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Conspiracy in the Statute of the International Criminal Court

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Abstract

Conspiracy in international criminal law has so far only been punished in the context of complete crimes. It has therefore mainly been punished as a mode of participation. It is argued that the modes of participation in the ICC Statute satisactorily meet the role of conspiracy as a mode of participation. However, the express exclusion of criminal responsibility for conspiracy from the ICC statute loses out on the value of conspiracy as an inchoate crime. This part of the study shows that the result of this exclusion has created a gap in holding the perpetrators of international crimes accountable, creating the need for an amendement of the ICC Statute.

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Notes

  1. 1.

    R. S. Lee, The International Criminal Court, The Making of the Rome Statute (1999), p. 37, stating that the Statute represents an enormous progress; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 75.

  2. 2.

    Preamble of the Rome Statute para 4.

  3. 3.

    See M. C. Bassiouni, The Legislative History of the International Criminal Court, Vol. I (2005), p. 41 et seq., for a detailed discussion; W. A. Schabas, An Introduction to the International Criminal Court, 3rd edn. (2007), pp. 1–21.

  4. 4.

    For example see objections by the United States discussed in P. Malanczuk, 11 EJIL (2000), p. 77 et seq; W. A. Schabas, 15 EJIL (2004), p. 701 et seq. The African Union (AU) has also raised objections on the ICC’s focus on Africa with all cases before the ICC being situations in Africa. As a consequence the AU has made various resolutions refusing to cooperate with the ICC on arrest warrants for Sudan’s president Bashir (decision adopted in July, 2009 at a summit in Sirte Libya), and has also rejected a request by the ICC to open a liaison office in Ethiopia. See 3 July 2009 AU Decision Doc. Assembly/AU/13 (XIII), Assembly/AU/Dec.245 (XIII) Rev. l, para 10.

  5. 5.

    P. Kirsch, Introductory note, in O. Triffterer (edn.), Commentary on the Rome Statute of the International Criminal Court:Observers’ Notes, Article-by-Article (1999), p. XXIV.

  6. 6.

    See Per Saland, in The International Criminal Court: The Making of the Rome Statute (1999), p. 199; K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article-by Article, 2nd edn. (2008), Article 25 marg. no. 24.

  7. 7.

    See Articles 5, 6, 7 and 8.

  8. 8.

    The 1954 Draft Code of Offences against the Peace and Security of Mankind, Article 2 para 13 provided for conspiracy to commit offences recognised in the code, see Yearbook of the International Law Commission (YILC), 1954, Vol. II; Draft Code of 1991, Article 3 on Responsibility and Punishment provided in part (2) ‘An individual who aids, abets or provides the means for the commission of a crime against the peace and security of mankind or conspires in or directly incites the commission of such a crime is responsible therefor and is liable to punishment’, see A/CN.4/SER.A/1991/Add.1 (Part 2) YILC, 1991, Vol. II; Article 2(3) of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind lists various forms of participation or contribution to the crimes. ‘An individual shall be responsible for a crime …if that individual:

    1. (a)

      Intentionally commits such a crime;

    2. (b)

      Orders the commission of such a crime which in fact occurs or is attempted;

    3. (c)

      Fails to prevent or repress the commission of such a crime in the circumstances set out in Article 6;

    4. (d)

      Knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for commission,

    5. (e)

      Directly participates in planning or conspiring to commit such a crime which in fact occurs (emphasis added),

    6. (f)

      Directly and publicly incites another individual to commit such a crime which in fact occurs;

    (…)’, Report of the International Law Commission (ILC) to the General Assembly (1996 ILC Draft Code), UN Doc. A/51/10 (1996).

  9. 9.

    The Report of the Commission to the General Assembly on the work of its 43rd Session with reference to the Draft Code of 1991, shows the conspiracy discussed was participation in a common plan for commission of a crime against peace and security of mankind, with the meaning of conspiracy being a form of participation and not a separate crime, A/CN.4/SER.A/1991/Add.1 (Part Two) YILC 1991 Vol. II; also Report of the ILC’s 48th Session containing commentaries on the Draft Code of 1996, commentary 13 on participating in planning or conspiring to commit a crime shows liability in this context was limited only to situations where the criminal plan is in fact carried out, and referred to individual responsibility with respect to a particular form of participation rather than a distinct crime, YILC, 1996, Vol. II (Part Two).

