Criminal Membership’s Lack of Precedential Value

As I noted in my previous post, the CMCR’s opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes.  I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the war-crimes provision of the London Charter does not mention criminal membership; criminal membership was addressed in two separate articles); and (2) that the elements of criminal membership are materially different than the elements of either material support (criminal membership does not require action in support of the criminal organization; material support does not require membership in a criminal organization) or conspiracy (criminal membership does not require agreement or intent to commit criminal acts).

Those considerations aside, it is also important to note that it is difficult — if not impossible — to argue that international law continues to recognize the crime of criminal membership. Consider the following:

• In December 1946, the General Assembly adopted Resolution 95(I), which “affirmed the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal” and directed the newly-created International Law Commission (ILC) to “treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal.”  Four years later, the ILC adopted a report entitled “Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal.”  According to Principle VI, three crimes were “punishable as crimes under international law”: crimes against peace, war crimes, and crimes against humanity.  Criminal membership was not included — and indeed, criminal membership was not mentioned anywhere in the ILC report or in its accompanying commentary.

• The ILC’s first “Draft Code of Offences Against the Peace and Security of Mankind,” adopted in 1954, did not include — or even mention — the crime of criminal membership.

• When the Security Council created the ICTY and the ICTR, it did not give either tribunal jurisdiction over the crime of criminal membership.

• The ILC’s 1996 “Draft Code of Crimes Against the Peace and Security of Mankind” did not include criminal membership.  Indeed, in the Commentary on the Draft Code, the ILC mentioned that the IMT “recognized the possibility of criminal responsibility based on the membership of an individual in… a criminal organization” and then categorically rejected that idea, pointing out that “[t]he Code does not provide for any such collective criminal responsibility” (p. 47 n. 30; emphasis added).

• The Rome Statute, adopted in 1998, does not include the crime of criminal membership.

• No other international tribunal — from the Special Panels for Serious Crimes in East Timor to the Special Tribunal for Lebanon — has ever had jurisdiction over the crime of criminal membership.

It is also important to recognize the specific factual context that led the Allies to include the crime of criminal membership in the London Charter.  That decision was born of expedience, not principle — there were simply too many German war criminals to prosecute in traditional individualized trials.  Indeed, the United States alone had detained more than 100,000 Germans pursuant to JCS 1023/10, the “Directive on the Identification and Apprehension of Persons Suspected of War Crimes or Other Offenses and Trial of Certain Offenders.”  Relying on the crime of criminal membership was thus very much a last resort, as numerous scholars have recognized.  (See, for example, Richard Arens seminal 1951 article “Nuremberg and Group Prosecution.”)

That context is important for two reasons.  First, it gives increased significance to the fact that the Security Council did not consider dusting off the crime of criminal membership when it created the ICTR.  After all, Rwanda’s gacaca courts tried more than 1,000,000 people suspected of being involved in the 1994 genocide.  If there was ever a time for the international community to invoke Nuremberg, the aftermath of the 1994 genocide was it.

Second, and relatedly, that context indicates why the crime of criminal membership is particularly inapposite in the context of the “war on terror.”  The United States is not faced with the need to prosecute hundreds of thousands of al-Qaeda members; it is not even faced with the need to prosecute dozens.  Nuremberg’s crime of criminal membership thus not only fails to provide legal support for material support and conspiracy, it fails to provide factual support for them, as well.