JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg((  Jurisprudence on JCE – Revisiting a Never Ending Story ))

 

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status.

JCE was addressed four times in Case 002 at the ECCC. The Office of the Co-Investigating Judges was the first to take a crack at it in, I dare say, an appallingly vacuous summary fashion unworthy of serious analysis.(( Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ, Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, 8 December 2009, D97/13.)) It was then raised before the Pre-Trial Chamber, where, as I’ve noted, in a thoroughly reasoned and in-depth analysis of Tadić, it concluded that JCE III was not reflective of CIL.(( Case 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, D97/15/9 (“Pre-Trial Chamber JCE Decision”), para. 77.)) The Trial Chamber and Supreme Court Chamber concurred.(( Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, E100/6 (“Trial Chamber JCE Decision”), paras. 29-31; Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Appeal Judgement, 23 November 2016, F36 (“Case 002/01 Appeal Judgement”), para. 793.))

Before delving in on what the ECCC Chambers did concerning JCE III, some straight talk on what they failed to do – debunk JCE’s so-called CIL status in toto. Judge Schomburg rightly laments that the Pre-Trial Chamber (and later other chambers) did not go far enough; the ECCC Chambers erred in not discarding JCE in all its forms.

While the Pre-Trial Chamber appropriately found the Rome Statute and International Convention for the Suppression of Terrorist Bombings irrelevant for determining whether JCE formed part of CIL (both did not exist at the time of the charges in Case 002),(( Pre-Trial Chamber JCE Decision, paras. 69, 78.)) it disapprovingly confirmed the Tadić Appeals Chamber’s interpretation of the eight post-World War II cases cited to support JCE I and II (see my previous post for a summary of the authority cited in Tadić),(( Id., paras. 62-64. )) citing just three cases for additional support: the Justice case, RuSHA, and Control Council Law No. 10.(( Id., paras. 65-68. )) Regrettably, the Trial and Supreme Court Chambers, only summarily treated these authorities, which, in my opinion, insufficiently demonstrate that JCE I and II formed part of CIL (see my synopsis of JCE submissions made in representing IENG Sary and my analysis of the Pre-Trial Chamber’s decision).

Notwithstanding the insufficient half-step the ECCC took on JCE I and II, its step on JCE III is impressively full and weighty.

Round 1 – the Pre-Trial Chamber

When it came to JCE III, the Pre-Trial Chamber dismissed and disassembled what little and flimsy authority was used by the Tadić Appeals Chamber:

1. Nuremburg Charter and Control Council Law No. 10: these instruments do not offer any support for JCE III;(( Id., para. 78. ))
2. The Rome Statute and International Convention for the Suppression of Terrorist Bombings: these treaties did not exist at the time of the charges in Case 002 and were thus irrelevant;(( Id., para. 78. ))
3. Borkum Island and Essen Lynching: these cases were too scant in reasoning to conclude that anything reassembling JCE III was applied by the military courts (the Tadić Appeals Chamber relied on prosecution submissions in those cases, “assum[ing]” that those submissions were upheld in the absence of a reasoned verdict);(( Id., paras. 79-81. ))
4. The Italian cases: these cases which concerned the Repubblica Sociale Italiana were not international case law for the purpose of determining the status of CIL,(( Id., para. 82. )) not to mention that none published, and some – merely unofficial translations of handwritten copies;(( See Joseph Powderly, Judges and the Making of International Criminal Law 411 (Brill Nijhoff 2020). )) and
5. Other domestic legislation and case law: these sources could not be relied upon to establish the CIL status of JCE and were insufficient a sampling to demonstrate the existence of a general principle of law (the Tadić Appeals Chamber admitted that this was not the case).(( Pre-Trial Chamber JCE Decision, paras. 84-85.))

