^* This text was reproduced and reformatted from the text available at the Extraordinary Chambers in the Courts of Cambodia website (last visited October 6, 2010) http://www.eccc.gov.kh/english/cabinet/courtDoc/605/D97_15_9_EN.pdf.

¹ The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 1, NS/RKM/1004/006 (Oct. 27, 2004), available at http://www.eccc.gov.kh/english/law.list.aspx [hereinafter Establishment Law].

² Mohamed Ali Lejmi, Prosecuting Cambodian Genocide: Problems Caused by the Passage of Time since the Commission of the Alleged Crimes, 4 J. Int’l Crim. Just. 300 (2006).

³ Case File No. 002/19-09-2007-ECCC/OCIJ, Ieng Sary’s Appeal Against the Closing Order, ¶¶ 104-10, 120 (Oct. 25, 2010); Case File No. 002/19-09-2007-ECCC/OCIJ, Ieng Sary’s Motion Against the Applicability of the Crime of Genocide at the ECCC, ¶¶ 7-9 (Oct. 30, 2009).

⁴ Case File No. 002/19-09-2007-ECCC/OCIJ, Ieng Sary’s Motion to the Co-Investigating Judges Against the Application of the Form of Liability Known as Command Responsibility at the ECCC, ¶ 21 (Feb. 15, 2010); Case File No. 002/19-09- 2007-ECCC/OCIJ, Ieng Sary’s Motion Against the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, ¶ 29 (July 28, 2008).

⁵ Prosecutor v. Tadić, Case No. IT-94-1-A, ¶ 226 (ICTY Appeal Judgment July 15, 1999). See also Prosecutor v. Krajišnik, Case No. IT-00-39-A, ¶ 54 (Mar. 17, 2009) (Separate Opinion of Judge Shahabuddeen) (asserting that ‘‘JCE is not new.’’).

⁶ Tadić, supra note 5, ¶ 196.

⁷ Prosecutor v. Milutinović, Sainović & Ojdanić, ICTY Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, Case File No. IT-99-37-AR72, ¶ 13 (May 21, 2003).

⁸ Prosecutor v. Vasiljević, Case File No. IT-98-32-A, ¶ 99 (Feb. 25, 2004).

⁹ Prosecutor v. Kaing Guek Eav, Case File No. 001/18-07-2007/ ECCC/TC, ¶¶ 511-13 (July 26, 2010).

¹⁰ Case File No. 002/19-09/2007-ECCC-OCIJ, Ieng Thirith’s Submissions on the Application at the ECCC of the Form of Responsibility Known as Joint Criminal Enterprise Pursuant to Order of the OCIJ of 16 September 2008 (Dec. 30, 2008); Case File No. 002/19-09/2007-ECCC-OCIJ, Nuon Chea Submissions Regarding the Applicability at the ECCC of the Form of Responsibility Known as Joint Criminal Enterprise (Dec. 30, 2008); Ieng Sary’s Motion Against the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, supra note 4.

¹¹ Case File No. 002/19-09/2007-ECCC-OCIJ , Office of the Co- Investigating Judges, Order on the Application at the ECCC of the Form of Responsibility Known as Joint Criminal Enterprise (Dec. 8, 2009) available at http://www.eccc.gov.kh/english/cabinet/courtDoc/482/D97_13_EN.pdf.

¹² Case File No. 002/19-09/2007-ECCC-OCIJ, Reply of Mr. Khieu Samphan’s Defence to the Co-Prosecutors Joint Response on Joint Criminal Enterprise (Mar. 25, 2010); Case File No. 002/19-09/2007-ECCC-OCIJ, Ieng Sary’s Appeal Against the OCIJ’s Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise (Jan. 22, 2010); Case File No. 002/19-09/2007-ECCC-OCIJ, Ieng Thirith Defence Appeal Against CIJ’s Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise of 8 December 2009 (Jan. 18, 2010); Case File No. 002/19-09/2007-ECCC-OCIJ, Civil Parties Appeal Brief Against the Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Responsibility (Jan. 8, 2010).

¹³ Case File No. 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals Against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE), ¶ 24 (May 20, 2010), available at http://www.eccc.gov.kh/english/cabinet/court-Doc/605/D97_15_9_EN.pdf [hereinafter JCE Decision].

¹⁴ Case No. 002/19-09/2007-ECCC-OCIJ 20, Decision on Khieu Samphan’s Appeal Against the Order on Translation Rights and Obligations of the Parties, ¶ 33 (Feb. 20, 2009) (describing as ‘‘exhaustive’’ the list in Rule 74(3) of decisions of the OCIJ that may be appealed). Although the PTC has reserved to itself in the past the right to go beyond Rule 74 in the interest of fairness, it had never done so prior to its JCE Decision. See Case No. 002/19-09/2007-ECCC-OCIJ, Decision on the Admissibility of the Appeal Against Co-Investigating Judges Order on the Use of Statements Which Were or May Have Been Obtained by Torture, ¶ 31 (Dec. 18, 2009) (finding that the accused’s rights were ‘‘sufficiently guarded’’ so as to permit the chamber to decline to interpret Rule 21 in such a way as to declare the Appeal admissible).

¹⁵ JCE Decision, supra note 13, ¶ 34.

¹⁶ Later in the JCE Decision, the PTC noted that it was merely ‘‘preferable’’ that introductory submissions allege an accused’s responsibility as a participant in a JCE, but that the Office of the Co-Prosecutors (OCP) was not precluded from doing so in the Final Submission. Id. ¶ 95. This begs the question, if the OCP supposedly has until its Final Submission (which it filed after the PTC’s JCE Decision in August 2010) to specify the forms of liability it intends to argue, was it not premature of the PTC to balance the defendant’s interest in a fair trial against the OCP’s statutorily-granted discretion in May 2010?

¹⁷ Id. ¶ 43 (citing, inter alia, Prosecutor v. Milutinović, Case File No. IT-05-98, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, supra note 7, ¶ 21.

¹⁸ Id. ¶ 57.

¹⁹ United States v. Greifelt & Others (‘‘RuSHA’’), United States Military Tribunal No. l, Judgment of 10 March 1948, in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 609 (1997); Alstotter & Others (‘‘Justice’’), U. S. Military Tribunal III, Judgment of 4 December 1947, in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at 1063 (1997).

²⁰ Id. ¶¶ 65-69.

²¹ Id. ¶ 72.

²² Id. ¶ 78.

²³ Id. ¶¶ 79-80.

²⁴ Id. ¶ 82.

²⁵ Id. ¶ 87.

²⁶ See, e.g., Prosecutor v. Joni Marques, Case No. 09/2000, 25- 28, Judgment (Dec. 11, 2001).

²⁷ See, e.g., Prosecutor v. Sesay (‘‘AFRC Case’’), Case File No. SCSL-2004-16-PT, Decision on Motions for Judgment of Acquittal Pursuant to Rule 98, ¶ 325 (Mar. 31, 2006).

²⁸ See, e.g., Al-Dujail Lawsuit, Case File No. 1/9 First/2005, Judgment, 10, 24, 35, 40 (Nov. 3, 2006), translated at http://www.haguejusticeportal.net/Docs/NLP/Iraq/Saddam_Hussein_Judgement_5-11-2006.pdf.

²⁹ Case File No. 002/19-09-2007-ECCC-OCIJ (OCIJ), Closing Order, ¶ 1541 (Sept. 15, 2010) (considering 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 described above.’’). The JCE Decision is final, as the Internal Rules of the ECCC do not provide for appeals from the decisions of the PTC. Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev. 6, Sept. 17, 2010), available at http://www.eccc.gov.kh/english/cabinet/fileUpload/121/IRv6-EN.pdf.

³⁰ See, e.g., Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Third Amended Indictment, ¶¶ 39, 43 (Feb. 27, 2009); Prosecutor v. Gatete, Case No. ICTR-2000-61-I, Amended Indictment, ¶ 9 (May 10, 2005).

¹ IENG Sary’s Motion against the Application at the ECCC of the form of Liability Known as Joint Criminal Enterprise, 28 July 2008, D97 (‘‘IENG Sary Motion’’). The Office of the Co-Prosecutors (‘‘OCP’’) filed its response on 11 August 2008. Co-Prosecutors’ Response to Ieng Sary’s Motion on Joint Criminal Enterprise, 11 August 2008, D97/II (‘‘Co- Prosecutors’ Joint Response’’).

² IENG Sary Motion, para. 29; IENG Sary’s Supplementary Observations on the Application of the Theory of Joint Criminal Enterprise at the ECCC, 24 November 2008, D97/7 (‘‘IENG Sary’s Supplementary Observations’’), Section I(A).

³ IENG Sary Motion, p. 1; IENG Sary’s Supplementary Observations, Section I(B-F), p. 2.

⁴ IENG Sary’s Supplementary Observations. The Defence for IENG Sary summarizes its Supplementary Observations as follows: 1) JCE is not applicable at the ECCC because it is barred by the principle nullem crimen sine lege; 2) it is not a form of liability over which the ECCC has jurisdiction by virtue of Article 29 of the Establishment Law as it is neither found explicitly in Article 29, nor can it be considered a form of ‘‘commission’’; 3) it is not recognized by Cambodian Law applicable in 1975-1979; 4) it is not currently established in customary international law, nor was it recognized in customary international law during 1975-1979; 5) it was neither foreseeable not accessible in 1975-1979; and 6) customary law is not applicable in Cambodian courts, and is likewise inapplicable at the ECCC. IENG Sary’s Supplementary Observations, Section I.

