OTP Asks for Perisic Reconsideration — On the Basis of Nothing

by Kevin Jon Heller

Fresh from its victory in Sainovic, the ICTY Office of the Prosecutor (OTP) has now asked the Appeals Chamber to reconsider its final judgment in Perisic on the ground that it would be unjust to permit Perisic to remain acquitted. As the legal basis for such reconsideration 11 months after final judgment, the OTP cites…

Precisely nothing.

Which is not surprising, because nothing in the ICTY Statute actually permits such reconsideration. The only provision that deals with reconsideration of Appeals Chamber judgments is Art. 26, which is limited to the discovery of new facts:

Where 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, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Even more problematic for the OTP, the Appeals Chamber specifically rejected reconsideration of final appeals judgments in Zigic, noting that the victims and the accused “are both entitled to certainty and finality of legal judgments.”

Lacking any legal basis for its request, the OTP does what it always does — invite the Appeals Chamber to engage in what Darryl Robinson has called “victim-centered reasoning” and reconsider Perisic anyway. In the OTP’s words, because Perisic was wrongly decided (according to one iteration of the Appeals Chamber), “the interests of justice for the tens of thousands of victims, substantially outweighs Perisic’s interest in finality of proceedings. Justice must be restored to the victims. Reconsideration is the only way to this end.” Put more simply: forget that inconvenient principle of legality. The demands of justice trump the text of the ICTY Statute.

It’s also worth noting a profound irony at the heart of the OTP’s request. It acknowledges Zigic is against it — so it argues that the Appeals Chamber should disregard Zigic in favour of its earlier decision in Celebici, which held, in another classic example of ignoring the text of the ICTY Statute in favor of its supposed “object and purpose” of combating impunity, that the Appeals Chamber’s “inherent jurisdiction” (of course) empowers it to reconsider any decision, no matter when decided, that “has led to an injustice.” In other words, the OTP is asking the Appeals Chamber to ignore a new decision (Zigic) that rejected an old decision (Celebici) in order to apply a new decision (Sainovic) that rejected an old decision (Perisic). Remarkable.

I would like to predict that the Appeals Chamber will consign this motion to the dustbin where it belongs. But who knows? As Marko Milanovic has pointed out, precedent no longer has much meaning for the Appeals Chamber. The outcome of an appeal now largely turns on which judges are randomly assigned to the panel.

I will be speaking soon on Perisic and Sainovic at a conference on the legacy of the ICTY. With each motion like this one, that legacy becomes a bit more tarnished.

UPDATE: Dov Jacobs adds some important points at Spreading the Jam.


19 Responses

  1. But when Perišić held that specific direction was required on the basis of nothing… that was ok? (we both know Kevin that Tadić‘s specific direction language cited to nothing)
    You can’t have it both ways Kevin.

  2. Except that is not what Perisic did at all. It (1) explained why it was simply following Appeals Chamber precedent (far more accurately than the later panel in Sainovic), and (2) explained the theoretical basis for adopting the specific-direction requirement. As for Tadic, was the decision particularly well reasoned? No — but at least the Appeals Chamber  also explained why specific direction was necessary (to distinguish aiding and abetting from JCE), however unconvincingly. So your analogy fails — and that’s before we note that there is a fundamental difference between the Appeals Chamber citing nothing in a judgment and the OTP citing nothing in a motion.

  3. …except that it’s exactly what it did. Perišić hinged on Tadić as its source for specific direction – and then subsequent cases that merely repeated/and or trace back to it in a footnote trail. In my view, as soon as Tadić falls, then so do the judgments that cite back to it for authority – in the absence of the relevant chamber conducting an independent analysis on the precise issue and basing it on some (any!) source(s) of law. Thus, I urge readers not to take Kevin or my word for it. Read Tadić para. 229 for yourselves and see if you think ‘specific direction’ was firmly based in law: <a>http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf</a&gt;
    Now if 10 subsequent cases merely repeat or cite what Tadić said above without any further analysis… does that make it right? I don’t think so.
    Unfortunately, Kevin I don’t think we’re ever going to see eye to eye on this issue. It’s good fun though!