Round 2 – the Trial Chamber

Rather than raising the matter as a preliminary objection (as would have been appropriate under the Rules),(( See ECCC Internal Rules, Rule 89. )) the Prosecution (Co-Prosecutors) tried to backdoor JCE III by asking the Trial Chamber to review the Pre-Trial Chamber’s decision under the spurious guise of seeking re-characterization of the charges (an intellectually dishonest reason that should have been summarily dismissed). The ploy yielded no profit. The Trial Chamber adopted the Pre-Trial Chamber’s decision and reasoning on JCE III.(( Trial Chamber JCE Decision, paras. 29-31. )) Going even further, the Trial Chamber found that other post-World War II cases cited by the Special Tribunal for Lebanon (which had erroneously found JCE III applicable) – Ulrich and Merkle and Wuelfert et al.(( United States v. Hans Ulrich and Merkle, Case No. 000-50-2-17, Deputy Judge Advocate’s Office, 7708 War Crimes Group – European Command, Review and Recommendations, 12 June 1947, Reviews of United States Army War Crimes Trials in Europe 1945-1948; United States v. Hans Wuelfert et al., Case No. 002-50-2-72, Deputy Judge Advocate’s Office, 7708 War Crimes Group – European Command, Review and Recommendations, 19 September 1947, Reviews of United States Army War Crimes Trials in Europe 1945-1948. The Trial Chamber concluded that both cases lacked reasoning behind the convictions and that it could not be inferred that JCE III was applied. )) – do not support JCE III as a mode of liability in CIL.(( Trial Chamber JCE Decision, paras. 32-35, citing Prosecutor v. Ayyash et al., STL-11-01/1, Interlocutory Decision on the Applicable law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011. )) The Trial Chamber also conducted its own survey of national legal systems including the United Kingdom, United States, Soviet Union, the Netherlands, France, and Cambodia which showed diverging approaches, lacking the necessary consistency for state practice.(( Trial Chamber JCE Decision, para. 37. )) In its Judgment in Case 002/01, the Trial Chamber reaffirmed its previous holding on JCE III and did not consider it further.(( Case of NUON Chea et al., 002/19-09-2007/ECCC/TC, Case 002/01 Judgement, E313, para. 691.))

Round 3 – the Supreme Court Chamber

The Co-Prosecutors did not seek to overturn any part of the Case 002/01 Trial Judgment on appeal, only declaratory relief to “provide legal guidance to the Trial Chamber” on JCE.(( Case 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, E313/3/1, para. 9.)) Without JCE III, the Co-Prosecutors could no longer rely on the just convict everyone prosecutorial tool to get wide-ranging convictions in the absence of evidence. Poor things. Without JCE III, the Co-Prosecutors could no longer claim that the evidence pointed to the individual criminal responsibility of the accused for any crime that supposedly was the inevitable consequence of an act by anyone, however far removed from the common plan, who might have acted based on words spoken or actions taken by the accused or anyone with whom he or she interacted. Limited only by imagination, JCE III is an indiscriminate net that once cast has the capacity to criminalize by association or affiliation.

The Supreme Court Chamber reaffirmed the Pre-Trial Chamber’s decision on JCE, considering that it “analysed in detail the jurisprudence of the ad hoc tribunals regarding the notion of JCE III” when concluding that the authority relied upon by the Tadić Appeals Chamber did not constitute a “sufficiently firm basis” for finding that JCE III was part of CIL.(( Case 002/01 Appeal Judgment, para. 791.)) The Supreme Court Chamber’s analysis went further than the Pre-Trial and Trial Chambers’, making short shrift of additional authority put forth by the Co-Prosecutors: none supported the existence of JCE III in CIL.(( Id., para. 793.))

First, the Supreme Court Chamber confirmed the Pre-Trial Chamber’s analysis of the Essen Lynching and Borkum Island cases, finding that both cases provided too little information as to what legal concepts were actually applied.(( Id. )) It found that “similar problems arise” in the other post-World War II cases cited by the Co-Prosecutors that were unaddressed by the Tadić Appeals Chamber or the Pre-Trial Chamber:(( Id., para. 792.))

