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Joint Criminal Enterprise, Command Responsibility, and the Development of In- Ternational Criminal Law ∗

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Joint Criminal Enterprise, Command Responsibility, and the Development of In- Ternational Criminal Law ∗ 1 Draft: September 15, 2004 (forthcoming Cal. L. Rev. January 2005) Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of In- ternational Criminal Law ∗ Allison Marston Danner† Jenny S. Martinez‡ Contemporary international criminal law is largely concerned with holding individual defendants responsible for mass atrocities. Because the crimes usually involve the concerted ef- forts of many individuals, allocating responsibility among those individuals is of critical impor- tance. This Article examines two liability doctrines – joint criminal enterprise and command responsibility – that play a central role in that allocation of guilt in international criminal tribu- nals. The Article posits a general framework for understanding the development of international criminal law, as an outgrowth of three legal traditions: domestic criminal law, international human rights law, and transitional justice. We explore the application of that framework to the joint criminal enterprise and command responsibility doctrines and argue that viewing joint criminal enterprise and command responsibility through the lens of our framework shows the need for certain doctrinal reforms. Finally, we discuss the application of liability doctrines de- veloped in the context of international criminal tribunals to prosecutions for international or transnational crimes in other forums, such as domestic military tribunal prosecutions of terror- ists, that do not share the same roots as international criminal law. Introduction International criminal law represents a new and extraordinary undertaking. Its prosecutors charge individuals with acts of unimaginable violence: mass executions, sexual enslavement, and brutal mutilations. It is not only the subject matter of international criminal trials, however, that challenges ordinary assumptions. The idea of applying legal rules and standards to the com- ∗ The authors would like to thank the members of the ICTY judiciary and the staff of the Office of the Prosecutor who agreed to be interviewed in connection with this Article. We also gratefully acknowledge the assistance of Rebecca Brown, Mariano-Florentino Cuéllar, Mark Drumbl, Don Hall, Laurence Helfer, Mark Kelman, Nancy King, Mark Osiel, William Schabas, Robert Weisberg and Beth Van Schaack for helpful criticism of earlier drafts. For superior research assistance, we thank Emily Urban of the Vanderbilt Law School Library and Elizabeth Muli of Stanford Law School, as well as the Stanford Law School Library, especially Paul Lomio and Erica Wayne. † Associate Professor, Vanderbilt University Law School ‡ Assistant Professor, Stanford Law School 2 plex and chaotic backdrop of contemporary armed conflicts and episodes of mass atrocity is a bold—some would say futile—effort to fix individual responsibility for history’s violent march. Procedurally, international criminal law is equally ambitious. It seeks to meld two legal sys- tems into a coherent whole; international criminal tribunals combine aspects of the common law adversarial system with the civil law inquisitorial system. In a formal sense, their rules of proce- dure and evidence draw on both legal traditions;1 in a practical sense, judges schooled in the common law or the civil law reflect their system of origin in their approach to various legal problems. The combination of these two divergent traditions has led to certain tensions in doc- trine and procedure.2 In this Article, we argue that, beyond the clash of the common and civil law traditions, a dif- ferent, and more enduring, conflict emerges from the statutes, rules, and decisions of interna- tional criminal courts. Contemporary international criminal law combines three distinct traditions: international human rights law, domestic criminal law, and transitional justice. Each one, to varying degrees, informs the purposes and principles of international prosecution, and their interaction creates conflicts within international criminal law itself. To illustrate these tensions in international criminal law, we examine two doctrinal areas in which they have played out — command responsibility and joint criminal enterprise.3 We focus on these doctrines because they constitute two important theories of individual liability used in contemporary international criminal law; indeed, it is rare to find an international criminal case that does not involve one or both. Conceptually, these doctrines go to the core of what interna- tional criminal trials seek to achieve: the attribution and calibration of