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Statement of Prosecutor Serge Brammertz in relation to the motion for reconsideration submitted by the Prosecution in the Perišić case

(Exclusively for the use of the media. Not an official document)
The Hague, 3 February 2014

Statement of  Prosecutor Serge Brammertz in relation to the motion
for reconsideration submitted by the Prosecution in the Perišić case

Today, my Office filed a motion before the ICTY Appeals Chamber requesting that it reconsider its acquittal of the former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995.

In our motion, we submit that the erroneous reversal of Mr. Perišić’s lawful convictions and 27 year sentence must be corrected to redress the grave injustice caused to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and to their families.

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.

Since the announcement of the Perišić Appeal Judgement in February 2013, my Office has consistently and vigorously argued that the “specific direction” requirement was incorrect and should be overturned. My Office made detailed submissions before the Šainović Appeals Chamber arguing that “specific direction” has no foundation in customary international law, is contrary to the Tribunal’s consistent jurisprudence, lacks coherence as a legal doctrine and undermines respect for international humanitarian law.

In the Šainović Appeal Judgement, the ICTY Appeals Chamber accepted our submissions, concluding that the Perišić Appeal Judgement is in “direct and material conflict” with the prevailing jurisprudence and with customary international law. The same conclusion was reached by the Appeals Chamber of the Special Court for Sierra Leone in the Taylor Appeal Judgement.

In overturning the Perišić Appeal Judgement's flawed holding, the Appeals Chamber demonstrated its independence, impartiality and capacity for critical reflection, strengthening the international justice system and the rule-of-law. My Office has now requested the Appeals Chamber to take the next necessary step to remedy the confirmed error by reconsidering the Perišić Appeal Judgement and deciding on Perišić’s criminal responsibility for aiding and abetting the crimes in Sarajevo and Srebrenica on the basis of the correct legal standard.

We recognize that reconsideration is an extraordinary measure. But it is one we are compelled to pursue. My Office remains committed to using all legal mechanisms to press for just outcomes that properly reflect the culpability of accused persons brought before the Tribunal. We agree with Judge Shahabuddeen who wrote in a previous ICTY case that “the door to the correction of a clear miscarriage of justice should be held open in an institution with the mission of bringing international criminal justice to a region which needs it.” Reconsidering 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.

International Criminal Tribunal for the former Yugoslavia
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