Incentivizing and Protecting Informants Prior to Mass Atrocities Such as Genocide: An Alternative to Post Hoc Courts and Tribunals

Beginning of article

  I. 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.

I. 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)

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).

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 these accomplishments, the ICTY argues that

   [t]he expense of bringing to justice those most
   responsible for war crimes and for helping to cement
   the Rule of Law in the former Yugoslavia pales in
   comparison to the true cost of the crimes: the lives lost,
   the communities devastated, the private property
   ransacked and the cultural monuments and buildings
   destroyed forever. (43)

Not everyone agrees. (44)

The budget for the ICTY continues to grow at a significant rate. The budget for the 2006-2007 biennium for the Tribunal is $310,884,000, which is a 5.9% increase from the previous biennium, (45) over 75% of which has traditionally gone to "[s]alaries and related personnel costs" (46) of the 1,141 staff members. (47) By the end of 2007, the total costs of the ICTY will have been well over $1 billion. (48) In exchange for this expense, the Tribunal has indicted one hundred sixty-two individuals, has fifty-nine of those in custody, and has completed fifty-five trials with eighteen criminals still serving their sentences. (49) This equates to a current cost of about $20 million for each completed trial. (50) This is a staggering figure and certainly brings into focus the issue of the value of the trials given their extraordinary expense.

While the five core achievements of the ICTY are laudable, the question remains as to whether they are of sufficient value to justify the continued existence of the Tribunal. More importantly for this Article, the true question is whether these funds would be better used in designing and administering a program that proactively tries to prevent genocide by incentivizing informants to come forward with the guarantee of protection, not only sparing the money, but the lives of the thousands who were slain in this awful series of atrocities.

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).

The ethnic killings in Rwanda that led to the genocide culminating in 1994 began as early as 1990. (51) Despite some warnings from various sources, (52) the international community responded ineffectively, and between April and July of 1994 an estimated 500,000 to 800,000 Tutsis were killed. (53) On November 8, 1994, in response to a formal request by the Rwandan government, the Security Council passed Resolution 955:

   [The Resolution] establish[ed] an international tribunal
   for the sole purpose of prosecuting 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 neighbouring States, between 1 January
   1994 and 31 December 1994.... (54)

As will be discussed below, despite its initial request and enthusiasm for the project, Rwanda was very dissatisfied with the ICTR at its final creation in 1994. However, the ICTR statute was promulgated in 1994 and the seat of the court, Arusha, Tanzania, declared in UNSC Resolution 977. (55) The court was based very closely on the ICTY model and even shared the same prosecutor for several years until the Security Council passed Resolution 1503 (56) granting the ICTR its own prosecutor in hopes of expediting the trial process. (57)

Like the ICTY, the ICTR has been lauded by supporters as having accomplished great things since its inception, such as the authoritative declaration of rape as an act of genocide. (58) The ICTR website prominently displays a quote from Kofi Annan:

   The International Criminal Tribunal for Rwanda
   delivered the first-ever judgement [sic] on the crime of
   genocide by an international court. This judgement [sic]
   is a testament to our collective determination to
   confront the heinous crime of genocide in a way we
   never have before. I am sure that I speak for the entire
   international community when I express the hope that
   this judgement [sic] will contribute to the long-term
   process of national reconciliation in Rwanda. For there
   can be no healing without peace; there can be no peace
   without justice; and there can be no justice without
   respect for human rights and rule of law. (59)

However, the website also contains a link to the tenth anniversary commemoration site of the genocide, (60) which highlights the concerns about expense and efficiency of the process that has taken so long and is still far from completion.

Initially, Rwanda sought an international tribunal as a means to "eradicate the creature of impunity, which has characterized Rwandan society since 1959." (61) When the ICTR Statute was initially promulgated, Rwanda lodged its dissatisfaction with the Statute. (62) One of the grounds was its certain inefficiency based on the …