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Customary International Law

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The Crime of Conspiracy in International Criminal Law

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Abstract

There is a general view that conspiracy as a crime under customary international law is only established with respect to the crimes of aggression and genocide. This chapter argues that the exclusion of conspiracy to commit war crimes and crimes and against humanity can no longer be supported. The argument is that state practice supports an assertion that conspiracy to commit war crimes and crimes against humanity have also now evolved into crimes under customary international law.

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Notes

  1. 1.

    See Chap. 5, Sect. 5.4; see also G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg no. 141, asserting the importance of customary law in international criminal law, ‘even after the ICC Statute’s entry into force’.

  2. 2.

    Statute of the International Criminal Court of Justice, Article 38(1)(b) describing customary law as “a general practice accepted as law”; International Court of Justice, Continental Shelf Case (Libyan Arab Jamahiriya v Malta), 3 June 1985, ICJ Reports 1985, pp. 29–30, § 27, ‘…the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States’; see also I. Brownlie, Principles of Public International Law, 7th edn. (2008), pp. 6 et seq; A. Cassese, International Law, 2nd edn. (2005), p. 156; M. N. Shaw, International Law, 6th edn (2008), p. 84.

  3. 3.

    I. Brownlie, Principles of Public International Law, 7th edn. (2008), p. 6; M. N. Shaw, International Law, 6th edn (2008), pp. 81–84; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg no. 142.

  4. 4.

    Tadic, ICTY (AC), decision of 2 October 1995, para 133; I. Brownlie, Principles of Public International Law, 7th edn. (2008), p. 15; R. R. Baxter, 41 Brit. Y. B. Int’L., (1965–1966), pp. 275 et seq; M. N. Shaw, International Law, 6th edn (2008), pp. 82–83; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg no. 142.

  5. 5.

    A. Cassese, International Criminal Law, 2nd edn. (2008), p. 17.

  6. 6.

    B. Swart, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 91; A. Cassese, International Criminal Law, 2nd edn. (2008), p. 17.

  7. 7.

    See Sections 51 and 52.

  8. 8.

    Section 55.

  9. 9.

    See Section 56(1).

  10. 10.

    The Genocide Convention implementation Act (also known as Proxmire Act), Pub. L. No. 100-606, §2(a), 102 Stat. 3045 (4 Nov. 1988) (codified at 18 U.S.C. §§ 1091 ff).

  11. 11.

    J. D. Ohlin, Cornell Law Faculty Publications, Paper 24 (2009), p. 202.

  12. 12.

    18 U.S.C. § 2340.

  13. 13.

    E. Silverman, in Eser/Sieber/Kreicker (eds.), National Prosecution of International Crimes, vol. 5 (2005), pp. 430–431.

  14. 14.

    18 U.S.C. § 2441.

  15. 15.

    10 U.S.C. § 818; E. Silverman, in Eser/Sieber/Kreicker (eds.), National Prosecution of International Crimes, vol. 5 (2005), p. 433.

  16. 16.

    E. Silverman, in Eser/Sieber/Kreicker (eds.), National Prosecution of International Crimes, vol. 5 (2005), p. 427.

  17. 17.

    Military Commissions Act of 2009, Pub. L. No. 111-84 (2009). The Act replaced the Military Commissions Act of 2006, formed to authorise use of military tribunals to try violations of laws of war; R. Wala, 41 Georgetown Journal of International Law (2010), p. 684, asserts that, ‘the majority of cases pending in the military commissions contain allegations of conspiracy to commit war crimes, with many of [the] cases relying on conspiracy as the primary charge’.

  18. 18.

    G. P. Fletcher, 4 JICJ (2006), pp. 442–447; G. P. Fletcher, 45 Colum. J. Transnat’l. L (2007), pp. 427–467; R. Wala, 41 Georgetown Journal of International Law (2010), pp. 683–709.

  19. 19.

    Hamdan v Rumsfeld, 126 S. Ct. 2749 (2006).

  20. 20.

    9/11 attacks refer to a series of coordinated suicide attacks conducted by al Qaida against the United States on 11 September 2001.

  21. 21.

    The charge sheet charged Hamdan with wilfully and knowingly joining ‘an enterprise of persons who shared a common criminal purpose and conspired and agreed with Osama bin Laden…and other members and associate of the al Qaida organisation, to commit the following offences…attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged; and terrorism.’ See List of charges at 2 (July 13, 2004), United States v Hamdan (U.S. Military Commission) at http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf.2004/d20040714hcc.pdf.

  22. 22.

    G. P. Fletcher, 4 JICJ (2006), pp. 444–445.

  23. 23.

    Hamdan v Rumsfeld, 126 S. Ct.2749 (2006), at 2784.

  24. 24.

