Comments on the Šainović et al. appeal judgment and the OTP motion for reconsideration of the Perišić appeal judgment
By Sergey Vasiliev
On 3 February 2014, the ICTY OTP filed with the Appeals Chamber a motion for reconsideration of the Perišić appeal judgment that had been issued less than a year earlier. This is the first such request by the prosecution in two decades of the ICTY’s eventful history (leaving aside the Blaškić request for review or reconsideration, in the alternative). Motions of that nature have so far mostly been filed by convicts trying (unsuccessfully) to have final judgments or decisions disposing of their cases definitively reconsidered (e.g. Žigić; Lukić and Lukić; Mrkšic and Šlivančanin 1; and Strugar; and, at the ICTR, see Nahimana, Rutaganda, Ngeze). The move for reconsideration in Perišić would have appeared extraordinary, which it in fact is, as the OTP readily admits in a press statement, if not for the surreal back-story that rendered it anything but unexpected. Anyone who has followed the developments at the ICTY in the rocky year 2013 will have become scant on surprise by now.
The OTP motion has been torn to pieces in the blogosphere, and below I will give some attention to some points of critique raised, before reflecting on the preferred (and, hopefully, likely) course of action to be taken on the motion. I am far less critical about the motion in itself than other colleagues. The OTP has assured us that it has been carefully considered and, although I tried, I didn’t see why this should be disbelieved on closer inspection. The motion is not bereft of legal grounds. It does recruit some—admittedly, not (yet) prevalent or mainstream—judicial authority in support. Nor is it unreasonable amid the apparent erosion of the formal status of appellate precedents at the ICTY. As of late, the consistency of jurisprudence has been a transient value at the ICTY, or a small coin in pursuit of goals that are less clear to many, and this trend is disturbing. For better or worse, the OTP’s move for reconsideration is attuned with the zeitgeist. But this does not make the motion less appropriate, if taken on its own merits.
We can only hypothesize at this stage if and how the motion is going to be decided. So I will reflect on what should happen if the AC does not deny it in limine but goes on to address it on substance. In my view, the motion is not manifestly inadmissible or without a prospect of (partial) success, at least as regards the request for reconsideration (para. 11). However, it should arguably be denied in respect of the OTP’s plea to decide on Perišić’s criminal responsibility on the basis of a correct legal standard (para. 12). The principles of ne bis in idem and res judicata militate against ‘double jeopardy’ for acquitted appellants and disturbing the finality of acquittals. Hence, these principles set normative boundaries to the legitimate scope of reconsideration. The AC may understandably wish to enforce the new ‘legal reality’ after Šainović et al. on the disoriented legal system and start by ‘harmonizing’ itself regarding the troubled ‘specific direction’ requirement. But it is fundamental that reconsideration, if granted, should extend no further than correcting the alleged ‘clear error’ of law. In other words, the AC may not apply the correct legal reasoning to the Perišić case in the way that would result in a modification of the verdict and new sentencing.
Consistency of jurisprudence v. judicial swing between Perišić and Šainović
For background, readers will recall that the impugned Perišić judgment made international justice news headlines last year when the AC reversed convictions of Gen. Momčilo Perišić, ex-Chief of VJ General Staff, for aiding and abetting the crimes committed by VRS in Srebrenica and Sarajevo in 1993-95 and quashed his sentence (27 years’ imprisonment). The acquittal revolved around the difference between the AC and the TC on the question of whether remote/neutral assistance should be ‘specifically directed’ to the commission of crimes to warrant conviction for aiding and abetting. This has been debated extensively in academia ever since. Within the Tribunal, too, the issue fuelled tensions and has polarized the judicial corpus to a degree comparable, perhaps, only to infamous altercations between the judges at the Tokyo Tribunal.
The situation led some of the ICTY judges to do things they should not have done and the institution as a whole to serious missteps in the attempted crisis management that followed. In several respects, the Perišić controversy was the first domino to fall with quite some noise and damage. The unfortunate (from the ICTY’s perspective) chain of events that followed is known: disqualification of Judge Harhoff (first ever in ICTY’s core crimes case) and his removal from the Šešelj case, followed by the vacation of the Šešelj trial judgment, and the unprincipled addition of a substitute judge for the purpose of deliberations, i.e. far past the stage at which the case could still be considered as ‘part-heard’ stage (Rule 15bis(C)). Yet, on 23 January 2014, ‘the Appeals Chamber struck again’ (the phrase seems even more fitting than in the original context). On that day, the differently constituted appellate bench shot down the ‘specific direction’ requirement in its Šainović et al. judgment.
