Monday, 12 September 2011

Cambodia Trial Chamber Rejects Extended form of Joint Criminal Enterprise Liability

In a ruling issued today, the Trial Chamber of the Extraordinary Chambers of the Courts of Cambodia has held that the extended form of joint criminal enterprise liability (known as JCE III), by which persons who commit a crime with a common purpose are liable for the foreseeable offences committed by their accomplices, even if the offender himself or herself did not intend these crimes, did not form a part of customary international law and was not contemplated by general principles of law at the time of the Khmer Rouge atrocities. I think there is a clear divergence here with the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, which set out the theory of JCE III with reference to post-Second World War jurisprudence. This holding may only be of academic interest, because the main theory of the Prosecutors relies upon a more classic form of complicity known as JCE I. It is only in the alternative that the JCE III theory has been invoked.
Thanks to Robert Petit.

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