1. See the text of the Circulaire in Code Pénal, 94th edn. (Paris, Dalloz 1996-1997), p. 744.
2. The introductory part of Art. 6 provides that ‘The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: …’ The provision on crimes against humanity (which includes genocide) reads as follows: ‘(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.’ The final provision stipulates that: ‘Leaders, organizers, instigators and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.’ Clearly, the reference to a ‘common plan’ in the last provision of the article is only intended to envisage a special category of criminality, namely ‘conspiracy’ but does not require such ‘conspiracy’ for all the criminal acts provided for in paras. (a), (b) and (c). An allusion of a policy might be seen in the sentence in the introductory part of the article, where is it said that the Tribunal shall ‘try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.’ However, as German courts have repeatedly held in 1946-1950, a person can be responsible for a crime against humanity even if he does not identify with the genocidal policy of a dictatorship and does not act to pursue the interests of that dictatorship (for this case law see A. Cassese, International Criminal Law, 2nd edn. (Oxford, Oxford University Press 2008), pp. 114-116).
3. It would seem that this view is advocated by the American Greenawalt, the Spanish Gil Gil, the The following acts, or any of Canadian Schabas, the Swiss Vest and the German Kress: see A.K.A. Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’, 99 Colum.L.R. (1999), pp. 2259 et seq.; W.A. Schabas, Genocide in International Law (Cambridge, Cambridge University Press 2000), p. 208; A. Gil Gil, Derecho Penal Internacional: Especial consideración del delito de genocidio (Madrid, Editorial Tecnos 1999); H. Vest, Genozid durch organisatorische Machtapparate (Baden-Baden, Nomos Verlag 2002); C. Kress, ‘The Darfur Report and Genocidal Intent’, 3 JICJ(2005), pp. 562-578.
4. C. Kress, ibid., p. 566 [italics in the original].
5. UN Doc.A/C.6, p. 32.