Joint Criminal Enterprise & the ECCC

We've blogged before about whether the still-controversial doctrine of joint criminal enterprise (JCE), in its three manifestations, can be charged before the Extraordinary Chambers in the Courts of Cambodia (ECCC). As we've discussed, the same question was posed in the Duch case, although the Court determined that the issue was not properly raised at the investigative stage, so the defendant could not be charged under this theory of liability.
In Case 002, involving regime leaders such as Ieng Sary (left, former Minister of Foreign Affairs) and Khieu Samphan (right, former head of state), the issue has emerged again. Defendant's legal challenge to the doctrine turned on the issues of legality and retroactivity:
Did the doctrine exist in customary international law during the Khmer Rouge era (1975-79)?
The Pre-Trial Chamber (in red at left) comprising President Prak Kimsan, Ney Thol, and Pen Pichsaly (all from Cambodia, surnames listed first), along with Judges Rowan Downing (Australia) and Catherine Marchi-Uhel (France), has now ruled on the issue. The decision arose out of the defendants' appeals of the order of the Co-Investigating Judges confirming that the JCE doctrine was properly pleaded by the Co-Prosecutors, that the JCE doctrine existed in customary international law at the applicable time, and that it may be charged before the ECCC.
In its opinion, the Pre-Trial Chamber sustained most of the order of the Co-Investigating Judges; however, it split the proverbial baby in terms of the three forms of JCE by rejecting the most expansive form of the doctrine.
By way of background, JCE is traditionally conceived of as encompassing three overlapping forms.
►The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The Pre-Trial Chamber noted that the objective elements of all three forms are the same:

• the existence of a common plan to commit a crime within the jurisdiction of the ECCC,
• a plurality of persons, and
• the contribution (surpassing some threshold) by the defendant to the execution of the common plan (para. 38).

By contrast, the mens rea of each form differs:

• JCE I requires proof of a shared intent to further the enterprise.
• JCE II, as a subset of JCE I, adds the requirement that the defendant be aware of the system of ill-treatment.
• JCE III finds analogies in the Pinkerton doctrine by allowing members of the JCE to be found guilty of extraneous crimes where the defendants foresaw, and willingly took the risk, that such crimes may occur (para. 39).

In reviewing the reasoning and sources of law relied upon by the Co-Investigating Judges, the Pre-Trial Chamer confirmed that post-World War II case law, early work by the International Law Commission on the Draft Code of Offenses Against the Peace & Security of Mankind, and national case law on the common purpose and co-perpetration doctrines all establish that a notion of JCE I and II liability would have been sufficiently accessible and foreseeable to the defendants in 1975.
By contrast, the Pre-Trial Chamber ruled that the sources reviewed by the Co-Investigating Judges (and the other ad hoc tribunals to consider the issue) do not provide sufficient evidence of consistent state practice or opinio juris with respect to JCE III at the times relevant to Case 002 (para. 77). The two international instruments relied upon by the International Criminal Tribunal for the former Yugoslavia in the Tadić case to establish the provenance of JCE III — the Terrorist Bombing Convention and the Rome Statute of the International Criminal Court — were not yet in existence during the Khmer Rouge era. To the extent there were relevant WWII-era cases, such as the Borkum Island or Essen Lynching cases, the Pre-Trial Chamber determined that those case lacked a reasoned judgment clearly showing the basis of liability relied upon. In addition, the Pre-Trial Chamber rejected the argument that most, if not all, countries had adopted some notion of extended common purpose doctrine holding someone liable for unintended but foreseeable crimes outside of the common plan (paras. 86-87). Indeed, Cambodian law itself would not have given noted to the defendants that they might be liable for such crimes.
This ruling has the potential to limit the extent to which the regime leaders can be charged with much of the harm that befell the Cambodian populace during the Khmer Rouge era. While thousands of individuals were detained, tortured and executed in this period, many more died of starvation and overwork due to the radical collectivist and agrarian policies adopted by the Khmer Rouge leadership. Whether it can be shown that the defendants intended these deaths depends on the strength of the Co-Prosecutors' evidence.
Stay tuned...

(In other news from the ECCC, the judgment in the Duch trial will be released July 26, 2010.)

