[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, 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