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offense under the Military Commissions Act of 2009. 353offense under Title 18. 354Conspiracy to commit an offense is anThe use of conspiracy may vary according the forum in which charges are brought.However, as a general matter, charges of conspiracy for violations of the law of war by personsbelonging to the enemy should be restricted to cases of offenses in which an overt act has beencommitted because non-punitive measures, such as security detention, may be available toaddress threats. 35518.23.5.1 Conspiracy to Commit Genocide. The Genocide Convention providesthat conspiracy to commit genocide shall be punishable. 356 Thus, mere agreement byperpetrators to commit genocide may be punishable even if no preparatory act has taken place. 35718.23.5.2 Conspiracy to Commit Aggressive War. The International MilitaryTribunal at Nuremberg tried defendants for participation in a common plan or conspiracy towage a war of aggression. 358 However, the International Military Tribunal declined to interpret353 10 U.S.C. § 950t(29) (“Any person subject to this chapter who conspires to commit one or more substantiveoffenses triable by military commission under this subchapter, and who knowingly does any overt act to effect theobject of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such otherpunishment as a military commission under this chapter may direct, and, if death does not result to any of thevictims, by such punishment, other than death, as a military commission under this chapter may direct.”).354 See, e.g., 18 U.S.C. § 371 (“If two or more persons conspire either to commit any offense against the UnitedStates, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more ofsuch persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned notmore than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is amisdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided forsuch misdemeanor.”); 18 U.S.C. § 2441 (including the act of conspiring to commit certain acts as punishable); 18U.S.C. § 2442 (b) (“Whoever violates, or attempts or conspires to violate, subsection (a) shall be fined under thistitle or imprisoned not more than 20 years, or both and, if death of any person results, shall be fined under this titleand imprisoned for any term of years or for life.”).355 WINTHROP, MILITARY LAW & PRECEDENTS 841 (“It may be added that the jurisdiction of the militarycommission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actualattempts to commit, and not in intentions merely. Thus what would justify in war a precautionary arrest might notalways justify a trial as for a specific offence.”).356 Convention on the Prevention and Punishment of the Crime of Genocide, art. 3, Dec. 9, 1948, 78 UNTS 277, 280(“The following acts shall be punishable: … (b) Conspiracy to commit genocide;…”).357 See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, 185 (Jan. 27, 2000)(“The Chamber notes that the crime of conspiracy to commit genocide covered in the Statute is taken from theGenocide Convention. The ‘Travaux Préparatoires’ of the Genocide Convention suggest that the rationale forincluding such an offence was to ensure, in view of the serious nature of the crime of genocide, that the mereagreement to commit genocide should be punishable even if no preparatory act has taken place.”); FerdinandNahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, ICTR Appeals Chamber, ICTR-99-52-A,Judgment, 894 (Nov. 28, 2007) (“Conspiracy to commit genocide under Article 2(3)(b) of the Statute has beendefined as ‘an agreement between two or more persons to commit the crime of genocide’. The existence of such anagreement between individuals to commit genocide (or ‘concerted agreement to act’) is its material element (actusreus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part anational, ethnical, racial or religious group as such (mens rea).”).358 Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the UnitedKingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional1127