Counterfeit Conspiracy: The Misapplication of Conspiracy as a Substantive Crime in International Law
21 Pages Posted: 16 Aug 2010 Last revised: 17 Apr 2011
Date Written: August 15, 2010
In the International Criminal Tribunal for Rwanda (ICTR) case Prosecutor v. Musema, the trial chamber held that an individual can be found guilty solely for the crime of conspiracy to commit genocide even if no genocide takes place. The confident court cites no other international law supporting its decision. In contrast, the young Rome Statute of the International Criminal Court seems to have intentionally dropped the crime of conspiracy to commit genocide from its list of crimes under its jurisdiction. This legal and conceptual discord raises the question of whether conspiracy is actually a legitimate substantive international crime, and whether tribunals should continue to apply it.
This paper will attempt to demonstrate that there is no firm foundation in international criminal law to support conspiracy as a substantive crime that can stand on its own. This Paper argues that courts - like the ICTR - have been mistaken in asserting that the substantive crime of conspiracy exists at the international level. First, the problem hinted at above will be presented. Next, the basic underlying theories of the crime of conspiracy will be presented. Then each potential source of a substantive crime of conspiracy will be presented and analyzed. The analysis will conclude with the position that there is no legitimate basis for the ICTR courts to claim that conspiracy as a substantive crime exists in international law.
By attempting to trace the source of the crime of conspiracy at the international level, the Paper aims to illuminate the inherent ambiguity in the formation of international criminal law and provide guidance for its strong development into the future.
Keywords: ICC, ICTR, international criminal law, conspiracy, genocide, musema, inchoate
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