1. Hans Renoth and Three Others: it was inconclusive whether the British military court held the accused liable under the doctrine set out by the prosecutor in this case (the Co-Prosecutors acknowledged that the requirements of JCE only “appear” to have been fulfilled);(( Id., citing Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. XI, 76-7 (1949). ))
2. ITM Judgment (Sauckel and Speer), RuSHA, and Einsatzgruppen: these cases did not concern whether the crimes committed were encompassed by a common purpose, but whether the accused had knowledge of the crimes;(( Case 002/01 Appeal Judgment, para. 793, citing Trial of German Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Judgement, 1946, p. 245, 321, 331-33; Trials of War Criminals Before the Military Tribunals under Council Control Law No. 10, Vol. V (1950), p. 1-192; Trials of War Criminals Before the Military Tribunals under Council Control Law No. 10, Vol. IV (1950), 427-33, 526.))
3. Pohl and Dachau Concentration Camp: there was no indication that the accused in these cases were held responsible for crimes not encompassed by the common criminal purpose;(( Case 002/01 Appeal Judgment, para. 793, citing Trials of War Criminals Before the Military Tribunals under Council Control Law No. 10, Vol. V, p. 1041-42 (1950); Trials of War Criminals Before the Military Tribunals under Council Control Law No. 10, Vol. XI (1949), 5, 15, 141. ))
4. Sch.: this case contradicted, rather than supported, the notion of extended JCE;(( Case 002/01 Appeal Judgment, para. 793, citing Decisions for the Supreme Court of the British Zone, Decisions in Cases Vol. II (Berlin, 1950), p. 13.)) and
5. Ikeda: this case did not specifically address modes of liability.(( Case 002/01 Appeal Judgment, para. 794, citing Queen v. Shoichi Ikeda, No. 72A/1947, Translated Judgement Summary, 30 March 1948, p. 4.))

The Supreme Court Chamber then turned to the Italian cases cited in Tadić, finding them to be inapposite, misplaced, and unsupportive of JCE III:(( Case 002/01 Appeal Judgment, paras. 795-98.))

1. D’Ottavio: “members of the group were not convicted of a crime falling outside the common plan;”(( Id., para. 795 (emphasis in original), citing D’Ottavio and Others, Italian Court of Cassation, Criminal Section I, Judgment of 12 March 1947, no. 270.))
2. Aratano: “the Italian Court of Cassation overturned the conviction for a homicide perpetrated during an operation aimed at arresting some partisans, since the common purpose of the operation did not encompass killing;”(( Case 002/01 Appeal Judgment, 796 (emphasis in original), citing Aratano and Others, Italian Court of Cassation, Criminal Section II, Judgment of 21 February 1949, no. 102 (not available in English). ))
3. Italian Amnesty cases: these cases were “highly context-dependent, as shown by the somewhat inconsistent case law” and “hardly provide a firm guidance;”(( Case 002/01 Appeal Judgment, 797, citing Tossani, Italian Court of Cassation, Criminal Section II, Judgment of 17 September 1946, no. 1446; Ferrida, Italian Court of Cassation, 24 July 1946; Palmia, Italian Court of Cassation, 20 October 1946.)) and
4. Other Italian cases: the final category of Italian cases did not concern war crimes, “but ordinary crimes under Italian law, perpetrated by and against Italian nationals, and adjudicated before Italian domestic authorities.”(( Case 002/01 Appeal Judgment, 798, citing Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgment”), paras. 218-19. ))

Reviewing even more post-World War II cases, the Supreme Court Chamber found that “[t]he vast majority … does not lend any support to the argument that accused may incur criminal responsibility for crimes that were not encompassed by the common purpose and the actus reus of which they did not commit.”(( Case 002/01 Appeal Judgment, para. 799. )) It considered that only five of the cases merited discussion:

1. Rüsselsheim: it was unclear as to whether the U.S. Military Commission in Germany adopted the prosecution’s view that common purpose liability extends to crimes that do not fall within the common purpose but are its natural and probable consequence;((, para. 800, citing United States v. Joseph Hartgen et al., Review of the Staff Judge Advocate, 23 August 1945. ))
2. Tashiro: the prosecution’s argument that American prisoners “met their deaths … in accordance with a preconceived plan; or at least, as a result of gross negligence” of the accused did not demonstrate attribution based on an extended form of JCE;(( Case 002/01 Appeal Judgment, para. 801, citing United States v. Hatsuaki Kambe et al., Review of the Staff Judge Advocate, 7 January 1949. )) and
3. Australian Military Court cases: the three cases before Australian military courts either did not indicate that convictions were based on anything resembling JCE III or acquitted the accused for crimes not foreseen by the common purpose.(( Case 002/01 Appeal Judgment, paras. 802-04, citing Prosecutor v. Yosutaki Hatakeyama et al., Australian Military Court (AMC), 2 May 1946; Prosecutor v. Tsujiji Matsumoto et al., Australian Military Court, Transcript, 19 March 1946; Prosecutor v. Kumakichi Ishiyama et al., Australian Military Court, Charge Sheet, 9 April 1946.))

