http://www.asil.org/insights/insigh126.htm ASIL Insights United States Charges and Proceedings Against Two Guantanamo Detainees for Conspiracy to Commit Crimes Associated with Armed Conflict By Frederic L. Kirgis March 2004
[…] As a matter of international law, one might look to the Statute of the International Criminal Court (ICC) for guidance regarding the acts that would amount to participation in a conspiracy. Some provisions of that Statute are controversial, but the provisions relating to conspiracy appear to be generally accepted. In this connection, ICC Statute article 25(3)(d) says that a person commits a crime within the ICC’s jurisdiction if he or she „contributes to the commission or attempted commission of [a punishable crime] by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
„(i) Be 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
„(ii) Be made in the knowledge of the intention of the group to commit the crime . . . .“
A Chamber of the International Criminal Tribunal for Rwanda has dealt with allegations of conspiracy to commit genocide. Genocide is not involved in the Guantanamo cases, but the Rwanda Chamber’s approach might nevertheless be relevant as evidence of the meaning of „conspiracy“ in international law. The Chamber has said that the offense of conspiracy requires the existence of an agreement, but it need not be formal or express. It could be inferred from concerted action. According to the Chamber, a tacit understanding of the criminal purpose would be sufficient, and the existence of a conspiracy could be based on circumstantial evidence. Moreover, a conspiracy to commit genocide could be comprised of individuals acting in an institutional capacity, even in the absence of personal links with each other.