The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship

The doctrine of JCE has played an important role in the jurisprudence of the ECCC, seeing as it was used to convict the accused in both cases that the Court has adjudicated thus far. This case law, although not so voluminous, has quickly managed to attract a lot of attention, largely due to the fact that, in several notable aspects, it deviates from the original legal framework that the UN ad hoc Tribunals have given to this mode of liability. Most significantly, the ECCC rejected the so-called ‘extended’ form of joint criminal enterprise for lacking legal basis in customary international criminal law and only endorsed the ‘basic’ and ‘systemic’ categories of this notion. Moreover, in relation to the latter two, the judges have construed some of their legal elements in a manner that is at odds with the established jurisprudence. The present chapter will review the adoption and evolution of the JCE theory in the ECCC case law, and examine the most notable findings that have been reached on its application in the proceedings brought before the ECCC. The second main part of this chapter will then separately conduct a renewed analysis of the Nuremberg-era cases that have been cited by the modern international tribunals as evidence of the customary nature of the ‘extended’ form of JCE and will, thus, reflect on the ECCC’s decision to reject this form of criminal responsibility.