“joint criminal enterprise” (jce) as applied to genocide

“Joint Criminal Enterprise” (JCE)as Applied to Genocide at the ECCC in Case 002

Presented by Lyma Nguyen, International Civil Party Lawyer, ECCC

Presentation I: Genocide – 3 December 2010Presentation II: JCE – 9 December 2010

�2 part presentation:• Presentation I: (3 December 2010)� Genocide: � Background of ECCC law, modes of liability, and historical

context providing foundation for genocide charges in case 002� Defining Genocide � Exploring the specific intent requirement

• Presentation II: (9 December 2010)� Modes of Liability & Participation relative to Genocide� Exploring Joint Criminal Enterprise � Applying Joint criminal enterprise (JCE) to Genocide in

case 002

• Genocide Liability within the jurisdiction of ECCC: (Art. 4)� Attempts to commit genocide � Conspiracy to commit genocide � Participation to commit Genocide� No statute of limitation for the crime of genocide

� Modes of Liability will be further discussed in Presentation II� ECCC Law:

• Modes of Liability within the jurisdiction of ECCC:� Individual Liability:� Commission� Joint Criminal Enterprise� Planning� Instigating� Ordering� Aiding and Abetting

� Superior Responsibility

• “The specific intent, to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such, by any of the following acts:

� Killing of members of the group,� Causing serious bodily harm, or mental harm, to

members of the group;� Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part;

� Imposing measures intended to prevent births within the group or forcibly transferring children from one group to another group

�To convict on genocide, it must be proven that the perpetrator:

�1) Committed one of the acts constituting genocide

�2) Against members of a racial, ethnic, national or religious group

�3) With specific intent to destroy that group, in whole or in part.

� Genocide Defined:• “The specific intent, to destroy, in whole or in part, a national, ethnic,

racial, or religious group, as such, by any of the following acts…”

� Dolus Specialis (Specific Intent) Requirement:• Subjective (purposive) element, which characterizes a crime as

genocide • Requirement entails TWO fault elements

� In addition to proving the mens rea of the actus reus of the genocidal act, must prove the underlying (ulterior) purpose of the genocidal act

� Eg – for Genocide by Killing members of a group� Perpetrator intended to kill members of the group PLUS� Perpetrator specifically engaged that act with an intent of destroying, in whole or in part, a protected

group

• Ie. Killing a person without specific intent of destroying a group is murder and not genocide

• In practice, genocide is a State act, rather than individual act

• Specific Intent Requirement:

� Akayesu: specific facts may be used to form presumption used to infer genocidal intent

� Ruzindana: genocidal intent may be infered from circumstantial evidence such as policy, plan, or pattern of “purposeful action”

� Seromba: inference of genocidal intent may be drawn from political doctrine

• Liability for Genocide in Case 002:

� Will depend on finding of specific intent by the charged persons to destroy, in whole or in part, a protected group: Ethnic Vietnamese and Cham Muslims

� Jurisdiction of ECCC:• ECCC has jurisdiction to try senior leaders of the DK and those most

responsible only

� Art 4 of ECCC Law applies criminal liability to:• Attempts to commit genocide • Conspiracy to commit genocide • Participation to commit Genocide

� Art 29 of ECCC Law• Assigns individual criminal responsibility to any suspect who committed

crimes within the ECCC’s jurisdiction by: � Planning,� Instigating � Ordering� Aiding and Abetting� Committing

• Assigns superior responsibility as an alternative mode of liability

� ECCC Case 002 Charges of Genocide:• The charged persons are charged with Genocide under the following modes of

responsibility:� Joint Criminal Enterprise� Planning� Instigating� Ordering� Aiding and Abetting� Superior Responsibility – as an alternative charge

� Next part of Presentation will review:• How the specific genocidal intent requirement applies to the charged persons in the

context of the modes of liability applied in Case 002, which link the accused to the crime of genocide

• Important to remember: � The chain of command (ie: generally, the charged persons did not commit the actual

killing that is the basis for the genocide charges, therefore the prosecution must prove that under their chain of command a genocide occurred)

� The prosecution must link the charged persons to the killings of ethnic Vietnamese and Cham Muslims

• Case 002 links the charged persons to the genocide of the ethnic Vietnamese and Cham Muslims under JOINT CRIMINAL ENTERPRISE

• General Application – Preference to apply JCE:� JCE responsibility doctrine applies to a purpose which is aimed at

imposing a nationwide government organized system of cruelty and injustice

� Criminal responsibility under JCE need not involve direct commission of a crime, but it may take the form of assistance in or contribution to the execution of the common purpose or aspects of it, resulting in and/or involving the commission of crimes

� JCE: A mode of individual criminal responsibility encompassed by concept of commission.