  10. 10.

    The proposal stated:-

    1. 1.

      A person is criminally responsible and is liable for punishment for conspiracy if that person, (with the intent to commit a specific crime) agrees with one or more persons to perpetrate that crime (or that a common intention to commit a crime will be carried out) and an overt act is committed by that person (or by another party to the agreement) (for the purpose of furthering the agreement) (that manifests the intent).

    2. 2.

      A person is guilty of conspiracy even if the object of the conspiracy is impossible or is prevented by a fortuitous event.

    3. 3.

      A person shall only be criminally responsible for conspiracy in respect of a crime where so provided in this Statute.

    4. 4.

      A person who is criminally responsible for conspiracy is liable for the same punishment as the person who committed or would have committed the crime as a principal.

    Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N.GAOR, 51 st Sess., Supp. No. 22A, at 94–95, U.N.Doc. A/51/22 (1996), reprinted in M. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998), p. 489.

  11. 11.

    See M. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998), p. 490, indicating that discussions showed that the negotiators encountered ‘conceptual differences concerning conspiracy among…different legal systems’.

  12. 12.

    See M. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998), p. 490, on the question whether a planner should still be punished when the crime was not completed, yet action had been taken to implement the plan. A previous proposal had recognised importance of being able to punish planners and during this session it was noted that an alternative way of addressing the situation of planners would be through the concept of conspiracy. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. II (Proceedings of the Preparatory Committee during March-April and August 1996, Doc. A/51/22 (1996) reprinted in M. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998), p. 483.

  13. 13.

    M. Bassiouni, The Legislative History of the International Criminal Court, Vol. 2: An Article-by Article Evolution of the Statute from 1994–1998 (2005), p. 228, 229.

  14. 14.

    M. Bassiouni, The Legislative History of the International Criminal Court, Vol. 2: An Article-by Article Evolution of the Statute from 1994–1998 (2005), p. 229.

  15. 15.

    See M. Bassiouni, The Legislative History of the International Criminal Court, Vol. 2: An Article-by Article Evolution of the Statute from 1994–1998 (2005), p. 229.

  16. 16.

    The draft provided for criminal responsibility if one “agrees with another person or persons that such a crime be committed and an overt act in the furtherance of the agreement is committed by any of these persons that manifests their intent (and such a crime in fact occurs or is attempted)”, see Decision Taken by the Preparatory Committee in Its Session Held from 11 to 21 February, U.N Preparatory Committee on the Establishment of an International Criminal Court, 1997, U.N. Doc. A/AC.249/1998/L.13, reprinted in M. C. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998), p. 379.

  17. 17.

    Per Saland, in The International Criminal Court: The Making of the Rome Statute (1999), p. 199; see also K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 24; International Convention of the Suppression of Terrorist Bombings of 1997-UN Doc. A/RES/52/164 (1998), annex, Article 2(3).

  18. 18.

    See ICC-01/09-30-Red 15-12-2010 Pre-Trial Chamber II Situation in the Republic of Kenya, Prosecutor’s Application Pursuant to Article 58 as to William SamoeiRuto, Henry KipronoKosgey and Joshua Arap Sang, para 27; ICC-01/09-31 Red 15-12-2010 Pre Trial Chamber II Situation in the Republic of Kenya Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, para 31.

  19. 19.

    Article 25 specifically states:

    1. 1.

      The Court shall have jurisdiction over natural persons pursuant to this Statute.

    2. 2.

      A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

    3. 3.

      In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

      1. (a)

        Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

      2. (b)

        Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

      3. (c)

        For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

      4. (d)

        …;

      5. (e)

        In respect of the crime of genocide, directly and publicly incites others to commit genocide;

      6. (f)

        Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gaves up the criminal purpose.