⁵ IENG Thirith Submissions on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise Pursuant to the order of the Co-Investigating Judges of 16 September 2008, 30 December 2008, D97/3/2 (‘‘IENG Thirith’s Submissions’’).

⁶ ENG Thirith’s Submissions, para. 28.

⁷ IENG Thirith’s Submissions, paras 29, 31.

⁸ Submissions on Applicability at the ECCC of the Form of Responsibility Known as Joint Criminal Enterprise, 30 December 2008, D97/3/3 (‘‘NUON Chea’s Submissions’’).

⁹ Defence’s Submissions Concerning Application of the Form of Responsibility Known as Joint Criminal Enterprise (filed by the Defence for KAING Guek Eav alias Duch), 24 December 2008, D97/3/1, para. 2.

¹⁰ Response of Co-Lawyers for the Civil Parties on Joint Criminal Enterprise, 30 December 2008, D97/3/4 (‘‘Civil Parties’ Submissions’’).

¹¹ Civil Parties’ Submissions, para. 34.

¹² Decision to Determine the Appeals Against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE) on Written Submissions and Direction for Reply, 9 March 2010, D97/ 14/11.

¹³ Prosecutor v. Duško Tadić, IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999 (‘‘Tadić Appeal Judgement’’ or ‘‘Tadić’’).

¹⁴ Impugned Order, paras 13-17, according to which, the actus reus includes a plurality of persons, the existence of a common purpose or plan which amounts to or involves the commission of a crime within the law and the contribution of the accused to the common plan. The second category of JCE (systemic) is a variation of the first one (basic), both of which require proof of shared intent to perpetrate the crime(s) which form part of the common plan between the accused and other persons involved in the JCE, while in the third category of JCE (extended), the accused can also be found responsible for crimes outside of the common plan which are a natural and foreseeable consequence of the common plan if the accused was aware of and willingly took the risk that such other crimes could occur in pursuance of the plan.

¹⁵ Impugned Order, para. 18.

¹⁶ Impugned Order, para. 19 quoting Prosecutor v. Milutinović et al., IT-05-98, Decision on Dragoljob Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, Appeals Chamber, 21 May 2003 (‘‘Ojdanić JCE Decision’’), para. 37.

¹⁷ Impugned Order, para. 20.

¹⁸ Impugned Order, para. 21.

¹⁹ Impugned Order, para. 21 (internal citations omitted).

²⁰ Impugned Order, paras 22-23.

²¹ Impugned Order, Enacting Clause.

²² Impugned Order, Enacting Clause.

²³ Ieng Thirith Appeal, para. 1.

²⁴ Ieng Thirith Appeal, para. 9.

²⁵ Ieng Thirith Appeal, paras 22-24.

²⁶ Ieng Thirith Appeal, para. 28.

²⁷ Ieng Thirith Appeal, para. 38.

²⁸ Ieng Thirith Appeal, para. 44.

²⁹ Ieng Thirith Appeal, para. 52.

³⁰ Ieng Thirith Appeal, para. 60.

³¹ Ieng Sary Appeal, para. 2 a).

³² Ieng Sary Appeal, para. 2 b). The Ieng Thirith Appeal raises similar arguments in its Ground 5.

³³ Ieng Sary Appeal, para. 2 c).

³⁴ Ieng Sary Appeal, para. 2 d).

³⁵ Ieng Sary Appeal, para. 2 e).

³⁶ Khieu Samphan Appeal, paras 45-51.

³⁷ Khieu Samphan Appeal, paras 52-55.

³⁸ Khieu Samphan Appeal, paras 56-59 (endorsing the submissions made by the other Defence Lawyers and stressing that the Impugned Order is in this respect is devoid of legal basis, is a ‘‘decision of convenience aimed at satisfying penal objectives’’, constitutes a violation of ‘‘the most basic criminal law principles’’ including the principle of legality, as well as of ‘‘the spirit and the letter of the ECCC Law and the ECCC Agreement’’).

³⁹ Khieu Samphan Appeal, paras 60-71.

⁴⁰ Appeal Brief against the Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Responsibility, 8 January 2010, D97/17/1 (‘‘Civil Party Co-Lawyers’ Appeal’’), para 10.

⁴¹ The remainder of the Civil Party Co-Lawyers’ Appeal does not amount to an appeal, but rather supports the Impugned Order.

⁴² By decision of 9 February 2010, the Pre-Trial Chamber granted the Co-Prosecutors’ application for extension of time and page limits (26 January 2010, D97/15/2), allowing a 40- page Response to be filed by to 19 February. Decision on the Co-Prosecutors’ Applications for Extension of Time and Page Limits to File a Joint Response to Ieng Thirith, Khieu Samphan, Ieng Sary and Certain Civil Parties’ Appeals against the Order on Joint Criminal Enterprise, 9 February 2010, D97/ 16/4.

⁴³ Co-Prosecutors’ Joint Response to Ieng Sary, Ieng Thirith and Khieu Samphan’s Appeals on Joint Criminal Enterprise, 19 February 20 10, D97/16/5 (‘‘Co-Prosecutors’ Joint Response’’), para. 3.

⁴⁴ Decision to Determine the Appeals Against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE) on Written Submissions & Directions for Reply, 9 March 2010, D97/ 14/11.

⁴⁵ Defence Reply to Co-Prosecutors’ Response to Defence Appeal on the Application of Joint Criminal Enterprise, 15 March 2010, D97/15/8 (‘‘Ieng Thirith’s Reply’’).

⁴⁶ See, Decision on the Defence Application for Extension of Time Limit to Reply to Co-Prosecutors Joint Response to the Appeals, 12 March 2010, D97/14/13, granting the extension of time requested by Ieng Sary.

⁴⁷ Joint Response on Joint Criminal Enterprise, 25 March 2010, D97/19/9. See, Decision on the Defence Application for extension of Time Limit to Reply to Co-Prosecutors’ Joint Response to the Appeals on Joint Criminal Enterprise, 23 March 2010, D97/16/8, granting the extension of time requested by Kieu Samphan.

⁴⁸ Decision on the Defence Application for Extension of Time Limit to Reply to Co-Prosecutors’ Joint Response to the Appeal, 12 March 2010, D97/14/13.

⁴⁹ Ieng Sary’s Reply to the Co-Prosecutors’ Response to Ieng Sary, Ieng Thirith and Khieu Samphan’s Appeals on Joint Criminal Enterprise, 18 March 2010 (Ieng Sary’s Reply), D97/ 14/14.

⁵⁰ Ieng Thirith Appeal, para. 1.

⁵¹ CO-Prosecutors’ Joint Response, paras 4-22, raising the following objections to the admissibility of the appeals: even if the JCE declaration is considered an order, 1) ‘‘it did not confirm the jurisdiction of the ECCC and is, as such, nonappealable’’ under Rule 74(3)(a); 2) ‘‘it did not reject a request investigative action and is, as such, non-appealable’’; 3) ‘‘it did not violate any fair trial right and is, as such, non- a pealable pursuant to Rule 21’’; and; 4) ‘‘dismissal of the appeals shall advance procedural economy’’.

⁵² The Pre-Trial Chamber has considered the points of Reply in relation to the OCP Joint Response made in Ieng Thirith’s Reply.

⁵³ The Pre-Trial Chamber dismisses the application made on behalf of Ieng Thirith that the OCP be estopped from raising this argument. Ieng Thirith’s Reply, para 6.

⁵⁴ Co-Prosecutors’ Joint Response, paras 5-6.

⁵⁵ See, in particular, Impugned Order, paras 18-21.

⁵⁶ Co-Prosecutors’ Joint Response, para. 16. 57 Co-Prosecutor’s Joint Response, paras 7-9.

⁵⁸ Cf: Prosecutor v. Delalic, Mucić, Delić, and Landžo, IT-96- 21-AR72.5, Decision on Application for Leave to Appeal by Hazim Delić (Defects in the Form of the Indictment), Appeals Chamber, 6 December 1996, para. 27 (holding that any dispute as to the substance of the crimes enumerated in Articles 2,3,4, and 5 of the Statute ‘‘is a matter for trial, not for pre-trial objections’’); Prosecutor v. Furundžija, Case No. IT-05-17/ 1-T, Judgement, Trial Chamber, 10 December 1998, paras 172-186, Prosecutor v. Kunarac, Kovać and Vuković, Case No. IT-96-23-T & IT-96-23/1-T, Judgement, Trial Chamber, 22 February 2001 (‘‘Kunarac Trial Judgement’’), paras 436- 460 (Trial Judgements ascertaining the contours of rape as a crime against humanity under Article 5(g) of the Statute).

⁵⁹ Cf: Prosecutor v. Blaškić, IT-95-14-A Judgement, Appeals Chamber, 29 July 2004 (‘‘Blaškić Appeal Judgement’’), paras 32-42 (Appeal Judgement ascertaining the contours of the mental element of ‘‘ordering’’ under Article 7(1) of the Statute). See also Prosecutor v. Milutinović et al., IT-05-87-PT, Decision on Ojdanić’s Motion Challenging Jurisdiction — Indirect Co-Perpetration, Trial Chamber, 22 March 2006 (‘‘Ojdanić Co-Perpetration Decision’’), para. 23.

