Vasiliev on the Relationship Between Perisic and Sainovic

by Kevin Jon Heller

Sergey Vasiliev, an excellent young ICL scholar, has posted at the Center for International Criminal Justice a superb — and very long — analysis of the relationship between Perisic and Sainovic entitled “Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem.” I agree with almost everything Sergey says, although I don’t think we should consider the Perisic AC’s adoption of the specific-direction requirement to be “clear error” (a basic requirement of any argument that the Appeals Chamber should reconsider the judgment) simply because the Sainovic AC says that it was. As Bill Schabas notes in his recent post, the legal issue can hardly be considered settled by Sainovic, given that the judgment was not unanimous, was decided by different appeals judges and the two dissenters (on the specific-direction point) in Perisic, and included a judge who was inexplicably in the majority in both Perisic and Sainovic. I also find it odd that Sergey doesn’t like my claim that the OTP’s motion for reconsideration belongs in the dustbin, given that he unequivocally rejects — on ne bis in idem and human-rights grounds — the idea that the OTP should be given what it wants: namely, Perisic’s acquittal overturned and a conviction entered.

But those are minor points. The post is must-read for anyone interested in the specific-direction requirement or the sudden implosion of the ICTY’s Appeals Chamber.

2 Responses

  1. Kevin, many thanks for your comments on my CICJ long-read. Please let me react to the two points you raise. I agree that the issue of specific direction is not settled as long as there remain two authoritative statements of law by the AC without other means of reconciling them than through constructive and patient judicial dialogue, which I believe is the only way forward. Whether or not the Perišić approach amounts to a “clear error” is the issue which the Perišić AC will need to address on substance (if it decides to). For the OTP, however, it was not manifestly unreasonable to use the Šainović statement as a prima facie evidence of a “clear error” for the purpose of triggering the reconsideration procedure, and this is what I meant by saying that it’s not ‘implausible that the “clear error” element can readily be satisfied’. If the Perišić AC merely dismisses the motion in limine after stating that the test for reconsideration is not satisfied because its own alleged error is not a “clear error”, it will effectively sweep the reasoning of the Šainović bench aside without looking into its merits. I think such a decision would fall short of the requirement of a reasoned opinion (although this standard is lower than for the TCs); it is apt to be seen as a tacit recognition that the Šainović judges may have a point; and it would be at odds with the AC’s mandate to guard the consistency of jurisprudence. The divide between the two camps will become more entrenched and the opportunity posed by the OTP motion to harmonize the law after the shock delivered to it by the split will be missed. In my view, this outcome would be regrettable as it might mean that the judges are not ready for the dialogue (yet). As to your second point, I took issue with the claim that the OTP motion belongs to the dustbin because I don’t find it to be apparently frivolous or abusive (but perhaps you didn’t mean that). As mentioned in my post, the AC may interpret the OTP motion as advancing two interrelated pleas: para. 11 and para. 12. It remains open to the Perišić bench to reconsider its judgment on the issue of law and either rectify or confirm its interpretation thereof (para. 11), but it should not reconsider the acquittal and decide on Perišić’s criminal responsibility again for the reasons mentioned (para. 12). It is not clear what will actually happen. But I’ve outlined a compromise scenario we could probably live with, which gives consideration both to the finality of acquittals on appeal and to the need for the AC to defragment the law. I hope this clarifies my position.

  2. Response…Why not reconsider Sainovic in the lights of Perisic? Did anybody ask that question seriosly? That is to say, argued in favour of that posibility?

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