Legal experts say prosecution for participating in a ‘joint criminal enterprise' could expand scope of trials, leading to indictment of additional suspects
The dock at Cambodia's Extraordinary Chambers where former S-21 prison chief Duch will appear on Friday when the hybrid tribunal announces its decision on the co-prosecutors' appeal of his indictement.
The Khmer Rouge tribunal is expected to rule Friday on whether top prison chief Kaing Guek Eav should face an additional charge that observers say could make other defendants automatically liable for crimes committed during the regime.
Co-investigating judges submitted their case against Kaing Guek Eav, more commonly known as Duch, to the trial chambers in August with the hopes of a trial starting the following month.
But prosecutors appealed, saying the case against the 66-year-old former head of Tuol Sleng prison was not broad enough.
The court is set to rule on whether to apply the additional charge of "commission of crimes through participation in a joint criminal enterprise as a mode of liability".
The controversial doctrine would allow prosecutors to pursue multiple people for crimes when they acted as part of a coordinated group, according to legal experts.
"[Joint criminal enterprise] allows the court to try defendants for crimes in which they didn't pull the trigger or inflict abuse directly ... [defendants] can be held liable if they planned, instigated, or aided and abetted crimes," John Ciorciari, a senior legal adviser to the Documentation Centre of Cambodia, wrote in the latest edition of the centre's magazine, Searching for the Truth.
"JCE matters largely because it would expand the universe of acts by Khmer Rouge defendants that could constitute crimes. Consequently, it would raise the likelihood of convictions," he added.
The speed of justice
Legal observers say that it is unclear whether applying joint criminal enterprise would speed up the trials of the five regime leaders currently in custody.
"[Joint criminal enterprise] could either speed up the trial, or it could delay the trial further," Long Panavuth, a court monitor for Open Society Justice Initiative, told the Post Tuesday.
"If the same evidence is used to try many suspects, then it could be faster. But if it is used to cover more crimes, it could delay investigations," he added, saying that the ruling could also help determine whether additional suspects would be submitted to the court.
In a response to the prosecution's appeal, the defence has argued that the doctrine was only designed to be used when the various roles of the defendants were unclear, which was not the case during the Khmer Rouge regime.
"Every [defence] team is concerned that a major decision on a far-ranging legal issue ... will affect not only Duch but other accused persons," said Andrew Ianuzzi, a legal consultant for Khmer Rouge leader Nuon Chea's defence team.
ADDITIONAL REPORTING BY AFP