International Criminal Law: A Conversation with Professor Jenny S. Martinez

Before joining the Stanford faculty, Assistant Professor of Law Jenny S. Martinez worked at the U.N. International Criminal Tribunal for the Former Yugoslavia, the Hague, as an associate legal officer in the chambers of Judge Patricia Wald. Martinez later represented “dirty bomber” suspect Jose Padilla before the U.S. Supreme Court in Rumsfeld v. Padilla. Recently, she and Allison Marston Danner ’97, associate professor of law at Vanderbilt University Law School, coauthored an article titled “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,” 93 California Law Review (2005). Stanford Lawyer Editor Eric Nee sat down with Martinez to discuss the article and her views on international criminal law.

Why has international criminal law become such a controversial subject in recent years? The roots go back to the period right after World War II when a number of countries set about creating human rights norms and institutions to enforce them. The Nuremberg tribunals are the most famous example. There were also the Tokyo trials of Japanese war criminals. Although some criticized these trials as victor’s justice, they were also widely praised for dealing with the crimes through a legal mechanism, and by doing so bringing attention to the value of the rule of law. After World War II you also had the drafting of foundational international human rights instruments, like the Universal Declaration of Human Rights and the 1949 Geneva Convention. But then we entered into the Cold War, which caused a lag in the creation of permanent institutions to enforce those human rights norms.

With the end of the Cold War there was suddenly room in international law for the creation of stronger institutions to enforce these norms. This resulted in the creation of two ad hoc criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Both were created by the U.N. Security Council. They were the first international criminal courts since Nuremberg. At the same time, you saw in the 1990s the transition to democratic regimes in Eastern Europe, growing democratization in Latin America, and the end of apartheid in South Africa. These countries all began grappling with domestic mechanisms for dealing with past crimes. This set the stage for a permanent international criminal court (ICC).

The ICC has had a troubled history. China, Russia, Japan, India, and the United States have all refused to ratify it. There are huge gaps in terms of who’s signed on to the ICC, but it is nevertheless remarkable. It received the necessary number of ratifications to enter into force, and currently has 100 ratifications. Most of the European countries have signed on, and a lot of countries in the developing world have signed on. A lot depends on how the ICC does in its first few cases. It will gain legitimacy if it’s seen as a neutral body that’s arbitrating fairly between different sides in a particular conflict—not just taking on the rebels or not just taking on the government, but finding the criminals on both sides. It also has to select countries where there have been wide-scale atrocities that rise to the level of international importance, instead of picking on a few minor violations by a politically unpopular government. If the ICC can build its credibility over the next 20 or 30 years, then more countries will sign on.

Will new tribunals dedicated to particular conflicts continue to be created outside of the ICC? It’s interesting that the U.S. did not prevent the Security Council from referring the situation in Darfor to the ICC. Since the U.S. has footed so much of the bill for the ICTY and ICTR over the years, I think it recognizes the efficiency in having a permanent court, rather than reinventing the whole thing from scratch every time.

You will also, I think, see the continued creof hybrid international courts that have some personnel from the country that is affected, and some international personnel. The Special Court for Sierra Leone, for example, has judges and prosecutors from Sierra Leone and from other countries. Even with the ICC in existence, there are advantages to these hybrid courts. Because these courts operate in the countries where the crimes occurred, they involve a greater number of people from those countries in positions of authority, and the public has easier access to the trials. That gives the courts greater legitimacy and helps strengthen local legal institutions.

What are the origins of international criminal law? International criminal law grows directly out of international humanitarian law, the laws of war. It was international humanitarian law that was ostensibly being enforced at Nuremberg and that forms the basis for most of the substantive crimes that are prosecuted in the current international criminal tribunals. There are three other distinct fields of law that have had an influence on current international criminal law—international human rights law, domestic criminal law, and the transitional justice movement.

The easiest influence to explain is domestic criminal law. These are criminal courts, so they borrow heavily from domestic criminal legal systems. The outlook of criminal law in most domestic legal systems, particularly in liberal democratic nations, is concerned with the rights of the defendant. Under international human rights law defendants have the right to a presumption of innocence, the right to have their guilt proven beyond a reasonable doubt, and the right to present their side of the case. Judges or prosecutors who have worked in criminal law domestically come with this perspective.

A second body of law that has influenced international criminal law is international human rights law. Some judges at international criminal courts have no criminal law background. They come from a human rights background where they may have worked for an NGO or for U.N. agencies that are related to human rights. They may have engaged in fact-finding or the investigation of human rights violations.