In respect of Lazarević’s case, the AC conducted a de novo analysis of the ICTY and ICTR jurisprudence and customary international law regarding this issue (paras 1618-48). The majority came to the ‘compelling conclusion that “specific direction” is not an element of aiding and abetting liability’ and ‘unequivocally’ rejected the Perišić holding as being ‘in direct and material conflict with the prevailing jurisprudence … and with customary international law’ (paras 1649-50). This language could have hardly been stronger; in fact, it is less diplomatic than that used in the Taylor appeal judgment. There, the SCSL AC repeatedly stated that it was ‘not persuaded’ by the Perišić’s findings (paras 476-80). Given that traditional conventions of restraint and collegiality (should) form an integral part of judicial decorum, the tone of Šainović et al. is indeed unusual.
Appellate precedents are generally binding within the ICTY system, including with respect to subsequent ACs, when it comes to the legal reasoning that controls the outcome (i.e. ratio decidendi). The principle, pronounced in Aleksovski, is that ‘the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice’. The latter concerns ‘cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law.”’ (paras 107-8). However, any departure from the ratio decidendi of previous decisions is an exception, not a norm: the AC ‘will only depart from the previous decision after the most careful consideration has been given to it’ (paras 109-10).
Given the high threshold to be met in departing from previous AC decisions, it is self-evident that the Šainović et al. AC deliberately adopted the language that was strong enough to justify its doing so. It was clearly determined to break away with the Perišić ‘hiccup’ and prevent the consolidation of the jurisprudence in the future around a legal principle it deemed plainly wrong and/or given per incuriam. The AC’s semantics was clearly and openly set on fragmentation (or, indeed, self-fragmentation) rather than on harmonization through casuistically distinguishing between cases (which, I admit, may have required some judicial acrobatics).
From the perspective of jurisprudential consistency, legal certainty, and predictability, uncompromised attitudes and overt departures from the ratio decidendi of a previous appeal judgment is disconcerting, regardless of what one believes to be the status of the law. Importantly, the departure from Perišić was made possible by the change in the composition of the AC. Judge Liu and Judge Ramaroson, who in Perišić had been against the ‘specific direction’ requirement in the form it was adopted, now voted against it again, together with Judge Pocar and Judge Güney.
The ‘consistent dissenter’ doctrine has known very few exceptions in ICL practice. One memorable example is Judge Shahabuddeen’s reticence in Orić. In that case, he resisted the temptation of forming a new reversing majority and did vote with two dissenting judges in favour of a legal position he had supported previously as a dissenter in the Hadžihasanović case (and continued to support at the time). In Orić, Judge Shahabuddeen referred with approval to ‘the practice for a judge to observe restraint in upholding his own dissent’ and ‘principles concerning the maintenance of the jurisprudence, judicial security and predictability’ (Declaration, paras 3-4, 13-15). Certainly, the issue before the Orić bench was no less important for the ICTY jurisprudence than that in Šainović et al. It is true though that it may have had more limited public (and media) repercussions and judicial emotions may not have run nearly as high at the ICTY, although I’m not an insider and wouldn’t know.
Similarly, writing in dissent in Šainović et al., Judge Tuzmukhamedov opines that the majority’s discussion of the ‘specific requirement’ is irrelevant to the case and has no place in the judgment. He therefore refrains from joining any findings of the majority regarding the issue (Dissenting opinion, para. 40). He emphasizes that the ‘exceptional measure’ of considering legal matters of general importance to the jurisprudence should not be resorted to by the AC, for reasons that deserve to be cited in full:
It may not be possible to completely avoid disagreement between differently constituted benches of the Appeals Chamber over certain legal or factual issues, especially in the absence of a higher unified instance. However, it would be prudent to exercise some restraint in addressing such rifts in the jurisprudence of a respectable and authoritative judicial institution so as to preserve as much as possible, judicial harmony in the case law that impacts the development of international criminal law and international humanitarian law, as well as legal certainty, stability and predictability, in particular, for the benefit of the parties to proceedings before the Tribunal. (para. 45)
The wisdom of this position speaks for itself. The Šainović et al. judgment was rendered by an appellate bench whose members are known to hold strong and vested views about the matter. Of course, it is impossible to find any international judge intellectually distanced from this debate, but these individual judges had sat and expressed their views in Perišić; hence, they are least removed from the jurisprudential fray.