    No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

    The 2010 amendments to the Rome Statute add the following to this paragraph: ‘In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.’, See The Crime of Aggression, RC/Res. 4, Annex I, para 5.

  20. 20.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 2, observes that the article differentiates at level of allocation of responsibility the degree of participation, rejecting a purely Unitarian concept of perpetration; G. Werle, 5 JCIJ (2007), p. 956, describes it as a ‘…differentiated system of participation, involving value-oriented levels of responsibility…’.

  21. 21.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 2; G. Wlerle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 449, describes the distinction of modes of participation as also indicators of degree of individual guilt and refers to commission as warranting the highest level of individual responsibility.

  22. 22.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 318, referring to ‘direct perpetration’, ‘coperpetration’ and ‘indirect perpetration’; Prosecutor v Katanga et al. (ICC-01/04-01/07), decision on the confirmation of the charges, 30 September 2008, para 488. Although not explicitly mentioned in the Rome Statute the general view is that commission under Article 25 also includes commission by omission, for this see Prosecutor v Krnojelac, ICTY (AC), judgment of 17 September 2003, para 73; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), pp. 53–57; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 453.

  23. 23.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 332, the Chamber observes that only those who have control over commission of the crime and are aware of such control should be considered principals because:

    1. (i)

      they physically carry out the objective elements of the offence (commission of the crime in person, or direct perpetration)

    2. (ii)

      they control the will of those who carry out the objective elements of the offence (commission of the crime through another person, or indirect perpetration), or

    3. (iii)

      they have, along with others, control over the offence by reason of the essential tasks assigned to them (commission of the crime jointly with others or coperpetration)’; Prosecutor v Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), decision of 30 September 2008, para 488; Prosecutor v Jean Pierre Bemba Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the prosecutor against Jean-Pierre Bemba Gombo”, ICC-01/ 05-01/08-424, paras 346–347, acknowledging that the concept of co-perpetration must go together with the notion of “control over the crime”.

  24. 24.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Art 25 marg. no. 7; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 789; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 453.

  25. 25.

    See E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), pp. 72–76, he views this mode of participation as having evolved from the ad hoc tribunals theory of common purpose or JCE.

  26. 26.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 342 et seq., decision on confirmation of charges.

  27. 27.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 326, the Pre-Trial Chamber has noted, ‘the concept of co-perpetration is originally rooted in the idea that when the sum of coordinated contributions of a plurality of persons results in realisation of all objective elements of a crimes, any person making a contribution can be held vicariously responsible for the contributions of all the others and as a result, can be considered as a principal to the whole crime’; K. Ambos, in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 8; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 790; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 72; G.Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 471.

  28. 28.

    K. Ambos, in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 8; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 472.

  29. 29.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, paras 343, 344, 345.

  30. 30.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, paras 344, 345.

  31. 31.

    Prosecutor v Thomas Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 347; Prosecutor v Bemba, (ICC-01/05-01/08), decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para 350.

  32. 32.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), pp. 792–793; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 467.

  33. 33.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 10; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 793.

  34. 34.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 793; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 68; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 473.

  35. 35.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. nos. 12, 13; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 475; for some critical views see T. Weigend, 9 JCIJ (2011), p. 91 et seq.

  36. 36.

    K. Ambos, in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 11; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 70, 71; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 476 et seq.

  37. 37.

    Prosecutor v Katanga and Ngudjolo Chui, ICC (Pre Trial Chamber), decision of 30 September 2008, para 494 et seq.

  38. 38.

    Prosecutor v Katanga and Ngudjolo Chui, ICC (Pre Trial Chamber), decision of 30 September 2008, para 527 et seq.

  39. 39.

    Prosecutor v Katanga and Ngudjolo Chui, ICC (Pre Trial Chamber), decision of 30 September 2008, para 520 et seq.

  40. 40.