⁶⁰ See ICTY Rules of Procedure and Evidence, Rule 72(D)(iv) (‘‘For the purpose of paragraphs (A)(i) and (B)(i), a motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to: [...] (iv) any of the violations indicated in Article[...] 7 of the Statute.’’). Rule 72(D)(iv) of the ICTR Rules of Procedure and Evidence contains a similar provision.

⁶¹ Ojdanić JCE Decision, para. 5, referring to Prosecutor v. Milutinović, Šainović , and Ojdanić, IT-99-37-AR72, Bench Decision pursuant to Rule 72(E) as to Validity of Appeal, Appeals Chamber, 25 March 2003, p. 3 (Appeals Bench holding that Ojdanić’s appeal had been validly filed insofar as it challenged the jurisdiction of the Tribunal in relation to his individual criminal responsibility for allegedly participating in a JCE). Accord Ojdanić Co-Perpetration Decision, para. 23. See also Rwamakuba v. Prosecutor, ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, Appeals Chamber, 22 October 2004 (‘‘Rwamakuba JCE Decision’’), paras 3, 5, 31.

⁶² Ojdanić JCE Decision, para. 10.

⁶³ CO-Prosecutors’ Joint Response, paras 7-9.

⁶⁴ Impugned Order, paras 19-21, referring to Ojdanić Co-Perpetration Decision, para. 37.

⁶⁵ The Pre-Trial Chamber notes Ieng Thirith’s Reply, paras 8-12.

⁶⁶ Co-Prosecutors’ Joint Response, paras 10-13.

⁶⁷ Co-Prosecutors’ Joint Response, para. 12, referring to Decision on Khieu Samphan’s Appeal against the Order on the Translation Rights and Obligations of the Parties, 20 February 2009, A190/1/20 (‘‘Translation Appeal Decision’’), para. 28.

⁶⁸ Impugned Order, para. 8, noting that Internal Rule 53(1) deals with the filing of Introductory Submissions by the OCP.

⁶⁹ IENG Thirith’s Submissions, paras. 30-31.

⁷⁰ Impugned Order, Enacting Clause, expressly rejecting the Request insofar as the actus reus and mens rea for JCE I and II and the actus reus for JCE III.

⁷¹ Limiting the possibility for the Charged Person to appeal orders from the OCIJ refusing requests for investigative action before the Pre-Trial Chamber.

⁷² Decision on Admissibility of the Appeal Against Co-Investigating Judges’ Order on Use of Statements Which Were or May Have Been Obtained by Torture, 27 January 2010, D130/ 10/12, paras 14-17.

⁷³ Ibid..para. 17.

⁷⁴ Co-Prosecutors’ Joint Response, paras 14-15. They argue in particular that determining now the matter raised by the Appeals may be ‘‘purely academic’’ as the Closing Order may not even include JCE liability, and that the Defence will in any event still have the opportunity to bring a jurisdictional challenge before the Trial Chamber pursuant to Internal Rule 89(1). Co-Prosecutors’ Joint Response, paras 15-16.

⁷⁵ Further, according to Internal Rule 57, at the time of the initial appearance, the OCIJ has to inter alia inform the charged person of the charges. The Cambodian Criminal Procedural Code (‘‘CPC’’) contains a similar provision in Article 143.

⁷⁶ See, in particular, Articles 14 and 15 of the International Covenant on Civil and Political Rights (‘‘ICCPR’’), expressly embedded in Article 13(1) of the ECCC Agreement.

⁷⁷ Prosecutor v. Kupreškić. IT-95-16-A, Appeal Judgment, Appeals Chamber, 23 October 2001 (‘‘Kupreškić Appeal Judgement’’), para. 88; Prosecutor v. Hadžihasanović, Alagić and Kubura, IT-01-47-PT, Decision on Form of Indictment, Trial Chamber II, 7 December 2001 (‘‘Hadžihasanović Indictment Decision’’), para. 8.

⁷⁸ Hadžihasanović Indictment Decision, para. 8.

⁷⁹ Kupreškić Appeal Judgement, para. 88.

⁸⁰ Kupreškić Appeal Judgement, para. 89.

⁸¹ Kupreškić Appeal Judgement, para. 114.

⁸² See Prosecutor v. Milan Milutinović, Nikola Sainović, Dragoljug Ojdanić, Nebojsa Pavković Vladimir Lazarević, Vlastimir Djordjević and Sreten Lukić, Case No. IT-05-87-PT. (‘‘Milutinović, et al.’’) Decision on Vladimir Lazarević’s Preliminary Motion on Form of Indictment, 8 July 2005 (‘‘Milutinović, et al Decision on Form of Indictment’’), para. 6.

⁸³ Prosecutor v. Kvoćka et al.,IT-98-30/1-A, Judgement, Appeals Chamber, 28 February 2005 (‘‘Kvoćka Appeal Judgement’’), para. 65.

⁸⁴ Kvoćka Appeal Judgement, para. 65 citing Prosecutor v. Galic, IT-98-29-AR72, Decision on Application by Defence for Leave to Appeal, Appeals Chamber, 30 November 2001 (‘‘Galic Decision on Leave to Appeal’’), para. 15. 85 Co-Prosecutors’ Joint Response, paras 18-22.

⁸⁶ Case of Kaing Guek Eav, 001/18-07-2007-ECCC/TC, Decision on Group I Civil Parties’ Co-Lawyers’ Request that the Trial Chamber Facilitate the Disclosure of an UN-0I0S Report to the Parties, 23 September 2009, E65/9, para. 12.

⁸⁷ The Pre-Trial Chamber dismisses the application made on behalf of Ieng Thirith seeking that the OCP be estopped from raising the argument of judicial economy. See Ieng Thirith’s Reply, para. 24.

⁸⁸ Ieng Thirith Appeal, para. 6, citing Decision on the Appeal From the Order on the Request to Seek Exculpatory Evidence in the Shared Materials Drive, 18 November 2009, Dl64/4/ 13 (‘‘SMD Decision’’), para. 26.

⁸⁹ SMD Decision, para. 26.

⁹⁰ Case of Kaing Guek Eav, 001/18-07-2007-ECCC/PTC, Decision on Appeal Against Closing Order Indicting Kaing Guek Eav Alias ‘‘Duch’’, 5 December 2008, D99/3/42 (‘‘Decision on Appeal Against Closing Order’’), para. 114.

⁹¹ The Tadić Appeals Chamber used interchangeably the expressions ‘‘joint criminal enterprise’’, ‘‘common purpose’’ and ‘‘criminal enterprise’’, although the concept is generally referred to as ‘‘joint criminal enterprise’’ as in the Impugned Order. See also, Ojdanić JCE Decision, para. 20, regarding joint criminal enterprise as a form of commission.

⁹² Decision on Appeal Against Closing Order., para. 132 & fn.82, referring to the Almelo Trial case, one of the military court cases reviewed and quoted by the Tadić Appeals Judgement.

⁹³ Ibid, para. 202, referring to Tadić Appeals Judgement.

⁹⁴ Prosecutor v. Vasiljević, IT-98-32-A, Judgement, Appeals Chamber, 25 February 2004 (‘‘Vasiljević Appeal Judgement’’), para. 98.

⁹⁵ Tadić Appeal Judgement, paras 202-203. Although the participants in the joint criminal enterprises of this category were mostly members of criminal organisations, the Tadić case did not require an individual to belong to such an organisation in order to be considered a participant in the joint criminal enterprise. The Krnojelac Appeal Judgement found that this ‘‘systemic’’ category of joint criminal enterprise may be applied to other cases and especially to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Prosecutor v. Krnojelac, IT-97-25-A, Judgement, Appeals Chamber, 17 September 2003 (‘‘Krnojelac Appeal Judgement’’), para. 89.

⁹⁶ Decision on Appeal Against Closing Order, para. 132, referring to Kvočka Appeal Judgement, para. 267.

⁹⁷ Tadić Appeal Judgement, Judgement, para. 227.

⁹⁸ Kvočka Appeal Judgement, para. 99 (‘‘A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met’’.); Vasiljević Appeal Judgement, paras 100, 119; Tadić Appeal Judgement, paras 196,227.

⁹⁹ Prosecutor v. Brđanin, IT-99-36-A, Judgement, Appeals Chamber, 3 April 2007 (‘‘Brđanin Appeal Judgement’’), para. 427.

¹⁰⁰ Ibid.

¹⁰¹ Decision on Appeal Against Closing Order, para. 132.

¹⁰² Ibid.

¹⁰³ Vasiljević Appeal Judgement, para, 101.

¹⁰⁴ Decision on Appeal Against Closing Order, para. 132, referring to Tadić Appeals Judgement, para. 228.

¹⁰⁵ Vasiljević Appeals Judgement, para, 101. See also Prosecutor v. Karadzic, IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009, paras 15-18.

¹⁰⁶ A number of these decisions will be discussed in some detail infra.

¹⁰⁷ See, in particular, the six cases referred to by the Tadić Appeal Judgement, paras 197-200,in support of the basic form of JCE.

