Experts Explain Potential for Joint Criminal Enterprise

The four KR leaders in Case 002

Kong Sothanarith, VOA Khmer
Phnom Penh Friday, 20 August 2010

“By linking the accused in this way, evidence against one of them my help prove the responsibility of another.”

In their final submission for the Khmer Rouge tribunal's next case, court prosecutors said four senior leaders of the regime should be tried under Joint Criminal Enterprise.

Joint Criminal Enterprise, better known as JCE, is a complex legal theory that groups suspects together in the planning and execution of crimes, and it could be at the heart of Case 002, which tribunal officials expect to take place early next year.

In the submission, prosecutors recommended that suspects Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith “committed these crimes through a joint criminal enterprise, the purpose of which was to enforce a political revolution in Cambodia and systematically destroy any opposition to the [Communist Party of Kampuchea's] rule.”

Tribunal legal affairs spokesman Lars Olsen explained it this way. JCE alleges that “these charged persons together decided a plan, a criminal plan, on how to run Cambodia during the Khmer Rouge regime.”

That plan led to atrocity crimes, for which the senior leaders can be tried together, according to prosecutors. Trial Chamber judges will have the final decision in the matter. But JCE will be complicated for a trial.

Anne Heindel, a legal adviser for the Documentation Center of Cambodia, said in an e-mail Friday that JCE is “a mode of individual criminal responsibility. That is, it shows how someone commits a crime.”

Similar “modes” include aiding a crime, planning it, ordering it, or having superior responsibility over it, she said.

And while JCE can take different forms, at its most basic it involves “a common plan among a number of individuals who all share the same intent to commit a crime,” Heindel wrote.

JCE was first applied at the international war crimes tribunal for the former Yugoslavia. It was also applied in the tribunal for Rwanda and in a special court for crimes in Sierra Leone.

“JCE is generally used to prosecute international crimes, but variants of it can be used in domestic prosecutions,” Heindel said. “For example, in Cambodian law, there is a similar mode of liability called 'co-perpetration.'”

In Case 002, prosectors have alleged that all four defendants are tied together, she said. “By linking the accused in this way, evidence against one of them my help prove the responsibility of another.”

“The prosecution wants to show that they all share responsibility for crimes committed in furtherance of the common plan,” she said.

JCE is merely a way of thinking of the case. And that will be up to the Trial Chamber to decide, said You Bunleng, the Cambodian investigation judge for the tribunal. Separate from that, court judges will also determine whether the four are tried in one group by other means.

JCE is only being applied for Case 002. The tribunal has two other cases in its hands, nos. 003 and 004. There has been no determination on whether to indict more suspects in those cases.

But JCE will not be used to determine indictments, Heindel said.

Prosecutors did not include torture chief Duch in their submission. Duch was handed a commuted sentence of 19 years last month after a separate trial for crimes committed at Tuol Sleng prison, known to the Khmer Rouge as S-21.

Heindel said the inclusion of Duch in the second case was “unnecessary” and would have prolonged court procedures.

“The JCE alleged against the four charged persons in Case 002 encompasses many crimes in which Duch was not involved,” she said. “The alleged JCE also likely includes S-21, but it is not required that all participants in a JCE be tried in the same case. He can still be brought before the court as a witness.”