Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Application of Joint Criminal Enterprise Doctrine
- Introduction
On 8 August 2008, the issue of criminal liability under the doctrine of joint criminal enterprise (hereinafter “JCE”) was brought to Pre-Trial Chamber at the Extraordinary Chambers in the Courts of Cambodia (hereinafter “ECCC”) in the case against Kiang Guek Eav alias Duch (hereinafter “Duch”), who chaired the detention, interrogation and execution camp called S-21 during the Democratic Kampuchea’s (Khmer Rouge) regime. In that proceeding, the Co-Prosecutors appealed the Closing Order of the Co-Investigating Judges[1]on the basis that the Co-Investigating Judges had committed some errors according to their Closing Order.
In the case at hand against Duch, the Co-Investigating Judges issued a Closing Order indicting him for crimes against humanity and grave breaches of the 1949 Geneva Conventions on the basis of certain mode of liability.[2] Nevertheless, the Co-Prosecutors found that the Co-Investigating Judges had committed two errors of law. First, they failed to indict Duch for the commission of the national crimes of homicide and torture as defined by the 1956 Penal Code and punishable under Article 3 of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (hereinafter “ECCC Law”). Second, the judges failed to indict Duch for the commission of crimes through his participation in a JCE.[3]
Following that appeal, the question regarding the doctrine of JCE and the ECCC has become a controversial issue among international criminal law scholars and commentators. The key question of whether JCE liability can be applied before the ECCC, taking into account the fact that the crimes were committed during the period 1975-1979, has been a significantly debatable issue within the international community.
The Pre-Trial Chamber invited three international criminal law scholars; Professor Antonio Cassese, Professor Kai Ambos and the Centre for Human Rights and Legal Pluralism of McGill University to submit written amicus curiae briefs on two issues regarding the JCE doctrine; the development of the theory of JCE and the evolution of the mode of liability, with particular reference to the time period 1975-1979; and whether JCE as a mode of liability can be applied before the ECCC, taking into account the fact that the crimes were committed in the period 1975-1979.[4]
This article aims to discuss one of the most controversial modes of liability in international criminal law, JCE, before the ECCC against the former high-ranking officer accused of the crimes committed during the Khmer Rouge regime (1975-1979).
After introducing the concept of the JCE doctrine in Part 2, the main part of this article will address the difficult task of the ECCC on the application of JCE in accordance with the ECCC Law, in particular, the question of whether the application of JCE before the ECCC against Duch violates the principle of legality (nulla crimen sine lege). I will then discuss the requirements for applying the JCE before the ECCC in accordance with the jurisprudence of international criminal tribunals in Part 3. In Part 4, I will analyze the conditions of the application of JCE before the ECCC and will offer my conclusion in Part 5.
2. Joint Criminal Enterprise doctrine
The doctrine of JCE is a judicial innovation which has grown to play a major role in the charges and convictions before the international criminal tribunals. JCE is a widely accepted mode of liability in international criminal law and is routinely used at international tribunals, for instances, the International Criminal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone (“SCSL”), the Special Panel for the Trial of Serious Crimes in East Timor and recently has become one of the important issues at the ECCC.
As I mentioned, the concept of JCE liability has been recognized and upheld by jurisprudence of international criminal tribunals. The jurisprudence of those tribunals in a great number of cases reaffirms the lawfulness and effectiveness of the application of JEC doctrine against those accused of committing serious crimes, in particular, the crime of genocide, war crimes, crimes against humanity and torture. However, on the other hand, many aspects of this doctrine have also been subject to criticism by international criminal law experts in many aspects. In particular, the expansiveness of the doctrine raises the prospect of ‘guilt by association’, and in some circles JCE has been referred to as ‘just convict everyone’. Furthermore, the process by which JCE was judicially introduced is problematic in terms of the principle of legality[5], as will be discussed below.