As a matter of principle, I am not opposed to the ideal of the ‘great dissenter’ (or the curse of ‘a persistent dissenter’) and would reserve opinion on this. What is disturbing me is the determinism of votes in the two different but partially overlapping benches. At least, this factor should call for a good measure of judicial restraint, from the perspective of jurisprudential consistency. It is ultimately up to each individual judge to decide whether to join a reversing majority by upholding his or her previous dissent or treat the very recent AC precedent with deference, as the standing law of the tribunal that is in principle binding on the appeal judges, too. What can be expected and hoped, especially from the members of an appellate bench, is that this unique discretion in ascertaining the law of the tribunal they acquire upon assignment to the AC is not taken lightly. In the end, it is the AC’s key mandate to safeguard ‘judicial harmony in the case law’.
Let me be clear, the Šainović et al. judges may of course legitimately disagree with the customary law status of the ‘specific direction’ requirement as well as on whether the previous judgment contains a correct statement of the law on this or, indeed, on any other issue. But whether (and when) it is appropriate for them to depart from the previous jurisprudence, and how or by whom compliance is to be policed and enforced, are quite different questions. For some observers, especially those who have no strong views on the subject of the controversy itself (‘specific direction’), it is hard to shake the impression that those fundamental questions have been almost completely forgotten in the heat of the judicial debate. In the struggle for the law at the ICTY, the law itself may have been lost, and the judicial dialogue seems to have reached its lowest point.
Controversial changes in the interpretation of legal principles and doctrines have occurred in the ICTY appellate adjudication before. The issue of inherent powers to reconsider final judgments is no exception (which will be discussed in a moment). But they have hardly made the system wobble quite as much as the latest Perišić/Šainović episode of the ICTY-produced soap opera called ‘Specific Direction: There and Back Again’.
Where judicial conversation becomes little more than a conduit for professional-personal vendettas, detriment to the stability of jurisprudence, consistent treatment of similar cases, and legal certainty, which are the true priorities of appellate adjudication (of course, next to ensuring justice in the last resort) is inevitable. When asserting the need to ‘determine the correct legal approach’, the Šainović et al. majority assured that it ‘is mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases’ (para. 1622). The assurance does in itself not mean that the AC truly caters to the concerns of certainty and predictability, rather than merely paying them a lip service. Hopefully, future in-depth analyses of the judgment will show the real state of affairs.
In a sense, the law at the ICTY is by default hostage to the arbitrary factor of composition of specific appellate bench at a specific time. While this has not raised special problems until very recently, this is indeed not a satisfactory state of affairs. From the perspective of legal certainty and equal treatment of defendants, it may not—and must not—be taken as a normal or regular aspect of court operation. It is a malaise in an established legal system, or at least one that pretends to be. The judicial swing from one position to its extreme opposite just in a matter of 11 months will inevitably raise a question, especially in wider audiences, to what extent the ICTY lives up to the label of a ‘respectable and authoritative judicial institution’. I’m inclined to think that it is doing greater damage to its reputation than the risk of a controversial or incorrect statement of law becoming set in stone as the law of the Tribunal. The legal fragmentation between two different courts (e.g. ICTY v. SCSL) would not appear nearly as problematic. Legal certainty can neither be expected nor enforced in an area of an endless contest between two camps of judges playing by the rules of a King of the Hill game.