¹⁰⁸ See, e.g., two Control Council Law No. 10 cases, United States. v. Altstoetter et al. (1947), United States Military Tribunal III, Opinion and Judgment, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, vol. III (U.S. Government Printing Office 1951) (‘‘Justice Case’’), and United States v. Greifelt et al. (1948), United States Military Tribunal I, Opinion and Judgment, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, vol. V (U.S. Government Printing Office 1949) (‘‘RuSHA Case’’). These cases where relied upon, inter alia, by the ICTR Appeals Chamber to conclude that, as of 1992, customary international law permitted the imposition of criminal liability on a participant in a common plan to commit genocide. See Rwamakuba JCE Decision, paras 14-23.They are respectively concerned with 1) a pattern and plan of racial persecution to enforce the criminal laws against Poles and Jews, involving Prosecutors who prosecuted and Justices who convicted, and even sentenced to death, Poles and Jews in conformity with the policy of the Nazi State of persecution, torture, and extermination of the Jewish and Polish races and 2) individuals who participated in a two-fold objective of weakening and eventually destroying other nations while at the same time strengthening Germany, territorially and biologically, at the expense of conquered nations. This ‘‘Germanisation’’ plan involved the commission of abortions on foreigners impregnated by Germans, punishment for sexual intercourse between Germans and non- Germans, the slave labour of Poles and other Easterners, the persecution of Jews and Poles, and the kidnapping of foreign children.

¹⁰⁹ Kai Ambos Amicus Brief, p. 29, referring to M. Bonnieu et al., Projet de Nouveau Code Penal. Commenté et comparé (2008), at 13, 14 (according to which the new Art. L. 1121- 2 requires a ‘commun accord’’’), 15 (Comment on Art. L.1121-5.

¹¹⁰ Accessible at http://ledroitcriminel.free.fr/la_legislation_crimminelle/anciens_textes/code_penal_de_1810.htm (visited 20th October, 2008).

¹¹¹ Kai Ambos Amicus Brief, p. 30.

¹¹² Khieu Samphan Reply, para. 26.

¹¹³ Decision on Appeal Against Closing Order, paras 141-142.

¹¹⁴ Ojdanić JCE Appeal Decision, para. 21. Accord Prosecutor v. Blagojević and Jokić, IT-02-60-T, Judgement, Trial Chamber I, 17 January 2005 (‘‘Blagojević and Jokić Trial Judgement’’), para. 695, n.2145; Prosecutor v. Stakić, IT-97-24-T, Judgement, Trial Chamber II, 31 July 2003 (‘‘Stakić Trial Judgement’’), para. 431.

¹¹⁵ Ieng Sary Appeal, para. 2a).

¹¹⁶ Impugned Order, para. 19.

¹¹⁷ See McGill Amicus Brief, para. 13 & n.6, referring to Prosecutor v. Martić, IT-95-11-A, Judgement--Separate Opinion of Judge Schomburg on the Individual Criminal Responsibility of Milan Martić, 8 October 2008. See also Ojdanić Co-Perpetration Decision, para. 15, according to which, ‘‘as long as it is clear that the form of responsibility in question existed in customary international law at the time of the commission of the substantive crime, a conviction pursuant to that form of responsibility necessarily complies with nullum crimen sine lege; as a consequence, pre-conditions (iii) and (iv) are absorbed into the analysis of whether pre-condition (ii) exists, referring to Prosecutor v. Hadžihasanović et al., IT-01-47- AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Appeals Chamber, 16 July 2003, para. 44.

¹¹⁸ See Ojdanić JCE Appeal Decision, paras 37-39.

¹¹⁹ See also paras 43, 44 infra.

¹²⁰ Ieng Sary Appeal, para. 7, referring to Impugned Order, para. 21 quoting Case of Kaing Guek Eav, 001/18-07-2007-ECCC/ PTC, Decision on Appeal against Provisional Detention Order of Kaing Guek Eav alias ‘‘Duch’’, 3 December 2007 (‘‘Decision on Appeal against Duch Detention Order’’), para. 20.

¹²¹ Impugned Order, para. 21.

¹²² Impugned Order, para. 21.

¹²³ Ieng Sary Appeal, para. 7; Decision on Appeal Against Duch Detention Order, para. 19.

¹²⁴ Case of Kaing Guek Eav alias ‘‘Duch’’ 001/18-07-2007- ECCC/TC, Decision on Request for Release 15 June 2009, E39/5, para 10.

¹²⁵ Ieng Sary Appeal, paras 25-32, referring to the finding in the Impugned Order, para. 22, that ‘‘the 1956 Penal Code was inspired from French Law and under French law, international crimes such as those falling under the jurisdiction of the ECCC constitute specific categories of crimes under autonomous legal ’regimes,’ distinct from domestic criminal law, and characterized by a coherent set of rules of procedure and substance’’. Khieu Samphan raises a similar challenge, arguing that the French law relied upon by the OCIJ to support its finding of the existence of autonomous legal regimes was not in existence during the period 1975-1979 but only in 2002 and, contrary to what the Co-Investigating Judges seem to be suggesting, it is because, with respect to [crimes against humanity], the applicable [French law] provides for rules which represent a departure from ordinary law that academic writings consider them as a special category of offences [... and] not the other way around; finally, the autonomous legal regime for such crimes under the 2002 law does not contain specific rules on individual responsibility, such crimes are governed by ordinary rules of procedure and jurisdiction. Khieu Samphan Appeal, paras 60-66 and Khieu Samphan Reply, paras. 17-21.

¹²⁶ Ieng Sary Appeal, para. 2d); Ieng Sary’s Reply, paras 40-50.

¹²⁷ See, in particular, Ojdanić JCE Appeal Decision, paras 12-18, referring to Tadić and subsequent relevant case law.

¹²⁸ Ieng Thirith Appeal, paras 60, 72, 73(a). The Appellant does not elaborate much on the reasons why such basis is lacking— she essentially contends that the customary basis of JCE ‘‘for the ICTY’’ is highly controversial and should not be transposed to Cambodia in the 1970s, supporting this contention with a reference to M. Sassoli & L. M. Olson, the Judgement of the ICTY Appeals Chamber on the Merits in the Tadić Case, Int’l Rev. Red Cross 839, p. 7 (loc. cit. 60-62), addressing the controversy as to why the ICTY Appeals Chamber described the Italian case law, in support of the JCE theory, in detail, while mostly ignoring Dutch and German case law, which are not in its support. She also refers to A. M. Danner & J. S. Martinez, ‘‘Guilty by Association: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’’, March 2004. See also, Ieng Sary’s Reply, paras 19-30.

¹²⁹ Ieng Sary Appeal, para. 2c).

¹³⁰ Ieng Sary Appeal, paras 36-37.

¹³¹ Ieng Sary Appeal, paras 38-40, stressing that the Tadić Appeals Chamber only relied on six cases to establish the first form of JCE and on only two further cases to establish the second and two cases to establish the third forms of JCE. It also contends that customary international law can only be determined with reference to consistent, wide-spread State practice and opinio juris, that normative statements in judicial decisions should be considered only as emerging customary law and not as positive legal rules. To subsequently transform into genuine customary law, there needs to be a majority of States to confirm them in practice coupled with opinio juris.

¹³² Ieng Sary Appeal, para. 37.

¹³³ Ieng Sary Appeal, paras 41-42.

¹³⁴ Ieng Sary Appeal, para. 44, according to which at Nuremberg, following the common law approach, ‘‘defendants were not classified as ‘perpetrators’ or ‘accomplices’’’, the verdicts were quite short, with very limited reasoning and the Tadić Appeals Chamber has to infer the form of liability applied based on the Prosecutors’ statements. According to the Appellant, there are also examples of post-World War II cases, such as the Justice case, in which the extended form of JCE liability was clearly not employed. Ieng Sary Appeal, para. 46.

¹³⁵ Ieng Sary Appeal, paras 47-48.

¹³⁶ Ieng Sary Appeal, paras 49-58, referring to the position adopted the ICC Pre-Trial Chamber in Lubanga, preferring the ‘‘control over the crime approach’’, distinguishing principals and accessories to the JCE subjective approach. According to the Appellant, ‘‘the ECCC may not simply accept the Stadić Appeals Chamber’s conclusion [that the ‘control over the crime’ form of co-perpetration applied by the Trial Chamber, has no support in customary international law] without explaining why it considers the Stakić Trial Chamber and the ICC to be in error.’’ Ieng Sary Appeal, para. 57.

¹³⁷ Ieng Sary Appeal, paras 59-62, where the Appellant argues that the determination in Tadić relied upon in the Impugned order, that JCE II is a variation of JCE I is misleading and untrue, as ‘‘JCE II often equates with JCE III, rather than I’’ and, relying on Ambos Amicus Brief, that ‘‘there is no generally accepted mens rea for JCE III’’, a vicarious form of responsibility highly criticized by scholars, which conflicts with the principle of culpability, even if a subjective approach is used, since requiring that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him is ‘‘logically impossible. Knowledge is a standard for intent crimes [...], while foreseeability belongs to the theory of recklessness or negligence’’.

¹³⁸ Ieng Sary Appeal, paras 63-65, where the Appellant refers to Kai Ambos Amicus Brief, para. 11, according to which ‘‘the requirements of co-perpetration are only filled by JCE I, and only if it is construed as an objective-subjective structure, requiring, beyond the mere common purpose or will [...], the actual performance of the act(s) by the member(s) of the enterprise’’. The Appellant further argues that ‘‘[b]ecause coperpetration is already a form of liability provided for in Cambodian law, there is no reason to apply JCE I as a separate form of liability, especially in light of the fact that ‘‘the ECCC is to act as a ‘role model’ for Cambodian courts’’ and ‘‘the Cambodian government has explicitly rejected JCE liability’’ when adopting its new penal code. See also, Ieng Sary’s Reply, paras 32-39, asserting that JCE liability was not foreseeable in Cambodia during 1975-1979.