2.1 JCE doctrine: the emergence
The emergence of the doctrine of JCE liability can be tracked back to the Tadić Case before the ICTY. In this case, the Appeals Chamber concerned that international crimes such as war crimes, crimes against humanity and genocide share a common feature: they tend to be expressions of collective criminality, in that they are perpetrated by groups of individuals, military details, paramilitary units or government officials acting in unison or in pursuance of a policy.[6] According to this, the Chamber correctly acknowledged that “most of […] these crimes […] constitute manifestations of collective criminality: the crimes are often carries out by groups or individuals acting in pursuance of a common criminal plan.” [7] As a result, the Chamber then looked for a theory of international criminal participation that sufficiently takes into account the collective, widespread and systematic context of the commission of such crimes. Ultimately, after considering those circumstances, the Appeals Chamber overturned his acquittal and set out the understanding of liability by virtue of participation in a JCE in their decision.
Hence, JCE doctrine is not a crime but it is a method by which crimes can be committed. In a JCE, a group of people agree to act together to accomplish an illegal purpose. Each member of the group that agrees to accomplish the illegal purpose and commits a significant act to advance the illegal purpose is a participant of a criminal enterprise. In particular, JCE liability has been employed when prosecuting mass atrocities because it captures conduct which may not constitute the actus reus of ordering, planning, or instigating of specific crimes but nevertheless is significant for the commission of the atrocities. As participants in a JCE, the accused are often higher-ranking members of the group and thus distant from the physical commission of the crimes, yet they are still willing to participate in the criminal purpose. Without JCE liability, an instigating and planning specific crimes may only be held liable as an aider and abettor[8]. However, with JCE liability the accused can be convicted of all the crimes committed in furtherance of the joint criminal purpose.
According to the ICTY’s jurisprudence in the Tadić Case, the Chamber distinguished, relying on post-World War II (hereinafter “WW II”) case law, collective criminality into three categories: basic, systemic and extended forms.[9]
(i) Liability for a common criminal purpose; the basic form where the participants act on the basic of a “common design” or “common enterprise” and with a common “intention” (hereinafter “JCE I”);
(ii) Liability for participation in an institutionalized common criminal plan; the systemic form, that is, the so called concentration camps where crimes are committed by members of military of administrative units such as those running concentration or detention camps on the basis of a “common plan” (hereinafter “JCE II”); and
(iii) Incidental criminal liability based on foresight and voluntary assumption of risk; the extended form where one of the co-perpetrators actually engages in acts going beyond the common plan, but his or her acts constitute a “natural and foreseeable subsequence” of the realization of the plan (hereinafter “JCE III”).
Furthermore, the Chamber in the Tadić Case also classified the objective and subjective elements of each category of JCE. The objective elements, which are common to those three categories of JCE, are:
i) a plurality of persons;
ii) the existence of a common plan, design or purpose and;
iii) the participation of the accused in the JCE by any form of assistance in, contribution to, the execution of the common purpose.
While the objective elements of all three categories are exactly the same, the subjective requirement of each category of JCE is distinguished; JCE I requires the shared intent of the co-perpetrators; JCE II requires the perpetrator’s personal knowledge of the system of ill-treatment and JCE III required the perpetrator’s intention to participate in the criminal purpose, to further this purpose and to contribute to the commission of the crimes by the group.[10]
The doctrine of JCE liability should be an effective mode of criminal liability for bringing the accused who have committed serious crimes to justice and in particular, the international crimes such as crimes against humanity, genocide and war crimes, which are often carried out by groups or individuals acting in pursuance of a common criminal plan.
3. The Application of JCE before the ECCC
The Co-Prosecutors in the Duch’s case before the ECCC, the Co-Prosecutors appealed on the basis that Duch should be charged via JCE because of his conduct as a commander of the detention, interrogation and execution camp known as S-21 during the Khmer Rouge regime. According to his status, the three forms of liability characterized as ordering, instigating and planning are not broad enough to cover the full criminality of Duch’s actions. Furthermore, the two other forms of liability, aiding and abetting and superior order responsibility, do not fully reflect the particular criminal role that Duch had at S-21. Therefore, the indictment is unduly narrow without JCE and there is a significant possibility that Duch would not be fully held accountable for his actions.[11]
Furthermore, the jurisprudence of international criminal tribunals demonstrates that an accused’s acts may be sufficient to attract liability as a co-perpetrator in a JCE even where such acts may not be sufficient for other forms of liability. For example, in the context of prison camp, it has been held that merely “holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein.”[12]
According to the Co-Prosecutors’ appeals, the ECCC will be able to apply the JCE liability because the case satisfied each of four conditions:[13]
(i) it must be provided for in the ECCC, either explicitly or implicitly;
(ii) it has had existed under customary international law at the relevant time;
(iii) the law providing for it must have been sufficiently accessible to the defendants at the relevant time; and
(iv) the defendants must have been able to foresee that they could be criminally liable for their actions.
