A five-judge pre-trial chamber of the Extraordinary Chambers of the Courts of Cambodia has rejected the theory of liability known as 'JCE III'. The JCE III concept was developed by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, in an expansive interpretation of article 7(1) of its Statute. The Yugoslavia Tribunal said it based itself upon customary international law, citing post-Second World War authorities. Since then, the concept has been controversial, but despite challenges it was reaffirmed by the Appeals Chamber. Nevertheless, decisions from the International Criminal Court appear to reject the concept, favouring a theory known as 'co-perpetration'.
Under JCE III, an accused may be convicted for the crimes that were perpetrated by another to the extent that they were comprised within a 'joint criminal enterprise' to commit crimes within the jurisdiction of the Tribunal, even in the absence of evidence that the accused intended to commit the crimes charged. It is similar to what is sometimes called 'common purpose' liability in domestic legal systems. Critics of the approach have quipped that JCE means 'Just Convict Everyone'.
More fuel to this fire now comes from the Cambodia Tribunal in this recent ruling, issued a day ago. The judges review the case law from the Second World War proceedings and reach a different conclusion from that of the Yugoslavia Tribunal. Accordingly, they grant the motion of the defendants to reject charges based upon the JCE III theory, given that this was not part of customary international law in the 1970s when the alleged crimes were committed.
Thanks to Wolfgang Schomburg.