    Prosecutor v Katanga and Ngudjolo Chui, ICC (Pre Trial Chamber), decision of 30 September 2008, para 520 et seq; The Pre Trial Chamber cited its elements to include: ‘(i) the suspect must be part of a common plan or an agreement with one or more persons, (ii) the suspect and other coperpetrator(s) must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime, (iii) the suspect must have control over the organisation, (iv) the organisation must consist of an organised and hierarchical apparatus of power, (v) the execution of the crimes must be secured by almost automatic compliance with the orders issued by the suspect, (vi) the suspect must satisfy the subjective elements of the crime, (vii) the suspect and the other coperpetrator(s) must be mutually aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (viii) the suspect must be aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person(s)’; see also Pre Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo”, ICC-01/ 05-01/08-424, paras 350–351; Pre Trial Chamber I, “Decision on the Prosecution’s Application for a warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09-3, paras 209–213.

  41. 41.

    Article 25(3)(b).

  42. 42.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 795; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 77.

  43. 43.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 795; R. Gallmetzer and M. Klamberg, ‘Individual Responsibility under International Law: The UN Ad Hoc Tribunals and the International Criminal Court’ (March 21, 2007), p. 73.

  44. 44.

    E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 78; see also K. Ambos, in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. nos. 14, 15.

  45. 45.

    Nahimana et al., ICTR (AC), para 481; Prosecutor v Martic ICTY (AC), judgment of 8 October 2008, para 221 et seq.

  46. 46.

    Nahimana et al., ICTR (AC), para 480; Prosecutor v Kordic and Cerkez, ICTY (AC), judgment of 17 December 2004, para 32.

  47. 47.

    G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. nos. 485, 488.

  48. 48.

    This liability is also recognised in the judgements of the ad hoc tribunals see Prosecutor v Vasiljevic, ICTY (AC), judgment of 25 February 2004, para 102; Prosecutor v Furundzija, ICTY (TC), judgment of 10 December 1998, paras 192 et. seq, which analyses the state of customary law on assistance in carrying out an international crime.

  49. 49.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 16; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 798; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 87.

  50. 50.

    Prosecutor v Blaskic, ICTY (AC), judgment of 29 July 2004, para 46; Nahimana et al., ICTR (AC), para 482; K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 21.

  51. 51.

    G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 491.

  52. 52.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 801; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 88; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 492.

  53. 53.

    Prosecutor v Aleksovski, ICTY (AC), judgment of 24 March 2000, para 162; Prosecutor v Seromba ICTR (AC), judgment of 12 March 2008, paras 56, 65, 173; also see G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 492.

  54. 54.

    See A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 791, stating that ‘aiding and abetting does not presuppose a common concerted plan, as it is possible that the principal is not aware of the accomplice’s support’; B. Swart, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 86.

  55. 55.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Individual Criminal Responsibility Mental Elements, Vol. 1 (2002), p. 802; K. Kittichaisaree, International Criminal Law (2001), p. 235; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 623.

  56. 56.

    See K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), marg. no. 25; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 802; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 107; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 493.

  57. 57.

    G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 494.

  58. 58.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 802; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 494; see also Fletcher-Ohlin, 3 JICJ (2005), p. 546, who reiterate that this provision contemplates groups such as military units, militias and gangs engaged in a common criminal purpose.

  59. 59.

    Prosecutor v Lubanga Dyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 337, the chamber considers it a residual form of accessory liability; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 493, describes it as ‘the least grave, mode of participation’.

  60. 60.

    E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 107.

  61. 61.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 29; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 803; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 107.

  62. 62.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 30; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 108; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 495.

  63. 63.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 30; G. A. Knoops, 30 Fordham International Law Journal (2006), p. 617.

  64. 64.

    See Chap. 3.

  65. 65.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 28; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 803; J. D. Ohlin, 12 New Crim. L. Rev.(2009), pp. 406 et seq.

  66. 66.

