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Experts Debate the Issues: Khmer Rouge Genocide Trials

June 1st, 2010

Cambodia Tribunal Issues JCE Decision

On May 20, 2010, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) issued its long-awaited decision on whether Joint Criminal Enterprise Liability will apply to the upcoming trial of the former leaders of the Khmer Rouge. See Decision on the Appeals Against the Co-Investigating Judges Order on JCE.

In its 69-page decision, the Pre-Trial Chamber agreed with the Prosecution that the forms of JCE known as JCE I and JCE II were part of customary international law and were therefore applicable to the Cambodia Tribunal. The Pre-Trial Chamber, however, agreed with the Defense that Nuremberg and its progeny did not constitute sufficient state practice to crystallize JCE III as customary international law when the atrocities in Cambodia were committed (1975-1979).

JCE III is a form of liability somewhat similar to the Anglo-American “felony murder rule,” in which a person who willingly participates in a criminal enterprise can be held criminally responsible for the reasonably foreseeable acts of other members of the criminal enterprise even if those acts were not part of the plan.

The ECCC Pre-Trial Chamber’s decision constitutes a departure from the precedent of the Yugoslavia Tribunal, the Rwanda Tribunal, and the Special Court for Sierra Leone, which have uniformly held that all three types of JCE are part of customary international law. As such, the decision will be extremely controversial, and may have far-reaching effects.

The Pre-Trial Chamber is not the last word on this subject, however, as the holding is likely to be contested before the ECCC Trial Chamber and appealed to the Tribunal’s Appeals Chamber in coming months. To read my upcoming article in the Cornell International Law Journal, which argues that Nuremberg constituted a “Grotian Moment” establishing all three forms of JCE as customary international law by 1975, click here.

Posted @ 4:20 PM | Experts Debate the Issues: Khmer Rouge Genocide Trials

 

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