  4. My HTML skills have failed me.. here is the correct link to Tadić: http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf

  5. You might find it interesting that the Sredoje Lukic Defence filed a motion for reconsideration last year before the Appeals Chamber. In its motion the Defence argued, inter alia, that the findings re: specific direction in Lukic&Lukic and Perisic are irreconcilable. The Prosecution then vigorously opposed the motion and the Appeals Chamber denied it for want of jurisdiction…

  6. Radovan Karadzic’s comment? It appropriately explained the hypocrisy behind KJH’s criticism of the OTP’s filing.

  7. The “Radovan” comment was fake. I deleted it.

  8. The deletion was self-serving.  You should have removed the author’s name but left the comment, or, at least, reproduced it. The commenter properly undermined your criticisms by demonstrating how you personally violated your client’s confidence by revealing the fact that he spoke English in a blog posting and how that revelation resulted in decisions detrimental to him. So when you speak about the “rights of the accused”, it is useful to review those comments in the context of your prior history.

  9. I did nothing of the sort — you have no idea what was said in the meeting you reference — but that’s completely beside the point. We allow anonymous comments and we allow pseudonymous comments. We do not allow commenters to impersonate others. If the author of the comment want to repost under a different name or anonymously — making clear he/she has no first-hand knowledge about the inner workings of Karadzic’s defence team — I will be happy to leave the comment up.

  10. Kevin, yes you did and right now you are lying: http://www.icty.org/x/cases/karadzic/acdec/en/090604.pdf. In particular, read paragraph 15. 
    “With regard to the Appellant’s submission that the evidence relating to his language abilities relied on by the Trial Chamber was outdated, the Appeals Chamber notes that while evidence from many years ago may not be conclusive of present language abilities, it is relevant. In this case, however, while the Trial Chamber took into consideration evidence from 14 to 17 years ago, it also
    considered more recent evidence. The latter evidence included an account of his meeting with his pro bono legal adviser, Kevin Jon Heller. . .”  What was that evidence? This blog posting: http://opiniojuris.org/2009/01/08/my-soda-with-radovan/ where you pointed out the following
    “I was also struck by Dr. Karadzic’s evident intelligence.  He speaks very good English, is extremely well-read and articulate, and has a keen interest in world politics.  Indeed, we spent as much time discussing the situation in Gaza as we did the situation in the former FRY.  (We also discussed Monty Python’s Life of Brian, but that is definitely a protected conversation.)”
    Key lesson, don’t listen to a person preaching the rights of an accused when in turn he uses his clients to publicize himself and in doing so reveals his confidential conversations to the detriment of that client.

  11. Your grasp of logic is rather sad — but highly entertaining. You claim I revealed confidential communications; please identify where it says that in the decision you linked to. (And best of luck with that.)  Also please explain what your (false) allegation about me has to do with the substance of complaints about the ICTY disregarding the rights of the defence. (Best of luck with that, too.)


  12. Ok, to come back to the questions raised by Kevin originally:
    I agree that in light of the ICTY and ICTR Appeals Chambers’ case-law on reconsideration (last confirmed in the Lukic and Lukic matter), the Prosecution will have a hard time persuading the Chamber to reconsider. However, it is worth noting that the reconsideration standard itself, and especially tied with the overly restrictive approach to a review, is problematic. The Appeals Chamber has said it will not reconsider its final decisions. But this means, as Judge Shahabuddeen and in fact Judge Meron have pointed out in previous “declarations” that there is no remedy for an accused if for instance it turns out that the murder victims are all alive. This would not be an issue for review because review under the ICTY standard presupposes a new fact, which is defined as a a fact not at issue in the judgment from which review is sought. Of course, the fact that people were killed and their identity would then not be a new fact. So the reconsideration standard cuts both ways.  An accused could not seek reconsideration even if all the charges turn out be fabricated, conversely (see Blaskic), the Prosecution could not seek reconsideration even if the Defence evidence on which the Chamber based an acquittal was false. 
    It will be interesting to see what the Appeals Chamber will do. Even though Zigic is clear, there have been exceptions to this standard. See for instance the reasoning in Strugar where the appeals proceedings had concluded but then were later reopened. 
    Finally, with respect to Perisic himself — do you have no qualms about the fact that he was acquitted even when that was done on a completely false basis (assuming you accept the Sainovic reasoning)? Can this be in the interests of justice? Why would Perisic get a get-out-of-jail-free card but others (Lazarevic) don’t? 

