence that they had actual knowledge of planning to commit crimes. But once it can be established that an individual participated in a meeting with others at which the crime was organized, then the crime of conspiracy to commit genocide is committed, and this is as it should be if prevention is to be truly effective. In one case before the International Criminal Tribunal for Rwanda, the Trial Chamber warned the prosecutor that indictments for conspiracy to commit genocide must mention names or other identifying information on coconspirators (Prosecutor v. Nsengiyumuva, May 12, 2000).

There has only been one conviction for conspiracy to commit genocide before the International Criminal Tribunal for Rwanda, and none before the International Criminal Tribunal for the Former Yugoslavia, where it has not even been charged in indictments. On September 4, 1998, the man who had been prime minister of Rwanda during the weeks in 1994 in which genocide took place, Jean Kambanda, was found guilty of conspiracy to commit genocide and sentenced to life imprisonment. Kambanda pleaded guilty to the charge and conceded evidence that he had been part of the conspiracy. He was also convicted for the underlying crime of genocide, and to this extent the conviction for conspiracy was really redundant and should not have been imposed. But in a contested case, that of Elizaphan and Gérard Ntakirutimana, the same tribunal acquitted the accused for lack of any evidence that they had been part of meetings at which the crimes were planned, although they were both found guilty of genocide as such.

This has always been the great problem in proving conspiracy. Evidence of the meetings at which the crime is planned is difficult to obtain. Usually, this will require the cooperation of an insider who agrees to inform on his coconspirators. Sometimes international prosecutors will offer an individual immunity and other benefits in exchange for such insider evidence, but this raises other problems. The evidence of such insiders may be dismissed as lacking credibility, because it has in effect been purchased from them in exchange for favorable treatment.

The record of the ad hoc tribunals, and the effective exclusion of conspiracy to commit genocide from the Rome Statute of the International Criminal Court, may simply attest to the practical difficulties involved in such prosecutions. The idea of those who drafted the Genocide Convention in 1948 was a good one, namely to nip genocide in the bud and prosecute its organizers before the crime actually takes place. In practice, regrettably, the international community waits for the crime to occur before intervening. International criminal courts have enough of a burden dealing with genocide that has been committed. In practice, then, the criminalization of a stand-alone crime of conspiracy to commit genocide, despite the fact that it is not actually committed, has been of no real significance.

SEE ALSO Collaboration; Complicity

William A. Schabas