23 May The ECCC Issues a Landmark Decision on JCE III
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.