Heller Responds to Margulies on the CMCR Decision in Al-Bahlul

Peter Margulies is absolutely right that I ignore the factual differences between Hamdan and al-Bahlul.  But that was not an oversight: I ignore the factual differences because they are irrelevant to whether the Nuremberg-era crime of criminal membership provides legal support for the CMCR’s conclusion that both material support for terrorism and conspiracy are war crimes.   That issue involves two interrelated – and strictly legal – questions: (1) whether the crime of criminal membership continues to exist under customary international law, such that criminal membership remains criminal under the “law of nations”; and (2), if it does, whether the crime of criminal membership supports the CMCR’s claim that the contemporary law of war prohibits either or both material support or conspiracy. Margulies ignores the first question entirely.   (Although perhaps his “slender reed” comment is directed toward it.)  Suffice it to say that it is difficult to argue that international law continues to recognize the crime of criminal membership.  The International Law Commission did not recognize criminal membership as one of the Nuremberg Principles in its famous 1950 report, and it specifically disavowed the crime as “collective criminal responsibility” in its 1996 Draft Code of Crimes Against the Peace and Security of Mankind.  Moreover, no international tribunal has ever had jurisdiction over criminal membership – not even the ICTR, which was faced, echoing Nuremberg, with a situation in which more than 1,000,000 individuals were suspected of having committed international crimes.  (For a more detailed analysis, see this post at Opinio Juris.) Margulies does address the second question, but here I think he goes considerably astray.  It is indeed possible to imagine factual scenarios that would simultaneously satisfy the requirements of criminal membership, material support, and conspiracy.  But that does not mean the crime of criminal membership supports the idea that material support and conspiracy are war crimes.  To conclude that it does, we have to compare the elements of the various crimes and conclude that they are the same – or at least similar enough that it would not offend the principle of legality to analogize between them.  And that we simply cannot do.  Criminal membership does not bear even a passing resemblance to material support.  Most obviously, criminal membership requires membership in a criminal organization (hence the name), while material support applies equally to members and non-members.  Moreover, whereas material support requires material support (hence the name), criminal membership requires no action in support of the criminal organization whatsoever. The elements of criminal membership and conspiracy are equally dissimilar.  The defining characteristics of conspiracy are the agreement to commit a crime and the defendant’s intent to carry out that crime.  Neither element plays a role in criminal membership, which requires only that the defendant voluntarily join a criminal organization and know that the organization is engaged in criminal acts.  Indeed, the point of criminal membership at Nuremberg was precisely to hold defendants criminally responsible who had not agreed to commit criminal acts or intended criminal acts to be committed. Interestingly, Margulies seems to recognize that, at the elemental level, criminal membership bears little resemblance to either material support or conspiracy.  After pointing out that al-Bahlul was “no mere foot soldier” but an “indispensable participant in a murderous organization,” he concludes that, “as such, he fits snugly into the ICTY’s first Joint Criminal Enterprise prong in Prosecutor v. Tadic, which has gained widest approval among scholars: one who intentionally provides “material assistance” to those engaged in unlawful killing.”  Put aside the fact that Margulies misdescribes JCE: like conspiracy, JCE requires a criminal agreement and the intent to commit the planned crimes; in the absence of such agreement and intent, the mere act of providing material assistance does not make a defendant liable for the crimes committed by the JCE.  (In fact, the ICTY has specifically rejected the idea that a defendant can aid and abet a JCE.)  The more basic point is that criminal membership is not JCE.  Al-Bahlul may well fit snugly into JCE, but that fit says nothing – literally nothing – about whether criminal membership supports the existence of material support as a war crime.  For similar reasons, Margulies claim that “Al-Bahlul’s distinctive role undercuts Heller’s reliance on the Statute of Rome” is misguided.  I did not rely on the Rome Statute at all, other than to point out that it does not include the crime of criminal membership, an absence that provides additional support for the idea that customary international law no longer recognizes (if it ever did) the crime.  Margulies simply ignores what I argued, claiming instead that “[t]he Rome Statute, at Art. 25(3)(d), prohibits intentional acts that in “any… way” contribute to the willful killing of civilians. Al-Bahlul’s design of the September 11 attackers’ Martyr Wills contributed in exactly the ex ante fashion contemplated by this provision.”  Fair enough – but so what?  Article 25(3)(d) of the Rome Statute is a mode of participation, not a substantive crime.  And it bears no resemblance whatsoever to criminal membership: although it involves group criminality, the purpose of the provision is to hold defendants responsible for crimes committed by groups of which they are not a member.  Co-perpetration, which is also a mode of participation and not a substantive crime, is addressed by Article 25(3)(a), which provides, inter alia, that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person… [c]ommits such a crime… jointly with another.”  Again, the critical issue in al-Bahlul is whether the Nuremberg-era crime of criminal membership supports the idea that material support and conspiracy are war crimes.  The answer to that question depends on the legal similarity of the those crimes, not on any factual similarity between al-Bahlul and Hamdan or between either of those defendants and the defendants convicted of criminal membership at the NMTs.