The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.
In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.
The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.
Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:
Reconsideration is the only option for the Appeals Chamber to rectify 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 Perisic decision.
This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.
It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).
This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.
Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.
More on this most certainly in the Katanga Judgment to be released on Friday…