� Actus Reus:

� Charged person, together with a plurality of persons, contributed or participated in a common purpose which resulted in and/or involved the commission of a crime within the ECCC’s jurisdiction

� Mens Rea:

• JCE I or “basic form JCE”: An individual can be found guilty if they intentionally act as part of a group carrying out a common criminal plan or design

� this is the least controversial form of JCE which essentially builds on the established doctrine of accomplice liability.

• JCE II or “systematic form JCE”: Defendants can be found guilty for crimes where they are aware of a system of ill-treatment

� eg. an interrogation centre such as S-21) and act to further that system of ill- treatment by performing essential functions of that system.

• JCE III or “extended form JCE” (the most contentious): Defendants can be convicted for crimes committed outside the common plan, where those crimes were “natural and foreseeable” consequences of a plan.

� JCE I applied in ECCC Case 002• “Having taken everything into consideration, the CIJ consider that the

systematic form of JCE (JCE 2) need not be retained as the basic form of JCE (JCE 1) is that most suited for characterizing the criminal responsibility of the charged persons for the crimes…”

� JCE I Defined by the Closing Order:• Actus Reus: � Encompassed by the concept of commission: � (1) plurality of persons;� (2) the existence of a common plan or purpose, which amounts to or

involves the commission of a crime within the law;� (3) the accused contributes to the common plan

• Mens Rea:� JCE I is shared intent to contribute to or participate in the

implementation of a common purpose

GENERALLY

� Actus Reus:

� The charged person, together with a plurality of persons, contributed or participated in a common purpose which resulted in and/or involved a genocide

� Mens Rea: � The accused and all co-perpetrators specifically intended to commit the crime of genocide

� The AC in Kristic held specific intent must be clearly established for a conviction of genocide and in the case of JCE the specific intent must be shared by all perpetrators

Application to ECCC CASE 002� Charged Persons:

� JCE I applies liability to members of the Standing Committee, including Nuon Chea and Ieng Sary; members of the Central Committee including Khieu Samphan; heads of the CPK Ministries, including Ieng Thirith…for committing genocide by killing of the Cham and Vietnamese

� Common Purpose:

� Through their membership in the JCE and their contribution to the common purpose of targeting specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic, including both civil servants and former military personnel and their families

� Result: The destruction, in whole or in part, of the Ethnic Vietnamese and Cham Muslims

� Case 002 links the charged persons to the genocide of the ethnic Vietnamese and Cham Muslims under JOINT CRIMINAL ENTERPRISE and assigns individual responsibility to the charged persons under the following modes of criminal participation:

� Ordering• Defined:

� A person in a position of authority gives or transmits implicitly or explicitly, the order to commit a crime, with the intention or the awareness of the real probability that the crime would be committed during the execution of the order

� This order must have been determinative in the commission of the crime • Applied to Genocide:

� Charged persons was in a positions of authority, under which he/she gave or transmitted implicitly or explicitly, the order to commit the destruction of a protected group, with the intention or the awareness of the real probability that the destruction of a protected group might be committed during the execution of the order. This order was determinative in the commission of the destruction of the protected group.

• Applied to Case 002:� Nuon Chea, Ieng Sary, and Khieu Samphan ordered their subordinates (the RAK; Zone,

sector, district members; local militia and cadre; security office staff; and supervisors and unit chiefs of worksites and cooperatives) which contributed to the commission of the following crimes:� Genocide by Killing the Cham and Vietnamese


� Planning:

• Defined:� Criminal responsibility for planning results as soon as: (1) one or more people

form the intention to commit criminal behavior, (2) constituting one or more crimes

� The person must have acted with the intention or the awareness of the real probability that crimes may be committed during the execution or implementation of the plan

• Applied to Genocide:� Charged persons formed the intention to destroy, in whole or in part, a protected

group by planning to commit one or more crimes with the intention or awareness of the real probability that the destruction of a protected group would result

• Applied to Case 002:� Nuon Chea, Ieng Sary, and Khieu Samphan planned the commission of the

genocide by killing of the Cham and Vietnamese� Ieng Thirith planned the commission of the genocide by killing of the Vietnamese


� Instigating:• Defined:

� Criminal responsibility for instigating a crime results when a person, by act or omission, causes another individual to commit one or more crimes.