Finally, you have people who come from a transitional justice background. This is a term that became popular in the 1990s to refer to countries that were moving from oppressive regimes to modern liberal democratic states, everything from the former states of Eastern Europe, to military dictatorships in Latin America, to South Africa. Within the rubric of transitional justice are things like truth commissions, as well as criminal prosecutions and civil reparations regimes in domestic systems.

What we have ended up with are people coming from these three different backgrounds, bringing with them different ideas about the role of law in protecting human rights. For example, criminal law is concerned with protecting the defendant’s rights and with individual guilt. International human rights law, on the other hand, is very victim focused. It doesn’t matter who was on the death squad. What it’s interested in is how many victims there were and what happened to them. It is interested in the state’s responsibility, not individual criminal responsibility. So in contrast to the rule of lenity of criminal law, where you’re going to construe prohibitions narrowly so that you’re not catching people unawares as defendants, in human rights law the corresponding interpretative canon is to interpret human rights more expansively to protect the rights of individuals. In international criminal law you can see the confluence of these different strands. Sometimes they move together in a positive direction, and other times there is a tension.

What are some of the problems with the way that international criminal law is being applied? There are two liability doctrines that appear in basically every international criminal case today, joint criminal enterprise and command responsibility. The reason is that these crimes are committed by groups, not by individuals. When the crime is the ethnic cleansing of a region—like the town of Srebrenica in Bosnia where 7,000 civilians were tied up and shot to death—it takes hundreds of people to execute that.

So the question is, How do you calibrate responsibility among those hundreds or thousands of perpetrators for what happened? Command responsibility is one doctrine that allows you to do that. The doctrine evolved in the post–World War II prosecutions at Nuremberg and Tokyo. It said that any military commander was responsible for the actions of his subordinates. This included responsibility not only for direct things that the commander had ordered—go shoot those civilians—but also for the failure to take the necessary steps to prevent or punish crimes committed by his subordinates. Over time the doctrine has been expanded to include not only military officials, but also civilian leaders when they exercise a comparable level of control over their subordinates.

The most famous and controversial command responsibility case from World War II is the Yamashita case, which eventually ended up before the U.S. Supreme Court, which upheld the conviction by the military tribunal. The dissenters in the Supreme Court in the Yamashita case argued that this Japanese general had basically been found guilty on a strict liability theory. In other words, you were the commander, crimes were committed by your troops, ergo you’re guilty of the crimes and you’re going to be executed for it, which was what happened to him.

What’s the problem with strict liability? The idea that you can get life imprisonment, or even be executed, when the prosecutor hasn’t proved that you individually had done anything culpable, just that you happened to be the commander, is problematic in terms of the basic criminal paradigm of individual responsibility. If you veer too much toward strict liability, you’ll undermine the credibility and integrity of the proceedings. There was some danger of that in the Blaskic case before the Yugoslav tribunal. Blaskic was a Croatian general accused of being responsible for crimes committed by troops ostensibly under his command in central Bosnia. The trial chamber judgment didn’t clearly find proof that Blaskic had any knowledge of what was going on or that he did have effective control. He was found guilty anyway. But the Blaskic decision was overturned on appeal, and the latest appellate judgments have reined in the command responsibility doctrine and made clear that it’s not a strict liability standard—that there does have to be more culpability by the defendant.

What about joint criminal enterprises? Joint criminal enterprise doctrine deals with the same problem as command responsibility, the collective nature of the crime. Joint criminal enterprise doesn’t appear explicitly in the statute of the ICTY. The court created it in the first decision before the ICTY, extracting from some of the post–World War II cases the idea that individuals who together participated in a set of crimes would each be liable for all the crimes perpetrated by the collective. This doctrine has some of the same problems that command responsibility has. Under this doctrine, one soldier in Bosnia who participated in killing people in one village could conceivably be responsible not only for the three people he shot in the village, but also for the 20,000 or 30,000 people who were killed all over the country during the whole scope of the war. A joint criminal enterprise can include commanders, but it can also include the lowest foot soldier who knowingly participated in some of the crimes. Joint criminal enterprise (JCE), in part, began to be used in response to the contraction of command responsibility. That’s why you’ve now got commanders being prosecuted under the JCE theory, because command responsibility is a more rigorous standard and JCE is still loosey-goosey. My coauthor and I went back and looked at the post–World War II cases and found that although there was some support for limited JCE liability, the cases didn’t support the incredibly expansive doctrine that it has now become. We don’t suggest that JCE doctrine should be abandoned altogether, but rather that it ought to be reined in.

Do you expect the court to address these problems? Yes. It’s an evolutionary process. There are swerves and detours and backsliding, but in the long run there’s progress, particularly as international criminal law becomes its own field. So yes, I’m optimistic about the overall direction in which the tribunals and the ICC are moving.