The ECCC Issues a Landmark Decision on JCE III

by Kevin Jon Heller

The Extraordinary Chambers in the Courts of Cambodia has just held that JCE III, otherwise known as “extended” joint criminal enterprise, did not exist under customary international law during 1975-1979, the period over which the ECCC has temporal jurisdiction. The decision is a stunning rebuke to the ICTY, which invented — literally out of thin air — that form of JCE in Tadic, its first decision.

In a nutshell, JCE III holds a defendant who participates in a common plan to commit an international crime responsible for the commission of unplanned crimes that he was aware might be committed.  Consider, for example, a group of soldiers who pillage a captured village pursuant to a common plan.  If one of the soldiers commits rape while pillaging the village, any of his comrades will be guilty of both pillage and rape if they foresaw the possibility that rape would be committed during the pillaging.

JCE III has always been controversial, with scholars criticizing it on two basic grounds.  First, they have pointed out that JCE III violates the principle of culpability, because — as the example above indicates — it holds a defendant responsible for a crime even though he did not commit its actus reus and did not possess the necessary mens rea.  The ICTY has even held that JCE III results in the defendant’s conviction as a principal, not as an accessory, despite overwhelming domestic practice to the contrary.

Scholars have also argued that JCE III does not exist under customary law, contrary to the ICTY’s assertion in Tadic.  There is no question that JCE I and JCE II, “basic” and “systemic” JCE, are consistent with customary international law; both are amply supported by WW II-era international and domestic jurisprudence.  But the same cannot be said of JCE III: none of the WW II-era cases applied it, and an equivalent mode of participation exists in very few national jurisdictions.

The ECCC’s decision addressed the second criticism, agreeing with critics that the ICTY invented JCE III.  It’s a long analysis and highly technical, so I won’t try to summarize here.  But it’s absolutely devastating, leaving Tadic in smoldering ruins.  Readers interested in JCE should definitely give the decision a read.

I have to admit, I feel more than a little vindicated by the ECCC’s decision.  I wrote a long motion in the Karadzic case arguing that customary international law does not permit a defendant to be convicted of a special-intent crime such as genocide via JCE III.  The motion relied on much, if not most, of the same international and domestic jurisprudence that the ECCC cites in defense of its decision.  The ICTY refused to address the substance of the motion, holding that the JCE III issue was not “jurisdictional” and could be dealt with in the final judgment if Karadzic was convicted.  The ECCC’s decision indicates the absurdity of the ICTY’s position.

I have always been skeptical of the ECCC, particularly concerning its ability to generate quality jurisprudence.  I am delighted to say that the early returns indicate my skepticism might have been unwarranted.

http://opiniojuris.org/2010/05/23/the-eccc-issues-a-landmark-decision-on-jce-iii/

6 Responses

  1. Kevin,

    thanks for the insightful post. While I am equally delighted to see the ECCC put out some quality jurisprudence, I find the PTC’s analysis on JCE III a bit one-dimensional. In the end, the section dealing with the question of whether JCE III existed under customary law in the second half of the 70s is only 7 paragraphs long (paras. 77-83) and contends itself with taking Tadic apart. The underlying reasoning seems to be that if the sources cited in Tadic are insufficient, then JCE III cannot have been established in custom. This would assume that Tadic found everything there was and that the ECCC PTC did not have to enquire into the customary nature of JCE III liability beyond rejecting Tadic. As a legal matter, I find this approach somewhat unsatisfactory.

    On a second note, the ECCC PTC did not close the JCE III door completely. After briefly considering the role of general principles of law, the PTC concluded that it did not have to decide whether “a number of national systems, which can be regarded as representative of the world’s major legal systems, recognize that a standard of mens rea lower than direct intent  may apply in relation to crimes committed outside the common purpose and amount to commission” (para. 87). It based its decision not to answer this question on the determination that even if the answer was in the affirmative, it would not have been foreseeable to an accused to he would be held liabity under such a standard. In determining the foreseeability the PTC referred exclusively to the fact that under cambodian law no equivalent to JCE III exists. It concludes that the principle of legality thus prohibits the imposition of liability under this heading even if it could be shown to exist as a general principle. I’m personally not pursuaded by this analysis, since it appears to go against Article 15(2) ICCPR. If its a breach of the principle of legality to charge an accused under a mode of liability that exists as a general princple on the sole basis that this mode of liability does not exist under the relevant national law, then the purpose of Article 15(2) ICCPR is somewhat difficult to identify.

  2. Tom,

    Your points are well taken, particularly your methodological one, but I don’t completely understand why you think the PTC’s decision to limit itself to Tadic is insufficient.  Tadic was decided in the early 1990s, so presumably it would have mentioned any international or domestic jurisprudence from the 1970s that supported JCE III, particularly given how thin its analysis was.  There were no international tribunals between 1949 and 1993, so that side is out.  And although it’s conceivable that there were major domestic developments, the comparative research I conducted for my Karadzic motion did not reveal any.

  3. Kevin,

    Thanks for the quick reply. On substance, I completely agree with you. My point was again a rather theoretical one: logically speaking, proving that Tadic’s conclusion is wrong does not automatically make the opposite conclusion correct. This is because, as you say, major domestic developments were possible. Further, I’m uneasy with basing this kind of decision on the presumption that another Court found all there was. I’m basically criticizing that the PTC did not, unlike you in your well-researched motion, at least inquire into custom beyond disproving Tadic. I think if they had included a short paragraph along the lines of “the PTC was unable to identify any other instances of international or national practice on this matter” I would already be more comfortable. I realize this is a bit formalistic, but I think it does not harm to pay attention to these matters in decisions of criminal courts.

  4. Tom,

    I completely agree.  Had the ICTY paid a bit more attention to their methodological assumptions, perhaps their substantive jurisprudence would have been better!

  5. I applaud the content of the judgment but I concur with Tom that the methodological part is rather fuzzy.
    I had real problems with the part which made a distinction between national and international case law, only the latter having a role in the formation of custom.
    Actually, both national and international judgments are only subsidiary means for the determination of the content of international law. On the other hand, national case law can be an evidence of state practice as well, unlike international decisions.
    The Chamber should have focused on the lack of consistent practice proving the existence of JCE III.

  6. And thus, international law becomes further fragmented..

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