� These acts or omissions must have been determinative in the commission of the crimes charged and the person must have the intention or awareness of the real probability that crimes may be committed during the execution resulting from such instigation

• Applied to Genocide:� Charged persons instigated the destruction of a protected group by acts or omissions,

which caused other individuals to commit the killing of a protected group. These acts or omissions were determinative in the killing of people forming a protected group and the charged persons intended or were aware of the real probability that the destruction of a protected group would result from instigating other individuals to kill the protected group

• Applied to Case 002:� Nuon Chea, Ieng Sary, and Khieu Samphan instigated the commission of the genocide by

killing of the Cham and Vietnamese� Ieng Thirith instigated the commission of the genocide by killing of the Vietnamese


� Aiding and Abetting

• Defined:� Criminal responsibility for aiding and abetting results when, by act or

omission, a person gives material aid or moral support to the commission of a crime, with the intention or the awareness of the real probability that this crime may be committed.

� These acts or omissions must have had an important effect on the commission of the crime by the main perpetrator before, during or after the commission

Applied to Genocide:

� The charged person gave material aid or moral support to the commission of the destruction of a protected group with the intention or the awareness of the real probability that the destruction of the protected group would be committed

� Aiding and Abetting in Genocide is a form of complicity, where the aider and abetter knows about, but does not necessarily share, the perpetrator’s specific genocidal intent.� Example: “Direct and Public incitement” to commit genocide is a form of abetting which is generally

only committed when the underlying crime occurs.

� Accomplice liability: � Accomplice need not have the same specific intent but needs to have an awareness of the

principal’s specific intent as well as an intention to provide the means by which the principal perpetrator can realize his specific intent (ie: knowingly aiding and abetting, instigating or procuring for the principal offense in the knowledge that the principal perpetrator intended to destroy, in whoe or in part, a member of a protected group.

� Principal Liability:

� Where an accomplice’s acts or omissions have substantially contributed to the commission of acts of genocide, the accomplice can be convicted of aiding and abetting in genocide even where the principal perpetrator (who must have the specific intent) has not een identified or tried. In such a case the conviction itself may assist with expediting trials of the principal perpetrators.

• Applied to Case 002:� Nuon Chea, Ieng Sary, and Khieu Samphan aided and abetted the commission of the genocide by

killing of the Cham and Vietnamese� Ieng Thirith aided and abetted the commission of the genocide by killing of the Vietnamese

� Defined:

• The responsibility of a superior results from the breach of the duty to prevent the commission of, or punish participants of, the commission of a crime where:� The Superior 1) had effective control or authority over a subordinate;

� The Superior 2) knew or should have known, that the subordinate was committing crimes; and� The Superior 3) failed to take necessary and reasonable measures to prevent the crimes or punish the

perpetrators

� Consequently, the charged persons cannot be sent for trial on the basis of this form of (indirect) responsibility and also on the basis of direct responsibility (such as to commit, plan, incite, aid and abet, or order.)

� Applied to Genocide:Serushago ICTR 1999: TC based finding of guilt in genocide on superior responsibilityProblematic due to dolus specialis requirement

� In light of requirement to make out the dolus specialis in genocoide, crimes based on omission or criminal negligence should not form the basis of individual criminal responsibility for acts of genocide

� Specifically, a “failure” to act would render the dolus specialis in genocide

• Applied to Case 002:

� Nuon Chea, Ieng Sary, and Khieu Samphan are responsible by virtue of superior responsibility by their effective control over their subordinates who committed the Genocide by killing of the Cham and Vietnamese

� Presentation II has covered modes of criminal liability and participation• (1) Modes of Liability as Applied to Genocide:

� Individual Responsibility� Superior Responsibility

• (2) Participation in Genocide through the following modes of individual liability:� JCE� PLANNING� INSTIGATING� ORDERING� AIDING AND ABETTING

• (3) Participation in Genocide through superior liability as alternative argument� Looking ahead:

• Questions, comments, discussion• Relating Dolus Specialis requirement to aforementioned modes of liability and

participation

“joint criminal enterprise” (jce) as applied to genocide

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