On the 23rd 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:
- 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.
- 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.
- JCE III, the most controversial form, provides for liability for crimes that were the natural and foreseeable consequence of implementing the common design.