    Völkersträfgesetzbuch, Federal Gazette 1 (2002) 2254, Sections 6, 7, 8, 10, 11, 12.

  25. 25.

    Article 7, Italian Law 9 October 1967, no. 962, Prevention and Repression of the crime of Genocide.

  26. 26.

    See Chap. 3.

  27. 27.

    See www.un.org/documents/ga/res/I/arel.htm (last visited 21. 02. 2011); Attorney General of Israel v Eichmann, Supreme Court of Israel (1962) 36 ILR 277, which affirms Nuremberg principles as forming part of customary international law.

  28. 28.

    Article III Genocide Convention; Articles 4(3) ICTY and 2(3) ICTR.

  29. 29.

    A. Cassese, International Criminal Law, 2nd edn. (2008), p. 228; K. Kittichaisaree, International Criminal Law (2001), pp. 248 et seq.; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg no. 622, specifically recognises conspiracy to commit genocide as a crime under customary international law; cf J. D. Ohlin, Cornell Law Faculty Publications, Paper 24 (2009), he asserts that the provision on conspiracy does not form part of customary law, contending that the Genocide Convention is merely a treaty law, and not evidence of state practice.

  30. 30.

    See analysis on Nuremberg and Tokyo tribunal judgments, in Chap. 3.

  31. 31.

    Statute of the Special Court for Sierra Leone accessed from www.sc-sl.org on 24 August 2011.

  32. 32.

    See UNTAET Regulation 2000/15 On Establishment of Panels with exclusive jurisdiction over serious criminal offences (East Timor).

  33. 33.

    Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), Article 4.

  34. 34.

    See UNTAET Regulation 2000/15, Section 4 on Genocide, and Section 14 on Individual Criminal Responsibility.

  35. 35.

    See further discussions on the Rome Statute and conspiracy in Chap. 5.

  36. 36.

    Hamdan v Rumsfeld, 126 S. Ct. 2749 (2006), at 2784; B. Swart, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), p. 91, commenting on conspiracy to commit genocide as creating liability under customary international law; A. Cassese, International Criminal Law, 2nd edn. (2008), p. 228; G. Werle, Principles of International Criminal Law, 2nd edn. (2009), marg no. 622.

  37. 37.

    G. P. Fletcher, 45 Colum. J. Transnat’l. L (2007), pp. 448–449, in this regard Fletcher asserts ‘When only some countries accept a particular doctrine, it cannot become part of customary international law applicable to all nations as part of the law of war’. Observing further that the general trend of treaties on international criminal law over the last half century, has been to deliberately avoid the concept of conspiracy; also see J. A. Bush, 109 Colum. L. Rev. (2009), pp. 1094 et seq; D. Scheffer, Why Hamdan is Right About Conspiracy Liability, Jurist, Mar. 30, 2006, http://jurist.law.pitt.edu/forumy/2006/03=why-hamdan-is-right-about-conspiracy.php; R. Wala, 41 Georgetown Journal of International Law (2010), p. 683 et seq stating that, ‘conspiracy to commit war crimes is not a cognizable law of war violation’.

  38. 38.

    See T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir (1992), p. 36, a prominent figure at the Nuremberg trial noting that “The Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of international recognised laws of war”, cited in Hamdan v Rumsfeld 548 U.S-(2006), p. 47.

  39. 39.

    W. A. Schabas, Genocide in International Law; The Crime of Crimes, 2nd edn. (2009), p. 310; H. van der Wilt, 4 JICJ (2006), p. 242, asserts, ‘It would simply be preposterous for an individual to boast that by his actions alone he could achieve the goal of destroying a whole group. In the normal situation, the perpetrator of genocide may at most feel confident that his conduct might contribute to the concerted action of annihilating the group’.

  40. 40.

    See G. P. Fletcher, 45 Columbia Journal of Transnational Law (2007), p. 447, describing the acts of “planning, preparing, initiating, and waging” aggressive war as being by their very nature collective action; also see The Justice case, Law Reports of Trials of War Criminals, Vols. VI–X, p. 108, the prosecution while making its arguments for the count on conspiracy made the following observation, “…while war crimes and crimes against humanity can certainly be committed by a single individual, it is hard to think of any one man as committing the crime of waging an aggressive war as a solo venture. It is peculiarly a crime brought about by the confederation or conspiracy of a number of men acting pursuant to well-laid plans. It matures over a long period of time, and many steps are involved in its consummation”.

  41. 41.

    See also G. P. Fletcher, Columbia Journal of Transnational Law 45 (2007), p. 448, observing the peculiarity of this status.

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  1. Commercial Law, University of Nairobi, Nairobi, Kenya

    Juliet R. Amenge Okoth

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Okoth, J.R.A. (2014). Customary International Law. 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_4

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