Is the Doctrine of Joint Criminal Enterprise a Legitimate Mode of Individual Criminal Liability? − A Study of the Khmer Rouge Trials

Abstract: The doctrine of joint criminal enterprise (JCE) is a form of individual criminal liability in international criminal law. This doctrine was formed by the Appeals Chamber of the ICTY in the Tadić Case in 1999. Since then, the JCE has grown to play a major role in the charges and convictions before international criminal tribunal. Due to this doctrine, the members who formed the criminal plan are responsible not only for those crimes they agreed to, but for all other crimes that would be considered the natural and foreseeable consequence of the plan regardless of whether those crimes were committed by person outside the criminal plan. The JCE is accepted as one of the most important and effective tools in the prosecution, however, it also is one of the most difficult and controversial prosecutorial tools. The employment of JCE in the prosecution before the international criminal tribunals frequently faces the problem of the violation of the principle of nullum crimen sine lege. Similarly, before the Extraordinary Chambers in the Courts of Cambodia (ECCC), the application of JCE has become a problematic issue on the question regarding the legality; whether the application of JCE before the ECCC, for taking into account the crimes committed during 1975-1979, violates the principle of nullum crimen sine lege. The JCE is considered as a mode of liability within the meaning of ‘committing’ in Article 29 of the ECCC Law, then the application of JCE before the ECCC is in the legal regime of the Court. However, the use of JCE must respect the principle of nullum crimen sine lege, which is the fundamental principle in international human rights law and international criminal law. Due to this, the application of this doctrine must satisfy the condition of legality, that is, the existence of the law requirement and foreseeability and accessibility requirement. The main objective of this study is to analyse the legality and legitimacy of the application of JCE as at the ECCC, particularly in the case of Kiang Guek Eav alias Duch (Duch). The study shows that the application of the extended form of JCE (JCE III) before the ECCC would violate the principle of nullum crimen sine lege. However, to analyse the legitimacy, the ECCC must balance the values of the proceedings: legal, political and moral, which is based on a case-by-case basis. The study on the Duch Case shows that even the application of JCE III would be illegal; however, the application of JCE before the ECCC against Duch is still legitimate. Hence, in the author’s view, the doctrine of JCE may be a legitimate tool in the prosecution of Duch at the ECCC.