The Pre-Trial Chamber (PTC) Tells Defense Teams to Cool Their Heels
The battle of Joint Criminal Enterprise (JCE) rages on at the ECCC. As was previously discussed in this forum, the PTC has been awash with a variety of arguments of whether the ICTY-created judicial doctrine known as JCE should apply to the cases presently before the ECCC. It was also noted that the prosecution has built their cases against the five accused currently in detention based upon the application of JCE.
The defense came to a slow start on this matter with the Ieng Sary team filing an appeal against the application of JCE by the ECCC just to have it rejected. This time the remaining defense teams (the Ieng Thirith, the Khieu and the Noun teams) joined forces to intervene in what they described as "The Application of the Theory of JCE". The teams recognized the absence of the right to intervene in another accused's case, however, they put forward arguments of an existing interest common to all cases currently pending before the ECCC. The PTC reiterating its arguments in the decision of a motion to intervene of the Ieng Sary team to the effect denied the motion. The Chamber concluded that "its consideration in its Decision on Ieng Sary's request apply and that there are no compelling grounds for reaching a different conclusion in the current request that have been put forward". The Chamber also pointed out that each of the appellants would have their own chance to appeal the matter once their client's case is being adjudicated.
Why would the defense think that this promise of a day in court on JCE is not good enough? There is one reason for it. The PTC itself inadvertently enunciated this reason while justifying its instant decision:
"The Pre-Trial Chamber notes [...] that it is inherent to court where several proceedings are pending that a decision in one case on a legal issue will guide the court in future similar cases where no new circumstances or arguments are raised".
The foregoing is exactly what the defense teams are worried about regarding the application of JCE: once the Court formulates its position on the question of the content and application of JCE it will be too late for the subsequent defense teams to try to change the Court's position on it as the matter is likely to be presented by the Court as a fait accompli. Therefore, what better time to participate in helping the Court make up its mind about JCE than now when it is being discussed in substance and detail for the first and, perhaps, last time? The defense teams might have had a feeling that the Court would shape its position on JCE in Kaing and continue applying that position to all subsequent proceedings. Back then they had a feeling, now they know exactly what will transpire due to the highly instructive nature of the PTC's aforementioned statement.