    C. Damgaard, Individual Criminal Responsibility for Core International Crimes (2008), p. 167 et seq.; Fletcher-Ohlin, 3 JICJ (2005), p. 546, 547 describing Article 25(3)(d) as the statutory surrogate of JCE; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), pp. 94–109; R. Wala, 41 Georgetown Journal of International Law (2010), p. 703; T. Weigend, 9 JCIJ (2011), pp. 108–109; but compare with the later opinion of J. D. Ohlin, 12 New Crim. L. Rev. (2009), p. 407, 408, expressing that the exact relationship between this mode of liability and JCE is not clear, although he acknowledges that Article 25(3)(d) covers similar ground as both JCE and common law conspiracy; also see B. Swart, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 85, stating that both JCE and Article 25(3)(d) ‘contain elements that are reminiscent of the notion of conspiracy’; W. A. Schabas, An Introduction to the International Criminal Court, 3rd edn (2007), p. 215, indicating the ICC may draw a lot from the ad hoc tribunals case law in its application of this provision.

  67. 67.

    Prosecutor v LubangaDyilo, ICC (Pre-Trial Chamber), decision of 29 January 2007, para 329; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 107, asserting that this mode of participation is similar to JCE because its focus is on the mens rea.

  68. 68.

    C. Damgaard, Individual Criminal responsibility for Core International Crime: Selected Pertinent Issues (2008), p. 255, 405, 406, stating that it avoids connotations of collective responsibility; Fletcher and Ohlin Darfur Commission of inquiry, 3 JCIJ (2005), p. 550; G. A. Knoops, 30 Fordham International Law Journal (2006), p. 617; E. van Sliedregt, The Criminal Responsibility Of Individuals For Violations Of International Humanitarian Law (2003), p. 36, 108, 109 who suggests that sub-paragraph (d) reflects albeit weakly JCE and that it only leaves out ‘collateral liability’ recognised under JCE III.

  69. 69.

    See Prosecutor v LubangaDyilo, ICC (Pre Trial Chamber), decision of 29 January 2007, para 335.

  70. 70.

    See Pre Trial Chamber II, ‘Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kosgey and Joshua Arap Sang’, 8 March 2011, ICC-01/09-01/11, para 51. The Court at this stage does not shed much light on the particulars of the elements apart from reiterate what the Statute provides; Pre-Trial Chamber I, ‘Decision on the Prosecutor's Application for a Warrant of Arrest Against Callixte Mbarushimana’, 28 September 2010, ICC-01/04-01/10, para 39.

  71. 71.

    See G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 493, who considers that this mode of participationhas no model under customary international law and further argues that while JCE is a mode of perpetration, Article 25(3)(d) in contrast provides for the lowest level of mode of participation; also see A. Cassese, International Criminal Law, 2nd edn (2008), p. 213, this latest view of Cassese differs from a previous opinion expressed in A. Cassese, 5 JICJ (2007), p. 132 et seq; B. Swart, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 86.

  72. 72.

    G. A. Knoops, 30 Fordham International Law Journal (2006), p. 616.

  73. 73.

    See for example Bizimungu et al., ICTR (TC), para 1965, the Trial Chamber considered that, the attendance of a meeting by two of the defendants, where a new prefect viewed to be more dedicated to and in support of the genocidal plan to kill Tutsis in the Butare region was installed in replacement of the former who opposed such activities, was further evidence of their involvement in a conspiracy to commit genocide. However, this evidence was not eventually considered in their conviction for other technical reasons. See discussion Chap. 3 Sect. 3.7.2.1, ICTR jurisprudence.

  74. 74.

    See H-H Jescheck, 2 JCIJ (2004) p. 51, who suggests that this provision creates criminal responsibility that lies somewhere between the concepts of conspiracy, JCE and preparation; also see K. Kittichaisaree, International Criminal Law (2001), p. 235, suggesting that planning the commission of an international crime is covered under this mode of participation.

  75. 75.

    See K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 24.

  76. 76.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 803.

  77. 77.

    See G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 628, stating that the law of attempt forms part of international criminal law by virtue of being a general principle of law.

  78. 78.

    A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 809; K. Kittichaisaree, International Criminal Law (2001), p. 250.

  79. 79.

    K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 37; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), pp. 812–813; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 629.

  80. 80.

    G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 629.

