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: JURIST - The Paper Chase

Cambodia genocide court to allow individual prosecutions for government actions

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

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[JURIST] The co-investigating judges for the Extraordinary Chambers in the Courts of Cambodia (ECCC) released an order Wednesday that will allow the use of the controversial legal concept of joint criminal enterprise (JCE) to prosecute surviving Khmer Rouge leaders for government actions. JCE allows courts to charge defendants who may be guilty as part of a political regime for criminal acts done by others in the furtherance of the regime's authority. The judges found that JCE can only be used to prosecute crimes of international law and not for crimes under Cambodian law. The international crimes that can be prosecuted under JCE include crimes against humanity, war crimes (grave breaches of the 1949 Geneva conventions), genocide, crimes against internationally protected persons, and destruction of cultural property during armed conflict. The order to allow the use of JCE came after the defense team of former Cambodian foreign minister Ieng Sary requested that JCE not be applicable in the ECCC. The ECCC, charged with trying those responsible for atrocities committed during the rule of the Khmer Rouge, named a new head co-prosecutor last week, after the September resignation of Canadian Robert Petit. UK lawyer Andrew Cayley, who will serve alongside a Cambodian prosecutor, has previously been in private practice defending alleged war criminal Charles Taylor in The Hague. Also last week, the ECCC rejected a request by Ieng Sary's lawyers to examine two international judges for bias saying that such a charge must be based on fact and not from mere press criticism. In February, HRW warned that ECCC trials were in danger of being tainted for their failure to follow fair trial standards, and in January a Cambodian court agreed to hear a corruption case involving two ECCC judges.

Full post as published by JURIST - The Paper Chase on December 09, 2009 (boomark / email).