How these discontents should be addressed deserves a separate discussion that will not be pursued here. It suffices to note that the system could continue to rely on judges for reasonable restraint and for honouring ‘traditional, and wise, warnings against making unnecessary judicial pronouncements’ (Separate Opinion of Judge Shahabuddeen in Čelebići, para. 3), but this obviously does not preclude situations à la Perišić/ Šainović et al. Moreover, Jens Ohlin’s proposal of allowing for a formal complementary and ultima ratio mechanism of en banc review deserves full consideration: it is cheap, democratic, and easy to implement. The question is whether (all) judges will want it, as it might not be fully in line with the rules of the above-mentioned game…
In any event, enough is said about the context. This brings us back to the OTP motion for reconsideration. Is there anything extraordinary about the OTP not missing the opportunity to replay Perišić by filing for reconsideration, as a direct consequence of the Šainović et al. judgment? Certainly, there is, but I am not sure the OTP should take any blame for it. The OTP is not responsible for preserving legal certainty and stability within the ICTY system. It is but a party whose use of law is bound to be pragmatic, by duty of office. If it comes to that, I believe it would not fall beyond a legitimate and reasonable litigation strategy for the OTP to pit the two judicial camps against each other and apply (again) for reconsideration of the Šešelj disqualification decision, citing the Šainović et al. appeal judgment! Actually, I don’t see why the OTP should not do it.
Reconsideration of final judgments: finality v. injustice
Now I turn to the motion itself. It was filed with the AC as it had originally been composed at the time of delivery of the Perišić judgment, except that Judge Sekule was assigned to replace Judge Vaz who resigned as of 31 May 2013. Citing the Šainović et al. judgment, the OTP pleaded the AC to reconsider its reversal of the Perišić convictions in order ‘to rectify the injustice caused to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families by the Appeals Chamber’s application of an erroneous legal standard.’ (para. 1).
The OTP has applied for ‘reconsideration’ and not for ‘review’. The two devices ought not to be conflated, as their legal bases, relevant tests, and scope of application are not the same. Thus, ‘review’: (i) has an explicit basis in the Statute; (ii) may be carried out on TC and AC (final) judgments, but not interlocutory decisions; (iii) is limited to facts (‘new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings’) and may be invoked ‘[w]here a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision’ (Article 26 ICTY St), provided that the new fact ‘could not have been discovered through the exercise of due diligence’ (Rule 119); (iv) is subject to temporal limitation (one year after the issue of judgment) for prosecution requests. By contrast, ‘reconsideration’: (i) has no explicit basis in the Statute, being the ‘inherent power’ of the Court; (ii) as a result, is not subject to (express) temporal limits or limitations of standing (both parties are competent to apply); and (iii) is not limited as regards the type of issues (law or fact) and is subject to the test: ‘a clear error of reasoning or the existence of new circumstances that justify reconsideration in order to avoid injustice’ (e.g. Mrkšić and Šljivančanin 2) Since no explicit legal basis has ever been required for reconsideration at the ICTY, the motion did not need to cite any. Furthermore, the motion does mention that the OTP requests the AC to exercise its inherent competence (para. 2), so the OTP knew what it was up to.
My first question is whether final judgments or decisions are subject to reconsideration. What appears as ‘settled jurisprudence’ (e.g. Mrkšić and Šljivančanin 1, p. 3) emerged after the AC’s holding in Žigić that ‘there is no power to reconsider a final judgement’ (para. 9). This ruling purposely departed from the Čelebići judgement on sentencing appeal. In that case the AC held by majority (with Judges Meron and Pocar reserving their judgement and Judge Shahabuddeen providing a separate opinion with additional considerations in support) that
The Appeals Chamber has an inherent power to reconsider any decision, including a judgment where it is necessary to do so in order to prevent an injustice. … [T]he Appeals Chamber is satisfied that it has such a power also in relation to a judgment which it has given –where it is persuaded: (a) (i) that a clear error of reasoning in the previous judgment has been demonstrated by, for example, a subsequent decision of the Appeals Chamber itself, the International Court of Justice, the European Court of Human Rights or a senior appellate court within a domestic jurisdiction, or (ii) that the previous judgment was given per incuriam; and (b) that the judgment of the Appeals Chamber sought to be reconsidered has led to an injustice. (para. 49)
The Žigić decision was—in my view—decorated by the persuasive declaration of Judge Shahabuddeen. The judge was critical about ill-considered departures from the appellate jurisprudence generally and pointed to gaps and flaws in the majority’s decision, which left key reasons in Čelebići unaddressed (Declaration, Žigić, para. 2). One of them was the potential insufficiency of remedies that the majority’s rigid position created; e.g. since the option of ‘review’ excludes issues of law and facts that are not newly discovered, it is therefore ‘only a partial answer to the prospect of injustice’ (Čelebići, para. 52; Declaration, Žigić, para. 4). Judge Shahabuddeen also took issue with the ‘artificial’ approach, countenanced by the majority, that ‘a motion for reconsideration of a final judgement must be packaged as an article 26 motion’, even where the case does not involve a ‘new fact’ in a proper sense. Indeed, a flat-out exclusion of an inherent power of reconsideration over final judgments as a matter of principle, with reference to the possibility of exceptionally expanding the scope of ‘review’, may be problematic. It leaves a party with a legitimate interest in rectifying manifest injustice caused by the circumstance that does not squarely fall under Article 26, without a guaranteed and regular legal avenue. Overall, as we know too well, the approach of leaving litigants completely at the mercy of the court, is not always conducive to legal certainty, consistent treatment of cases, and transparency of decision-making.
