Incriminating Intelligence: The Strategic Provision of Evidence in War Crimes Tribunals

Abstract

Transitional justice's effectiveness is hotly debated, with many scholars taking a negative view due to the difficulty of proving responsibility for war crimes. We highlight a largely overlooked source of such evidence: intelligence provided by third party states. We theorize countries' incentives and disincentives to share such information, arguing that they often wish to provide it to promote accountability and other political goals, but withhold it to avoid revealing intelligence sources and methods. However, we show that international war crimes tribunals' adoption of confidentiality systems can ease this tension. Courts can receive and use national intelligence to gain insights into culpability for atrocities while protecting that information from wide dissemination. However, states only supply sensitive information in line with their political interests. To test our claims, we focus on the United States' intelligence sharing with two ad hoc tribunals -- the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda -- which possess similar design features. Drawing on newly reviewed archival materials, elite interviews, and secondary sources, we show that confidentiality protections elicited considerable intelligence disclosures when the U.S. had a political interest in prosecuting the case, increasing arrests and indictments.

Keywords: transnational justice, global governance, intelligence, international organizations, international law, war crimes