In my last post, I addressed the applicability of JCE III, arguing that as a product of judicial creation, JCE III does not exist in customary international law and should not be applied. This post is a follow up in light of the 30 January 2015 ICTY Appeals Chamber Judgement in the Srebrenica case, Prosecutor v. Popović et al., affirming the convictions for genocide.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, paras. 1670-1674.))
One of the Popović Accused, Miletić, had argued that the Trial Chamber erred in law in holding that JCE III existed in customary international law at the time of the events.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1670.)) He emphasized that the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) rejection of JCE III shows that it is not generally accepted and that its application is contrary to the nullum crimen sine lege principle.
Unfortunately, the Popović Appeals Judgement missed an exquisite opportunity to rectify the long-perpetuated error of law first made by the Tadić Appeals Chamber, which found that JCE existed in customary international law. Rather than engage in a constructive analysis, the Popović Appeals Chamber merely referred to its previous jurisprudence and found that Miletić failed to demonstrate any cogent reason to depart from it.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1674.)) This has been the problem from the outset. No ICTY Chamber has been willing to thoroughly analyze the state of customary international law; instead they choose to refer back to prior Judgements as if these Judgements themselves are evidence of JCE’s customary status.
The ECCC Pre-Trial Chamber was the first Chamber to actually assess the state of customary international law and to analyze the authorities relied on by Tadić. By doing so, it was able to determine that JCE III never existed in customary international law.((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.)) The ECCC Trial Chamber agreed with this conclusion and further analyzed whether JCE III could be a general principle of law, determining that it was not.((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.))
Yet, the Popović Appeals Chamber refused to analyze the holdings of the ECCC Pre-Trial Chamber and Trial Chamber or the state of customary international law. The Popović Appeals Chamber simply relied on its past jurisprudence, stating that Tadić undertook “extensive analysis” of post-World War II war crimes cases in arriving at the conclusion that the common purpose doctrine is firmly established in customary international law.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1672.))
It is unfortunate, but not surprising, that the Popović Appeals Chamber took this approach. Were the Appeals Chamber to have examined the state of customary international law and to have recognized that JCE III did not exist – as the Presiding Judge of the Tadić Appeal Chamber later admitted – the ICTY would be forced to overturn its past convictions based on this form of liability.((See Tanya Pettay & Helen Sullivan, The Belated Demise of JCE III: The ECCC Debunks the Myth Created by the ICTY in Tadic that JCE III Exists in Customary International Law, ADC-ICTY Newsletter, Issue 21, 31 October 2011.)) As the ECCC Co-Prosecutors have pointed out, if JCE III was not customary international law during the temporal jurisdiction of the ECCC, “this would strongly suggest that the Chambers of the ICTY and ICTR were in error to enter convictions on the basis of JCE III.”((Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Co-Prosecutors’ Consolidated Reply to Defence Responses to Co-Prosecutors’ Request to Recharacterise Charges in the Indictment and to Exclude the Nexus Requirement for an Armed Conflict to Prove Crimes Against Humanity, 11 August 2011, E95/6, para. 95.))
In contrast to the Popović Appeals Chamber’s approach, Judge Antonetti, in the 2013 Prlić Trial Judgement, thoroughly considered – in 82 pages – the existence of all forms of JCE in customary international law. He found that “JCE 3 does not validly exist and must be discarded.”((Prosecutor v. Prlić et al., IT-04-74-T, Judgement, Vol. 6, Separate and Partially Dissenting Opinion of Presiding Judge Jean-Claude Antonetti, p.100-82, esp. p.173 (emphasis in original).))
This conclusion concurs with what Judge Shahabuddeen, Presiding Judge in the Tadić Appeals Chamber, has recently admitted; it was “an error” for the Tadić Appeals Chamber to refer to JCE III as customary international law:
In this respect, two rival theories—joint criminal enterprise and co-perpetratorship—hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law. Excepting judicial creativity, there is no basis on which they could apply in this case.((Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in JUDICIAL CREATIVITY AT THE INTERNATIONAL CRIMINAL TRIBUNALS 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010).))
Judge Schomburg has similarly found that JCE III does not exist and should be discarded. Rightly, Judge Schomburg believes that “JCE in its entirety is an unnecessary and even dangerous attempt to describe a mode of liability not foreseen in the Statutes of today’s international tribunals, in particular not in the Statutes of ICTY and ICTR, however invented and applied by the Appeal Chamber of both Tribunals.”((Judge Wolfgang Schomburg, Jurisprudence on JCE – Revisiting a Never Ending Story, 3 June 2010, p.2, available at http://www.cambodiatribunal.org/sites/default/files/resources/ctm_blog_6_1_2010.pdf.)) Aptly, he notes: “This artefact still has all the potential of violating in part the fundamental right not to be punished without law (nullum crimen, nulla poena, sine lege).”(( Judge Wolfgang Schomburg, Jurisprudence on JCE – Revisiting a Never Ending Story, 3 June 2010, p.2, available at http://www.cambodiatribunal.org/sites/default/files/resources/ctm_blog_6_1_2010.pdf.))
The Popović Appeals Judgement reveals one of the weaknesses in the jurisprudence of international criminal tribunals: when Chamber’s get it wrong, they tend to do whatever they can to avoid confessing error, rather than correcting the error. It takes moral and judicial courage to go back and thoroughly consider whether the law being applied is actually correct and respects the principle of nullum crimen sine lege. Unfortunately the Popović Appeals Chamber perpetuated the error for the sake of saving face and preserving the ICTY’s legacy – at the expense of all persons accused or convicted at the ICTY based on this illegitimate form of liability. Consistency in the law cannot justify the continued application of a form of liability that does not exist in customary international law.
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