## Facts

- The Extraordinary Chambers in the Courts of Cambodia (ECCC) investigated senior Democratic Kampuchea-era leaders for alleged crimes committed from 1975 to 1979, including international crimes within the ECCC’s jurisdiction.
- During the investigation in Case File No. 002, defense teams challenged whether Joint Criminal Enterprise (JCE) could be used as a mode of liability.
- The defense argued JCE was not part of customary international law at the relevant time and that the ECCC lacked authority to apply it; the challenge particularly targeted “extended” JCE (JCE III).
- The Co-Investigating Judges issued an order recognizing JCE I and JCE II for international crimes and rejecting the foreseeability-based mental element associated with JCE III.
- Both the defense and the Co-Prosecutors appealed to the Pre-Trial Chamber: the defense sought complete exclusion of JCE, while the Co-Prosecutors sought recognition of full JCE III liability.
- The Pre-Trial Chamber issued its decision resolving these appeals and defining the permissible scope of JCE at the ECCC.

## Issues

1. Whether the ECCC has authority to apply JCE as a mode of liability for international crimes within its jurisdiction consistent with the principle of legality.
2. Whether, as of 1975–1979, JCE I, JCE II, and/or JCE III were sufficiently established in customary international law to permit application without retroactivity.
3. Whether any form of JCE may be applied to domestic Cambodian offenses within the ECCC’s jurisdiction.

## Decision

- The Pre-Trial Chamber held that JCE I (basic/common plan) and JCE II (systemic) were sufficiently recognized in customary international law by 1975–1979 and may be applied to international crimes before the ECCC.
- The Chamber rejected JCE III (extended/foreseeable collateral crimes) as a mode of liability at the ECCC because its specific mens rea was not sufficiently established in customary international law at the relevant time.
- The Chamber held that JCE, in any form, could not be applied to domestic Cambodian offenses because Cambodian law at the relevant time did not provide an equivalent doctrine.
- The Chamber denied the Co-Prosecutors’ appeal seeking acceptance of full JCE III liability and denied defense requests to bar JCE I and II for international crimes.

## Legal Principles

- The principle of legality limits criminal liability to modes of responsibility that were sufficiently foreseeable and established in applicable law at the time of the alleged conduct; retroactive expansion of liability is impermissible.
- JCE I and JCE II may ground individual criminal responsibility for international crimes where participation in a common criminal plan (or in an organized criminal system) and the required intent are shown.
- JCE III’s foreseeability-based mental element for collateral crimes was not shown to be settled customary international law for 1975–1979 and therefore cannot be applied by the ECCC.
- Modes of liability for domestic Cambodian offenses are governed by Cambodian law as it existed at the relevant time; an unprovided-for doctrine such as JCE cannot be introduced to attach liability for those offenses.

## Conclusion

The Pre-Trial Chamber limited collective-liability doctrine at the ECCC by permitting JCE I and II for international crimes, excluding JCE III on legality grounds, and barring JCE for domestic Cambodian offenses, thereby constraining prosecution theories to non-retroactive bases of individual responsibility.


In re Joint Crim. Enter. (JCE), Case File No. 002/19-09-2007-ECCC/OCIJ (PTC38) (Extraordinary Chambers in the Courts of Cambodia Pre-Trial Chamber May 20, 2010)