Judge Shahabuddeen’s declarations in Žigić and subsequently in Niyitegeka are more than isolated and stray positions in the appellate jurisprudence. In his declaration in Niyitegeka, Judge Meron expressly recognized merit in leaving the door open for the AC to reconsider final judgments in exceptional situations even where the case is not eligible for ‘review’, in ‘the presence of a serious miscarriage of justice’ (para. 3). Judge Meron primarily focused on the example of injustice exposed by facts that cannot be qualified strictly as ‘new facts’ in the sense of Article 26:
I have become increasingly concerned that, in departing from Čelebići, Žigić removed an important safety net for ensuring that justice is done – a departure that is especially problematic in light of our increasingly strict interpretation of the term “new facts”. . … I will continue to abide by it unless and until the circumstances of a particular case demonstrate that a clear miscarriage of justice will result from doing so.’ (para. 4)
Despite it being about facts that are not ‘newly discovered’ stricto sensu, the fundamental logic of this pronouncement echoes that of Judge Shahabuddeen, namely that the Tribunal should not feel precluded from exercising an ‘inherent power’ to reconsider a final judgment where the litigant has no other avenue of rectifying manifest injustice in the case. This holds equally for cases where ‘injustice’ has allegedly occurred as a result of other ‘clear errors’, including errors of law. Obviously, these declarations go some way to qualifying the substantive validity and force of the (overly?) stringent position in Žigić, despite it having been followed in a string of cases, to the effect that reconsideration may under no circumstances be undertaken in respect of final judgments.
Whether or not one agrees with the reasons provided by Judge Shahabuddeen and Judge Meron, the OTP motion for reconsideration of the Perišić appeal judgement is clearly not bereft of legal grounds, at least regarding the possible eligibility of final judgments for reconsideration, in exceptional circumstances (Motion, para. 5). Such a position is in fact supported by the reasons that, to my knowledge, have not yet been explicitly addressed or rejected by any AC, so the Perišić reconsideration might well become the frontline here. In this light, I am not convinced that the possibility of reconsideration of final judgments is completedly foreclosed in the current jurisprudence, or that the consistent refusal to exercise an inherent power to reconsider such judgments post-Žigić is caused by the absence of such a power, as opposed to mere consistent exercise of actual discretion across a number of cases.
Besides, the Žigić majority stated that ‘its departure from Čelebići does not affect the power of the Tribunal to reconsider its decisions, which cannot be subject to review proceedings.’ While the Perišić appeal judgement is eligible for review in principle, it is not reviewable under Article 26 on the basis of the kind of error that was exposed by the Šainović et al. judgment and that is at the heart of the OTP motion. Despite the seeming consistency of the post-Žigić mainstream jurisprudence, the status of the law on the issue of whether reconsideration of final judgments is in all cases disallowed or impossible does actually not appear as clear and unequivocal. Hence, the OTP may legitimately test the legal boundaries in this regard within the room left for it by the existing ambiguities in the jurisprudence.
My second question, after admissibility, is whether the motion is obviously without merit. In light of the two cumulative elements of the applicable test—’clear error of reasoning or the existence of new circumstances’ and the goal of ‘avoiding injustice’—the motion does not immediately appear frivolous or unreasonable to me. The test is a demanding one: not every error is a legitimate ground for reconsideration; it must be ‘clear’ and such as to lead to ‘injustice’. As clarified by Judge Shahabuddeen in Čelebići (para. 15), a ‘clear error’ is ‘a reference to something which the court manifestly or obviously overlooked in its reasoning and which is material to the achievement of substantial justice.’