¹³⁹ Co-Prosecutors’ Joint Response, para. 32, referring to Impugned Order, para. 21.

¹⁴⁰ Co-Prosecutors’ Joint Response, para. 32, referring to the Co-Prosecutors’ Response to Ieng Sary’s Motion on Joint Criminal Enterprise, 11 August 2008, D97/II (‘‘Co-Prosecutors’ 11 August Response’’) and the Co-Prosecutors’ Supplementary Observations on Joint Criminal Enterprise, 31 December 2008, D97/8 (‘‘Co-Prosecutors’ Supplementary Observations’’). The Co-Prosecutors also refer to the ‘‘inclusion of the ‘common plan’ mode of liability in the Nuremberg Charter and in the allied Control Council Law No. 10, as well as to decisions of the post-World War II war crimes tribunals’’- ten of which being cited in Tadić , six in support of JCE I, two for JCE II and two for JCE III–which it contends ‘‘crystallized JCE as customary international law’’ (Co-Prosecutors’ Supplementary Observations, para. 10). They also refer to the Report of the United Nations International Law Commission on the work of its Forty Eighth Session, 6 May-26 July 1996 according to which the above-mentioned international instruments ‘‘[gave] birth to the entire international paradigm of individual criminal responsibility’’ as well as to the fact that on 11 December 1946, ‘‘the [United Nations] General Assembly unanimously affirmed the principal Nuremberg Charter and judgments’’ (Co-Prosecutors’ Joint Response, para. 35).

¹⁴¹ Co-Prosecutors’ Joint Response, para. 33, referring to Co- Prosecutors’ Supplementary Observations, para. 10 & nn.22-26.

¹⁴² Fisheries Jurisdiction Case (United Kingdom v Iceland), Merits, 1974 ICJ Rep. 3, at 50.

¹⁴³ Article 38(1) of the 1946 Statute of the International Court of Justice, which is generally recognised as a definitive statement of the sources of international law, requires the Court to apply, among other things, ‘‘international custom, as evidence of a general practice accepted as law’’.

¹⁴⁴ North Sea Continental Shelf (Federal Republic of Germany v. Denmark, Federal Republic of Germany v. Netherlands), Merits, 20 February 1969, ICJ Rep. 3, para. 77.

¹⁴⁵ Sub-paragraph (d) of Article 38(1) of the 1946 Statute of the International Court of Justice.

¹⁴⁶ Sub-paragraph (c) of Article 38(1) of the 1946 Statute of the International Court of Justice.

¹⁴⁷ E.g., the Trial Chamber in Furundžija held that, ‘‘to arrive at an accurate definition of rape based on the criminal law principle of specificity [...], it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.’’ Furundžija Trial Judgement, para. 177.

¹⁴⁸ Blaškić Appeal Judgement, paras 34-42.

¹⁴⁹ Tadić Appeal Judgement, para. 226.

¹⁵⁰ Impugned Order, para. 21, referring to Tadić Appeals Judgement, paras 185 et seq. The Impugned Order elsewhere relies on other ICTY Appeals Chamber decisions, including the Ojdanić JCE Appeal Decision as to the application of the principle of legality to forms of responsibility in international criminal law and to Prosecutor v. Krajišnik, IT-00-39-A Judgement, Appeals Chamber, 17 March 2009 (‘‘Krajišnik Appeal Judgment’’) and the Kvoćka et al. and Brdjanin Appeal Judgements, with respect to specific material or mental elements of the various forms of JCE.

¹⁵¹ Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) U.N. Doc. S/25704, 3 May 1993.

¹⁵² Tadić Appeal Judgement, para. 191, according to which ‘‘most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design.’’

¹⁵³ Tadić Appeal Judgement, para. 191.

¹⁵⁴ Paras 197 et seq.

¹⁵⁵ Adopted by a consensus vote by the General Assembly in its Resolution 52/164 of 15 December 1997 and opened for signature on 9 January 1998.

¹⁵⁶ Adopted on 17 July 1998 by the Diplomatic Conference of Plenipotentiaries held in Rome.

¹⁵⁷ Tadić Appeal Judgement, paras 221-222.

¹⁵⁸ Tadić Appeal Judgement, paras 224-225.

¹⁵⁹ Ieng Sary Appeal, paras 38-40, stressing that the Tadić Appeals Chamber only relied on six cases to establish the first form of JCE and on only two further cases to establish the second and two cases to establish the third forms of JCE.

¹⁶⁰ Ieng Sary Appeal, paras 36-37.

¹⁶¹ Rwamakuba JCE Decision, para. 18.

¹⁶² Issued on 8 August 1945, the London Charter of the International Military Tribunal sets down the laws and procedures by which the Nuremberg Trials were conducted. The International Military Tribunal sitting at Nuremberg was established in pursuance of the Agreement signed on 8 August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, establishing an International Military Tribunal for the ‘‘just and prompt trial and punishment of the major war criminals of the European Axis’’. The Nuremberg Tribunal tried the 22 highest ranking surviving members of the Nazi regime.

¹⁶³ Charter of the International Military Tribunal, Article 6, in Trial of the Major War Criminals Before the International Military Tribunal, Vol. 1, p. 11 (emphasis added). Contrary to what the Ieng Sary’s Reply asserts (para. 22, n. 45), common plan liability applies to ‘‘any of the foregoing crimes’’, which, in Article 6 of the Charter, clearly applies not only to crimes against peace, but also to crimes against humanity and war crimes.

¹⁶⁴ Control Council Law No. 10 governs the Trials of the next level of German war criminals charged before U.S., British, Canadian and Australian military tribunals as well as German courts in occupied Germany. These military tribunals were to follow the Charter and jurisprudence of the Nuremberg Tribunal. Control Council Law Nr. 10, Official Gazette of the Control Council for Germany (1946), vol. 3, p. 50.

¹⁶⁵ See Control Council Law No. 10, Art. II(2), in Official Gazette of the Control Council for Germany (1946), vol. 3, p. 50, according to which ‘‘[a]ny person . . .is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission.’’ 166 Prosecutor v. Kupreškić et al., IT-95-16-T, Judgement, Trial Chamber, 14 January 2000 (‘‘Kupreškić Trial Judgement’’), paras 540-541.

¹⁶⁷ Co-Prosecutors’ Joint Response, n.56, referring to Report of the International Law Commission on the Work of its Forty- Eighth Session, 6 May-26 July 1996, Official Records of the General Assembly, Fifty First Session, Supplement No. 10, p. 19.

¹⁶⁸ Co-Prosecutors’ Joint Response, n.57, referring to Report of the International Law Commission on the Work of its Forty- Eighth Session, 6 May-26 July 1996, Official Records of the General Assembly, Fifty First Session, Supplement No. 10, p. 21.

¹⁶⁹ Prosecutor v. Vasiljević , IT-98-32-T, Judgement, Trial Chamber II, 29 November 2002 (‘‘Vasiljević Trial Judgement’’), para. 200.

¹⁷⁰ Tadić Appeal Judgement, para. 197, referring to Trial of Otto Sandrock and three others, British Military Court for the Trial of War Criminals, held at the Court House, Almelo, Holland, on 24th-26th November, 1945, UNWCC, vol. I, p. 35.

¹⁷¹ Tadić Appeal Judgement, para. 197, referring to Hoelzer et al., Canadian Military Court, Aurich, Germany, Record of Proceedings 25 March-6 April 1946, vol. I, pp. 341, 347, 349 (RCAF Binder 181.009 (D2474)).

¹⁷² Tadić Appeal Judgement, para. 198, referring to Trial of Gustav Alfred Jepsen and others, Proceedings of a War Crimes Trial held at Luneberg, Germany (13-23 August, 1946), Judgement of 24 August 1946 (‘‘Trial of Jepsen et al.’’) (original transcripts in Public Record Office, Kew, Richmond).

¹⁷³ Tadić Appeal Judgement, para. 198, referring to Trial of Jepsen et al., p. 241.

¹⁷⁴ Trial of Franz Schonfeld and others, British Military Court, Essen, June 11th-26th, 1946, UNWCC, vol. XI, p. 68 (summing up of the Judge Advocate).

¹⁷⁵ Trial of Feurstein and others, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August, 1948), Judgement of 24 August 1948 (‘‘Ponzano Case’’) (original transcripts in Public Record Office, Kew, Richmond).

¹⁷⁶ ‘‘The Prosecutor stated the following

Ibid, p. 4.’’

¹⁷⁷ The Judge Advocate further submitted that ‘‘while the defendant’s involvement in the criminal acts must form a link in the chain of causation, it was not necessary that his participation be a sine qua non, or that the offence would not have occurred but for his participation.’’ Tadić Appeal Judgement, para. 199. However, knowledge on the part of the accused as to the intended purpose of the criminal enterprise was required (Ibid). The judge held in this regard: ‘‘[o]f course, it is quite possible that it [the criminal offence] might have taken place in the absence of all these accused here, but that does not mean the same thing as saying [...] that [the accused] could not be a chain in the link of causation [...]’’. Tadić Appeal Judgement para. 199, n.242, referring to Ponzano Case, pp. 7-8.

¹⁷⁸ The United States of America v. Otto Ohlenforf et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, vol. IV (‘‘Einsatzgruppen Case’’), p. 3.

¹⁷⁹ ‘‘The tribunal went on to say:

Ibid, p. 373 (emphasis added).

In this connection, the tribunal also addressed the contention that certain of the commanders did not participate directly in the crimes committed, noting that:

Ibid.’’ Tadić Appeal Judgement, para. 200, n.245.

