Balancing Accountability and Victim Autonomy at the International Criminal Court

Abstract

The birth of the International Criminal Court promised a new era of accountability for perpetrators of grave crimes. At the same time, the Rome Statute reflected an unprecedented expansion of victims' rights. The convergence of these goals places an extraordinary burden on the Court's officers. The Prosecutor, for example, is charged with determining whether an investigation is in the "interests of justice." The first case referred to the Prosecutor, concerning crimes committed by the Lord's Resistance Army (LRA) in northern Uganda, illustrated the conflict that can arise when the ambitious goals of accountability and victim autonomy collide. In Uganda, leaders of the victimized Acholi community spoke out against the Court's investigation and lobbied the Prosecutor to stop his work for fear it would subvert the ongoing peace process. As negotiations with the LRA progressed, the Ugandan government suggested that the Court should rescind its arrest warrants and promised to protect the LRA leaders if the indictments remained. In the face of such opposition, the Rome Statute, its negotiating history, and the practice of previous international criminal tribunals provide insufficient guidance for how the Prosecutor should proceed. In response, this Article introduces an analogy from municipal law with special relevance to the Prosecutor's dilemma: the American experience prosecuting crimes of domestic violence - in particular, the adoption by some states of aggressive policies to prosecute domestic abusers. By examining the effects of these policies, this Article highlights the consequences of prioritizing prosecution over victim autonomy. Three lessons emerge. First, when victims oppose prosecution, their safety and that of the community might not be improved by a blanket policy that favors prosecution. Although aggressive prosecution policies can provide some measure of deterrence, individual victims often remain vulnerable. Second, prosecutors send mixed messages when they proceed with prosecution against victims' wishes. The constructive signal of accountability often is paired with destructive portrayals of uncooperative victims as weak, irrational, or helpless. Third, even with these weaknesses, aggressive prosecution policies may be necessary to ensure that grave crimes never again are committed with impunity.

Full text

Page 1

Electronic copy of this paper is available at: http://ssrn.com/abstract=980182
BALANCING ACCOUNTABILITY AND VICTIM
AUTONOMY AT THE INTERNATIONAL
CRIMINAL COURT
J. ALEX LITTLE*
ABSTRACT
The birth of the International Criminal Court promised a new era of
accountability for perpetrators of grave crimes. At the same time, the
Rome Statute establishing the Court reflected an unprecedented expan-
sion of victims’ rights, ensuring victims an active role and meaningful
voice in the prosecution of those who committed crimes against them.
The convergence of these goals places an extraordinary burden on the
Court’s officers. The Prosecutor, for example, is charged with determin-
ing whether an investigation or prosecution is in the “interests of
justice,” an ambiguous and elusive mandate. The first case referred to
the Prosecutor, concerning crimes committed by the Lord’s Resistance
Army (LRA) in northern Uganda, illustrated the conflict that can arise
when the ambitious goals of accountability and victim autonomy
collide.
In Uganda, leaders of the victimized Acholi community spoke out
against the Court’s investigation and lobbied the Prosecutor to stop his
work for fear it would subvert the ongoing peace process. As negotiations
with the LRA progressed, the Ugandan government suggested that the
Court should rescind its arrest warrants and promised to protect the
LRA leaders if the indictments remained. In the face of such opposition,
the Rome Statute, its negotiating history, and the practice of previous
international criminal tribunals provide insufficient guidance for how
the Prosecutor should proceed.
In response, this Article introduces an analogy from municipal law
with special relevance to the Prosecutor’s dilemma: the American experi-
ence prosecuting crimes of domestic violence—in particular, the adop-
tion by some states of aggressive policies to prosecute domestic abusers. By
examining the effects of these policies, this Article highlights the conse-
quences of prioritizing prosecution over victim autonomy.
Three lessons emerge. First, when victims oppose prosecution, their
safety and that of the community might not be improved by a blanket
* Former Law Clerk, Office of the Prosecutor, International Criminal Court; J.D., George-
town University Law Center, 2006. © 2007
363