These elements are crucial for preserving the requisite finality of judicial rulings and for ensuring respect for res judicata, i.e. for avoiding a situation in which parties would be allowed to re-litigate a decided case endlessly and outside of the framework of appeal and review, based on any perceived error. The adequate protection of res judicata and finality of judgments is crucial to ensuring the stability of jurisprudence and the authority of any judicial system.
From the perspective of the OTP (and actually of any reasonable observer) perspective, what can demonstrate the presence of ‘clear error of reasoning in the previous judgment’ better than a statement to that effect by the subsequent Appeals Chamber? This is exactly what happened to Perišić’s interpretation of the aiding and abetting liability, which the Šainović et al. AC found to be not simply questionable or unpersuasive, but ‘in direct and material conflict with the prevailing jurisprudence … and with customary international law’. It is therefore not implausible that the ‘clear error’ element can readily be satisfied (Motion, paras 6-7).
In demonstrating how the second element—the (substantial) ‘injustice’ or ‘miscarriage of justice’ caused by the error in question—is met in the case, the OTP resorted to the victim rhetoric (paras 1, 2, 5, and 11). It referred, among others, to the ‘manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perišić decision’. It also contended that ‘the interests of justice for the tens of thousands of victims, substantially outweighs[sic!] Perisic’s interest in finality of proceedings’ (para. 5). This part has been strongly criticized by the commentators (e.g. here and here), and this deserves a side comment.
I do share the main point of the critique, from a legal-ethical perspective, but for different reasons. A victim-oriented discourse by the OTP as a party is perhaps not as problematic as the use of victim-based reasoning by the Chambers when interpreting and applying the law, but on most occasions it will still be conceptually simplistic, legally objectionable, and undesirable in policy terms. International prosecutors at times engage in this discourse when this suits their institutional or procedural interests and abandon it when it does not. The victim constituency then becomes subject to rhetorical manipulation – it serves the OTP as a kind of failproof trial advocacy trump up its sleeve (for more thoughts on this problematic relationship, see here and also here). To some degree, the OTP’s agenda as a party to a case and as a court organ (e.g. in the context of the completion strategy) may be aligned with the victims’ interests, whatever they are. At the ICTY and ICTR, where no victim participation and representation is allowed, prosecutors have naturally been inclined to view their own role as victim representatives, in a metaphorical rather than procedural sense. But the line between the two senses ought not be crossed in litigation: an overreaching victim-driven rhetoric coming from the OTP (as opposed to victims’ legal representatives) creates a false impression that the prosecution has victims as clients, which is simply not the case and best avoided. As the experience shows, a degree of restraint, again, is in order here. The OTP’s uses of ‘victim’ language on the tribunals’ record have not always been effective and appropriate (see e.g. Separate Opinion by Judge Shahabuddeen, Barayagwiza, paras 67-68), much less necessary.
In Perišić, the OTP motion seeks to have a ‘manifest error’ of reasoning rectified, and the showing of ‘injustice’ caused by that error is the part of the test it must satisfy. By force of habit, the OTP anchored ‘injustice’ to the interests of thousands of victims of crimes committed in Sarajevo and Srebrenica. With respect, this is an ineffective argument (what relevance does the number of victims have on the determination of procedural matters?!), and one that is furthermore superfluous. The OTP could have also pointed to the gravity and dimension of those crimes, as a way of demonstrating the ‘injustice’ of having an—allegedly—erroneous acquittal stand. This is essentially a neater wrapping of the same thing (because the number of victims is one of the measures of gravity), and I see why this language would have detractors too. But at least the misconceived victim rhetoric would not be invoked: theoretically, a degree of influence of gravity and scope of the crimes on the applicable rules and on the conduct of proceedings may be more justifiable.
