Making good on a promise from the start of trial, Khmer Rouge prosecutors have again alleged that former secret police chairman Kaing Guek Eav and at least three other S-21 officials were jointly responsible for the torture and elimination of Tuol Sleng detainees.
TheJune 8 motion published Tuesday by the tribunal marks prosecutors’ third attempt to impose “joint criminal enterprise” liability on the accused, known as Duch, who they say is directly responsible for crimes committed by others at S-21, some of which he need not have been personally aware of.
Including S-21 committee members Nat, Hor and Huy Sre in the alleged criminal enterprise, even though they are not on trial, would allow Duch to be held responsible for their acts and widen the scope of Duch’s criminal conduct.
The matter holds direct importance for the court’s four other Khmer Rouge leadership suspects, who all stand accused of participation in such an enterprise.
Judicial investigators in August ignored prosecution arguments that Duch be indicted under joint criminal enterprise, and on appeal the court’s Pre-Trial Chamber side-stepped the question, saying that Duch had not been given sufficient notice of the charge.
Under the court’s procedural rules, the Trial Chamber may reinterpret the facts of Duch’s indictment.
Defense layers campaigned last year against the use of joint criminal enterprise in any way at the ECCC, and a motion filed a year ago by the defense for former Khmer Rouge Foreign Minister Ieng Sary says joint criminal enterprise risks unfairly “staining” all of Cambodia’s governing class.
Taken from the first appellate ruling at the Yugoslavia tribunal in 1999, the term’s initials, JCE, are sometimes mockingly said to represent “Just Convict Everybody.”
Some judges and legal scholars have harshly criticized the use of JCE to hold suspects responsible for crimes they did not plan or intend as “guilt by association.”
In their motion, tribunal Co-Prosecutor Chea Leang and Deputy Co-Prosecutor William Smith said Duch was well aware during his 10-month investigation he could face such a charge.
In opposing the use of joint criminal enterprise, Duch’s lawyers said in November that the roles of all S-21 officials were clear and did not require collective charges.