Page 2

Electronic copy of this paper is available at: http://ssrn.com/abstract=980182
policy that favors prosecution. Although aggressive prosecution policies
can provide some measure of deterrence, individual victims often
remain vulnerable. Second, prosecutors send mixed messages when they
proceed with prosecution against victims’ wishes. The constructive
signal of accountability often is paired with destructive portrayals of
uncooperative victims as weak, irrational, or helpless. Third, even with
these weaknesses, aggressive prosecution policies may be necessary to
ensure the historical momentum toward accountability.
These lessons demonstrate that, although prosecution can impose
significant costs on individual victims and victimized communities,
this risk may be necessary to ensure that grave crimes never again are
committed with impunity.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.THE COURT’S AMBITIOUS GOALS . . . . . . . . . . . . . . . . . . . . . . .
A.Accountability for Perpetrators of Grave Crimes . . . . . . . . . .
B.Respect for the Rights of Victims. . . . . . . . . . . . . . . . . . . . .
II.THE GOALS IN CONFLICT: THE UGANDAN REFERRAL. . . . . . . . . .
III.AN ANALOGOUS CHALLENGE: THE AMERICAN EXPERIENCE
PROSECUTING CRIMES OF DOMESTIC VIOLENCE . . . . . . . . . . . . .
IV.CRAFTING THE PROPER BALANCE: LESSONS FOR THE
PROSECUTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.Confront the Safety Dilemma. . . . . . . . . . . . . . . . . . . . . . .
B.Acknowledge and Reduce Negative Messages. . . . . . . . . . . .
C.Recognize the Historical Imperative for Prosecution . . . . . . .
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
364
367
368
369
371
380
387
388
391
395
396
INTRODUCTION
The birth of the International Criminal Court promised a new era of
accountability for “the most serious crimes of concern to the interna-
tional community as a whole.”1Declaring “an end to impunity,”2the
State Parties to the Rome Statute created a permanent criminal tribu-
nal as the preferred means to enforce international justice and ensure
that such crimes do not go unpunished. For these nations, the Court’s
1. Rome Statute of the International Criminal Court, pmbl., para. 4, July 17, 1998, U.N. Doc.
A/CONF. 183/9* [hereinafter Rome Statute]. The International Criminal Court will be referred
to as either “the Court” or “the ICC” throughout this article.
2. Id. at pmbl., para. 5.
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
364[Vol. 38

Page 3

responsibility to prosecute genocide, crimes against humanity, and war
crimes was paramount.
This endorsement of prosecution occurred in conjunction with an
unprecedented expansion of victims’ rights. Recognizing the interna-
tional consensus that “[v]ictims should be treated with compassion and
respect for their dignity,”3the Rome Statute incorporated provisions to
protect victims and permit their active participation at all stages of the
Court’s proceedings.4The neutral Victims and Witnesses Unit was
established within the Court to coordinate victims’ services,5and a
Trust Fund was approved to provide victims and their communities
with financial reparations.6Too often ignored, victims’ voices were
promised an attentive audience at the Court.
The convergence of these goals in the Rome Statute, embracing both
the mandate of prosecution and the responsibility to serve and respect
victims, places an enormous burden on the Court’s officers. The
Prosecutor, for example, is charged with determining whether an
investigation or prosecution is in the “interests of justice.”7Although
the phrase is ambiguous, the duty is not speculative. The first situation
referred to the Prosecutor, concerning the Lord’s Resistance Army
(LRA) in northern Uganda, required him to weigh competing interests
to arrive at “justice.”
As the Prosecutor attempted to balance accountability and victim
autonomy in the Uganda case, he faced challenges that were both
anticipated and surprising. They were anticipated because, four years
earlier, the Ugandan parliament had passed a law that provided
amnesty for all insurgents who surrendered. Even at that time, many
LRA leaders were implicated in gross violations of human rights, while
the Rome Statute had left open the question of whether and when the
Court should defer to domestic amnesties for such perpetrators.8The
Prosecutor surely could not be surprised, then, that some Ugandans
3. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A.
Res. 40/34, Annex, ¶ 4, U.N. GAOR, 40th Sess., U.N. Doc. A/Res/40/34/Annex (Nov. 29, 1985)
[hereinafter UN Basic Principles for Victims of Crime].
4. See, e.g., Rome Statute, supra note 1, art. 68. See generally Carsten Stahn, et. al, Participation of
Victims in Pre-Trial Proceedings of the ICC, 4 J. INT’L CRIM. JUST. 219 (2006).
5. Rome Statute, supra note 1, art. 43(6).
6. Id. art. 79.
7. See, e.g., id. art. 53(1)(c).
8. See, Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court, 14 EUR. J. INT’L L. 481, 483 (2003) (“The issue of how to deal with
national amnesties and national truth and reconciliation efforts was raised in the ICC negotia-
tions[,] but was not explicitly dealt with in the Rome Statute”).
BALANCING ACCOUNTABILITY AND VICTIM AUTONOMY
2007]365

