The JCE Amici Curiae Saga Ends

Joint Criminal Enterprise (JCE) is a judicial doctrine of superior accountability devised by the ICTY to link the top leaders of the regimes created with the collapse of the Federal Republic of Yugoslavia (FRY) to the acts of mid-ranking commanders and alleged hands-on perpetrators of the crimes with the subject-matter jurisdiction of the Tribunal. This doctrine has been argued by many to have been invented by the ICTY judges in violation of a well-established principle of criminal law, nullum crimen sine lege or no crime without a law.

Professor Cassese, a former judge of the ICTY Appeals Chambers and presently editor-in-chief of the Journal of International Criminal Justice (JICJ), along a group of others was invited to submit an amicus curiae brief to the Pre-Trial Chamber (PTC) of the ECCC. The Ieng Sary Defense Team filed a motion opposing such invitation requesting that Cassese and the other experts identified by the PTC in the foregoing invitation be disqualified from being amici curiae on the grounds of close attachment of these experts to the doctrine of JCE all of whom, per the Ieng Sary Defense Team's beliefs, were expected to be "independent and impartial" (it is interesting to note that one of the remedies sought by the Sary Team was to extend the invitation to submit an amicus curiae brief to the Association of the Defense Counsel Practising Before the ICTY which the Team, for reasons curious and unbeknownst to anyone, perhaps, with the exception of the Team itself, asserted would be "impartial and independent"). The Team proceeded by expounding its views on the purported impartiality and independence requirement to qualify amici curiae by presenting a range of judicial decisions which the Team argued set out such requirement at the international and domestic levels (for those uninitiated in matters of case law-based common law, it would perhaps be helpful to note that whatever one's opinion might be on any given issue he or she can find corroboration for it in some decisions in some common jurisdiction (I, for one, am unfamiliar with any legal issue that this cannot be done with if sufficient research is undertaken). Hence, the weight of an argument proffered in any proceedings is not predicated upon the mere fact that a single judicial opinion asserting a similar ground can be presented, but whether that opinion has been supported by other courts and the extent to which it has been done. A single opinion in itself therefore has no more weight than a mere showing that another jurist or group of jurists at one point or another thought something similar was viable. The Sary Team did not take this fact into consideration thus forming its argument to this effect by stringing a spate of disparate single judicial decisions together which in the end turned into a big and expansive production that had abosolutely no story.

The PTC decided the above motion in a particularly curious and narrow manner when the Chamber merely rejected the Sary Team's application based on lack of standing in the matter as the current submission, according to the Chamber, does not directly pertain to the case of Ieng Sary but to that of Kaing Guek Iev. The PTC, which is known for the razor blade narrowness of its decisions, has thus disregarded what seems to be the obvious fact that the current submission of an amicus curiae brief by Cassese and his team of experts is very unlikely to be limited to the case of Kaing but is most likely to form the opinion of the Court on JCE as a legal issue which will be applied as unquestionable authority far beyond the Kaing case. The PTC, however, refused to entertain this probability and allow all interested parties to participate in the process of forming of such opinion from the start. The opinion, although for the wrong reasons, has allowed the aforementioned experts to submit the relevant brief. It is, however, regrettable that the Court has refused to re-assert the right of amici curiae to participate in the proceedings regardless of their relationship to the issue under judicial scrutiny.