PhD studies in human rights: Joint Criminal Enterprise at the Cambodia Tribunal

Sunday 2 November 2008

Joint Criminal Enterprise at the Cambodia Tribunal

Last month, Prosecutors at the Extraordinary Chambers in the Courts of Cambodia pushed for the inclusion of the joint criminal enterprise theory of liability in the case against Kaing Guek eav, a.k.a. 'Duch', the former commander of Tuol Sleng prison (http://www.eccc.gov.kh/english/cabinet/courtDoc/129/CP_appeal_on_closing_order_Duch_D99_3_3_OCP_Appeal_EN.pdf) . 'Duch' is the youngest of the accused, aged 65, and is charged with crimes against humanity relating to the S-21 prison, a former school in Phnom Penh. In response to the Prosecutor’s appeal, the Pre-Trial Chamber issued several public invitations to particular individuals or organisations requesting amicus curiae submissions which would look at:
(1) the development of the theory of joint criminal enterprise and the evolution of the definition of this mode of liability, with particular reference to the time period 1975-9;
(2) whether joint criminal enterprise as a mode of liability can be applied before the Extraordinary Chambers, taking into account the fact that the crimes were committed in the period 1975-9 (See for example http://www.eccc.gov.kh/english/cabinet/courtDoc/138/D99_3_12_EN.pdf.)
Joint criminal enterprise has caused some controversy at the International Criminal Tribunal for the former Yugoslavia, partly because of its lack of a clear statutory basis and its weak foundations under customary international law, and it has been fairly definitively rejected in early rulings of the International Criminal Court. Its use at the Extraordinary Chambers should prove no less problematic given that the applicable law limits criminal responsibility to those who "planned, instigated, order, aided and abetted or committed" crimes and to those superiors who fail to prevent or repress crimes.
This week, the Pre-Trial Chamber received detailed amicus curiae briefs from the Centre for Human Rights and Legal Pluralism at McGill University (http://www.eccc.gov.kh/english/cabinet/courtDoc/165/D99_3_25_EN_McGil.pdf), Professor Cassese et al. (http://www.eccc.gov.kh/english/cabinet/courtDoc/163/D99_3_24_EN_Cassese.pdf) and Professor Ambos (http://www.eccc.gov.kh/english/cabinet/courtDoc/164/D99_3_27_EN_Ambos.pdf) . Professor Cassese argues that all three categories of joint criminal enterprise were recognised as customary international law in 1975-79, while Professor Ambos contends that this is only the case for the first category. The McGill submission notes the weakness of the supporting caselaw cited in the seminal decision of the International Criminal Tribunal for the former Yugoslavia (Tadic Appeals Chamber, 15 July 1999) but finds that 'there is some evidence to support the general existence of the third category of JCE already in the early years after the Second World War".
The Extraordinary Chambers may have enough issues to deal with under the principle of legality, without resorting to a particularly problematic doctrine that has very weak foundations under customary international law, probably even more so thirty years ago.
Thanks to Dr Shane Darcy, who prepared this note.

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

PhD studies in human rights

Sunday 2 November 2008

Joint Criminal Enterprise at the Cambodia Tribunal

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