Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law

Abstract

Contemporary international criminal law is largely concerned with holding individual defendants responsible for mass atrocities. Because the crimes usually involve the concerted efforts of many individuals, allocating responsibility among those individuals is of critical importance. 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 tribunals. The Article posits a general model for understanding the development of international criminal law as in outgrowth of three legal traditions: domestic criminal law, international human rights law, and transitional justice. We explore the application of that model to joint criminal enterprise and command responsibility doctrine, and argue that viewing the doctrine through the lens of our model shows the need for certain doctrinal reforms. Finally, we discuss the application of liability doctrines developed in the context of international criminal tribunals to prosecutions for transnational crimes in other forums, such as military tribunal prosecutions for terrorism, that do not share the same roots as international criminal law.