As a result, if all of four conditions are fulfilled, JCE liability is a valid mode of liability at the ECCC[14]
Regarding those conditions, to classify the possibility of JCE application before the ECCC, the Pre-Trial Chamber invited international criminal law scholars to submit written amicus curiae on two issues regarding the JCE doctrine; the development of the theory of JCE and the evolution of the mode of liability, with particular reference to the time period 1975-1979; and whether JCE as a mode of liability can be applied before the ECCC, taking into account the fact that the crimes were committed in the period 1975-1979. The briefs were prepared by Professor Antonio Cassese, Professor Kai Ambos and the McGill Centre for Human Rights and Legal Pluralism(hereinafter “Cassese’s amicus curiae brief”, “Ambos’s amicus curiae brief”, and “McGill’s amicus curiae brief”, respectively)[15].
3.1 Requirements for applying JCE before the ECCC
Article 33 new (2) of the ECCC Law provides “The Extraordinary Chambers of the trial court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights.” In accordance with this provision, Article 15 of the 1966 International Covenant on Civil and Political Rights (ICCPR) then makes the principle of legality (nullum crimen sine lege) as a part of ECCC’s legal regime. Therefore, “[N]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.” Not only been recognized by ICCPR, but the principle of legality has been also respected as a fundamental principle of criminal law and a norm of customary international law. This principle requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission.
Hence, to fulfill this obligation, the crimes that were committed between 1975 and 1979 are encompassed by the ECCC’s jurisdiction only if they constituted an international or national criminal offence at that moment in time. The principle of legality also applies to the rule of imputation, for example in the context of JCE, for these rules link the individual conduct to the crimes and as such must be considered as the basis for criminal responsibility.[16]
In the instant case, Professor Ambos suggested in his amicus curiae brief that whether the JCE existed at the time depends on whether the crimes violated international or Cambodian criminal law at all. To answer that question, the Appeal Chamber in the case against Mulutinović has divided the test for this purpose into three requirements[17]namely; JCE must have existed under customary international law at the relevant time; It must have existed under national Cambodian law at the relevant time; and This form of liability must have been sufficiently accessible and foreseeable to the defendants at the relevant time.
However, the highest priority requirement for applying the doctrine of JCE before the ECCC is that the ECCC law must provide for JCE liability in its legal regime. In the instant case, the application of JEC doctrine against Duch before the ECCC should comply with these four requirements[18]:
(i) The JCE must be provided for in the ECCC, either explicitly or implicitly
(ii) The JCE must have existed under customary international law at the relevant time;
(iii) The JCE must have existed in national Cambodian law at the relevant time; and
(iv) The JCE must have been sufficiently accessible and foreseeable to the defendants at the relevant time.
According to the appeal of the Co-Prosecutors and the amicus curiae briefs, as below I will discuss each of the conditions of the application of JCE liability before the ECCC, respectively.
3.1.1. The JCE must be provided for in the ECCC, either explicitly or implicitly
The most important question concerning the application of the JCE doctrine before the ECCC is the question of legality. The application of JCE has not violated the fundamental principle of legality (nullum crimen sine lege). Hence, whether the ECCC Law provides JCE liability in its legal regime would be the prior condition of that applying. Without this providing, JCE liability will be out of the ECCC’s legal regime.
