Prosecution Wants JCE III Back: There Are Many Ways to Skin a Cat But the Trial Chamber Has Only One Chance to Do It

The judicial doctrine of Joint Criminal Enterprise (JCE) keeps making waves at the Court. After having lost JCE III in a Pre-Trial Chamber (PTC)’s decision, the prosecution decided to battle on and recently put a request to overrule the PTC’s decision to exclude JCE III before the Trial Chamber (TC). Can the TC overrule PTC’s decisions? The consensus appears to be yes, when the matter comes under the TC’s jurisdiction. The prosecution, thus, patiently waited for the TC to be seized of Case 002. It submitted a request – not an appeal – to this effect.

There is not much in this request we have not seen before. There is a heavy reliance on the “seminal” Tadic, there is the prosecution’s interpretation of “committed” in the ECCC Law dovetailed with the prosecution’s wild story of what the ECCC Law drafters would have done had they meant to exclude JCE III, and there is the prosecution’s interpretation of the post WW2 trials (in which the prosecution must be commended for stopping short of saying that JCE III was an underpinning doctrine throughout, rather than something similar to JCE III appearing in a smattering of cases). There are also things which stray far from the prosecutorial orthodoxy, one of which is citing statements of the prosecution in other cases as authority. It is new, fresh and exciting but, alas, not persuasive for obvious reasons. After this, there is a nosedive into “the general principles of law” which are not substantiated either as ‘general’ or as ‘principles’ by the means of the prosecution’s argument.

What the prosecution cannot overcome are these: (1) Cambodian law is the foundation of the ECCC; Cambodian law does not contain JCE; (2) Cambodia is not a common law jurisdiction and the concept of ‘judicial doctrine’ is alien to it as a result (I am sure the Cambodian judges on the Court will attest to this assertion); (3) While it might be reasonable – but not to the same degree as it is in the case of the former British colonies with decades of post-independence jurisprudence relying on British case law – to take a look – a peak, rather – at the French jurisdictions but this will be unprofitable for the prosecution (Tadic tells us about the French cases that worked for its argument but does not tell us about the gamut of those which did not); (4) To get access to the case law of the other ICTs, the prosecution needs to show that one of the 3 prongs of the resort to “the standards established at the international level” can be satisfied: (i) either Cambodian law does not address the matter (which it does; ‘commit’ is addressed sufficiently, by any standards, in the current criminal law), or (ii) it addresses it in violation of the international standards (which it does not as there is at least as much opposition to JCE III as there is support for it and, by no means, is JCE III ‘settled law’); or (iii) there is uncertainty in Cambodian law as to the interpretation or application of the rule (for which there is no evidence to the best of my knowledge as I am not aware of any Cambodian cases where the judges disagreed about the meaning of ‘commit’ but the Cambodian judges on the Court are in a better position to advise); (5) Even if the TC finds that the prosecution has successfully (although I do not see how that can be possible without the prosecution even trying) argued the above and therefore has access to the case law of the other ICTs, Tadic does not control JCE III. TC will have to face the simple fact that … well, nothing really does as the present case law is not much more than a motley crew of divergent opinions when it comes to JCE III. (6) For the TC to grant the prosecution’s request they will have to overrule the PTC, a decision into which the PTC invested so greatly and went to the great trouble of canvassing the field before it said no to Tadic. For the TC to overrule its fraternal PTC and maintain face before the vigilant and sizable community of observers and the PTC colleagues, the TC will have to put at least as much time into researching the matter as the PTC did to possibly find out that the PTC was right to begin with. This is the time the TC does not have.    

The prosecution’s appeal is of religious, rather than legal nature. It wants the TC to accept Tadic and that Antonio Cassesse cannot be wrong as an article of faith. The TC’s faith would have to be boundless to accept Tadic in the face of the PTC’s decision to the contrary and Tadic and JCE III’s extreme and well-known volatility. The Chamber’s excellence at fine-slicing will be tested here.