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its Charter to authorize prosecutions for conspiracy to commit war crimes and crimes againsthumanity. 35918.23.6 Other Group Criminality Theories – Joint Criminal Enterprise. In addition toconspiracy, analogous theories of group criminality have been applied to violations of the law ofwar and other violations of international law. 360 Under recognized principles common to themajor legal systems of the world, persons who are connected with plans or enterprises involvedin the commission of a crime, or who belong to an organization or group engaged in thecommission of crime, may also be guilty of that crime. 361 Joining a criminal group may bepunishable as a distinct offense separate from the atrocities committed by that criminal group. 362Three categories of group criminality or “joint criminal enterprise” may be identified,which vary according to the mental element (mens rea) of the defendant with respect to the crimethat is committed: 363Government of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shallbe individual responsibility:– (a) Crimes against peace: namely, planning, preparation, initiation or waging of awar of aggression, or a war in violation of international treaties, agreements or assurances, or participation in acommon plan or conspiracy for the accomplishment of any of the foregoing;”).359 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 226(“Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimesand Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one tocommit acts of aggressive war.”).360 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THEIMT 256 (“If satisfied of the criminal guilt of any organisation or group, this Tribunal should not hesitate to declareit to be criminal because the theory of ‘group criminality’ is new, or because it might be unjustly applied by somesubsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possiblein a manner to insure that innocent persons will not be punished. A criminal organisation is analogous to a criminalconspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound togetherand organized for a common purpose. The group must be formed or used in connection with the commission ofcrimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as hasbeen pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledgeof the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unlessthey were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as membersof the organisation. Membership alone is not enough to come within the scope of these declarations.”).361 See, e.g., United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THENMT 372 (“In line with recognized principles common to all civilized legal systems, 2 of Article II of ControlCouncil Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt.Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission ofcrime or are connected with plans or enterprises involved in its commission, those who order or abet crime, andthose who belong to an organization or group engaged in the commission of crime.”).362 James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL297, 312, 314 (1869) (noting that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized maraudersis a high offence against the laws of war; the offence is complete when the band is organized or joined. Theatrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons theyare, why such banditti are denounced by the laws of war.”).363 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, 195 (Jul. 15, 1999) (“Many post-WorldWar II cases concerning war crimes proceed upon the principle that when two or more persons act together to1128