The ECCC Law Article 29 provides for individual criminal responsibility for any “suspect who planned, instigated, ordered, aided and abetted, or committed” the crimes punishable by the ECCC. These forms of criminal responsibility are identical to those found in the statutes of the ICTY, ICTR and SCSL. Each of those tribunals has held that participation in a common criminal plan or purpose is a form of committing a crime. Those tribunals have followed the Tadić Decision which held that participation in a JCE is a form of commission and that JCE more accurately reflects the responsibility of co-perpetrators in most international crimes than other modes of liability.[19]
According to the Co-Prosecutors’ Appeals, Article 1 of the ECCC Law states that the purpose of the Law is to bring to trial senior leaders of Khmer Rouge and those who were most responsible for the crimes under that regime. According to the Tadić Case[20], the best way to successfully prosecute the senior leaders and those most responsible, the Court must be able to assign criminal responsibility to the individuals who created and implemented the criminal policies of the Khmer Rouge regime, not just to the individuals who physically perpetrated the crimes that resulted from those policies. As a result, the application of JCE can fulfill that purpose of the ECCC.
Moreover, the jurisprudence of international criminal tribunals regarding a JCE as a form of commission are therefore consistent with the purpose of the ECCC law, the nature of international crimes and the manner in which other international tribunals have interpreted identical language in their respective statutes.[21]
Regarding the jurisprudence, Professor Cassese states in his amicus curiae brief that he agrees with the Co-Prosecutors that the interpretation of “committed” includes participation in a JCE, and then the ECCC may also read “committed” to include liability for commission through a JCE in accordance with the jurisprudence of the ICTY and the ICTR.[22]
Ambos, in his amicus curiae brief, also agrees but only insofar as it applies to JCE I. He explains that JCE I resembles co-perpetration in a traditional sense and as such can be considered as commission, but he disagrees with regard to JCE III. Furthermore, he concluded that the Co-Prosecutors not only ignored this distinction in their discussion of the ECCC Law but consciously leaves open the distinction between JCE I and JCE III when they proposed to charge Duch in the alternative either as a co-perpetrator in the JCE I or for the crimes being a natural and foreseeable consequence of the criminal enterprise (JCE III) Further, the Co-Prosecutors overlooked the other forms of liability, in particular, the form of imputation for superiors, that is , indirect perpetration based on the theory of control by way of a hierarchical organizational structure.[23]
The principle of legality (nullum crimen sine lege) is not only a fundamental principle of criminal law but also a norm of customary international law. It requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission[24]
The requirement of the principle of nullun crimen sine lege will be met if JCE liability is found to have been accepted as a mode of participation under either international law or Cambodian law at the relevant time (1975-1979). Hence, the next two important issues focus on the status of JCE in customary international law and national Cambodian law during that period of time.
According to the aforementioned discussion, the ECCC can apply only JCE I and JCE II according to ECCC Law; can be derived from the ‘commission” in Article 29 of the ECCC Law. In the case of JCE III, a person is held liable for acts committed by another person within a JCE. This mean that those who are held responsible according to JCE III have explicitly not committed the crimes. As a result, it can not be derived from the commission in that Article of the ECCC Law, then the application of JCE III is not in the ECCC’s legal regime.
3.1.2. The JCE must have existed under customary international law at the relevant time
The Co-Prosecutors’ Appeals pointed out following the Tadić Case that JCE is a relatively new expression, through a similar concept of common criminal purpose or common criminal plan have existed since at least WW II.[25] This notion can be found in three main fundamental documents from the post-War period: the London Charter of the International Military Tribunal (IMT) at Nuremberg (hereinafter “Nuremberg Tribunal”), Control Council Law Number 10 and the Charter of the International Military Tribunal for the Far East (hereinafter “Tokyo Tribunal”). Article 6 of the Charter of the Nuremberg Tribunal and Article 5 of the Charter of the Tokyo Tribunal established a broad responsibility based on common plan providing that “[L]eaders, organizers, instigators and accomplices participating in the formula roe execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” Article II(2) of the Control Council Law No. 10 provides that a person has “committed” a crime when he…(d) was connected with plans and enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime.”
