Lennert Breuker 

I will not engage in an analysis of the decision as I’m currently assisting one of the defense teams, but just to signal an interesting development at the ECCC (Extraordinary Chambers in the Courts of Cambodia) for those that may have missed it: the Pre-Trial Chamber has issued a decision in which it accepts the objections of the defense against the extended form of Joint Criminal Enterprise, also known as JCE III. This has always been the most controversial form of JCE for stretching the principle of culpability to far.

In short:  JCE is a mode of liability under which a person can be held liable, as a principal and not merely as an accomplice, for a crime that he did not commit himself in a physical sense, but that he intended nevertheless by participating in a joint criminal effort to that result. The extended form entails the notion that a common design to pursue a course of conduct where one of the perpetrators commits an act  which, while outside the common design, was nevertheless a natural and foreseeable consequence of effecting the common purpose, extends criminal responsibility to anyone participating in the original common design, even though those persons have not physically  committed the crime, and did not agree to it. They are supposed to have accepted it, as they should have foreseen the consequences. An assumption with the benefit of hindsight.

The Pre-Trial Chamber found that at the time relevant to the case under scrutiny, and over which the ECCC can exercise jurisdiction (1975-1979), ‘the authorities relied upon in Tadic […] do not constitute a sufficiently firm basis to conclude that JCE III formed part of part of customary international law’. Furthermore, the Pre-Trial Chamber added that any applicablity of JCE III that may flow from its characterization as general principle would result in an (unacceptable) violation of the principle of legality, as JCE III was not a foreseebale consequence at the time. To avoid misunderstanding: JCE I and II were found acceptable.

Finally, the Pre-Trial Chamber also decided that JCE ‘shall apply to international crimes rather than domestic crimes’.

You can find the decision here: http://www.eccc.gov.kh/english/cabinet/courtDoc/605/D97_15_9_EN.pdf