The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

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

8 responses to “The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

  1. Dov, there is a difference between review (foreseen under the ICTY Statute and relating to new facts) and reconsideration (part of a court’s inherent jurisdiction and relating to clear errors of law/reasoning). With respect to reconsideration, the ICTY/ICTR Appeals Chamber have said since Zigic that final judgments will NOT be reconsidered, no matter what.
    I also don’t see how the Prosecution’s reasoning trumps Defence rights. So in your view, we can speak of a miscarriage of justice only vis-a-vis an accused? On what is this based? What about the notion of justice in general, i.e. punishing those who were found beyond reasonable doubt to have committed a crime? In Perisic there was no doubt about the facts of the case. The question was the application of the appropriate legal standards to those facts. If this standard turns out to be wrong, why is then its application not a miscarriage of justice in that it allows a guilty person to walk free?
    But this whole point is probably moot because the AC (in whatever composition) has confirmed (last in Lukic & Lukic) that there is no reconsideration after final judgment

    • Mike, thank you for the clarification on the review/reconsideration issue. I am aware of the difference and should probably have made it clearer in my post. The bottom line is that there is no explicit legal basis for the reconsideration and while one can argue, possibly, that Celebici laid down a valid principle when the rights of the defense are involved, I don’t think that it applies to the Prosecution.

      Which brings me to your second point: I think I already addressed your question in my post. “Miscarriage of justice” is not concerned with the “notion of justice in general” as you put it. It is a specific right for defendants against wrongful convictions. And this is based on the nature of a criminal trial. Only parties have rights in a criminal trial. And this is based on the practice of most countries I know. Indeed, I don’t know how any system that applies a different definition. And this was the definition at the basis of the Celebici discussion that the Prosecutor invokes and twists for his own purpose. If it is applied to entities external to the tribunal, it would lead to impossible evaluations of “what is justice in general?”. “Justice for victims” is just a much a catch-all expression as the “end of impunity” which has allowed international tribunals to invent crimes and modes of liability out of thin air in complete disregard of the principle of legality. Moreover, if the logic of the Prosecutor is followed, why not restart trials where the Prosecutor has screwed up his case to avoid injustice for the victims? That would defeat the adversarial logic of the process.
      Finally, it should be pointed out that technically, the victims have no standing before the ICTY, nor are they represented by the Prosecutor, who represents the criminal system itself. This might be an unfortunate situation according to some, but it is the reality of ICTY proceedings.

      One last point on the question of whether the standard was right or wrong. I’m not exactly sure what that means. Right now, I technically have the same institution disagreeing with itself about the correct legal standard. This is most unfortunate and certainly does not help decide what is “right” or “wrong”. But I suppose that is a different debate…

  2. Can you provide support for your position that a “miscarriage of justice” is only a specific right for defendants? The “interests of justice” are of course far broader and include the interests of victims (see, e.g., Rome Statute, Art. 53(2)(c) and Art. 65(4)). And to be technical about it, all international appellate chambers recognize in their standards of review that a “miscarriage of justice” can result from an error of fact leading to an acquittal at trial (see, e.g., Perisic Appeal Judgment, para. 10).

    In any event, having reflected further, do you still stand behind your characterizations of the Prosecution as “disgraceful” and “twisting the law for its own purposes”?

    Just as a separate comment, the black and white perspective you put forward is surprising and would not be shared by most practitioners (prosecutors or defence counsel), who understand criminal justice as requiring balance between the need to protect society and the rights of individuals.

    • Thank you for your comment Jeremy. It is certainly a difficult question. As is clear from my post and my previous answer in the comments section, my position is the result of a number of inter-related factors, so it is difficult to put them in a particular order:
      1) For me a “miscarriage of justice” has to have a specific meaning within a particular context, that of a criminal trial. It cannot just be a synonym to the “interests of justice” or a “sense of justice in general”
      2) It is a right to protect actual parties to the proceedings, not anyone on the outside whose sense of justice might be affected by the Court’s decision. This of course doesn’t mean that the Prosecutor cannot invoke it, and the trail of appeals decisions that mention the concept do indeed seem to suggest that. I personally think this is not an accurate view of what is a miscarriage of justice, but it doesn’t take away from my point that it is only a right for the parties to the trial.
      3) I am familiar with a number of domestic jurisdictions, notably common law, and I’ve never seen the expression of “miscarriage of justice” used in any other way than what I just described: it is generally understood as protecting a defendant against unfair convictions and, de minimis, it only applies to the parties to the proceedings.
      4) The Prosecutor in a criminal trial DOES NOT represent victims, he represents society, so has no business in speaking in their name, neither procedurally, nor philosophically.

      To summarize, I do stand by my position that the prosecutor’s motion is disgraceful in its invocation of the suffering of victims as an ersatz for actual legal argumentation. Won’t you agree that it is a somewhat sloppy attempt at convincing the judges, given the general tension surrounding this Perisic discussion, the conflicting case law that is invoked and the real difficulty (even if you disagree with me) on the exact definition of a “miscarriage of justice”. It looks more like media pandering than a serious attempt at getting an actual result. Frankly, irrespective of my personal opinion, if a student submitted this, it would be an outright fail.

      Finally, on your concluding note, my remarks here as in other posts on my blog, are within the context of international criminal law. I am well aware that there is what you call a “balance” in domestic criminal law systems. But I think that in ICL, the balance has been skewed since the beginning against defendants, hence my natural tendency, I must admit, to put my weight down in the other direction. And most defence counsel in international criminal proceedings I’ve spoken to over the years will tell you just that, in exactly this “black and white” way which is the result of the systemic biases against defendants in the system. To take just one example, go ask Katanga’s lawyers if they think the system is balanced…

  3. Dov,
    While I see where you are coming from, I have to strongly disagree that proof that the balance of ICL is skewed against defendants comes from what defence lawyers are saying.
    Some of these defence lawyers have become Judges in ICL (Orie, Morrison to name a couple) and are now criticized for what they were earlier criticizing, while they now have the authority to suggest Rules’ changes; counsel for the OTP have moved to defence teams, and vice-versa; several defence attorneys at the ICTR and ICTY have moved on to work within the Chambers of various international tribunals, advising and drafting for the Judges. Defence counsel (or former counsel) were involved in drafting the Rules of procedure of the ICC, the ECCC, and the STL.
    In sum, it is hard to see en evil design against the accused in ICL, who actually get acquitted in ratios comparable to any European or North American system, if not more than that (if we consider only trials for international crimes in those countries). Defence counsel are doing their job, fighting as best as they can within – and at times against – the system, just like they are entitled to do and are expected to do. But to try to get an overall (balanced) assessment of reality from their pleadings in and outside the courtroom is simply naïve.

    • Your remarks are duly noted Eve. Maybe I’m hanging out with the wrong defense counsel… In any case, I don’t base my evaluation of the system on defense pleadings. It’s my own evaluation (whether correct or incorrect, is another issue). Also, the point I was making in my previous comment was that I was not, in my blog posts, denying the balance that is theoretically struck in any criminal justice system between the interests of society and those of the defendant, as seemed to suggest Jeremy, but specifically criticizing the imbalance I personally perceive in ICL (again, rightly or wrongly). I’m happy to concede that I might be wrong, as long as it’s about something I actually said!

  4. Pingback: Perisic Prosecution Motion for Reconsideration Denied | Spreading the Jam

  5. Pingback: Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis In Idem | Center for International Criminal Justice

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