By Hyo-Jin Paik
Impunity Watch Reporter, Asia

PHNOM PENH, Cambodia – The prosecution for the Khmer Rouge war crimes tribunal of Cambodia may be turning to a controversial legal concept in holding the accused accountable for their crimes.

Khmer Rouge ruled Cambodia from 1975 until 1979 where about two million people are estimated to have died as a result of execution, starvation or overwork.

In prosecuting those responsible for the Khmer Rouge regime, Cambodia’s war crimes tribunal judges ruled on Wednesday that the Khmer Rouge leaders, likely to appear as defendants in 2011, can be charged with “joint criminal enterprise” (JCE).

JCE is a legal concept which states that a person can be individually held accountable for a crime committed by a group even if the individual did not personally carry out the plan. 

Furthermore, a third category known as “JCE III” states that a person can be held accountable for a crime committed by a group even if the crime was not part of the common plan so long as the crime was “a natural and foreseeable consequence.”

This concept has been used previously against defendants at the International Criminal Tribunal for the former Yugoslavia, and is a tool that can substantially improve the prosecution’s ability to prove its case.

However, Michael Karnavas, the defense lawyer for the former Khmer Rouge regime’s foreign minister said, “Where there is little or no evidence, [JCE III] is a great weapon for the prosecution: it lowers the bar for getting conviction and it spreads the stain to anyone and anything remotely connected to the alleged JCE.”

He added, “It is so broad and so unrestrained that even 10 years after its creation[,] it is still unclear where the boundaries lies.” 

Stating that he will appeal the prosecution’s decision to use JCE, Karnavas accused the investigating judges of Khmer Rouge war crimes tribunal of turning the trial into an international tribunal since JCE is applicable to crimes committed under international law, but not under Cambodian law.

The Khmer Rouge war crimes tribunal was created back in 2002 after years of haggling between the UN and Cambodia. 

The UN has a separate organ for prosecuting war crimes, the International Criminal Court (ICC), which was also founded back in 2002.  However, the former leaders of Khmer Rouge do not fall under ICC’s jurisdiction because the ICC can only investigate crimes which were committed after its establishment.

For more information, please see:

AFP – Krouge court dismisses bias claims against judge – 9 December 2009

Los Angeles Times – Cambodia’s first war crimes trial marred by flaws – 6 December 2009

M&C – Khmer Rouge chiefs can be charged as jointly responsible for crimes – 9 December 2009