Civil party lawyers at the ECCC have weighed in on the debate over Joint Criminal Enterprise and, in keeping with the highly controversial nature of the charge, appear to have differing opinions.
As I explained in a recent post, it is the Co-Prosecutors' demand that "Comrade Duch" be charged under the theory of JCE that has delayed his trial by months. To help resolve this issue, the court requested briefs on the topic from three outside sources. In my post, I summarized the arguments of these briefs, which came to different conclusions regarding the applicability of JCE at the tribunal.
Now lawyers for civil parties have issued their responses to the briefs, also with varying interpretations. In her filing, lawyer Silke Studzinsky writes that she will not even consider one of the briefs -- written by Antonio Cassese -- because the professor "was Judge in the Appeals Chamber in the Tadic case before the International Criminal Tribunal for Former Yugoslavia where the doctrine of Joint Criminal Enterprise as mode of liability was first introduced in international criminal law. Obviously, Prof. Dr. Cassese is not free from bias."
Lawyers for Ieng Sary previously tried to disqualify Cassese's brief, but their request was denied by the court.
Studzinsky goes on to argue that while the first two forms of JCE (once again, outlined in my previous post) might have been a feature of customary international law from 1975-1979, this was not the case with the most expansive form of JCE -- JCE III.
"The broad scale of critical voices within and outside the courts already demonstrate that JCE in its broadest extent is highly disputed," Studzinksy writes. "... JCE III is not applicable before the ECCC as it was neither codified in the Cambodian Penal Code of 1956 nor in the ECCC statute nor can it be considered as international customary law at the relevant time."
In contrast to Studzinksy's response, civil party lawyers Martine Jacquin and Philippe Canonne offer a more favorable view of JCE's use at the ECCC.
"It is not questionable that (Duch) enters into the first two fields of the scope of application," they write, before making a case for application of JCE III as well. In this form of liability "the accused person can be considered liable without being the direct author of the crime as far as he has satisfied the condition which characterizes the 3rd category of Joint Criminal Enterprise (natural and reasonably predictable consequence). Duch could again see here his involved responsibility."
Given these contrasting briefs, I still feel I can't anticipate what the judges will decide on Dec. 5.