According to these provisions, a person who participated in a common plan or conspiracy to commit any crime under these documents would be liable for all acts performed in execution of that common plan or conspiracy. In addition, thousands of post-WW II’s trials made JCE a part of customary international law.[26]
Moreover, on 31 December 2008 at the ECCC, the Co-Prosecutors in the case of Iang Sary observed that all three forms of JCE have been part of customary international law since well before 1975-1979. This is evident from numerous international statutes, cases and authoritative announcements, as well as domestic cases, supporting the prior existence of JCE. All of this provides cogent evidence of the widespread state practice and opinio juris that establish customary international law.[27]Furthermore, the inclusion of ‘common plan’ as a mode of liability in the Statute of Nuremberg Tribunal, the Allied Control Council No. 10 and post-WW II war crimes tribunals also crystallized JCE as customary international law.[28]
In his amicus curiae brief, Cassese points out that the principle of JCE liability was crystallized as customary international law and was recognized before 1975-1979 by the Charter of International Military Tribunal, Control Council No 10. JCE is not a creation of the ICTY in the Tadić Case and the categorization of JCE in the Tadić Case was an attempt to rationalize a vast array of disparate decisions and to set out their rationale.[29] Moreover, he also states that in this case the Appeals Chamber relied on post-WW II case law to establish that “the notion of common design as a form of accomplice liability is firmly established in customary international law”[30]
Similarly, McGill’s amicus curiae brief also concludes that JCE liability has been recognized as customary before 1975-1979. However, it notices that JCE I and II are most clearly supported by the military tribunal while the facts of the cases referenced in support of JCE III resemble less closely the scenarios with which this latter category is most commonly associated. Further, it provides two problems regarding the use of JCE III, one that the circumstances of this case are not clear on the role or intention of each participant and two, that the court’s findings must be inferred from the prosecution’s argument and the eventual guilty verdict. Nevertheless, there is some evidence to support the general existence of the JCE III already in the years after WWII. [31]
Ambos’ amicus curiae brief only agrees with the customary law status of JCE liability type I (basic form), which was recognized by the post WW II case law, and therefore, also existed at the time of the commission of the crimes in question in Cambodia. However, JCE II (systematic form) and III (extended form), were recognized having as such status only if they are interpreted in the narrow sense as a sub-category of JCE I.[32]
During the IMT’s trials and those conducted under the Control Council law, there were also thousands of national prosecutions. Those prosecutions applied JCE I liability to the cases, for instance, the case of Essen Lynching, the case of Georg Otto Sandrock et al. (“Almelo Trial”) and the case of Feurstein and Others (Ponzano Case) at the British Military Court, the case of Hölzer el al. at Canadian Military Court and the case of Einsatzgruppen at the United States Tribunal.[33] These prosecutions are some of the post-WWII prosecutions which have fulfiled the requirements of the establishment of customary international law: state practice and opinion juris.
In the case of JCE II, there are also a series of WW II cases that apply the mode of liability to cases of concentration camps, which demonstrate the existence of JCE II in international criminal proceedings, for instance, the case of Dachau Concentration Camp Trial, the case of Hadamar and the case of Mauthausen Camp at the American Military Tribunal and the cases of Velpke-Childrens’ Home and the case of Karmer at the British Military Court.[34]
Regarding the customary law status of JCE liability types I and II, the jurisprudence of international criminal tribunals shows the existence of a rule of international customary law requirements (general and consistent state practice and opinion juris) of JCE I and JCE II, and therefore this can be considered as international customary law.
On the other hand, JCE III can not be considered as such. There are only a few cases that have applied liability for foresseable crimes outside the common plan. From the case law referred to by the Tadić Appeals Chamber, only the post-WW II case of Essen Lynching at the British Military Court has done so, but the Appeals Chamber itself concedes that this case could be considered as a case of JCE I.[35]Therefore, JCE III was not a part of international customary law at the relevant time.
3.1.3. The JCE must have existed in national Cambodian law at the relevant time
In this regard, the Co-Prosecutors concluded in their appeals that the provision of Cambodian Penal Code of 1956 has several articles that criminalize actions undertaken by groups of people acting together.[36]
Similar to amicus curiae briefs of international criminal law scholars, the criminal law in force during that period was the 1956 Penal Code, published by the Ministry of Justice of the Kingdom of Cambodia. In this Penal Code, there is no explicit legal basis for JCE, through some sections do address issues related to a common plan. Article 82 states that “any person, who willfully participates in the commission of any crimes or offences, either directly or indirectly, shall be punished with the same punishment applicable to the result of instigation, explanation, provision of means or aiding or abetting.”[37]
However, the amicus curiae brief of Professor Cassese focuses on the Tadić Case and notices that the Appeals Chamber held that even if the domestic provision had not existed the decisions and legal instruments identified in Prosecutor v Tadić establishing the principles of JCE liability in customary international law would have sufficed as reasonable notice.[38] Therefore, regardless of the content of Cambodian Law, application of JCE liability would not violate the principle of nullum crimen sine lege. However, the Criminal Code of Cambodia between 1975 and 1979 was applicable and envisaged responsibility for both co-perpetratorship and complicity, pursuant to Article 82 and 83.