Meanwhile, Back at the ECCC . . .

This week, the Extraordinary Chambers in the Courts of Cambodia were scheduled to hear appeals from the detention orders against Ieng Thirith, the former Khmer Rouge social affairs minister and her husband Ieng Sary, the former Khmer Rouge foreign minister. On Tuesday, the Vergès defense (prior IntLawGrrls post) was in full display by Thirith, who launched into an angry tirade, telling her accusers they would be "cursed to the seventh circle of hell." Claiming her innocence, she blamed "everything" on Nuon Chea, the Khmer Rouge second-in-command, who will also be tried before the ECCC. And yesterday, Ieng Sary's appeal hearing was postponed due to ill health -- the 83-year-old complained of dizziness, fatigue, and intermittent coughing, after having been rushed to hospital Monday night for passing blood in his urine. While it may be beyond the capacity of the tribunal to ensure that those found guilty take responsibility for their crimes, here's hoping that those in charge at the ECCC do everything in their power to move forward quickly enough to try the remaining defendants while their health permits.

JCE before the ECCC

As we’ve blogged before, the August 8, 2008 Closing Order (Indictment) filed before the Extraordinary Chambers in the Courts of Cambodia (ECCC) (its first) with respect to defendant Duch. Duch, who ran the detention, interrogation and execution camp S-21, a.k.a. Tuol Sleng (above) (photo credit), has been indicted for crimes against humanity (imprisonment, enslavement, torture, rape, murder, extermination, persecution, other inhumane acts) and war crimes (unlawful confinement, depriving rights to a fair trial, wilfully causing great suffering, torture and inhumane treatment, willful killing). In terms of the applicable forms of responsibility, Duch (left) is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. In addition, he has been indicted under the doctrine of superior responsibility by virtue of the fact that he exercised effective command and control over the staff of S-21. The Closing Order limits his “commission” of crimes to those incidents in which Duch “personally tortured or mistreated detainees.”

The Co-Prosecutors have appealed the Closing Order, arguing inter alia that Duch should also have been indicted for his participation in crimes pursuant to a joint criminal enterprise (JCE). The ECCC Law does not specifically mention the availability of JCE as a form of commission, but the International Criminal Tribunal for Yugoslavia (ICTY) in the landmark Tadić decision treated JCE as a prosecutable form of “commission,” even though its Statute is also silent as to this form of responsibility and excludes conspiracy except with respect to the crime of genocide (in keeping with Article III of the Genocide Convention).

The ECCC invited Professor Antonio Cassese (left), among others, to submit an amicus curiae brief focused on the availability of the doctrine of JCE before the ECCC, with a particular emphasis on its applicability during the Khmer Rouge era. Incidentally, another defendant, Ieng Sary (below left), moved to disqualify the brief on the ground that it would be “result determinative” given that Cassese served on the appellate panel of the International Criminal Tribunal for the former Yugoslavia that rendered the Tadić opinion. The Pre-Trial Chamber rejected the disqualification challenge for lack of standing.
As Sary prophesied, the brief, which was filed on October 27, 2008, largely tracks the ICTY’s reasoning in the Tadić case. In particular, it identifies a collection of cases from the post-World War II prosecutions that were based on theories of common purpose or design and argues that these doctrines had crystallized into customary international criminal law prior to 1975. In addition, the brief argues that JCE liability would have been sufficiently established and assessable in domestic legislation and case law (including from France and Cambodia) to provide adequate notice to the accused in keeping with the principle of nullum crimen sine lege (no crime without law).

JCE is traditionally conceived of as encompassing three overlapping forms.
► The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The theory with this latter form is that participants in the JCE willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

Most relevant to S-21, of course, is the second JCE form. Under this form, Duch could be held liable not only for crimes he personally committed or ordered, but also for crimes that were committed throughout S-21 pursuant to the prison’s criminal mission. (Photo at right is a display from S-21, now a museum, showing dozens of the thousands of people who passed through the prison. More photos are available here). The punishment accorded to the defendant can be modulated at the sentencing phase to reflect the precise degree of an individual’s involvement in, and thus culpability for, the crimes of the JCE.

