Legal scholars advising the Khmer Rouge tribunal have differed as to the way in which suspects can be held responsible for crimes carried out by other people, a key issue in the final decision the court must make before beginning the trial of former S-21 prison chairman Kaing Guek Eav, better known as Duch.
Though it may sound technical and remote, the question, which the court is to address next month, may be crucial to deciding how and whether the court can put the crimes of an entire regime on trial, or apportion collective blame to Khmer Rouge leaders for alleged crimes spread out across the nation.
In an appeal against the indictment of Duch, tribunal prosecutors in September said the court’s co-investigating judges had failed to charge the 65-year-old with membership in a joint criminal enterprise, a legal doctrine often used in the prosecutions of suspects at the tribunals for Rwanda, Sierra Leone and the former Yugoslavia.
In deciding the appeal, the five judges of the Pre-Trial Chamber invited legal scholars to debate whether and in what form the doctrine existed during the Khmer Rouge era, or whether the Khmer Rouge leaders now in custody could have known they risked being held accountable in this way.
The three opinions received, from scholars at the Journal of International Criminal Justice, the McGill University Center for Human Rights and Legal Pluralism in Canada, and Georg-August University in Goettingen, Germany, disagreed on the most controversial form of the theory, its third, or “extended” category, which holds co-conspirators liable for crimes they do not agree to commit but which still happen as a “foreseeable” result of their conspiracy. For example, if three men were to rob a bank together and one of the perpetrators unexpectedly kills a security guard, all three would be held responsible for the unplanned murder.
Perhaps unsurprisingly, Antonio Cassese, one of the creators of the doctrine, and three other scholars from the Journal of International Criminal Justice, argued that joint criminal enterprise is firmly established in international law and was entirely in force on the day Phnom Penh fell to Pol Pot’s army in 1975.
The tribunal last month declined to consider a motion by former Foreign Minister Ieng Sary’s lawyers to disqualify Cassese as a “friend of the court.” Attorneys had argued that Cassese would be biased and seek to protect his legal legacy by arguing in favor of the doctrine, and they have campaigned against the use of the doctrine at the tribunal.
In a sweeping 177-page decision considering nearly every case of collective guilt in international law since World War II, Cassese was one of five appellate judges at the International Criminal Tribunal for the former Yugoslavia who in 1999 coined the term “joint criminal enterprise” to uphold the conviction of war crimes and crimes against humanity suspect Dusko Tadic.
In his brief to the court submitted last week, Cassese argued that the doctrine helped the world punish the collective crimes of armies, militias and governments.
“The world community must defend itself from this collective criminality by holding those responsible for the full extent and reach of their crimes,” wrote Cassese, who was joined by law professors Mary De Ming Fan, Salvatore Zappala and teaching assistant Vanessa Thalmann.
“To obscure responsibility in the fog of collective criminality and let the crimes go unpunished would be immoral and contrary to the general purpose of criminal law of protecting the community from deviant behavior,” their brief read.
One of the first instances of the “extended” form of joint criminal enterprise came 30 years before the rise of Democratic Kampuchea with the conviction of German army Captain Erich Heyer before a British military tribunal, according to Cassese.
Heyer was hanged in 1946 for his role in the lynching of three British prisoners of war who were beaten, shot and thrown from a bridge by an angry mob in the German city of Essen. Heyer had announced to the crowd that his men would not intervene if the crowd attacked the prisoners. He was convicted in their deaths even though he had not ordered the attack, planned precisely how it would occur or struck a single blow to the victims.
However, Rene Provost, director of the McGill Center for Human Rights and Legal Pluralism, noted this has been the “most controversial” form of joint criminal enterprise and that justice systems in Germany, the Netherlands and Switzerland have rejected it completely.
“Even in jurisdictions where it is accepted, such as Canada, the US and the United Kingdom, the doctrine is highly criticized,” wrote Provost, because it lowers the burden on prosecutors to demonstrate that an accused actually intended to commit a crime, leading some to describe the theory as “guilt by association.”
For this reason, Kai Ambos of Georg-August University argued that the extended form of joint criminal enterprise is stacked in favor of the prosecution and in fact describes a person who has “aided and abetted” a crime, rather than jointly perpetrated it.
It is also unclear that courts can reliably determine what is a “foreseeable” outcome of a conspiracy, said Ambos.
“[O]ne cannot blame the member of the [joint criminal enterprise] for not having withdrawn from the criminal enterprise: how and why should he do so if he does not even foresee the criminal result with certainty?” wrote Ambos.
Prosecutors have argued that all five of the tribunal’s current detainees engaged in a joint criminal enterprise to remake Cambodia into a homogenous society without class or race. They have also accused Duch of engaging in either a “basic” or “extended” joint criminal enterprise with S-21 itself.
Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said Thursday that the broader and more complex the conspirators’ alleged common goal is, the harder it can be for prosecutors to prove that crimes were consequences of a conspiracy and that the accused were aware of this.
“You have to link these things back to the center,” she said. “The larger the JCE gets, the more it starts to fall apart.”
Parties to the Duch trial have until Nov 17 to respond to the three friend-of-the-court briefs. A decision on the prosecution’s appeal is due by Dec 5.