Incentivizing and Protecting Informants Prior to Mass Atrocities Such as Genocide: An Alternative to Post Hoc Courts and Tribunals
Jensen, Eric Talbot, Houston Journal of International Law
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. …