According to this, at the time of the Khmer Rouge regime (1975-1979), which the ECCC has jurisdiction, the Cambodian Penal Law did not recognize a form of JCE III. There is no provision of the Code that can be read so as to give rise to liability similar to JCE III.
3.1.4. The JCE must have been sufficiently accessible and foreseeable to the defendants at the relevant time
To fulfill the final requirement of the application of JCE before the ECCC regarding the accessibility and foreseeability of JCE doctrine to the defendants during 1975-1979, Professor Ambos clearly states that only JCE I and JCE II existed in customary international law at the relevant time. Furthermore, this doctrine exists not only in customary international law, but also in Cambodian Penal Law. Hence, both JCE I and JCE II liability were accessible and foreseeable to the defendants during 1975-1979.[39]
Hence, JCE I and JCE II existed in customary international law at the relevant time. Furthermore, this doctrine exists not only in customary international law but also in Cambodian Penal Law. Hence, both JCE I and JCE II liability was accessible and foreseeable to the defendants during 1975-1979. However, this is not in the case with regard to JCE III.
3.2 The ECCC’s application of JCE
On 5 December 2008, the Pre-Trial Chamber made the decision on the appeals of the Co-Prosecutors and decided to dismiss the appeal on the ground of JCE. In the view of the Pre-trial Chamber’s reasoning and conclusion, it is not necessary to determine the question of customary international law status of JCE liability at the relevant time (1975-1979). It is similarly not necessary to determine the applicability of JCE, as opposed to other forms of liability under Cambodian law, before the ECCC.[40]
On 31 December 2008 in the case against Ieng Sary, the Co-Prosecutors issued three observations on the reason why JCE should be applied at the ECCC, first that the doctrine of JCE has existed in customary international law since the 1940’s, second, that all three forms of JCE are applicable at the ECCC because Article 29 of the ECCC Law permits it and third, if the three forms of JCE are applied correctly this would actually entail a limited scope of liability.[41]
4. Conclusion
From the case of Duch to Ieng Sary, the conditions for applying the JCE liability before the ECCC have been debated and the conclusion to this problem is still ambiguous, especially in the case of JCE III. Moreover, until now there has been no legal framework for applying JCE before the ECCC.
Regarding the application of JCE I and JCE II before the ECCC, these are both provided in Article 29 of the ECCC Law. They also relate to the Cambodian Penal Law of 1956 and can be considered as customary international law during the period of the Khmer Rouge’s regime. Therefore, the application of JCE liability type I and II is not a violation of the principle of nullum crimen sine lege
Conversely, JCE III is neither encompassed in Article 29 of the ECCC Law nor in the related articles of the Cambodian Penal Law of 1956 nor can it be consider as customary international law at the relevant time (between 1975-1979) applicable before the ECCC. Hence, the Application of JCE III at the ECCC significantly violates the general principle of nullum crimen sine lege.
[1] Case of Kaing Guek Eav alias DUCH, Criminal Case File No 001/18-07-2007-ECCC/OCIJ (PTC 02), Co-Prosecutors’ Appeal of the Closing Order Against Kaing Guek Eav “DUCH” Dated 8 August 2008, 5 September 2008 paras. 11-12.
[2] Case of Kaing Guek Eav alias DUCH, Closing Order Indicting Kaing Guek Eav alias DUCH, 8 August 2008, paras. 153-161.
[3] Case of Kaing Guek Eav alias DUCH, supra note 1, paras. 11-12.
[4] Case of Kaing Guek Eav alias DUCH, Criminal Case File No 001-18-07-2007-ECCC-OCIJ (PTC 2), Invitation to Amicus Curiae, 23 and 25 September 2008.
