American Society of International Law (ASIL)
Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (May 20, 2010)
The Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC), in reviewing an appeal filed by five defendants charged with crimes against humanity and grave breaches of the Geneva Conventions, has ruled that the extended form of joint criminal enterprise (JCE III) was not part of customary international law during 1975–1979, thus rejecting an earlier decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) holding otherwise.
Joint criminal enterprise (JCE) is a legal doctrine under which individuals belonging to a group may be held individually responsible for crimes committed pursuant to a common plan or purpose. There are three categories of JCE: 1) JCE I exists where participants “act on the basis of a common design or enterprise, sharing the same intent to commit a crime”; 2) JCE II exists where the participants partake “in a criminal plan that is implemented in an institutional framework . . . involving an organized system of ill-treatment” (i.e., an interment camp); and 3) JCE III, the broadest of the three categories, “exists where one of the participants engages in acts that go beyond the common plan” but the acts are “natural and foreseeable consequences” of the initial common plan.
The Pre-Trial Chamber, dismissing the defendants’ argument to the contrary, held that there is “no doubt that JCE I and JCE II were recognized forms of responsibility in customary international law” during 1975–1979. However, reviewing the key ICTY judgment in Prosecutor v. Tadic, which had pronounced that JCE III was part of customary international law, the Pre-Trial Chamber concluded that the “authorities relied upon in Tadic” did not “constitute a sufficiently firm basis to conclude that JCE III formed part of customary international law at the time relevant.”
Several scholars have applauded the ECCC Pre-Trial Chamber for not following the ICTY precedent on JCE III. See, for example, a recent blog post at the Opinio Juris.