The fiction of JCE III in customary international law

After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law.1Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals of the Co-Investigative Judges[’] on Joint Criminal Enterprise (JCE), 20 May 2010, para. 78. The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion.2Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, paras. 33-35.

Despite the ECCC’s rejection of JCE III and numerous dissenting opinions of ICTY Judges, the ICTY Chambers routinely, albeit erroneously, hold that the JCE is applicable. The ICTY Appeals Chamber in Đorđević recently misstated the ECCC Pre-Trial Chamber’s findings. Đorđević found that the Pre-Trial Chamber deemed it unnecessary to determine whether JCE III was part of customary international law.3Prosecutor v. Đorđević, IT-05-87/1-A, Judgement, 27 January 2014, para. 50. In fact, the Pre-Trial Chamber did analyze whether JCE III existed in customary international law and expressly concluded that it did not.

Although the ECCC Pre-Trial and Trial Chambers’ rejection of JCE III is unequivocal, the Co-Prosecutors appealed the Case 002/01 Judgement on the ground that the Trial Chamber excluded consideration of the extended form of joint criminal enterprise.4Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Co-Prosecutors’ Appeal Against the Judgment of the Trial Chamber in Case 002/01, 28 November 2014. The Co-Prosecutors have admitted that they do not seek to overturn any portion of the Judgement; rather, they wish the Supreme Court Chamber to declare JCE III applicable to “provide legal guidance to the Trial Chamber.”5Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, 29 September 2014, para. 9.

Such declaratory relief is only necessary if the Co-Prosecutors intend to apply JCE III in future trials, which is the real reason they have filed their appeal. In an email to the press, International Deputy Co-Prosecutor William Smith said the Trial Chamber should have considered foreseeable crimes, claiming: “Although both Accused were convicted, it was important to have this mode of liability recognized as it may impact future trials in relation to particular crimes such as rape which may not have been specifically instigated, ordered or planned but were foreseeable from an accused’s actions.”6Holly Robertson, Prosecution Appeals to KR Tribunal to Widen Scope, Cambodia Daily, 4 December 2004, p. 4.

This matter significantly affects the Case 003. A number of crimes are imputed to the Suspect in Case 003 based on JCE III.7This information is publicly accessible; See http://img.scoop.co.nz/media/pdfs/1106/CambodiaSecond_Introductory_Submission.redacted.pdf. The Case 003 Defence has an interest in the issue of JCE III’s applicability generally, since any decision in Case 002 will affect Case 003 and may have wider reaching effects as well. Accordingly, the Defence requested to intervene in the matter of the Co-Prosecutors appeal or in the alternative, sought leave to file an amicus curiae brief.8Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Case 003 Defence Request to Intervene in the Appeal Proceedings in Case 002/01 for the Purpose of Addressing the Applicability of JCE III at the ECCC or, in the Alternative, Request for Leave to Submit Amicus Curiae Brief on JCE III Applicability, 12 January 2015.

The amicus brief9Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Case 003 Defence Submission in Intervention or Amicus Curiae Brief on JCE III Applicability, 12 January 2015. meticulously addresses the applicability of JCE III and once again demonstrates that JCE III does not exist in customary international law and should not be applied. It explains that it is with good reason that academic opinion is highly critical of JCE III liability, in particular out of concerns relating to the principle of individual culpability. International treaties do not support JCE III liability. World War II practice does not support JCE III liability. It is a pure judicial creation: there has never been extensive and virtually uniform state practice; neither is there opinio juris.10The annex to the brief contains detailed information and analysis of 17 cases relied upon by the Co-Prosecutors, the Tadić Appeals Chamber, and the Special Tribunal for Lebanon’s Appeals Chamber to support JCE III liability’s existence. It illustrates that no such support can be found there.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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