It is not clear how many crimes might escape prosecution in the absence of JCE allegations in the indictment.
► As chairman of S-21, Duch can be held responsible for any crimes committed by his subordinates when he knew, or should have known, about such crimes and failed to take adequate steps to prevent or punish them.
► He can also be held directly liable for ordering or planning crimes, or for otherwise aiding or abetting them through the knowing or intentional provision of substantial assistance to the direct perpetrator.
The only crimes that seem to fall through the cracks without JCE liability are crimes committed by non-subordinates (individuals over whom Duch did not exercise effective command or control), crimes of which he was not aware and could not have reasonably been aware, or crimes that he did not order, plan, or substantially assist.

The third, extended, form of JCE could also be utilized to hold Duch responsibility for crimes (such as rape and other forms of sexual violence) that he did not order, did not intend to be committed, or did not know had been committed, but were nonetheless foreseeable given the abject conditions of detention prevailing at S-21.

Given the volumes of direct evidence against Duch, including his own partial confessions and admissions as detailed in the Closing Order, he is unlikely to escape responsibility entirely. Nonetheless, the Co-Prosecutors are no doubt looking to the future to ensure that JCE liability is available for other defendants in the dock who were likely very far from the commission of crimes, but nonetheless could be alleged to have participated in, indeed launched, a vast JCE to establish a utopian agrarian state, through violence where necessary, and to rid Cambodia of enemies of the revolution.

Cambodia Update: Provisional Detention in International Criminal Law

With my colleague Ron Slye of Seattle University School of Law, I attended what amounted to a bail hearing before the Extraordinary Chambers of the Courts of Cambodia (ECCC) for Ieng Thirith (age 76) this week. We’ve blogged before (here and here) on the proceedings against Thirith (below left), the wife of the former Foreign Minister of the Khmer Rouge, Ieng Sary (below right). Ieng Thirith was the Minister of Social Action under the Khmer Rouge. Thirith’s indictment came as somewhat of a surprise to ECCC watchers. Although married to a key member of the Khmer Rouge Standing Committee and the sister-in-law of Brother Number One himself (Pol Pot), Thirith does not appear to be mentioned in Steve Heder’s excellent study of potential Khmer Rouge defendants, entitled Seven Candidates for Prosecution. (Heder, a historian, is now an investigator with the office of the Co-Investigating Judges in the ECCC).
On November 14, 2007, the ECCC’s Co-Investigating Judges issued an order for Thirith’s provisional detention pending her trial for crimes against humanity (murder, extermination, imprisonment, persecution and other inhumane acts). In January of 2008, Thirith appealed the order to the Pre-Trial Chamber, which is the court of last resort for such matters within the ECCC. According to Rule 63 of the ECCC Internal Rules, provisional detention is appropriate where

(a) there are well-founded grounds for believing that the accused committed the charged crimes and
(2) pre-trial detention is necessary to preserve public order; protect the accused, victims or witnesses; prevent collusion between co-accused; preserve evidence; or ensure the presence of the charged person at trial.

