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.