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.  […]