Page 4

would view his criminal investigation as conflicting with the Ugandan
Amnesty Act—even if few experts believed that the Act was sufficient
judicial process to bar the Court’s investigation as a matter of law.9
The more surprising aspect of the Prosecutor’s challenge in Uganda
arose from the reaction of the victims to the Court’s investigation.
Instead of expressing vindication or relief, leaders of the victimized
Acholi community spoke out against the investigation and lobbied the
Prosecutor to stop his work for fear it would subvert the ongoing peace
process.AsnegotiationswiththeLRAprogressed,theUgandangovern-
ment suggested the Court should rescind its arrest warrants and
promised to protect the LRA leaders if the indictments remained.
With these developments the Court confronted the novel questions
whether and how it should respond to victims opposed to its involve-
ment.IftheCourtistotakeseriouslyitsmandatetoensureaccountabil-
ity for perpetrators of grave crimes while demonstrating compassion
and respect for their victims, the Court must address effectively the
challenges raised by the Uganda case. These questions extend beyond
the situation in northern Uganda. They focus on issues that will
continue to be central to the Court’s ability to serve the “millions of
children, women and men [who] have been victims of unimaginable
atrocities.”10
ThisArticleaddressesthechallengesposedbytheuncertainrelation-
ship between the Prosecutor’s mandate of accountability and victims’
autonomy, rather than specific developments in Uganda. While recog-
nizing the historical significance of the Uganda case, this Article
explores more generally the proper balance the Prosecutor should
seek between respecting the dignity and autonomy of victims and
securing accountability on behalf of the international community.
The compromise the Prosecutor should seek between the goals of
accountability and victim autonomy is unclear. Part I describes these
goals and details how the Rome Statute embodies them. Part II then
examines the Uganda case, where the goals of accountability and victim
autonomy have come in conflict. This section details how the Rome
Statute fails to provide any practical guidance for how the Prosecutor
should navigate such difficult circumstances. With no clear guide for
the Prosecutor to follow, Part III offers an analogy from municipal law
with special relevance to issues of justice and autonomy: the American
9. Id. at 484 (“[A] blanket amnesty for international crimes would be the antithesis of the
purpose of the ICC and should never enjoy deference from the Court.”).
10. Rome Statute, supra note 1, at pmbl., para. 2.
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
366[Vol. 38

Page 5

experience prosecuting crimes of domestic violence—in particular, the
adoption by some states of aggressive policies to prosecute domestic
abusers. This section examines the effects of such policies and high-
lights the consequences of prioritizing prosecution over victim au-
tonomy. Finally, Part IV draws lessons from the American experience
and applies them to the challenges presented by the Uganda case.
Three lessons emerge. First, when victims oppose prosecution, their
safety and that of the community might not be improved by a blanket
policy that favors prosecution. Although aggressive prosecution poli-
cies can provide some measure of deterrence, individual victims often
remain vulnerable. Second, prosecutors send mixed messages when
they proceed with prosecution against victims’ wishes. The constructive
signal of accountability often is paired with destructive portrayals of
uncooperative victims as weak, irrational, or helpless. Third, despite
these weaknesses, aggressive prosecution policies might be necessary to
ensure the historical momentum toward accountability.
These lessons demonstrate that, although prosecution can impose
significant costs on individual victims and victimized communities, this
risk may be necessary to ensure that grave crimes never again are
committed with impunity. Part IV therefore concludes with an endorse-
ment of prosecution even if the potential cost to victims is significant,
arguing that the balance between accountability and victim autonomy
at this point in the Court’s history should favor accountability.
I.THE COURT’S AMBITIOUS GOALS
After thirteen years of negotiation,11the Rome Statute entered into
force on July 1, 2002, after ten nations simultaneously ratified the treaty
to join the International Criminal Court.12The birth of the Court
promised a new era of accountability for perpetrators of grave crimes.
11. For the negotiating history of the Rome Statute, see generally, THE INTERNATIONAL
CRIMINAL COURT, THE MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS (Roy S. Lee
ed., 1999) [hereinafter MAKING OF THE ROME STATUTE]; Phillipe Kirsch & John T. Holmes, The
Rome Conference on an International Criminal Court: The Negotiating Process, 93 AM. J. INT’L L. 2 (1999).
A more chronological description of the political developments that led to the establishment of a
permanent international criminal court can be found in M. Cherif Bassiouni, From Versailles to
Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV.
HUM. RTS. J. 11 (1997). For an extended discussion of the text of the treaty, examining the overall
organization and operating principles of the Court, see Leila Nadya Sadat & S. Richard Carden,
The New International Criminal Court: An Uneasy Revolution, 88 GEO. L.J. 381 (2000).
12. Peter Ford, War Criminals Face New Court, CHRISTIAN SCI. MONITOR, Apr. 11, 2002, at 6;
Smita P. Nordwall, UN Criminal Court To Become a Reality, USA TODAY, Apr. 11, 2002 at 5A.
BALANCING ACCOUNTABILITY AND VICTIM AUTONOMY
2007] 367