Balancing Accountability and Victim Autonomy at the International Criminal Court



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.

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