In February 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ‘enter[ed] … a verdict of acquittal’ in the case of Momčilo Perišić. The Statute of the International Criminal Tribunal for the former Yugoslavia provides for appeal of a conviction, a procedure that was introduced in order to comply with article 14(5) of the International Covenant on Civil and Political Rights (‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’) It does not allow reconsideration of an acquittal that has become definitive following an Appeals Chamber decision because of a changed interpretation of the law.
A few days ago, the Prosecutor of the Tribunal applied for ‘reconsideration’ of the decision to acquit Perišić. According to a Statement issued by the Office of the Prosecutor,
This motion was filed, after careful deliberations, by my Office as a direct consequence of the Šainović Appeal Judgement delivered on 23 January 2014. In that Judgement, the ICTY Appeals Chamber unequivocally overturned the Perišić Appeal Judgement’s flawed holding that “specific direction” is an element of aiding and abetting liability. It was on the basis of this ‘specific direction’ requirement that the aiding and abetting convictions entered by the Trial Chamber were reversed and Mr. Perišić was erroneously acquitted on appeal.
Rule 119 of the Rules of Procedure and Evidence allows for ‘review’ of a decision by the Appeals Chamber: ‘Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.’
But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?
First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the funding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).
The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:
1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.3. No derogation from this Article shall be made under Article 15 of the Convention.
Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.
The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.
Against the right of the accused to protection against such double jeopardy, the Prosecutor invokes the rights of victims to have justice done. He says that ‘[r]econsidering the Perišić Appeal Judgement will help secure justice for the victims, which is the key objective of my Office, the Tribunal and international criminal justice as a whole.’
But fair proceedings should also be a key objective of the Prosecutor. There is something profoundly unfair about the suggestion that an acquittal, decided by four judges of an Appeals Chamber, can be reversed a year later because four other judges adopt a different interpretation of the law.
The mantra of ‘justice for the victims’ should not be used to trump the rights of the accused in such circumstances. As a result of these controversial decisions, not to mention other bizarre developments like the statement of Judge Harhoff, his removal as a judge, and the replacement of a judge in a pending trial well into the deliberation stage, the legacy of the International Criminal Tribunal for the former Yugoslavia has been tarnished. Reconsideration of an acquittal because there of a change in judicial interpretation risks causing further damage to the reputation of this troubled institution.