Lawyers for war crimes suspect Ieng Sary have attacked an invitation to a legal scholar to address the Khmer Rouge tribunal about a key prosecution tactic, saying that, as one of its inventors, the scholar’s views will only confirm its validity.
The motion was the latest in a campaign of early litigation by Ieng Sary’s lawyers against the legal doctrine known as joint criminal enterprise, which prosecutors have sought to use at the tribunal to allow groups of suspects to be held equally responsible for alleged crimes.
In a motion filed Friday, Ieng Sary’s lawyers Michael Karnavas and Ang Udom said Professor Antonio Cassese, a scholar who as a judge once helped create the doctrine of joint criminal enterprise, could bias arguments in favor of allowing the prosecution tactic as the court considers prosecutors’ appeal of the August indictment of former S-21 Chairman Kaing Guek Eav, also known as Duch.
Cassese, along with other editors of the Journal of International Criminal Justice, and legal scholars from McGill University in Canada and the Georg-August University of Goettingen in Germany, was invited last month to submit a “friend of the court” legal brief on the use of joint criminal enterprise, in particular on its use for crimes occurring in the Khmer Rouge era.
Cassese in 1999 was one of five Appeals Chamber judges at the International Criminal Tribunal for the former Yugoslavia who ruled that crimes against humanity suspect Dusko Tadic had acted as part of such an enterprise, affirming the doctrine’s place in international law.
Karnavas and Ang Udom wrote Friday that they were “deeply alarmed” at the invitation to Cassese, who they said should be disqualified as a “friend of the court” as he is one of the creators of the doctrine.
“Professor Cassese and his cohort are just another fox guarding the hen house of [joint criminal enterprise],” they wrote. “It would be far more useful to summon a cadre of skeptics and critics to pry at the framework of JCE and poke their fingers in its holes.”
The Ieng Sary team, however, were themselves barred Monday by the court’s Pre-Trial Chamber from arguing against the doctrine of joint criminal enterprise in the appeal against the Duch indictment.
The Pre-Trial Chamber found Monday that, while its ruling on the indictment appeal may influence matters concerning other Khmer Rouge defendants, Ieng Sary’s lawyers had no right to intervene in the Duch case file.
However, lawyers for Duch have chosen not to oppose prosecutors’ substantive legal arguments, meaning joint criminal enterprise will be considered in the appeal without opposition from the defense.