  81. 81.

    G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 621; see also A. Eser, in A. Cassese; P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 802.

  82. 82.

    Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07, para 526; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 790; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg. no. 467.

  83. 83.

    W. A. Schabas, Genocide in International Law, The Crime of Crimes, 2nd edn. (2009), p. 314, describing the Rome Statute as contemplating conspiracy as a form of complicity; see also J. D. Ohlin, Cornell Law Faculty Publications, Paper 24 (2009), p. 199, http://scholarship.law.cornell.edu/facpub/24.

  84. 84.

    See R. P. Barret and L. E. Little, 88 Minn. L. Rev. (2003), p. 75, asserting that Article 21 grants licence to ICC to expansively interpret crime definitions ‘…in light of gender concerns and activities from other international conventions’; K. Kittichaisaree, International Criminal Law (2001), p. 250, asserting that in the case of genocide the ICC is likely to construe punishment of conspiracy under this article seeking guidance from jurisprudence of the ICTR on the issue.

  85. 85.

    Article 21 reads in part:

    1. 1.

      The Court shall apply:

      1. (a)

        In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

      2. (b)

        In the second place, where appropriate, applicable treaties and the principles and rules of international law, including established principles of the international law of armed conflict;

      3. (c)

        Failing that, general principles of law derived by the Court from national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards.

  86. 86.

    D. Akande, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 50; M. McAuliffe deGuzman, in O. Triffterer (ed.), in Commentary on the Rome Statute of the International Criminal Court (2008), Article 21 marg. no. 13, asserting that ‘rules of international law’ actually refer to customary international law; W. A. Schabas, An Introduction to the International Criminal Court, 2nd edn. (2004), p. 92.

  87. 87.

    See Chap. 4 discussing the customary status of conspiracy as a substantive crime.

  88. 88.

    See RC/Res. 6, adopted at the 13th plenary meeting, on 11 June 2010, by consensus. Article 8 bis paragraph 1 states the ‘“crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’.

  89. 89.

    Article 25(3)(e).

  90. 90.

    Adopted on 22 May 1969, and entered into force on 27 January 1980, United Nations, Treaty series, vol. 1155, p. 331.

  91. 91.

    Tadic (AC), para 189; G. P. Fletcher, 9 JCIJ (2011), p. 185; J. D. Ohlin, 5 JICJ (2007), p. 72; W. A. Schabas, An Introduction to the International Criminal Court, 2 edn. (2004), p. 94, observing that the Judges at the ICTY often relied on the principles of interpretation of the Vienna Convention, ‘which are essentially contextual and purposive in scope’.

  92. 92.

    R. P. Barret and L. E. Little, 88 Minn. L. Rev. (2003), at p. 75; A. K. A. Greenwalt, 99 Colum. L. Rev. (1999), p. 2284; K. Kittichaisaree, International Criminal Law (2001), p. 250; W. K. Letzau, 32 Cornell Int’l. J. (1999), p. 485.

  93. 93.

    W. A. Schabas, An Introduction to the International Criminal Court, 2nd edn. (2004), p. 94.

  94. 94.

    Article 22 reads:

    1. 1.

      A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

    2. 2.

      The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

    3. 3.

      This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

  95. 95.

    W. A. Schabas, An Introduction to the International Criminal Court, 2 edn. (2004), p. 95, observes that Article 22(2) leaves room for ‘the question of whether or not strict construction applies to provisions of the Statute other than those that define the offences themselves’, making it possible for the use of the contextual interpretation rule of the Vienna Convention.

  96. 96.

    D. Akande, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 50; A. Cassese, International Criminal Law, 2nd edn. (2008) p. 17; M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor (2005), p. 223.

  97. 97.

    W. A. Schabas, Genocide in International Law, The Crime of Crimes, 2nd edn. (2009), p. 315, Schabas sees it as ‘an oversight of exhausted drafters’, a view which stems from the inclusion of the inchoate crime of direct and public incitement to genocide. He opines that the Diplomatic conference was attempting to transfer to the Rome Statute ‘all of the offences defined in the Genocide Convention’.

