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Balancing accountability and victim autonomy at the International Criminal Court.
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 UGANBAN 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 INTRODUCTION
The birth of the International Criminal Court promised a new era of accountability for "the most serious crimes of concern to the international community as a whole." (1) Declaring "an end to impunity," (2) the State Parties to the Rome Statute created a permanent criminal tribunal as the preferred means to enforce international justice and ensure that such crimes do not go unpunished. For these nations, the Court's 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 international consensus that "[v]ictims should be treated with compassion and respect for their dignity," (3) the Rome Statute incorporated provisions to protect victims and permit their active participation at all stages of the Court's proceedings. (4) The neutral Victims and Witnesses Unit was established within the Court to coordinate victims' services, (5) and a Trust Fund was approved to provide victims and their communities with financial reparations. (6) Too 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." (7) Although 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. (8) The Prosecutor surely could not be surprised, then, that some Ugandans 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. 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. With these developments the Court confronted the novel questions whether and how it should respond to victims opposed to its involvement. If the Court is to take seriously its mandate to ensure accountability 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) This Article addresses the challenges posed by the uncertain relationship between the Prosecutor's mandate of accountability and victims' autonomy, rather than specific developments in Uganda. While recognizing 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 de...See the full content of this document
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