Membership in a criminal enterprise

Notion(s) Filing Case
JCE Decision - 21.05.2003 MILUTINOVIĆ et al.

25.     Joint criminal enterprise is different from membership of a criminal enterprise which was criminalised as a separate criminal offence in Nuremberg and in subsequent trials held under Control Council Law No 10.[1]  As pointed out by the United Nations War Crimes Commission, what was to be punished in relation to the latter was “no mere conspiracy to commit crimes but a knowing and voluntary membership of organisations which did in fact commit crimes, and those on a wide scale”.[2]  No such offence was included in the Tribunal’s Statute.  The Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute,[3] and that mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility:

The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this Statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.[4]

26.     Criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.  […]

[1]    Article 10 of the Nuremberg Charter provided for this possibility: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual [sic] to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”  Article 6(1) of the Nuremberg Charter stated that “[t]he Tribunal . . . shall have the power to try and punish persons who, acting in the interest of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes” (emphasis added). Article II(1)(d) of Control Council Law No 10 provided that “1. Each of the following acts is recognized as a crime: […] (d) membership in categories of a criminal group or organization declared criminal by the International Military Tribunal”.

[2]    XV Law Reports of Trials of War Criminals, pp 98-99.

[3]    Par 50 of the Secretary-General’s Report.

[4]    Par 51 of the Secretary-General’s Report.

Download full document
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE

150.     […] [T]he Appeals Chamber recalls that there is no requirement to specifically identify each of the persons involved in a joint criminal enterprise.[1]


605.   […] the Trial Chamber’s duty to identify the plurality of persons applies to the persons belonging to the joint criminal enterprise,[2] not necessarily to the principal perpetrators of the crime. In that regard, the Trial Chamber expressly found that the Interahamwe, soldiers, and others who carried out the vast majority of the rapes and sexual assaults were not members of the joint criminal enterprise to pursue the destruction of the Tutsi population in Rwanda.[3] The Appeals Chamber recalls that the decisive issue with regard to the principal perpetrators of the crimes is whether they were used by the accused or by any other member of the joint criminal enterprise in order to carry out the actus reus of the crimes forming part of the common purpose.[4]

[1] Gotovina and Markač Appeal Judgement, para. 89.

[2] See supra, para. 145.

[3] [Karemera and Ngirumpatse] Trial Judgement, para. 1487.

[4] Kvočka et al. Appeal Judgement, para. 168.

Download full document