On a more fundamental level, the victim rhetoric may have been unnecessary because, subject to one’s philosophical view on this, ‘justice’ and ‘injustice’ could be interpreted as absolute categories, in the sense that they need not be anchored to any particular constituency or beneficiary. Injustice towards victims, arguably caused by an erroneous decision, automatically means injustice towards the accused, even if the error has produced an acquittal. Justice is not served on the defendant if he is erroneously acquitted, just as when he is erroneously convicted. Legally too, I am not sure that ‘miscarriage of justice’ is a category only applicable to the benefit of one party, the accused. Because ‘justice’ is party-neutral, its ‘miscarriage’ can cut both ways. There can be scenarios in which it can be invoked to benefit the prosecutor as the party who represents the public interest—which coincides with, but is not limited to, certain interests of both victims and (importantly) accused. (In more detail on the unjustified exclusion of the ‘interests of the accused’ from the scope of the ‘interests of justice’ in the tribunals’ case law, see here.) In other words, the common—rather than exclusive—public interest suffers from injustice whenever someone is erroneously convicted or acquitted.
Generally, I think that the importance and impact of the OTP’s victim-driven rhetoric in its motion should not be overrated or over-dramatized. It is merely that, rhetoric and advocacy, perhaps uninventive and unimpressive (at least to me). But implying that it is unscrupulous or disgraceful seems a little too harsh in the circumstances, although this is of course a matter of expression.
Limits to reconsideration of acquittals: ne bis in idem and res judicata
Given that the motion is not manifestly frivolous and groundless, as I explain above, I don’t think that its denial in limine and ending up ‘in the dustbin where it belongs’ is inevitable. It remains to be seen what will happen, especially given the cracks in the appellate jurisprudence concerning the eligibility of final judgments for reconsideration. Moreover, the composition of the AC—two (past) supporters of ‘specific direction’ (Judges Meron and Agius), two opponents (Judge Liu and Ramaroson)… and newly added Judge Sekule—gives ample room for guesswork.
It would be interesting to speculate on the likely scenarios, if the motion is going to be addressed on the merits, and the outcome, but there are too many unknowns to make predictions. It all depends on how the AC will interpret the elements of the reconsideration test (this time) and whether it accepts that the reasons provided by the OTP are as cogent as the OTP asserts them to be. Instead of speculating on those issues further, the question should be: assuming that reconsideration is possible, how far may it go? What legal checks should control the AC’s discretion in reconsidering Perišić, if it decides to do so, and how is it supposed to strike the ‘balance between the principle that a litigant has a right to a correct decision and the principle that his opponent has a right to rely on the finality of litigation’? (Separate opinion of Judge Shahabuddeen, Čelebići, para. 12)
Understandably, the OTP makes a straightforward (self-serving) argument to the effect that the interests of victims ‘substantially outweigh’ the interest of Perišić in the finality of proceedings (para. 5). Defining proper limits is akin to shooting in the dark when it comes to discretionary and furthermore inherent powers. But clearly, that same power does not and must not become boundless merely because it is inherent. So the Chamber will have to go beyond the proposed simplistic and abstract exercise of weighing ‘interests’ and instead demarcate its discretion with the greatest care possible. The specific context of the case calls for it more than ever, mainly because the Chamber is requested to reconsider the (final) judgment of acquittal on all charges – and the interest of the acquitted defendant in the finality of the verdict should ‘weigh’ more than anything else, if it is subject to weighing at all. There are formidable legal obstacles to a full-blown reconsideration, and the OTP motion, understandably, eschews them.
If the motion were to succeed in its entirety, the reconsideration would mean a stark aggravation of Perišić’s position (only picture him being rearrested in Belgrade or elsewhere in order to be brought back to the ICTY!). The aggravation would be at least as problematic from a human rights perspective as entering additional convictions on appeal and/or elevating the sentence (the practice that has been subject of repeated dissents by Judge Pocar), although for a different reason than the unavailability of appeal with respect to any new convictions or sentences.