¹⁸⁰ Decisions of the Italian Court of Cassation relating to crimes committed by militias or forces of the ‘‘Repubblica Sociale Italiana’’ against Italian partisans or armed forces: Annalberti et al., 18 June 1949, in Giustizia penale 1949, Part II, col. 732, no. 440; Rigardo et al., 6 July 1949, ibid., cols. 733 and 735, no. 443; P.M. v. Castoldi, 11 July 1949, ibid., no. 444; Imolesi et al., 5 May 1949, ibid., col. 734, no. 445. See also Ballestra, 6 July 1949, ibid., cols. 732-733, no. 442.

¹⁸¹ Decision of 10 August 1948 of the German Supreme Court for the British Zone in K. and A., in Entscheidungen des Obersten Gerichtshofes fur die Britische Zone in Strafsachen, vol. I, pp. 53-56; the decision of 22 February 1949 in J. and A., ibid., pp. 310-315; the decision of the District Court (Landgericht) of Cologne of 22 and 23 January 1946 in Hessmer et al., in Justiz und NS-Verbrechen, vol. I, pp. 13-23, at pp. 13, 20; the decision of 21 December 1946 of the District Court (Landgericht) of Frankfurt am Main in M. et al. (ibid., pp. 135-165, 154) and the Judgement of the Court of Appeal (Oberlandesgericht) of 12 August 1947 in the same case (ibid., pp. 166-186, 180); as well as the decision of the District Court of Braunschweig of 7 May 1947 in Affeldt, ibid., p. 383-391, 389.

¹⁸² Tadić Appeal Judgement, para. 201, referring to the cases mentioned in the two following footnotes.

¹⁸³ Trial of Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, 15th November-13th December, 1945, UNWCC, vol. XI (‘‘Dachau Concentration Camp Case’’), p. 5.

¹⁸⁴ Tadić Appeal Judgement, para. 202.

¹⁸⁵ Dachau Concentration Camp Case, p. 14.

¹⁸⁶ Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17th September-17th November, 1945, UNWCC, vol. II (‘‘Belsen Case’’), p. 1.

¹⁸⁷ Tadić Appeal Judgement, para. 202. ‘‘The Judge Advocate summarised with approval the legal argument of the Prosecutor in the following terms:

Tadić Appeal Judgement, para. 202, n.251, referring to Belsen Case, p. 121.

¹⁸⁸ Tadić Appeal Judgement, para. 202, n.252, referring to Belsen Case, p. 121.

¹⁸⁹ Belsen Case, p. 121.

¹⁹⁰ Tadić Appeal Judgement, para. 203. Tadić also refers to another case (para. 203, n.254) in a similar vein: Case against R. Mulka et al. (‘‘Auschwitz concentration camp case’’):

‘‘See, in particular, the Bundesgerichtshof in Justiz und NS-Verbrechen, vol. XXI, pp. 838 ff., and especially pp. 881 ff). The BGH stated, p. 882:

(Unofficial translation).’’ Tadić Appeal Judgement, para. 203, n.254.

¹⁹¹ See Co-Prosecutors’ Joint Response, para. 40, n.72, referring to Co-Prosecutor’s Supplementary Observations, n.47, listing and providing references of 16 additional cases published in the 1949 UN War Crimes Commission Report and the U.S. Nuremberg War Crimes Tribunal Report. The OCP also refer to ten cases from German Courts available at the ECCC. According to the OCP, in all these cases, the tribunals applied the common plan/JCE concept and in ‘‘[s]umming up this extensive case law and explaining the differences between common design and simple co-perpetration, the UN War Crimes Commission Report states:

Co-Prosecutors’ Joint Response, para. 40. The OCP also refer to the Ojdanić JCE Appeal, which decided that JCE and common plan liability are the same. Co-Prosecutors’ Joint Response, para. 40, referring to Ojdanić JCE Appeal Decision, para. 36.

¹⁹² See Rwamakuba JCE Decision, paras 14-31. The ICTR Appeals Chamber decision cites, inter alia:

Ibid., para. 24, n.56.

¹⁹³ In its analysis, the Appeals Chamber extensively refers to the analysis of these cases conducted by Judge Bonomy’s Separate Opinion in the case Prosecutor v. Milutinović et al. which it found to be instructive. Separate Opinion of Judge Iain Bonomy, Ojdanić Co-Perpetration Decision (‘‘Bonomy Opinion, Ojdanić Co-Perpetration Decision’’), in particular paras 18-22.

¹⁹⁴ Nn.36 & 37 in the original. Justice Judgement, pp. 1081, 1118-1128, in the case of Lautz; and n.42 in the original, ibid., pp. 1155-1156], in the case of Rothaug.

¹⁹⁵ Rwamakuba JCE Decision, para. 24. See also footnote 194 infra.

¹⁹⁶ N.38 in the original, Justice Case, pp. 1120-1121.

¹⁹⁷ N.39 in the original, ibid., p. 1123.

¹⁹⁸ N.41 in the original, ibid., p. 1128.

¹⁹⁹ N.43 in the original, ibid., p. 1155.

²⁰⁰ N.44 in the original, ibid., p. 1156.

²⁰¹ N.46 in the original, see ibid., p. 90. See also ibid., p. 96 (finding that ‘‘in the very beginning the Germanisation program envisioned certain drastic and oppressive measures, among them: [...] the separation of family groups and the kidnapping of children for the purpose of training them in Nazi ideology; [...] the destruction of the economic and cultural life of the Polish population; and the hampering of the reproduction of the Polish population’’.).

²⁰² N.47 in the original, ibid., pp. 101, 160-161.

²⁰³ RuSHA Case, pp. 102, 106.

²⁰⁴ RuSHA Case, p. 106.

²⁰⁵ RuSHA Case, pp. 106, 160-161. See also Bonomy Opinion, Ojdanić Co-Perpetration Decision, para. 24.

²⁰⁶ RuSHA Case, pp. 110-111.

RuSHA Case, p. 110.

²⁰⁷ RuSHA Case, pp. 111-112, 160-161. In a secret memorandum, Hildebrandt described the ultimate objective of the abortions programme: ‘‘to [...] further all valuable racial strains for the strengthening of our people, and to accomplish a complete elimination of everything racially inferior’’. Ibid., pp. 111-112.

²⁰⁸ RuSHA Case, pp. 152-153.

²⁰⁹ RuSHA Case, p. 160 (findings with respect to Hofmann); see also ibid., pp. 160-161 (making identical findings with respect to Hildebrand). The Tribunal sentenced both men to 25 years’ imprisonment for their conduct. RuSHA Case, p. 166.

²¹⁰ Co-Prosecutors’ Joint Response, paras 32-33.

²¹¹ Tadić Appeal Judgement, para. 225.

²¹² Kai Ambos Amicus Brief, Section II.4.

²¹³ Ieng Thirith Appeal, Grounds 4 and 5, paras. 38, 44 and 50.

²¹⁴ Kai Ambos Amicus Brief, pages 19 and 22, referring to V. Haan, Joint Criminal Enterprise. Die Entwicklung einer mittäterschaftlichen Zurechnungsfigur im Völkerstrafrecht (2008), 200, 274 et seq.

²¹⁵ Tadić Appeal Judgement, para. 203.

²¹⁶ Ibid.

²¹⁷ Separate Opinion of Judge David Hunt, Ojdanić JCE Decision (Hunt Opinion, Ojdanić JCE Decision), para. 8 (emphasis added). See also, Vasiljević Appeal Judgement, para, 101; Krnojelac Appeal Judgement, para 84, providing that, ‘‘apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator( s) of the crimes committed, share the perpetrators’ joint criminal intent’’.

²¹⁸ leng Thirith Appeal, para. 52.

²¹⁹ Ieng Thirith Appeal, para. 66.

²²⁰ Ieng Thirith Appeal, paras. 22 and 24.

²²¹ Ieng Sary Appeal, para. 40 and n.105, where the Appellant refers to Shane Darcy, Imputed Criminal Liability and the Goals of International Justice, 20 Leiden j. Int’l L. 377, 384- 85 (2007), according to which for the third category of JCE:

See also Ieng Thirith Appeal, para. 38, alleging that ‘‘there was no basis for JCE III in Cambodia in 1975-1979’’, as well as para. 44, alleging that the Impugned Order erroneously found that JCE III apply before the ECCC, because ‘‘JCE III was not enacted in Cambodian law in 1975-1979’’.

²²² Ieng Sary Appeal, para. 2 e).

²²³ Ieng Sary Appeal, paras. 44-45, referring to Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 j. Int’l Crim. Just. 69, 75, n.10 (2007). The Appellant also refers to Powles, according to which the Essen Lynching and Borkum Island Cases on which Tadić relied do not ‘‘provide unambiguous support for the liability pursuant to the extended form of JCE’’ and in particular in the first case, ‘‘there is possibly a question mark as to whether the court held anyone who did not possess the intent to kill guilty of murder’’ because the Prosecution pleaded that the accused should be found guilty of murder as they had the intent to kill and they were indeed convicted for murder. Ieng Sary Appeal, para. 40, n.105, referring to Steven Powles, Joint Criminal Enterprise: Criminal Liability by Ingenuity and Judicial Creativity?, 2 j. Int’l Crim. Just. 606, 615- 616 (2004).

²²⁴ Ieng Sary Appeal, para. 40.

²²⁵ Ibid., referring to Kai Ambos Amicus Brief, p. 29.