[5] Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ Leiden Journal of International Law, 21 (2008), p. 939.
[6] Prosecutor v Tadić, Judgement, Case No. IT-94-1, ICTY Appeals Chamber, 15 July 1999, para 191.
[7] Ibid, para. 185.
[8] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 46.
[9] Prosecutor v Tadić, supra note 6, para 111.
[10] Ibid., paras 196, 202, 220 and 228.
[11] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 43.
[12] Ibid., para. 47.
[13] Prosecutor v Mulutinović, et al., Decision on Dragoljub Ojdanić’s Motion Chalenging Jurisdiction - Joint Criminal Enterprise, Case No IT-99-37-AR62, ICTY Appeals Chamber, 21 May 2003, paras. 20-21
[14] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 49.
[15] Antonio Cassese et al., Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal of International criminal Justice on Joint Criminal Enterprise Doctrine, 27 October 2008 (hereinafter “Cassese’s amicus curiae brief”); Kai Ambos, Amicus Curiae concerning Criminal Case File No 001/18-07-2007-ECCC/OCIJ(PTC 02) , 27 October 2008 (hereinafter “Ambos’ amicus curiae brief”); McGill Centre of Human Rights and Legal Pluralism, Amicus Curiae Brief Submitted by the Centre for Human Rights and Legal Pluralism, McGill University, 27 October 2008 (hereinafter “McGill’s amicus curiae brief”).
[16] Ambos’ amicus curiae brief, supra note 15, p. 20.
[17] Prosecutor v Mulutinović, et al., Decision on Dragoljub Ojdanić’s Motion Chalenging Jurisdiction - Joint Criminal Enterprise, paras 20-21, cited in Ambos’ amicus curiae brief, supra note 15, p. 21.
[18] Ambos’ amicus curiae brief, supra note 15, p. 21; Case of Kaing Guek Eav alias DUCH, supra note 1, para. 49
[19] Prosecutor v Tadić, supra note 6, paras. 188-193.
[20] Ibid., para. 190.
[21] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 55.
[22] Cassese’s amicus curiae brief, supra note 15, p. 21
[23]Ambos’ amicus curiae brief, supra note 15, p. 22.
[24] Universal Declaration of Human Rights, 10 December 1948, GA Res 217A (III), UN Doc A/811 (1948) Article 11(2), International Covenant on Civil and Political Rights, 16 December 1966.
[25] Prosecutor v Tadić, supra note 6, para. 190, cited in Case of Kaing Guek Eav alias DUCH, supra note 1, para. 52.
[26] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 53.
[27] Case of Iang Sary, Co-Prosecutors’ Supplementary Observations on Joint Criminal Enterprise, Case File No. 002/19-09-2007-ECCC/OCIJ, 31 December 2008, para. 9.
[28] Ibid., para. 10.
[29] Cassese’s amicus curiae brief, supra note 15, paras. 33-34
[30] Prosecutor v Tadić, supra note 6, para. 220
[31] McGill’s amicus curiae brief, supra note 15, paras. 19, 24.
[32] Ambos’ amicus curiae brief, supra note 15, pp. 23-29.
[33] Case of Kaing Guek Eav alias DUCH, supra note 1, para 53-54; Cassese’s amicus curiae brief, supra note 15, paras. 33-34; McGill’s amicus curiae brief, supra note 15, paras. 16-18; Ambos’ amicus curiae brief, supra note 15, pp. 23-26.
[34] Case of Kaing Guek Eav alias DUCH, supra note 1, para 53-54; Cassese’s amicus curiae brief, supra note 15, paras. 47-48; McGill’s amicus curiae brief, supra note 15, paras. 20-23; Ambos’ amicus curiae brief, pp. 26-28
[35] Ambos’ amicus curiae brief, supra note 15, p. 29.
[36] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 58.
[37] McGill’s amicus curiae brief, supra note 15, pp. 29-30.
[38] Prosecutor v Tadić,, supra note 6, para. 41.
[39] Ambos’ amicus curiae brief, supra note 15, p. 30.
[40] Case of Kaing Guek Eav alias DUCH, supra note 1, para. 142.
[41] Case of Ieng Sary, supra note 27,, para. 3.
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