Finally, the Supreme Court Chamber found that the vast majority of domestic cases and legislation to which the Co-Prosecutors referred “relate to ordinary domestic cases without any international element.”(( Case 002/01 Appeal Judgment, para. 805. )) Nor were these examples of domestic law sufficient to establish JCE III as a general principle of international law.(( Id., para. 806.))

How shocking it must have been for the Co-Prosecutors – and others at the Office of Co-Prosecutors who cut their teeth at the ICTY, ICTR, or other international(ized) courts that bought into the JCE III fiction – when the Supreme Court Chamber upheld the Pre-Trial Chamber’s decision on JCE III’s inapplicability.(( Id., para. 791.  )) The Supreme Court Chamber’s rejection of JCE III, especially considering its reasoning, was the much-needed precedent in debunking JCE III. In my opinion, this decision is one of the ECCC’s most enduring legacies. There was no need to imply a form of liability that was not expressly stated in the ECCC’s Establishment Law. There was no lacuna justifying judicial creativity. But if you think the ECCC got it wrong, I invite you to review the United Kingdom Supreme Court case R v Jogee, which held that foreseeability “is not to be confused with intent” and that it is “illegitimate … to treat foresight as an inevitable yardstick of common purpose.”(( R v Jogee [2016] UKSC 8; [2016] WLR (D) 84, para. 87.))

The myth of JCE

With a utilitarian agenda in mind, Cassese, Shahabuddeen, and others on the Tadić Appeals Chamber, interpreted the ICTY’s Statute teleologically: if the purpose of the tribunal was to prosecute all those responsible for serious violations of international humanitarian law, then it should be interpreted in a way so as to not “merely” hold responsible “those who actually carr[ied] out the actus reus of the enumerated crimes.”(( Tadić Appeal Judgment, para. 189.)) But how to accomplish this agenda when the Statute is silent? Cassese’s judicial philosophy informs:

At least, in my area of international law, lawmakers very often are utterly impotent. Lawmakers often cannot make a decision, and the judges have to step in and decide, in lieu of lawmakers … We have all made judgments. We know that we are prone to manipulation. We manipulate laws, standards, political principles, and principles of interpretation. Very often in a criminal case, I sense that the defendant is guilty, and common sense leads me to believe that we should come to a particular conclusion. Then I say, “alright, let us now build sound reasoning to support that conclusion.”(( Justice Steven Breyer and Robert Badinter, Judges in Contemporary Democracy: An International Conversation (New York University Press 2004), p. 33.))

Although Cassese, as Shahabuddeen, knew the existence of perpetration / co-perpetration as a widely held mode of liability, in his mind, JCE “better suits the reality of international criminality,”(( Antonio Cassese, The Proper Limits of Individual Responsibility Under the Doctrine of Joint Criminal Enterprise, 5 J. Int. Just. 109, 114 (2007). )) even if it “contributed to misgivings or misapprehensions” and “the use of slightly misleading language.”(( Id., p. 115. )) Put bluntly, if the existing modes of liability do not facilitate convictions where the accused’s guilt is sensed, find a creative way to manipulate, misinterpret, misapply whatever semblance of jurisprudence exists, however remote or specious.

Justice Allison Marston Danner (California Court of Appeal, Sixth District) and Jenny S. Martinez (Dean of Stanford Law School), after finding the authority cited in Tadić unsupportive of JCE III’s so-called CIL status, with no small amount of irony, observed that JCE is “the most complex and conceptually challenging liability theory in international criminal law and is the only one not mentioned in the Statutes of the ICTY and ICTR. [JCE] … has largely been created by judges and prosecutors of the Yugoslav Tribunals.”(( Id.., p. 103-04.))