²²⁶ Co-Prosecutors’ Joint Response, para. 33, referring to Co- Prosecutors’ Supplementary Observations, para. 10, nn.22-26.

²²⁷ In this case, seven crew members of a U.S. Flying Fortress, forced down on the German Island of Borkum, were taken prisoner and forced to march, beaten by members of the Reich Labour Corps, then by civilians on the street and, again beaten by civilians while the escorting guards, took part in the beating. This was after the Mayor of Borkum incited the mob to kill them and before the airmen were shot and killed by German soldiers when reaching the city hall.

²²⁸ Tadić Appeal Judgement, para. 210, referring to Charge Sheet, in U.S. National Archives Microfilm Publications, I (‘‘Charge Sheet’’).

²²⁹ Tadić Appeal Judgement, para. 211.

²³⁰ Tadić Appeal Judgement, para. 212, referring to Charge Sheet, pp. 1280-1286, n.268, where ‘‘[t]he accused Akkerman, Krolikovski, Schmitz, Wentzel, Seiler and Goebbel were all found guilty on both the killing and assault charges and were sentenced to death, with the exception of Krolikovski, who sentenced to life imprisonment.

²³¹ Tadić Appeal Judgement, para. 212, referring to Charge Sheet, pp. 1280-1286, n.269, where ‘‘[t]he accused Pointner, Witzke, Geyer, Albrecht, Weber, Rommel, Mammenga and Heinemann were found guilty only of assault and received terms of imprisonment ranging between 2 and 25 years.

²³² Tadić Appeal Judgement, para. 213.

²³³ In this case, a crowd of people participated in the beating of three airmen, resulting in their deaths and it was not possible to determine who had struck the fatal blow in each case.

²³⁴ Tadić Appeal Judgement, para. 208.

²³⁵ Tadić Appeal Judgement, para. 209.

²³⁶ Ibid.

²³⁷ Ibid.

²³⁸ E.g., the Trial Chamber in Furundžija held that, ‘‘to arrive at an accurate definition of rape based on the criminal law principle of specificity [...] , it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.’’ Furundžija Trial Judgement, para. 177.

²³⁹ See Blaškić Appeal Judgement, paras 34-42.

²⁴⁰ For this reliance to be permissible, ‘‘it would be necessary to show that [...] the major legal systems of the world take the same approach to this notion’’, which it found was not the case. Tadić Appeal Judgement, para. 225.

²⁴¹ Tadić Appeal Judgement, para. 225. In particular, as to the scenario where one of the participants of a JCE commits a crime not envisaged in the common purpose or common design (relevant to JCE III), in some countries, that person alone will incur criminal responsibility for such a crime. Tadić Appeal Judgement, para. 224, nn.283-284, referring to Germany and the Netherlands. See also Sassoli & Olson, , p. 7 (loc. cit. 47), according to which ‘‘the Chamber could have added Switzerland to that list’’. In other countries, if the crime perpetrated ‘‘that was outside the common plan but was nevertheless foreseeable’’, those who intended the common purpose are all fully liable for that crime as well. Tadić Appeal Judgement, para. 224, fn 285-291, referring to France and Italy as well as the common law jurisdictions of England and Wales, Canada, the United States, Australia and Zambia.

²⁴² ‘‘[T]he risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to it’’. Tadić Appeal Judgement, para. 204; the ‘‘person [...] was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems)’’. Ibid., para. 220; ‘‘responsibility for a crime other than the one agreed upon in the commonplan arises only if [...] (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk. Ibid., para. 228. As noted by Judge Hunt in his Separate Opinion in the Ojdanić JCE Decision:

Hunt Opinion, Ojdanić JCE Decision, para. 10. Today‘s ICTY jurisprudence is arguably settled and retains the third of these expressions of the mens rea requirement. ‘‘The word ‘‘might’’ in the third formulation indicates again a possibility’’. Ibid. As stressed by Judge Hunt:

Ibid. Such dolus eventualis ‘‘requires advertence to the possibility that a particular consequence will follow, and acting with either indifference or being reconciled to that possibility (in the sense of being prepared to take that risk). The extent to which the possibility must be perceived differs according to the particular country in which the civil law is adopted, but the highest would appear to be that there basis for supposing that the particular consequence will follow.’’ Ibid., n.44.

²⁴³ Tadić Appeal Judgement, para. 225. One of the authorities relied upon by the Ieng Thirith Appeal takes issue with the fact that, despite such finding, Tadić considered that ‘‘the consistency and cogency of the case law and the treaties it referred to, as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation, warrant the conclusion that case law reflects customary rules of international criminal law. Tadić Appeal Judgement, para. 226. See Sassoli & Olson, p. 7 (loc. cit. 58).

²⁴⁴ See Furundžija Trial Judgement, para. 178; Kunarac Trial Judgement, para. 439. See also, Bonomy Opinion, Ojdanić Co-Perpetration Decision, para. 27.

²⁴⁵ See Prosecutor v. Erdemović , IT-96-22-A, Judgement, Appeals Chamber, 7 October 1997, Separate Opinion of Judges McDonald and Vohrah (‘‘McDonald and Vohrah Decision, Erdemović Judgement’’), para. 57 (‘‘[I]t is generally accepted that [. . . a] comprehensive survey of all legal systems of the world [is not required,] as this would involve a practical impossibility and has never been the practice of the International Court of Justice or other international tribunals which have had recourse to Article 38(l)(c) of the ICJ Statute.’’); ibid., Separate Opinion of Judge Stephen (‘‘Stephen Opinion, Erdemović Judgement’’), para. 25 (‘‘No universal acceptance of a particular principle by every nation within the main systems of law is necessary before lacunae can be filled[.]’’).

²⁴⁶ See Furundžija Trial Judgement, para. 178; Kunarac Trial Judgement, para. 439.

²⁴⁷ See Blaškić Appeal Judgement, paras. 34-42.

²⁴⁸ Blaškić Appeal Judgement, para. 41.

²⁴⁹ Ibid.The Appeals Chamber concluded at para. 42 that ‘‘a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime’’.

²⁵⁰ The Pre-Trial Chamber further notes that the OCIJ failed to address the related specific arguments raised by the Defence in their motion and subsequent submissions and is in this respect deficient, and finally, that conspiracy and the concept of association de malfaiteurs referred to by the OCP are inchoate offences rather than forms of responsibility and of little assistance in relation to determining the issue at stake.

²⁵¹ Ieng Thirith’s further argument that in the absence of legal basis for JCE III in the 1956 Cambodian Penal Code, international customary law cannot fill the gap is therefore moot.

²⁵² Ieng Thirith Appeal, para. 9.

²⁵³ Ieng Thirith Appeal, para. 28.

²⁵⁴ Ieng Thirith Appeal, para. 28.

²⁵⁵ Decision on Appeal against Closing Order, para. 135.

²⁵⁶ Ieng Thirith Appeal, para. 31.

²⁵⁷ Co-Prosecutors’ Joint Response, paras 79-80.

²⁵⁸ Co-Prosecutors’ Joint Response, para. 15.

²⁵⁹ Co-Prosecutors’ Joint Response, para. 81.

²⁶⁰ Rule 21(l)(d), ICCPR, Art. 9(2).

²⁶¹ Rule 21(l)(d); Decision on Appeal against Closing Order, para. 140.

²⁶² Decision on Appeal against Closing Order, para. 138.

²⁶³ Unless the new facts are limited to aggravating circumstances relating to an existing submission, the OCIJ shall inform the OCP of the new facts in question.

²⁶⁴ Indeed, pursuant to Article 18(4) of the ICTY Statute, the indictment must set out ‘‘a concise statement of the facts and the crime or crimes with which the accused is charged’’. Likewise, Rule 47(C) of the ICTY Rules of Procedure and Evidence provides that the indictment shall set out not only the name and particulars of the suspect but also ‘‘a concise statement of the facts of the case’’. However, like at the ECCC, the minimal requirement for the Prosecution to set out a concise statement of the facts of the case in the indictment must be interpreted in the light of the provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the ICTY Statute, which provide that, ‘‘in the determination of charges against him, the accused shall be entitled to a fair hearing’’ and, more specifically, to be informed ‘‘of the nature and cause of the charges against him’’ and ‘‘to have adequate time and facilities for the preparation of his defence’’.

²⁶⁵ The ICTY Appeals Chamber in the same case holds that, irrespective of the category of JCE pleaded, ‘using the concept of joint criminal enterprise to define an individual’s responsibility for crimes physically committed by others requires a strict definition of common purpose’’. Krnojelac Appeal Judgement, para. 116.

²⁶⁶ Prosecutor v. Krnojelac, IT-97-25-PT, Decision on Form of Second Amended Indictment, Trial Chamber II, 11 May 2000(‘‘Krnojelac Decision on Form of Indictment’’), para. 16. See also, Kvocˇka Appeal Judgement, para. 42.

²⁶⁷ Milutinović , et al Decision on Form of Indictment para. 7.

²⁶⁸ See in particular, Blaškić Appeal Judgement, para. 219, approving the statement in Prosecutor v. Brdjanin and Talić , Case No IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Trial Chamber II, 26 June 2001, para. 33, that with respect to the mens rea, ‘‘there are two ways in which the relevant state of mind may be pleaded: (i) by pleading the evidentiary facts from which the state of mind is necessarily to be inferred, or (ii) by pleading the relevant state of mind itself as a material fact.’’