  98. 98.

    J. D. Ohlin, Cornell Law Faculty Publications, Paper 24 (2009), p. 201, http://scholarship.law.cornell.edu/facpub/24.

  99. 99.

    See Chap. 4.

  100. 100.

    See Chap. 2 on comparative analysis; M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor (2005), p. 222.

  101. 101.

    R. P. Barret and L. E. Little, 88 Minn. L. Rev (2003), p. 82, view this decision as a pragmatic move made by the drafters who ‘may have chosen to sacrifice clear authorization for conspiracy prosecutions in the interest of completing the enterprise’.

  102. 102.

    Y. Askar, Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court (2004), p. 230; M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor (2005), p. 224.

  103. 103.

    G. P. Fletcher, 45 Columbia Journal of Transnational Law (2007), p. 448; J. D. Ohlin, Cornell Law Faculty Publications, Paper 24 (2009), p. 200, http://scholarship.law.cornell.edu/facpub/24.

  104. 104.

    In comparison see Chap. 2 Sect. 2.2.3, for the rationale of conspiracy under domestic jurisdictions.

  105. 105.

    The resolution reads in part, ‘…the General Assembly…recommends that international cooperation be organised between States with a view to facilitating the speedy prevention and punishment of the crime of genocide…’, cited in H. Abtahi and P. Webb, “From The Ad Hoc Committee Draft To The Sixth Committee.” The Genocide Convention: The Travaux Preparatoires (2008), Martinus Nijhoff Online. 04 March 2011 DOI:10.1163/ej.9789004164185.i-2236.III, E/AC.25/3 665.

  106. 106.

    N. K. Kaytal, 112 The Yale Law Journal (2003), p. 1326; see also K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn. (2008), Article 25 marg. no. 3; T. Weigend, 9 JCIJ (2011), p. 108, also briefly illuminates on this problem, asserting that it contributed to the introduction of the concepts of JCE and indirect perpetration.

  107. 107.

    A. Maljevic, ‘Participation in a Criminal Organisation’ and ‘Conspiracy’: Different Legal Models against Criminal Collectives (2011), p. 20, also reflects this position by stating that the participants in the upper and lower level of a criminal collective hardly meet the strictly defined subjective elements of criminal liability.

  108. 108.

    R. P. Barret and L. E. Little, 88 Minn. L. Rev. (2003), p. 68; N. K. Kaytal, 112 The Yale Law Journal (2003), p. 1326.

  109. 109.

    J. A. Bush, Columbia Law Review (2009), p. 1137; S. Pomorski, in G. Ginsburgs and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (1990), p. 213; B. F. Smith, The American Road to Nuremberg. The Documentary Record 1944–1945, Doc. 16 (1982), p. 35.

  110. 110.

    R. P. Barret and L. E. Little, 88 Minn. L. Rev(2003), p. 63, describing such persons as the ‘key players…whose charisma, intelligence, and power fuel the conspiratorial process’. A similar argument is given under domestic jurisdictions; see Chap. 2 Sect. 2.2.3.

  111. 111.

    S. Pomorski, in G. Ginsburgs and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (1990), p. 213.

  112. 112.

    Y. Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the wake of World War II (2008), p. 83.

  113. 113.

    J. A. Bush, Columbia Law Review (2009), p. 1138; See Chap. 3 Sects. 3.2.1 and 3.2.2.

  114. 114.

    M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor (2005), p. 228.

  115. 115.

    Kambanda, ICTR (TC).

  116. 116.

    See Chap. 3.

  117. 117.

    A. Obote-Odora, 8 Murdoch University Electronic Journal of Law, No. 1 (2001), para 95.

  118. 118.

    M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor(2005), p. 206, referring to judicial truth of atrocity crimes which requires full accountability for both conspiracy and the substantive crime; see also C. M. V. Clarkson & H. M. Keating, Criminal Law: Text and Materials, 5th edn. (2003), p. 507 describing this as the “full story” rationale; P. Marcus, 65 Geo. L. J. (1977), p. 937.