That was 2005.

Years later, I would make the same observations before the ECCC. Why was JCE not explicitly included in the Establishment Law and Agreement? Despite the notoriously unremitting claim by the ad hoc tribunals that JCE was firmly established in CIL, it remained ever so malleable as the Judges supporting it struggled to agree on its exact contours and modalities. Why not explicitly put it into the applicable law and be done with it? Why invite, as it assuredly would do, countless challenges?

So, how was it that this JCE charade was perpetrated, making it easier to convict the accused for crimes they had no direct link to case after case? The answer, I suggest, is two-fold.

First, it partly lies on how the Appeal Judges are selected to sit on a case. It is not by some random process like drawing a lottery so that the bench is selected to ensure a fair and unimpeachable result. Rather, they are appointed by the President of the ICTY, who also tends to be (but not always) the Presiding Judge of the Appeals Chamber of the Tribunal. By controlling the selection process, in principle, the result on certain contentious legal issues can be (at least theoretically) pre-determined. Collegiality breeds familiarity on how judges generally stand on most legal issues, especially if these issues are controversial and a topic of discourse. So, when JCE was challenged, especially during its infancy, it is rather safe to surmise that the judges picked would not buck the trend. And of course, all successive cases, unflinchingly, relied on Tadić and its progeny as authority for JCE being reflective of CIL.

Second, even when judges knew JCE not to reflect CIL and thus inapplicable at the ICTY – or elsewhere for that matter – how could they come clean and admit that they got it wrong, resulting, inexorably, in countless of post-conviction applications to reverse convictions based on JCE. Not to mention the damage it would cause to the reputation of all the international(ized) tribunals and courts that applied it. And think of the stink it would raise from the convicted who unjustly had served or were serving time. Nevertheless, the ICTY continued to apply JCE in all its forms and unsurprisingly, its successor, the IRMCT,(( The IRMCT was established with the mandate to continue the material, temporal, and personal jurisdiction of the ICTY and ICTR and to prosecute persons indicted by the ICTY or ICTR who are among the most senior leaders suspected of being most responsible for serious violations of international law, those who are not among the most senior leaders provided all efforts to refer the case have been exhausted, and those who commit offenses against the administration of justice. IRMCT Statute, Article 1(1)-(4). )) is perpetuating the myth.(( See Prosecutor v. Karadžić, MICT-13-55-A, Judgement, 29 March 2019, paras. 422-37. ))

Parting thoughts

Irony aside, when we come to the KSC we must also ask: if JCE is firmly established in CIL, why is it not explicitly included in the KSC Statute? After all, some of the drafters of the KSC Statute were intimately familiar with the historical, conceptual, and legal polemics associated with the creation and application of JCE, not least of all because it was not explicitly in the statutes of the ad hoc tribunals?

I am not convinced that those who established the KSC intended to have judicial creativity read into the KSC Statute: to assume the existence of a mode of liability not found in the text to facilitate easier, broader, tenuously provable convictions. In fact, I will go on a limb and say quite the opposite. Why else would the KSC Statute, adopted by the Assembly of the Republic of Kosovo, require that the Rules first meet constitutional muster by the Specialist Chamber of the Constitutional Court (the chamber responsible for interpreting the Kosovo Constitution as it relates to the KSC), before being adopted?(( The KSC Statute was adopted by the Assembly of the Republic of Kosovo on 3 March 2015. Once appointed, on 17 March 2017, the KSC Judges adopted the KSC Rules of Procedure and Evidence under Article 19(1) of the KSC Statute. On 27 March 2017 the draft of the Rules of Procedure and Evidence was submitted for review to the Specialist Chamber of the Constitutional Court, which is to “deal exclusively with any constitutional referrals relating to the Specialist Chambers and Specialist Prosecutor’s Office,” under Article 3(1) of the KSC Statute. On 26 April 2017, the Specialist Chamber of the Constitutional Court found that 9 of the 208 rules were incompatible with the Kosovo Constitution. See Specialist Chamber of the Constitutional Court, Judgment on the Referral of the Rules of Procedure and Evidence (26 April 2017), https://www.scp-ks.org/en/documents/judgment-referral-rules-procedure-and-evidence-26-apr-2017. See also KSC, First Report (Report, March 2018), p. 22–25. An important aspect of this review is that the Specialist Chamber of the Constitutional Court provided its reasoning and interpretation of the rules, effectively issuing a useful commentary — something not available for other Rules of Procedure and Evidence, especially when amendments are adopted. For more on the founding of the KSC and the drafting and adoption of the rules, see my article: The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency, 20 Int’l Crim. L. Rev. 77 (2020).  ))