²⁶⁹ For example, in the Kordić and Čerkez Case, the Appeals Chamber considered that a meeting which Kordić was alleged at trial to have attended, and which the Appeals Chamber found was a fundamental part of the Prosecution’s case against Kordić , constituted a material fact which should have been pleaded in the Indictment. Prosecutor v. Kordić and Čerkez, IT-95-1412-4 Judgement, Appeals Chamber, 17 December 2004, paras. 144 and 147. See also, Kvočka Appeal Judgement, para. 29. Also, in the ICTR Ntakirutimana case, the Prosecution had pleaded the specific conduct of the accused in rather general terms in the indictments without describing various aspects of the acts and conduct of the accused to which it was in position to refer. The ICTR Appeals Chamber quashed several of the Trial Chamber’s findings of fact relating to specific acts and conduct, such as the finding that Gérard Ntakirutimana ‘‘killed a person named ‘Esdras’ during [the] attack’’ at Mutiti Hill, upon which the Trial Chamber relied to establish the actus reus and/or mens rea required for committing genocide, on the basis that the indictment was defective due to the failure by the Prosecution to include the relevant factual allegations in it (Prosecutor v. Ntakirutimana et al., ICTR-96-10-A & ICTR-96-17-A, Judgement, Appeals Chamber, 13 December 2004 (‘‘Ntakirutimana Appeal Judgement’’), paras. 86, 99 and 504; see also Prosecutor v. Ntakirutimana et al., ICTR-96-10-T & ICTR-96-17-T, Judgement and Sentence, Trial Chamber, 21 February 2003, paras. 832 and 834. In the same case the Appeals Chamber found that the Trial Chamber erred in basing the conviction of Elizaphan Ntakirutimana for aiding and abetting genocide on material facts that had not been pleaded. It accordingly quashed Elizaphan Ntakirutimana’s conviction under the Mugonero Indictment for conveying attackers to the Mugonero complex, as well as his conviction under the Bisesero Indictment, for his participation in a convoy of vehicles carrying attackers to Kabatwa Hill, where he pointed out Tutsi Refugees at Gitwa Hill, and for transporting attackers to and being present at an attack at Mubuga Primary School in mid-May. See Ntakirutimana Appeal Judgement.

²⁷⁰ Lazarević Indictment Decision, para. 8.

²⁷¹ Co-Prosecutors’ Joint Response, para. 81.

²⁷² Krnojelac Appeal Judgement, para. 138. See also, in the context of the SCSL, Prosecutor v. Kanu, SCSL-2003-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, Trial Chamber, 19 November 2003, para. 14. In Kanu, the issue was whether or not the Prosecution must elect between the basic form of JCE and the extended form; the Chamber did not make any findings about differentiating between JCE I & II.

²⁷³ Krnojelac Appeal Judgement, para. 138.

²⁷⁴ Decision on Appeal against Closing Order, para. 140 (‘‘Rule 21(l)(d) is deemed to apply from the time of the arrest’’).

²⁷⁵ Because the extended form of JCE is not applicable before the ECCC, differentiating form III of JCE is not pertinent to the current proceedings.

²⁷⁶ Under Krnojelac, the Prosecutors must at least plead facts giving rise to an inference of the requisite mens rea in order to plead the ‘‘nature of the participation by the [Charged Person]’’ in the alleged JCE. Krnojelac Decision on Form of Indictment, para. 16; see also Milutinović , et al Decision on Form of Indictment, paras 7-9. The requisite mens rea for JCE I is the ‘‘intent to perpetrate’’ the crimes which are the object of the JCE, and for JCE 2, it is the ‘‘knowledge of the nature of the [common concerted system of ill-treatment]’’ and the ‘‘intent to further [that] system.’’ See Impugned Order, para. 15. Thusly, in order to properly plead JCE I and II, the Co-Prosecutors must plead material facts from which an inference of the two different applicable mentes reae can be shown.

²⁷⁷ Decision on Appeal against Closing Order, para. 123.

²⁷⁸ ‘‘A common criminal plan, or a joint criminal enterprise (JCE), came into existence on or before 17 April 1975 and continued at least until 6 January 1979’’ (para. 5); ‘‘The object of this common criminal plan was the systematic persecution of specific groups within the Cambodian population, [...] abolishing all ethnic, national, religious, racial, class and cultural differences through the commission of crimes punishable under [...] the ECCC Law’’ (para. 6); ‘‘The object of this common criminal plan also included the denial of fundamental rights, such as the rights to liberty, security of person and property; the right to freedom of opinion, expression, thought, conscience and religion; and the right to a family and personal life [...]’’. (para. 7); ‘‘Individuals who participated knowingly and willfully in the JCE throughout its duration, or alternatively at different times in its duration, included but were not limited to NUON Chea, IENG Sary, KHIEU Samphan, IENG Thirith and KANG Keck Iev [sic.] (DUCH) [...]. These individuals participated in the JCE as co-perpetrators, either directly or indirectly. They intended the criminal result, even if they did not physically perpetrate all crimes [committed in pursuit of that plan]’’. (para. 8); IENG Sary as a member of the Standing Committee and as Deputy Prime Minister for Foreign Affairs, he promoted, instigated, facilitated, encouraged and/or condoned the perpetration of the crimes described in [the Introductory Submission ...]. IENG Sary was also aware of the unlawful conditions in the country through his personal visits to various ministries and their sub-units in and around Phnom Penh [...]. That he had this knowledge is evident from his public statements. [...] IENG Sary was aware of and facilitated the large-scale forced labour, unlawful detention, ill-treatment, torture and extra-judicial executions of Ministry of Foreign Affairs personnel [...]’’. (para. 88); ‘‘KHIEU Samphan through his numerous leadership positions within the CPK, he promoted, instigated, facilitated, encouraged, and/or condoned the perpetration of the crimes described in [the Introductory Submission]. [...] KHIEU Samphan encouraged and facilitated the forcible evacuation of Phnom Penh and the other major cities immediately after the CPK victory of 17 April 1975. [...] He participated in the organization of forced labour throughout the country. He regularly inspected state facilities, worksites, factories and agricultural sites’’. (para. 97); ‘‘IENG Thirith as Minister of Social Affairs promoted, instigated, facilitated, encouraged and/or condoned the perpetration of the crimes described in [the Introductory Submission]. [...] IENG Thirith planned, directed, coordinated, influenced and ordered the implementation of CPK policies [...] including: [...] recruiting illiterate and unqualified teenagersto replace trained medical personnel [... and] touring the country to assess and report directly to POL Pot on the health, diet and living conditions [...]. IENG Thirith assisted in implementing these policies, despite her knowledge of the healthcare situation within Democratic Kampuchea and contributed therefore to create and maintain inhumane living conditions and to cause numerous deaths in the Democratic Kampuchea population’’. (para. 103); These suspects planned, instigated, ordered, aided and abetted or committed these crimes. They directly intended that these crimes be committed [...]’’. (para. 115); ‘‘Where these suspects committed these crimes they did so by participating in a joint criminal enterprise with other co-perpetrators. These crimes were the object of the JCE [...]. Other members of the JCE acted on the basis of the common purpose, with shared intent’’. (para. 116). See Introductory Submission, 18 July 2007, D3, pp. 56-84 for a more exhaustive recounting of the nature of each Charged Person’s participation.

²⁷⁹ IENG Thirith’s Submissions, paras 18-23. The Prosecution responds that the OCIJ did not have to consider the relief sought by Ieng Thirith; that the Closing Order is the only appropriate stage to analyze whether the crimes and modes of liability have been proven and, in any event the OCIJ only investigate facts contained in the Introductory Submission and are not bound by legal characterizations that they can change upon analysis of the evidence obtained during the investigation, and; that the decision relied upon by the Appellant pertained to the Closing Order stage and thus, is unhelpful. Co- Prosecutors’ Joint Response, in particular paras 78-80.

²⁸⁰ Civil Party Co-Lawyers’ Appeal, para. 10.

²⁸¹ Civil Party Co-Lawyers’ Appeal, para. 11. Although seemingly contrary to the spirit of their Appeal, the Civil Party Co-Lawyers do not seek reversal of the Impugned Order in so far as it decides that JCE is not applicable to domestic crimes. The Khieu Samphan Appeal also argues that the Impugned Order institutes a ‘‘two-tiered criminal justice system’’, and challenges the OCIJ’s reference to French law as a basis for an ‘‘autonomous legal regime for international crimes’’, because the law book referred to by the Impugned Order was published only in 2002, and the autonomous legal regime for international crimes referred to did not form part of the French law from which the 1956 Penal Code was inspired. He adds that ‘‘the autonomous legal regime instituted for crimes against humanity (only) under French law in 2002 contains no specific rules on individual responsibility’’. Khieu Samphan Appeal, paras 60-71.

²⁸² Civil Party Co-Lawyers’ Appeal, para. 11.

²⁸³ Co-Prosecutors’ Joint Response, para. 73.

²⁸⁴ Co-Prosecutors’ Joint Response, para. 75.

²⁸⁵ Impugned Order, para. 22, according to which such regimes are ‘‘distinct from domestic criminal law and characterized by a coherent set of rules of procedure and substance’’. See also, Impugned Order, para. 22, n.44, refemng to F. Desportes and F. Le Gunehec, Droit Pénal Général, Ed. ECONOMICA, CorpusDroitPrivé, (2002), p. 177, para. 174.

²⁸⁶ See para. 41 above.