As the title of this panel suggests, debates about accountability for mass atrocities often center on selection of the appropriate legal forum, whether that be an international tribunal, a hybrid tribunal, a truth commission, or a domestic prosecution. Despite this dizzying array of options, all these proceedings share one important principle: each relies-at least in part-on international criminal law as its source of substantive law. While hybrid and domestic trials may also include charges drawn from domestic criminal codes, all of the major institutions established in the past ten years to address past atrocities include within their jurisdiction crimes originating from international criminal law.1 This propagation of international criminal law renders its past and future development a critical concern.

International criminal law is a complex body of law that defies easy categorization. It can be understood as a direct outgrowth of international humanitarian law.2 International criminal law has also been described as a hybrid body of law employing principles drawn from the civil and common law modes of criminal adjudication.3 These portrayals, however accurate, are incomplete. They fail to capture other influences-namely domestic criminal law, human rights law, and transitional justice principles-that have played, and continue to play, an important role in the development of contemporary international criminal law.

My remarks here summarize a larger project undertaken with Professor Jenny Martinez.4 Our project has two principal goals: First, it describes the distinguishing features of the criminal law, human rights, and transitional justice influences that we believe shape contemporary international criminal law. It then applies those influences to two key liability doctrines within international criminal law: joint criminal enterprise and command responsibility. My remarks here do not attempt to describe the project in its entirety; instead, they briefly set out our vision of the major influences shaping international criminal law and their application to the doctrine of joint criminal enterprise.

Describing international criminal law as a confluence of principles drawn from domestic criminal law, human rights, and transitional justice principles may be seen as reductive. To some extent, the categories overlap. International human rights law, for example, includes principles governing the criminal trial, and the criminal trial is an important element of transitional justice mechanisms. Nevertheless, certain essential features of each of these approaches can be distilled and compared.

Domestic criminal law5 focuses on individual wrongdoing as a necessary prerequisite to the imposition of criminal punishment. The criminal trial centers on the mental state and actions of the perpetrator: the experience of the victim is, in important ways, peripheral to the search for criminal wrongdoing. International criminal adjudication has implicitly, and occasionally explicitly, adopted this orientation.6 International criminal law instantiates this focus on individual wrongdoing through a variety of substantive and procedural devices.7 At bottom, however, these doctrines simply reinforce the principle of individual culpability and the concomitant avoidance of guilt by association.

By contrast, human rights proceedings are, generally speaking, centered on the wrongs inflicted on the victim. The substantive norms of international human rights law are often broadly interpreted to ensure that harms to victims are recognized and remedied, and that over time progressively greater respect for human dignity and freedom is realized.8 In many human rights proceedings, the culpability of the individual wrongdoer is relatively unimportant. Indeed, establishing the identity of the individual wrongdoer may not be necessary in order to find that the victim's human rights have been violated.9

In contrast to criminal and human rights law, "transitional justice" does not refer to a body of substantive law but instead to a variety of legal mechanisms used to mark political transitions.10 The proceedings may consist, for example, of criminal trials, truth commissions, or indigenous mechanisms.11 Because of their political function, these proceedings share common elements. They seek to provide a historical record of a period; often truth-telling is a primary goal. Generally they also seek to establish that individuals-not entire societies-are responsible for the wrongs of the past.12 In practice, these mechanisms often attribute responsibility for past wrongdoing to the political leaders of the period.

It is our contention that these three influences-sketched briefly here-play an important role in the development of many doctrines of contemporary international criminal law, including joint criminal enterprise. Joint criminal enterprise (JCE) is a theory of liability that has been most extensively elaborated by the prosecutors and judges at the International Criminal Tribunal for the former Yugoslavia (ICTY).13 JCE allows individuals to be convicted of crimes that they did not physically commit. Although JCE has several variants, it essentially requires prosecutors to prove that a group of people had a common plan, design, or purpose to commit a crime; that the defendant participated in some fashion in the common plan; and that the defendant intended the object of the common plan.14 If the prosecution can prove these elements, the defendant can be convicted of all completed crimes within the scope of the common plan, and all crimes that he did not intend but that were a foreseeable consequence of the common plan.

Joint criminal enterprise does not appear in the statute of the ICTY. It was recognized by the ICTY Appeals Chamber as implicitly falling within the statute in part based on the Appeals Chamber's reading of the statute's object and purpose, which it described as ensuring that "all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have been perpetrated, or participated in the perpetration of those violations, must be brought to justice."15 It is our contention that the development of joint criminal enterprise bears indications of the importance of criminal law, human rights, and transitional justice principles in contemporary international criminal law.

With reference to the criminal law paradigm, we note assertions by the ICTY judiciary that JCE is a form of individual liability.16 This requirement is doctrinally enforced through the twin requirements that the individual must intend the criminal object of the joint criminal enterprise and must participate in some way in the accomplishment ofthat objective. From the human rights approach, we observe the willingness of the ICTY Appeals Chamber to go beyond the text of the statute and adopt this far-reaching theory. The language of Tadic suggests that the Appeals Chamber decision arose from a victim-centered search for accountability that seeks to ensure that all perpetrators may be found guilty of crimes within the ICTY's jurisdiction. From transitional justice, we find there is an emphasis on using JCE to prosecute the senior leadership. Slobodan Milosevic, for example, stands accused of participating in three massive JCEs.17 Furthermore, joint criminal enterprise allows individuals to be found responsible for broad swaths of wrongdoing, which arguably furthers the transitional justice goal of disclosing the full extent of crimes perpetrated in the names of former leaders.