Nor am I convinced that all the Judges of the KSC – of which a few have argued against the legitimacy of JCE III – will ignore the ECCC’s jurisprudence like their colleagues at the ICTY and IRMCT, who, as I’ve noted, cling to the Tadić myth for the sake of legacy and saving face. I can point to the writing of three KSC Judges in support of my hunch.

Judge Kai Ambos

In his amicus brief submitted at the behest of the ECCC Pre-Trial Chamber, now Judge Kai Ambos observed that there was no basis for JCE III in post-World War II jurisprudence, and that it cannot be considered as a form of co-perpetration, but only as a form of aiding and abetting, “raising a fundamental conflict between this form of liability and the well-enshrined principle of culpability.”(( “[Although] JCE I and II have a basis in the post-World War II case law, this is not the case with regard to JCE III. From the case law referred to by the Tadić Appeals Chamber, only the Essen Lynching case contains elements of the ‘common purpose’ or ‘common design’ doctrines insofar as the killings were attributed to all the accused on this basis (on their being concerned in the killing of the three unidentified British prisoners of war). Yet, it is not – inter alia because of the absence of conclusions by a Judge Advocate – clear whether the tribunal convicted the three accused on the basis of a shared intent with regard to the killing of the accused (i.e., pursuant to JCE I) or – as submitted by the Tadić Appeals Chamber – on the basis of the foreseeability doctrine, i.e. that it was foreseeable (objectively or subjectively) for all accused that the prisoners would be killed. In a similar vein, the Borkum Island Case, another case of mob violence, constitutes – on the basis of the case made by the Prosecution – proof of recourse to JCE I rather than JCE III. The Prosecution described the accused in this case as ‘cogs in the wheel of common design,’ each wheel on its own indispensable for the commission of the crime (‘the wheel of wholesale murder could not turn without all the cogs.’) Accordingly, every person accused who ‘played his part in mob violence which led to the unlawful killing of the seven American flyers’ had to be convicted of murder. Consequently, the Appeals Chamber itself concedes that this case could also be considered as a case of JCE I.” Case of KAING Guek Eav, 001/18-07-2007-ECCC/OCIJ (PTC 02), Amicus Brief concerning Criminal Case File No. 001/18-07-2007-ECCC/OCIJ (PTC02), 27 October 2008, D99/3/27, p. 28-9 (emphasis in original, footnotes omitted). ))

Judge Guénaël Mettraux

Having represented accused before the ICTY (after having worked at ICTY Chambers and being privy to inner sanctum discussions on JCE), now Judge Guénaël Mettraux has argued that JCE application violates the fair trial rights of the accused by allowing prosecutors to get around the mens rea requirements for specific intent crimes.(( Guénael Mettraux, International Crimes and the ad hoc Tribunals (Oxford University Press 2005). ))

Judge Nina Jørgensen

A veteran of Chambers at the ICTY and ECCC, when studying the British Hong Kong cases to assess the CIL status of JCE, now Judge Nina Jørgensen found that “it is difficult to see how a mode of liability whose equivalent at common law is multi-faceted and in a state of flux can have been accessible and foreseeable to perpetrators pre-Tadić.”(( Nina H.B. Jørgensen, On Being ‘Concerned’ in a Crime: Embryonic Joint Criminal Enterprise?, in Hong Kong’s War Crimes Trials 156 (Suzannah Linton, ed., Oxford University Press, 2013). ))

