An Introduction To The International Criminal Court - Institute for ...

general principles of criminal law 103
controversial in 1948 and which remains so today. 47 When the Genocide
Convention was being drafted, the terms ‘direct and public’ were added,
mainly at the request of the United States, in order to limit the scope of the
provision. The United States was concerned that this might encroach upon
the right of free speech. There were unsuccessful efforts during the drafting
of the Rome Statute to enlarge the inchoate offence of incitement so as to
cover the other core crimes but the same arguments that had been made in
1948, essentially based on freedom of expression, resurfaced. 48
The issue of conspiracy has vexed international criminal law since Nuremberg.
Under the common law system, a conspiracy is committed once two
or more persons agree to commit a crime, whether or not the crime itself is
committed, whereas in continental systems inspired by the Napoleonic tradition,
conspiracy is generally viewed as a form of complicity or participation
in an actual crime or attempt. Here, the Rome Statute strikes a compromise,
requiring the commission of some overt act as evidence of the conspiracy
but imposing no requirement that the crime itself actually be committed.
The solution was borrowed from the 1997 Convention for the Suppression
of Terrorist Bombings, where an acceptable formula had been adopted
by consensus. 49 One unfortunate consequence is that the Rome Statute
does not fully reflect the provisions of the Genocide Convention which, in
Article III(b), defines ‘conspiracy’ as an act of genocide. The drafting history
of the Genocide Convention indicates the intent to cover the common law
notion of conspiracy, that is, a truly inchoate offence. 50
Under the concept of common purpose complicity, those who participate
in a criminal enterprise are liable for acts committed by their colleagues.
Paragraph (3)(d) of Article 25 describes this as contributing ‘to the commission
or attempted commission of such a crime by a group of persons
acting with a common purpose’. The contribution ‘shall be intentional’ and
must either ‘[b]e made with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court’ or ‘be made in
the knowledge of the intention of the group to commit the crime’. Inspired
47 See William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge:
Cambridge University Press, 2000, pp. 266–80.
48 Saland, ‘International Criminal Law Principles’, p. 200; Ambos, ‘General Principles’,
pp. 13–14.
49 GA Res. 52/164, Annex. See also Saland, ‘International Criminal Law Principles’, pp. 199–200.
50 Schabas, Genocide in International Law, pp. 260–1.