  13. Bob,

    Thanks for your intelligent and not utterly irrelevant comment. I disagree with your hypothetical — how could it not be a new fact that “murdered” victims were not actually dead when the conviction was entered? The relevant standard under Art. 26 is not whether the new fact was “at issue” during the trial; it’s whether the new fact was not known at the time and could have been decisive in the judgment. So your hypothetical seems to me to fit well within the purview of Art. 26.

    As for your second point, I obviously disagree with Sainovic. But I would not feel differently if I agreed with it. We cannot allow final appeals judgments to be “reconsidered” 11 months later simply because a new AC with different judges decides a legal issue differently — especially given that the ICTY Statute doesn’t allow it. The AC sometimes gets it wrong; such is the nature of judicial decision-making. If the Security Council wants to amend the Statute to permit en banc review of inconsistent AC decisions, it is free to do so.

  14. PS. I would be very much in favor of such an en banc process. Issues like specific direction should be resolved by all of the AC’s judges, not whatever five happen to be drawn in a particular case. “Self-fragmentation,” as Marko nicely describes it, is devastating to the ICTY’s integrity and legacy. I might not even oppose the judges adopting such a procedure themselves — though a formal amendment to the ICTY Statute would obviously be better.

  15. I would be interested to know which conference on the ICTY Legacy you will be speaking at.

  16. G,

    It’s on the legacy of Gotovina and Perisic. I don’t know the exact name, but it will be hosted by The Hague Institute for Global Justice in collaboration with the International Center for Transitional Justice and The Grotius Center for International Legal Studies, 19 February 2014 from 14.00 – 17.00 at The Hague Institute.

  17. Kevin, 
    the “fact at issue” standard is not a hypothetical standard. It’s ICTY case law. See for instance the decision in Blaskic: 
    14. The Appeals Chamber recalls that a new fact within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”.  This “means that it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.,, In other words, “[ w ] hat is relevant is whether the deciding body [ … ] knew about the fact or not” in arriving at its decision.
    15. In light of its past jurisprudence, the Appeals Chamber considers that the test for determining whether a fact proffered in a review proceeding is actually “new” is as follows: the key concern is that it must not have been in issue during the original proceedings.
    There is a good article on this here: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1688132
    So with respect to the issue of murder victims, it would be impossible to seek review on that basis, even if all victims all alive — because this fact (the existence of murder victims) was at issue. Hence the cautious approach by Judge Shahabudeen and Judge Meron indicating that reconsideration must be possible in certain situations. Of course, the question then is whether Perisic would qualify for such an exception because here the issue is not a new fact but merely a misapplication of the law. 

  18. As I point out on my blog, I also think a key issue is, assuming that there would be a right to request reconsideration, whether the Prosecutor can invoke it, or whether it would be exclusively for the defendant to avoid wrongful convictions. I personally think that only the defendant can invoke it (and this seems to have been the basis for the reasoning in Celebici). The notion of “miscarriage of justice” is there to protect the rights of the defendant against the failures of the system that would be detrimental to him (and the Prosecutor IS part of the system). I don’t think it can apply, as the Prosecutor tries to do, to the general sense of justice of the victims. Perisic’s acquittal might be painful for them, but the fact is that they have no rights as parties in ICTY proceedings, nor is the Prosecutor entitled to represent them. 

Trackbacks and Pingbacks

  1. […] 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 […]