On the 23^rd November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released its appeals judgment in Case 002/01, upholding the life sentences given to Khieu Samphan and Nuon Chea, two former senior leaders of the Khmer Rouge regime. The judgment is an important development in the ECCC’s life for a number of reasons. First, although the SCC rejected the two accused’s allegations of fair trial breaches, and upheld convictions for crimes against humanity of murder, persecution on political grounds and other inhumane acts, the SCC was did not uniformly support the conclusions of the Trial Chamber (TC). Highlighting several incidences in which the TC failed to demonstrate sufficient evidence to justify its conclusions, the SCC reversed convictions in relation to the execution of Khmer Republic officials, extermination during the evacuation of Phnom Penh, and the persecution during the forced movement of the population. As I have noted elsewhere, these findings are an important contribution to the legacy of the ECCC. The TC’s initial judgment had been strongly criticized for its failure to engage sufficiently with the evidence, and the SCC’s decision to overturn its findings, while maintaining the life sentences due to the gravity of the crimes, has hopefully improved the reputation of the ECCC’s jurisprudence and enhanced its contribution to international criminal law more broadly.

Another particularly noteworthy element of the judgment, is the SCC’s handling of the mode of liability, Joint Criminal Enterprise III (JCE III). Although the SCC rejected the Co-Prosecutors’ appeal in this regard on procedural grounds, the Chamber found that the appeal gave the SCC the opportunity to analyze the concept of JCE III. In a decision that has the potential to seriously impact the legitimacy of this already controversial mode of liability, the SCC found that JCE III was not customary international law at the time the crimes were committed, and excluded it from all future proceedings at the ECCC.

JCE was first defined as a distinct form of criminal liability by the International Criminal Tribunal for the former Yugoslavia’s Appeal Chamber, in their very first case, against Duško Tadić. The ICTY found that participation in a common plan could be a form of ‘committing’ a crime, and outlined three forms of JCE:

1. JCE I, or the ‘basic’ mode, provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
2. JCE II, or the ‘systematic’ form, allows for liability when individuals contribute to the maintenance or essential functions of a criminal institution or system, for example in concentration or detention camps.
3. JCE III, the most controversial form, provides for liability for crimes that were the natural and foreseeable consequence of implementing the common design.

JCE III has always proved controversial. It has been criticized firstly, for the lack of evidence to support its status as customary international law, and secondly, for violating the principle of culpability by holding defendant’s criminally liable even when they did not commit the actus reus, and arguably did not possess the necessary mens rea.

The Case 002/01 appeal judgment is not the first time the ECCC has questioned the legality of JCE III. In a Decision in 2010, the Pre-Trial Chamber had found that the ICTY’s analysis of the jurisprudence had not provided a ‘sufficiently firm basis’ for a finding that JCE III constituted customary international law. As such, the accused before the ECCC would have not been able to foresee this form of liability in 1975-1979, meaning the principle of legality precluded this form of liability being used against them. In contrast, the Pre-Trial Chamber found that post-World War II case law, the work of the International Law Commission, and national case law, provided a sound based for establishing JCE I and II.

This decision was subjected to criticism, but received support from the ECCC’s TC in 2011, when the TC reaffirmed that JCE III “did not form part of customary international law and was not a general principle of law at the time relevant to Case 002″. This finding has now received further support from the ECCC’s final court of appeal. The SCC found that an analysis of the case law did not lend any support to the argument that the accused could be found liable for crimes that were not encompassed by the common purpose, and the actus reus of which they did not commit. Reviewing state practice, the SCC noted that ‘the general principle is that  criminal responsibility is ordinarily limited to the perpetrator’s own actions; as far as actions of others are concerned, a specific condition for their imputation must be determined by law –for instance that the crime in question was encompassed by an  agreement or a common  criminal  purpose.’

The implications for this are likely to be felt in the subsequent sub-trials of Case 002. Indeed, International Deputy Co-Prosecutor William Smith noted in an email to the press that the status of JCE III may ‘impact future trials in relation to particular crimes such as rape which may not have been specifically instigated, ordered or planned but were foreseeable from an accused’s actions’. Subsequent cases at the ECCC are also likely to be impacted, as a number of crimes imputed against Meas Muth in Case 003 are based on JCE III. However, the Co-Prosecutors have since down played the impact of this ruling, with International Co-Prosecutor Nicholas Koumjian stating that there is no need for JCE III in the remainder of Case 002, while declining to comment on the applicability of JCE to Cases 002 and 004. However, he did express frustration at the Court adopting a view that differed from other international courts.

Beyond the ECCC, this decision bolsters the arguments of those who have opposed JCE III, and challenges the ICTY’s approach in this regard.