The argument for provisional detention is that the case file, including witness statements, has now been made available for the defendant to review.
In their written and oral submissions, defense counsel argued that there are no well-founded grounds to believe that their client is responsible for crimes set forth in the indictment. They advanced the argument that Thirith is hardly one of those most responsible for the crimes of the Khmer Rouge era, notwithstanding her ministerial post, and that any criminal responsibility of her husband should not be attributed to her. Invoking the presumption of innocence and of liberty, defense counsel also set forth numerous arguments as to why pretrial detention was unnecessary. They indicated that their client had lived notoriously for many years and had travelled internationally (primarily for health care) since being identified as a potential defendant. In addition, it was argued that Thirith is effectively indigent, relying upon her children in Cambodia for support. They also insisted that the prosecution had yet to demonstrate a concrete basis for arguing that her release would disturb public order or lead to attacks against her or potential witnesses.
Another important factor is that Thirith’s health is fragile. In particular, there are indications in the record of both physical and mental illness, although the details are being kept confidential. As we were waiting in line at the security booth, her physician visited her in the nearby detention unit to determine her fitness to attend the hearing. She seemed very frail and needed assistance entering and leaving the courtroom. As the accused’s particulars were being gathered by the presiding judge H. E. Prak Kimsan, Thirith seemed confused and then indicated that she had three children. A young woman in the public gallery sitting in front of me—presumably her daughter as family members were present—held up four fingers. Thirith then corrected herself. Defense counsel ended their submission with the suggestion that house arrest, including the confiscation of Thirith’s passport, would adequately ensure her attendance at trial.
The Pre-Trial Chamber (PTC) has taken the matter under submission. An open question remains about the standard of review that will be employed by the PTC. The prosecution and the civil parties have argued for the equivalent of an abuse of discretion standard, such that the decision to deny bail would be overturned only where the prior adjudicator acted arbitrarily, by not applying the correct law, or rested his or her decision upon a clearly erroneous finding of material fact. Otherwise, the lower ruling should be given deference. This is essentially the approach adopted by the International Criminal Tribunal for the former Yugoslavia (Prosecutor v. Stanisic) and the Special Court for Sierra Leone (Prosecutor v. Fofana). Needless-to-say, defense counsel advocated a standard of review approaching a de novo review that would ensure a sufficiency of facts underlying the prior ruling. Three prior defendants were refused bail on appeal to the PTC, with the PTC essentially echoing the reasoning of the Co-Investigating Judges. This could suggest a certain degree of deference to the Co-Investigating Judges, who are closest to the case file and the relevant facts.
Thirith is represented by Cambodian lawyer Phat Pouvseang and British barrister Diana Ellis QC. Ellis (left) last represented Ferdinand Nahimana (right, co-founder of Radio Télévision Libre des Mille Collines (RTLM)) in the "Media Trial" before the International Criminal Tribunal for Rwanda. The staffing practice of the Defense Support Section mirrors the hybrid nature of the ECCC: each accused has four lawyers: two co-counsel (one Cambodian and one “international,” a legal consultant (usually an international), and a case manager (usually Cambodian)). Several victims have already constituted themselves as civil parties and were represented by counsel (four Cambodian and one German) during Thirith's hearing. A prior ruling gave civil parties the right to participate in appeals of provisional detention orders.
Under the circumstances, house arrest certainly seems appropriate. Indeed, if Thirith is not entitled to bail, no ECCC defendant is likely to be. There are media reports, however, that if Thirith is released on bail, people will lose faith in the ECCC and assume she was exonerated. This exemplifies the importance of public education about the rights of the accused here, where basic due process protections are lacking. This is a country in which pre-trial detention is the norm. Accordingly, seeing an international tribunal release someone during the pre-trial period might provide a strong lesson in the presumption of innocence.

On January 7, ...

... 1979, in Phnom Penh, Vietnam and insurgent forces it supported overthrew the Khmer Rouge regime that had held Cambodia in the thrall of terror since 1975. The New York Times cited a radio announcement that "[t]he regime of dictatorial, militarist domination of the Pol Pot-Ieng Sary clique has completely collapsed," then added that "[n]othing was said about the whereabouts of Prime Minister Pol Pot and Deputy Prime Minister Ieng Sary. Today, as we've posted, Ieng Sary and others of the few Khmer Rouge leaders still alive (Pol Pot is dead) are about to stand trial before a hybrid tribunal, the Extraordinary Chambers of the Court of Cambodia.
... 1980, fewer than 3 years after ousting her as a purveyor of an "emergency dictatorship," voters returned Indira Gandhi to the post of Prime Minister of India. Gandhi (right) would serve until 1984, when she was assassinated by her bodyguards.
... 1960, U.S. Rep. Loretta Sanchez (D-Cal.) was born in Lynwood, California.

