Incentivizing and protecting informants prior to mass atrocities such as genocide: an alternative to post hoc courts and tribunals.

AuthorJensen, Eric Talbot
  1. INTERNATIONAL RESPONSES TO GENOCIDE AND MASS ATROCITY A. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY) B. The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994 (ICTR) C. The Future D. Effectiveness of Current Methodologies II. NEED FOR A BETTER SYSTEM THAT IS PROACTIVE III. INCENTIVIZING THE INFORMANT BEFORE THE ATROCITY OCCURS AND PROTECTING HIM A. An International "Whistleblower" System B. Protecting the Whistleblower C. The Deterrent Value D. Lack of Political Will IV. CONCLUSION "Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it." (1)

    International institutions are almost exclusively reactive to violations of international law. (2) There are very few systemic methods of proactively trying to prevent egregious violations; rather, international law seems to take punishing violators as its sole approach. (3) In modern times, most of the punishment and post-event enforcement has come through international courts and tribunals. (4) These courts and tribunals are astoundingly expensive (5) and notoriously inefficient. (6) More importantly, the threat of prosecution does not appear to act as an effective deterrent in preventing criminal acts. (7)

    Nowhere has the ineffectiveness of international courts and tribunals been more dramatically demonstrated than in the area of genocide. The twentieth century was marked by numerous genocides, (8) the last decade of the century illustrating with stark clarity the international community's ineptitude at responding to such atrocities. (9) The international community has shown that it can neither respond effectively to stop genocides once they have begun, nor effectively deter others who are contemplating genocide by responding after the atrocity with prosecution in international courts and tribunals. This is unacceptable. With hundreds of thousands of lives at stake, the international community must take proactive steps to not only stop and deter, but also prevent mass atrocities and genocides in the future. This Article proposes one possibility that could be both efficient and effective in accomplishing this vital task.

    In offering a more proactive approach to preventing atrocities as an alternative to post hoc courts and tribunals, this proposal will not solve the major underlying problem in preventing genocide: the lack of political will. There is no doubt that until the international community decides to commit itself to taking action in the face of mass atrocity, no other solution will solve the problem. However, the actions proposed in this Article, if embraced by the international community, will at least provide an avenue of exchange for greater and more reliable information that can then be mobilized to help mitigate the problem and provide greater impetus for the international community to take action.

    Further, it is clear that some leaders who commit horrible atrocities such as genocide simply will not be deterred, regardless of the mechanism set up. (10) For them, this proposal will also do little good. In their case, incapacitation is likely the only solution. Unfortunately, incapacitation almost always relies on international political will. (11) On the other hand, for those "caught up" in the planning, or forced to comply out of a sense of self-preservation, this proposal will provide a significant incentive to divorce themselves from such actions and become a tool of intervention to stop the atrocity before it begins. It is these partially culpable, but not undeterrable, minions of the megalomaniac on whom this proposal will have the most effect.

    During the events of the 1990s, the world has learned that genocide occurs on such a broad scale that it is fair to say that many people are involved in at least the early stages and most often in the planning of the horrific acts before they are accomplished. (12) Armed with this information, international institutions should provide a proactive method of enticing individuals involved in the early planning stages to come forward and report proposed genocidal activities or other mass atrocities. Then these institutions must be willing to respond aggressively to prevent the activities from occurring. Such a program would not only have to provide incentives for those with information to come forward but would also have to protect them from the unscrupulous actors who will seek retribution for being discovered in their illegal acts. It is this focus on seeking preventive evidence and then securing that evidence through protection of those willing to come forward that is completely lacking as a current method to fight atrocity before it occurs. An effective pre-atrocity incentive and protection program would not only prevent long and expensive post-criminal act trials, but more importantly, it would prevent the repetition of the hundreds of thousands of deaths experienced in the genocides of the last two decades.

    Part I of this Article briefly analyzes the current method of responding to mass atrocities such as genocides through international courts and tribunals, demonstrating its expense and inefficiency. Part II illustrates the need for a proactive regime that will entice those with information to come forward before the atrocities occur and the genocide has taken its toll. Part III proposes a proactive regime designed to incentivize preatrocity informants to come forward with information and protect them once they have come forward. The Article concludes in Part IV.

  2. INTERNATIONAL RESPONSES TO GENOCIDE AND MASS ATROCITY

    Since World War II, the international community has been slow to react to mass atrocities such as genocide. (13) Rather, despite a great deal of verbal condemnation, (14) the only actions taken by the international community have been reactive and have centered, at least in the last two decades, (15) around the formation of ad hoc international courts or tribunals to "bring to justice" those who were involved in the atrocities. (16) These tribunals have often met with great acclaim and proponents herald their "tremendous impact on the development of the international criminal law system." (17) However, there are others who do not believe that international courts and tribunals are the right method to handle problems such as genocide. (18) Without even considering detractors' legal arguments, (19) much of the criticism has focused on the expense and inefficiency of these tribunals, (20) as well as their apparent failure as a deterrent. (21) Opponents argue that any legal or reconciliatory benefit from these tribunals could be achieved in other ways, using a more effective method at a much cheaper cost. (22) A brief review of two recent ad hoc tribunals will illustrate this point. (23)

    1. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY).

      In response to the genocide in Bosnia-Herzegovina that began in 1991, (24) the United Nations Security Council issued Resolution 808 that declared "an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991." (25) After recognizing that ethnic cleansing had been occurring, the Security Council, declared that "in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable" the world "to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them...." (26)

      The Security Council actually organized the ICTY through Resolution 827 (27) and has continued to amend and adapt the Tribunal through Resolutions 1166, (28) 1329, (29) 1411, (30) 1431, (31) 1481, (32) 1597, (33) and 1660 (34) to meet its developing needs. The ICTY has established Rules of Procedure and Evidence (35) and Practice Directions (36) to facilitate its operation. After almost thirteen years in existence, however, there is a great deal of discussion as to its value considering its expense and ineffectiveness. (37)

      On its website, the ICTY proclaims its core achievements: 1) spearheading the shift from impunity to accountability by "holding individuals accountable regardless of their position," (38) 2) establishing an important, historically accurate record of what transpired so that "[i]t is now not tenable for anyone to dispute the reality of the crimes that were committed," (39) 3)" [b] ringing justice to thousands of victims and giving them a voice," (40) 4) expanding the "boundaries of international humanitarian and international criminal law" by setting a "large number of legal and institutional precedents" such as a "general prohibition of torture in international law which cannot be derogated from by a treaty, internal law or otherwise" and that a crime against humanity "can be committed not only as part of, but also just during an armed conflict," (41) and 5) "[s]trengthening the rule of law" by providing "an incentive to reform the judiciaries in the former Yugoslavia" and being "involved in training legal professionals from the former Yugoslavia to enable them to deal with war crimes cases and ... to enforce international legal standards in their local systems." (42) As to the costs of...

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