Coming Down the Pike: Joint Criminal Enterprise (JCE)

The ICTY-formulated doctrine of Joint Criminal Enterprise (JCE) has previously been discussed on this forum in connection with the defense's objection to the participation of certain amici curiae whose opinion on the matter had been solicited by the Pre-Trial Chamber (PTC). The end to which JCE's creation was a means was the weaving of a wide net that catches everyone in some way associated with the crimes within the international tribunals' jurisdiction. This works as a backstop for cases where the defense is able to extricate their clients from others against whom there is sufficient incriminating evidence to prosecute and demand the termination of investigations or issuance of aquittals, if the matter has already advanced to the trial stage. Taken to the extreme, pursuant to JCE a plumber can be successfully prosecuted for servicing the plumbing system of a concentration camp or a cook for serving meals to the interrogation personnel of a prison at the time when the crimes within the tribunals' jurisdiction were being committed.

Since the doctrine of JCE is not brandnew the question it begs is why the present attention to it at the ECCC had not been paid by the Co-Prosecutors (CPs) before, either in the Introductory, Supplementary or Final Submissions, for which they had ample time and facility.

To answer this question one needs to go back to the transcripts of the interviews of Kaing Guek Iev ("Duch") by journalists Nic Dunlop and Nate Thayer and read them together with the transcripts of the present investigation of Kaing's case. The picture a combination of these paints is that of Kaing being repentant and willing to cooperate with the authorities. In the play, which is these proceedings, Kaing was thus expected to take up the part of a whistleblower he has kept promising and then reneging on since his interviews with Dunlop and Thayer. Being aware of Kaing's history of confessions, the CPs anticipated that he would be their Philosopher's Stone which would turn all their other cases into gold.

It did not pan out that way. Kaing does have a lot of insider knowledge of certain aspects of Democratic Kampuchea about which he can testify thus significantly helping beef up the prosecution's cases. The problem is that he had two superiors, Noun Chea and Son Sen, of whom only one is alive to stand trial, Noun Chea. This is the person Kaing reported to and this is the person he can help the prosecution build a case against. The other three he does not know much about and might not have met or spoken with during Democratic Kampuchea or ever in his life.

I presume that when the Co-Investigating Judges (CIJs) began indepth interrogation of Kaing they found out that he did not know much inculpatory information about any other defendants but Noun Chea. It probably did not phase the CIJs very much as their job is to find and examine both inculpatory and exculpatory evidence which can be adduced to a particular case. When the CIJs' findings were shared with the CPs (I believe this happened somewhere between June and July of this year), the CPs had to face up to the fact that the evidence collected by the CIJs would not make their cases against Khieu Samphan, Ieng Sary and Ieng Thirith ironclad. In fact in some cases Kaing's testimony must have undermined the prosecution's existing cases as it contributed exculpatory evidence to some of them in stark contrast to the anticipated wealth of
inculpatory evidence.

The only way for the prosecution to glue its cases back together again and move on to trial was to find a way to link all the other accused to the person whose guilt is almost certain, Kaing. They must have tried conspiracy at one point or another, but one cannot prove that without first proving that these five persons had actually met. If one manages to prove that, he or she will have to then prove that in fact there was a clearly formulated mechanism in which each of the five had a distinct role. They could not do that because no such evidence exists. They must have tried individual criminal responsibility and that in the cases of some of the accused fell through too as no sufficient evidence links them to Kaing and S-21. They would have tried complicity, but no genocide charge was filed. Scraping the bottom of barrel and grabbing at straws the prosecution finally found a panacea for all their cases, JCE. This judicial doctrine, and nothing else, is the prosecution's last chance to establish a link between Kaing and Khieu Samphan, Ieng Sary and Ieng Thirith. JCE is therefore is not a minor theory, but a doctrine that often creates a crime where there isn't one. Hence is the present attention to this theory and solicitation of the amicus curiae filed earlier today.