I am also guardedly optimistic that Judge Christine Van den Wyngaert, former ICTY and ICC Judge and now KSC Judge, will refrain from applying the non-statutorily expressed JCE simply because it was applied at the ICTY. In her concurring opinion in Ngudjolo, she noted that the drafters of the Rome Statute opted not to include forms of responsibility based on risk-awareness and/or acceptance (such as JCE III’s dolus eventualis standard).(( Prosecutor v. Ngudjolo, ICC-01/04-02/12-4, Judgment pursuant to Article 74 of the Statute – Concurring Opinion of Judge Christine Van den Wyngaert, 20 December 2012, para. 15.)) She remarked:

interpretation cannot be used to fill perceived gaps in the available arsenal of forms of criminal responsibility. Even if the ‘fight against impunity’ is one of the overarching raisons d’être of the Court which may be relevant for the interpretation of certain procedural rules, this cannot be the basis for a teleological interpretation of the articles dealing with criminal responsibility.(( Id., para. 16.))

So, although Judge Van den Wyngaert supported JCE at the ICTY, her astute position in Ngudjolo is noteworthy.  The drafting and adoption of the KSC Statute was remarkably different than the ICTY’s. And while it is possible that the drafters purposefully left a lacuna of this notoriety and magnitude to bypass the prophylactic measures imposed by the KSC founders to ensure constitutional scrutiny and compliance of the KSC Statute, such Machiavellian machinations are highly improbable, indeed fanciful.

JCE is not found in the KSC Statute because the drafters did not include it. It is as simple as that. By analogy, the ICC informs why the drafters of the KSC Statute felt no need to import a mode of liability from the ICTY. The drafters of the Rome Statute opted not to include JCE in Article 25 and instead include co-perpetration (which, as the Max Planck Institute for Foreign and International Criminal Law concluded, is the mode of liability most reflected in domestic practice).(( Participation in Crime: Criminal Liability of Leaders of Criminal Groups and Networks, Expert Opinion, Commissioned by the United Nations – ICTY, Office of the Prosecutor Project Coordination: Prof. Dr. Ulrich Sieber, Priv. Doz. Dr. Hans Georg Koch, Jan Michael Simon, Max Planck Institut für ausländisches und internationales Strafrecht, Freiburg, Germany, Introduction, p. 3; Part 1: Comparative Analysis of Legal Systems, p. 16. )) The Lubanga Pre-Trial Chamber – the first chamber at the ICC to confront JCE – expressly rejected its application, finding that co-perpetratorship liability in Article 25 of the Rome Statute focuses on objective distinctions among the level of contribution to the crime, rather than the subjective criterion (the shared intent to commit the offence).(( Prosecutor v. Lubanga, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007, paras. 329-38.)) So, should anyone be surprised by Judge Van den Wyngaert’s remarks in Ngudjolo? No. The same should apply for the KSC.

One can only hope that the KSC Judges who are against the applicability of JCE on and off the record (at the ICTY there were few), along with other Judges who may be on the fence, will find the wisdom and courage to forego, in toto, the application of JCE, which, assuredly, is not found anywhere in the KSC Statute, assuredly not scrutinized by the Specialist Chamber of the Constitutional Court, and assuredly not a stopgap to a lacuna.

The KSC Statute provides the requisite modes of liability to be applied as drafted and without applying sleight of hand reasonings for implying dubiously claimed modes of liability under CIL.

Plainly, JCE is a judicially created mode of liability founded on a grab bag of ill-assorted and ill-applied sources of law, masquerading as a mode of liability under CIL. To that end, I advise the KSC Judges to embrace Morris Cohen’s sage observations:

[W]hen the new wine can no longer be poured into the old bottles, courts resort to fictions, whereby the new vessels are adopted as old possessions of the legal household. Legal fiction is the mask which progress must wear to pass the faithful but blear-eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing the shock of innovation, they work havoc in the form of intellectual confusion. The least that can be said is that they tend to make us all ignore the magnitude and character of the actual changes wrought by them. The mask shuts off a great deal of needed light.(( Morris R. Cohen, The Progress of Judicial Legislation, 48 Am. L. Rev. 161, 175 (1914). I am indebted to Professor Joseph Powderly for bringing Morris Cohen’s brilliant article to my attention through this quote in his excellent book Judges and the Making of International Criminal Law, reviewed here.  ))

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If you missed them, be sure to read Part I and Part II of this series.

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