individual responsibility for mass atrocities. Furthermore, the study of liability theories presents an ideal vehicle for ex- ploring the moral commitments of international criminal law, for the “doctrines of criminal li- 1 The Yugoslav and Rwandan Tribunals, for example, take from common law systems an adversarial system for the presentation of evidence, including cross-examination. Drawing on civil law traditions, however, they also employ judges rather than juries, incorporate a more active role for the judges in questioning witnesses (and even in calling their own witnesses), draw more heavily on written evidence prepared in a pre-trial dossier, and allow for appeals by the prosecution. See Patrick L. Robinson, Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia, 11 EUR. J. INT’L L. 569, 574-79 (2000); Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 IND. L.J. 809, 842-43 (2000). 2 See generally Patricia M. Wald, Judging War Crimes, 1 CHI. J. INT’L L. 189 (2000); Robert Christensen, Getting to Peace by Reconciling Notions of Justice: The Importance of Considering Discrepancies between Civil and Common Legal Systems in the Formation of the International Criminal Court, 6 UCLA J. INT’L L. & FOR. AFF. 391 (2001); Faiza Patel King & Anne-Marie LaRosa, The Jurisprudence of the Yugoslavia Tribunal: 1994-1996, 8 EUR. J. INT’L L. 123, 125 (1997). 3 We principally analyze the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), although we also consider the precedents from the International Military Tribunal at Nuremberg (IMT) and its subsequent proceedings, as well as the newly- established International Criminal Court (ICC), the Special Court for Sierra Leone, and the Special Panel for Serious Crimes established by the United Nations in East Timor, all of which apply international criminal law and procedure. The Special Court for Sierra Leone and the Special Panel established by UNTAET in East Timor also apply some elements of domestic criminal law. For East Timor, see United Nations Transitional Administration in East Timor, Regulation No. 2000/15, UNTAET/REG/2000/15, sec. 4-9 (June 6, 2000). For Sierra Leone, see Statute of the Special Court for Sierra Leone, arts. 1-5, available at http://www.sc-sl.org. 3 ability, being generalizations of the conditions in which punishment is proper, are primarily statements of normative import.”4 In this Article, we seek to accomplish two goals. The first is to construct a general frame- work for evaluating doctrinal controversies in international criminal law. We then apply this framework to joint criminal enterprise and command responsibility, providing an explanation for why these doctrines have evolved into their present form and suggesting ways in which they should be improved. Both doctrines, if not limited appropriately, have the potential to lapse into forms of guilt by association, thereby undermining the legitimacy and the ultimate effectiveness of international criminal law. Doctrinal reforms may help avoid this danger. With regard to joint criminal enterprise, we argue that the scope of the enterprise and the defendant’s relationship to it should be defined more precisely. Specifically, international judges should require that prose- cutors demonstrate that each defendant charged under a joint criminal enterprise theory made a substantial contribution to the fulfillment of the common objective of the enterprise. In addition, we argue that certain forms of joint criminal enterprise and command responsibility that tolerate a reduced mens rea should not be used in cases involving specific intent crimes such as genocide and persecution. Finally, we examine how joint criminal enterprise and command responsibility will affect both the future development of international criminal law and the domestic adjudication of inter- national crimes. The Special Court for Sierra Leone, the Serious Crimes Court in East Timor, and the International Criminal Court have all implicitly or expressly incorporated joint criminal enterprise and command responsibility into their statutory structure. The military commissions recently instituted by the U.S. government to try suspected terrorists include both command re- sponsibility and a liability theory that closely resembles joint criminal enterprise, and the first indictments of Guantanamo detainees expressly rely on this joint criminal enterprise theory of liability.5 Some experts in international criminal law have suggested that Saddam Hussein be charged using a theory of joint criminal enterprise.6 Whether or not senior U.S. officials may be charged with violations in connection with the Abu Ghraib prison scandal depends in part on the application of command responsibility principles. These developments also suggest that international tribunals
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