  119. 119.

    See M. C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor(2005), p. 224 et seq.

  120. 120.

    See Annual Report of ICTR to the U.N. General Assembly, UN Doc. A/55/435, S/2000/927, 2 October 2000, para 132; also Annual Report of ICTR to the U.N. General Assembly, UN Doc. A/53/429, S/1998/857, 23 September 1998, para 57.

  121. 121.

    G. P. Fletcher, Rethinking Criminal Law (2000), p. 221; A. Cassese, International Criminal Law, 2nd edn. (2008), p. 227; also see Chap. 3, arguments of defence counsel in the Nuremberg tribunal and subsequent Nuremberg tribunals.

  122. 122.

    This was a main argument raised during the Nuremberg trials opposing the conspiracy charges, see Chap. 3.

  123. 123.

    See Chap. 2 Sect. 2.3, discussing punishment of group criminality under civil law countries.

  124. 124.

    Chapter 2 Sects. 2.3.1, 2.3.2. and 2.3.4. (Germany, Spain and France).

  125. 125.

    Musema, ICTR (TC), paras 196, 197; W. A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn. (2009), p. 310.

  126. 126.

    See Chap. 3 Sect. 3.7.2.2.

  127. 127.

    A. Fichtelberg, 17 Criminal Law Forum (2006), at p. 159, 160; also see P. Marcus, 65 Geo. L. J. (1977), p. 943, who asserts that if conspiracy is not approached with caution it can be a ‘drag net’ capable of great oppression; C. Robert, Southern California Law Review (2007), p. 473; E. van Sliedregt: The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), p. 17.

  128. 128.

    G. P. Fletcher, 45 Columbia Journal of Transnational Law (2007), p. 448.

  129. 129.

    See Chap. 5 Sect. 5.2 on negotiations; A. Eser, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 786, wonders if the drafters had realised that structuring conspiracy on accessorial principles would lead to loosing its function as an inchoate crime.

  130. 130.

    On this, also see W. A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn. (2009), p. 314, commenting that ‘[l]aw-makers continue to be haunted by the restrictive construction given to conspiracy at Nuremberg’.

  131. 131.

    See Chap. 2 Sect. “The Mental Element”.

  132. 132.

    See A. Chouliaras, in A. Smeulers (ed.), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (2010), p. 68; G. P. Fletcher Columbia Journal of Transnational Law 45 (2007), p. 447, describing aggressive war as being by its very nature collective; W. A. Schabas, Genocide in International Law; The Crime of Crimes, 2nd edn. (2009), p. 310, asserting on the collective nature of Genocide; Rome Statute Article 7(2)(a) indicating an attack against any civilian population should be pursuant to or in furtherance of a State or organisational policy; Rome Statute 8 (1) stating the court shall have jurisdiction for war crimes particularly when committed as part of a plan or policy.

  133. 133.

    See G. P. Fletcher, 4 JICJ (2006), p. 455, on States jealously guarding their sovereignty.

  134. 134.

    See G. P. Fletcher, 4 JICJ (2006), p. 455, asserting that the international community has rejected purely inchoate offences, including conspiracy because of lack of an early intervention mechanism. A good example is the Veto adopted by China and Russia stopping UN’s bid to exert pressure on Syria to stop attacks on civilians calling for regime change and the right to democratic space.

  135. 135.

    See Rome Statute Articles 17(1)(d).

  136. 136.

    A. Ashworth, Principles of Criminal Law, 5th edn. (2006), p. 15 et seq.

  137. 137.

    The language of Article 3(I)(b) of the statute of Special Tribunal of Lebanon greatly resembles Article 25(3)(d) of the Rome Statute, and Section 14 on Individual Criminal Responsibility in the Special Panels of East Timor, resembles Article 25(3) of the Rome Statute.

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    Juliet R. Amenge Okoth

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Okoth, J.R.A. (2014). Conspiracy in the Statute of the International Criminal Court. In: The Crime of Conspiracy in International Criminal Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-017-6_5

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