The first problem is that reconsideration would put Perišić in ‘double jeopardy’, in violation of the ne bis in idem principle, which should arguably govern this matter. Art. 10 ICTY St, which covers only vertical ne bis in idem, does not provide for a ‘self-oriented’ ne bis in idem protection. This means a prohibition on the reinstatement of proceedings involving the same person in respect of whom the ICTY has already issued a final decision on the same charges – cf. Art. 20(1) ICC St). However, a failure to codify this protection should not preclude the Chamber from respecting it fully in practice, including whenever it applies its inherent powers which, by the way, are not codified in the Statute either. The AC should still apply the principle when deciding whether to pursue the avenue of reconsideration at all (because nominally Perišić would be bis in idem if the reconsideration motion is held admissible) and/or when demarcating the ambit of discretion. The silence in the Statute should not be an obstacle: the AC may apply the principle based on an interpretation of a relevant or analogous statutory provision, custom, general principles of law – or any other sources the tribunals have identified in the past, when they needed them. (On the tribunals’ human rights regimes, see here.)
Secondly, I can think of reasons why the Perišić judgment should be considered as final in part of the verdict—i.e. res judicata and not subject to re-litigation between the same parties and on the same matter—except for the modest purpose of ‘review’ under Article 26. As noted, a review of acquittal may be requested by the OTP on limited grounds (newly discovered facts which could not have been known in the exercise of reasonable diligence at the time of the decision) and within a limited timeframe. If analogy can be drawn between ‘review’ and ‘reconsideration’ as a way to get an indication of the legitimate scope of the latter, the following must be considered. Basically, ‘review’, in its ordinary construction, is justified by an objective reason that can’t be helped: facts with possible impact on the outcome not being known to the parties during the proceedings, despite the exercise of reasonable diligence. By contrast, ‘reconsideration’ that is based on a legal error, like in Perišić, does in itself raise the specter of insufficient diligence on the part of the court, as far as its knowledge of the law, understanding of the previous jurisprudence, and ability to identify the applicable legal principle in a correct and timely fashion are concerned. True, customary international law fortunately has an aspect of change and progressive development to it, but it does surely not change quite as fast and radically as was the case in the Perišić/Šainović tumult. So it should not be impossible for the court to establish the status of the law at any given time: jura novit curia, in the end.
Legal errors occur in every legal system and have to be tolerated, to some extent. But they also have to be accounted for. It is solely the court’s responsibility. It would be supreme injustice towards the acquitted person to have him pay for the court’s errors, especially when the payment is no less than retraction of the previous finding of innocence and the gift of liberty (whether or not these are deserved is another question). The prejudice arising from reconsideration of the verdict of acquittal and the interest in preserving its finality are so high, in my view, that the scope of the inherent power of reconsideration shrinks substantially, as compared to the scope of ‘review’. How much narrower is it then?
It may be important for the ICTY Appears Chamber to be able to correct the ‘clear error of reasoning’ in the Perišić appeal judgment in order to sort out the legal mess that this has created, with view to improving the consistency of appellate jurisprudence. Whilst it may arguably rectify the legal error and make a correct statement of the law in the context of ‘reconsideration’, I would argue that it is precluded from taking the remedial action with respect to ‘injustice’ any further, by virtue of the effect of ne bis in idem and res judicata. This means that it may neither apply the law to the case if that results in a modification of Perišić’s verdict, nor, obviously, impose a sentence.
Given the above-mentioned concern about the consistency of jurisprudence, I am inclined to accept the appellate objective of defragmenting the law as a legitimate one in this situation, but only if the means of achieving it are also such. In case the AC decides to reconsider the Perišić law, it should do so on its own, without the person of Perišić himself having any role to play in that entourage. Mr. Momčilo Perišić is gone.
Although one may with reason question whether a key rationale of ‘reconsideration’ (preventing a miscarriage of justice or the like) is being duly promoted by a procedure solely limited to fixing an error of law, in principle nothing (legally) precludes such a curbed exercise of discretion, sourced from the inherent authority. To recall Judge Shahabuddeen’s statement in Čelebići, ‘the fact is that the Tribunal was established to do justice; if, therefore it finds that its actions create injustice of a kind which cannot be remedied in its normal appellate or review processes, it must possess the power of reconsideration, limited though this necessarily is.’ (para. 5).
The ICTY has arguably lost an opportunity to deliver justice on the facts, but it still can do justice on the law, and to the law, which is certainly better than no justice at all. What will definitely not help the ICTY’s reputation at this juncture, however, is the image of an institution that goes on harassing an acquitted person by forcing him to pay the enormous costs of its own legal errors deliberately made in the distracting pursuit of internal politics and personal egos.