Brother No. 3, Not Our Sister arrested together

They are hardly the first couple to commit incomprehensible crimes in synchrony—Diane Marie Amann’s remarkable IntLawGrrls series on women at Nuremberg described the postwar trial of Ilse Koch, “wife of the Buchenwald Camp commander [Karl Otto Koch] who was complicit in the atrocities committed under his command.” But on November 12, 2007, Khmer Rouge couple Ieng Sary and Ieng Thirith (above) became the first husband and wife to face charges together before a contemporary Nuremberg-type tribunal, this one in Cambodia, confirming speculation about the couple’s arrest reported in IntLawGrrls last July by Beth Van Schaack. (The International Criminal Tribunal for Rwanda established another grim first by indicting a mother and son for their respective roles in the 1994 Rwanda genocide.)
The Cambodian couple were charged with crimes against humanity (Ieng Sary was also charged with war crimes) and were detained under the authority of the Extraordinary Chambers of the Courts of Cambodia (logo below), a court that, as Jaya Ramji-Nogales and other IntLawGrrls have posted, was established by the United Nations and the Government of Cambodia to try surviving senior leaders and others who were most responsible for Khmer Rouge-era atrocities. Their arrest this week doubled the number of suspects detained by the ECCC.
Ieng Sary, known as “Brother Number 3” during the Khmer Rouge era, served as Foreign Minister and Deputy Prime Minister in the regime of the infamous “Brother Number 1”—Pol Pot, who died in 1998. (“Brother Number 2,” Nuon Chea, has already been detained by the ECCC.) Ieng Thirith (“Not Our Sister”) served as Minister of Social Affairs and Education during the Khmer Rouge reign of terror. Her sister, Khieu Ponnary, was married to Pol Pot.
How individuals come to commit crimes so horrific they transcend our capacity to comprehend is a perennial mystery, and the enigma of wholesale evil is somehow compounded when the alleged perpetrators are married to each other.
To meet Ieng Sary and Ieng Thirith is to deepen the mystery. Twenty-three years ago this month, I spent a surrealistic weekend interviewing the two, along with noted constitutional lawyer Floyd Abrams, at the Khmer Rouge’s guerrilla headquarters in the Cambodian jungle. They were charming hosts: We asked about genocide, they offered us shrimp and champagne. In response to our persistent questions about Khmer Rouge atrocities, Ieng Sary finally acknowledged that the Khmer Rouge “owe the world an accounting” for the “unfortunate events of the 1970s.” But, Ieng Sary explained, with the Khmer Rouge still at war with the Cambodian government, they were rather busy. The accounting would have to wait. At long last, the wait may be over.

See you in court!

This week, almost 30 years after the end of the Khmer Rouge regime, the co-prosecutors for the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced the filing of their introductory submission to the co-investigating judges. While the exact contents of the submission are confidential, the prosecutors revealed that they had identified five suspects responsible for atrocities including crimes against humanity, genocide, murder, and torture. Given that the court's scope is limited to senior leaders of the Khmer Rouge, there are four likely candidates: Nuon Chea, a.k.a. "Brother Number Two", Pol Pot's right-hand man and the alleged architect of Khmer Rouge ideology; Khieu Samphan, the head of state and spokesperson for the Khmer Rouge; Ieng Sary, the Khmer Rouge Minister of Foreign Affairs; and Kaing Khek Iev, a.k.a. Duch, the head of the Khmer Rouge's main torture center, Tuol Sleng. What is their response to the upcoming trials? Chea claims that, as president of the National Assembly, he did not know what the government was doing and had no intention to kill his people. Asserting that the tribunal members couldn't know what happened because they weren't there and that it's hard to remember what happened 30 years ago, Chea chuckled and said, "See you in court." Similarly, Samphan has asserted that he was a leader only in name and never conspired to kill the Cambodian people -- and that his mind is confused. He has reportedly signed on his old friend Jacques Verges, with whom he studied at the Sorbonne, to defend him. Sary also refuses to acknowledge his responsibility for the crimes of the Khmer Rouge, claiming that he did not know about the killings and "was only in charge of foreign affairs." Faced with over 14,000 pages of documentary evidence, it may be difficult for these three to maintain their claims of ignorance for long. Duch, who has been in prison since 1999, may be the only one of the four who welcomed the news of the trial. A warmer welcome, of course, came from Cambodians who suffered under the Khmer Rouge regime, including one who stated, "I am delighted they will be brought to trial, because they have caused the death of more than 30 of my relatives." Given the deaths of Pol Pot, a.k.a. "Brother Number One" and Ta Mok, a.k.a. "the Butcher", the identity of the fifth suspect is not yet clear.