While these three influences can be observed in the development of joint criminal enterprise, the doctrine has in practice strayed far from the focus on individual culpability that distinguishes the criminal law paradigm. Because there is usually no minimum quantum of contribution an individual must make to a JCE, international prosecutors can allege joint criminal enterprises of enormous scope. There appears to be no reason, for example, why the ICTR Prosecutor could not allege that the elimination of moderate Hutus and Tutsis in Rwanda was itself the object of a massive criminal enterprise. Through this charge, the prosecution could argue that each ICTR defendant who intentionally participated in the genocide and who foresaw the killings that in fact occurred should be found liable for the murder of hundreds of thousands of people.

In practice, JCE represents an enormous transfer of power from international judges to prosecutors, who have enormous discretion to decide how much wrongdoing to tie to any particular defendant. Because the doctrine is so loose, JCE approaches dangerously close to guilt by association. This is particularly troubling in light of the still-tenuous legitimacy of international criminal law.

Joint criminal enterprise also illustrates the potential dangers posed by the proliferation of international criminal law. Substantive international criminal law is used in many forums, international and national, and the complementarity regime of the International Criminal Court should only accelerate this trend. Not all these forums will share the human rights and transitional justice goals of the original courts in which the doctrine may have been developed. Two indictments recently issued by the United States Military Commissions established to try alleged terrorists, for example, appear to employ a version of joint criminal enterprise.

These indictments accuse two individuals of conspiracy to commit a variety of crimes, including attacking civilians, by "willfully and knowingly joining] an enterprise of persons who shared a common criminal purpose."18 Human rights advocates may applaud when an international court uses an expansive version of JCE doctrine to hold a particular defendant liable for the range of crimes associated with regional ethnic cleansing in which he played some part. But they may wish the doctrine had been more carefully defined when it is later used by a national government to suggest that all persons who provide any sort of support to a terrorist organization, however loosely defined, become liable for all crimes committed by its members.We hope that international judges and prosecutors will be sensitive to the influences that may guide their decision-making. We believe that not all these principles are equally suitable for forums premised on a criminal law mode that promises to adjudicate individual criminal responsibility. In the case of joint criminal enterprise, the influence of human rights and transitional justice principles may have gone too far.

* Assistant Professor of Law, Vanderbilt University Law School.

2 The statutes of the ICTY and ICTR, for example, call for the prosecution of "serious violations of international humanitarian law." ICTY Statute, supra note 1, art. 1; ICTR Statute, supra note 1, art. 1.

3 See, e.g., 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. & FOREIGN. AFF. 391 (2001 ); Faiza Patel King & Anne-Marie LaRosa, Jurisprudence of the Yugoslavia Tribunal: 1994-1996, 8 EUR. J. INT'LL. 123, 125 (1997).

4 See Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. (forthcoming Jan. 2005).

5 By this phrase, I refer to certain general features common to most sophisticated municipal criminal law systems, particularly the principle of individual culpability. See Mirjan Damaska, The Shadow Side of Command Responsibility, 49 AM. J. COMP. L. 455, 470 (2001).

6 Prosecutor v. Tadic, Judgement, Appeals Chamber, case No. IT-94-1-A para. 186 (July 15, 1999) [hereinafter Tadic V] (stating "The basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated").

7 The rule of strict construction of penal statutes represents one such device. see, e.g., Prosecutor v. Kayishema & Ruzindana, Judgement, Trial Chamber, case No. ICTR-95-1-T para. 103.

8 See Laurence R. Heifer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832,1887 (2002). In criminal law trials, by contrast, the offenses are, at least in theory, strictly construed in favor of the defendant.

9 See, e.g., Velasquez Rodriguez Case, Judgement, Inter-Am. C.H.R. (Ser. C), No. 4, para. 172 (1988).

10 See generally, RUTI G. TEITEL, TRANSITIONAL JUSTICE (2001); TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES (A. James McAdams ed., 1997); TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz, ed. 1997).

11 The gacaca proceedings used in Rwanda, for example, provide an example of such an indigenous mechanism. see Mark A. Drumbl, Toward a Criminology of International Crime, 19 OHIO ST. J. ON DISP. RKSOL. 263, 275 (2003).

12 See Antonio Cassese, Reflections on International Criminal Justice, 61 MOD. L. REV. 1, 6 (1998).

13 Joint criminal enterprise is also referred to by other terms, such as "common purpose" and "common plan" liability. See Prosecutor v. Radoslav Brdanin & Momar Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, June 26, 2001, para. 24, 2001 WL 1793829.

14 See Prosecutor v. Multinovic et al., Decision on Dragoljub Ojdanie's Motion Challenging Jurisdiction-Joint Criminal Enterprise, Appeals Chamber, case No. 1T-99-37-AR72 (May 21, 2003).

15 Tadic V, supra note 6, para. 190.

16 See, e.g,. Prosecutor v. Multinovic et al., supra note 14, para. 26.

17 Prosecutor v. Milosevic, Initial Indictment, case No. IT-01-51-I para. 6 (Nov. 22,2001) Prosecutorv. Milosevic, First Amended Indictment, case No. IT-02-54-T para. 6 (Oct. 23, 2002); Prosecutor v. Milosevic et al., second Amended Indictment, case No. IT-99-37-PTpara. 16 (Oct. 16, 2001).

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