May 2022

Content, Online Scholarship, Perspectives

The Legal Significance of U.S. Recognition of the Armenian Genocide: Implications for Strategic Litigation

By /

ANOUSH BAGHDASSARIAN*

I. Introduction

One year ago, on April 24th, 2021, President Biden did what no U.S. President had done before and recognized the atrocities committed against the Armenian population by the Ottoman Empire in 1915 as genocide. Descendants of Armenian Genocide survivors living in the United States, scholars, attorneys, and others close to the Armenian community, saw this acknowledgement as a step towards accountability.[1] Not only did this recognition place political pressure on Turkey[2] and offer a moral sense of redress through the recognition of the victims’ dignity, but it also opened doors for strategic litigation in U.S. courts that had been closed previously. Before Biden Administration’s recognition, many claims brought in U.S. courts seeking redress for harms suffered in connection to the Armenian Genocide were unsuccessful because the executive branch had not clearly designated the 1915 events as genocide. Without this designation, the judiciary often cited the “act of state doctrine”[3] or similar principles of deferring to the executive with regard to matters of foreign affairs, to dismiss Armenian Genocide cases before reaching their merits. Now that this obstacle to Armenian Genocide litigation has been removed with U.S. official recognition, litigants can try to bring Armenian Genocide claims again in U.S. courts with hope to reach the merits stage. Even without guarantee to win on the merits, the ability to reach this stage gives litigants both a greater chance of success as well as a sense of fairness in that their claims will be decided on the basis of their strength in law and will be less influenced by geopolitics.

Through an examination of the trajectory of Armenian Genocide litigation in the United States, this Article addresses the legal significance of U.S. genocide designations, a particularly timely analysis. In just the past year the United States has officially declared three atrocities genocide: the Ottoman Empire’s Genocide of the Armenians,[4] China’s Genocide of the Uyghurs,[5] and Myanmar’s Genocide of the Rohingya.[6] Not only is such recognition important for upholding human dignity and signaling the United States’ intolerance for impunity, but it also opens possible avenues for accountability and redress in the United States. Even if litigation for the Armenian Genocide may be limited given the fact that over a century has passed since its perpetration and evidence may be stale, lacking, or inadmissible, a review of the ways in which recognition for the Armenian Genocide could have propelled failed cases forward shed light on the importance of recognition for other potential genocide-related litigation in the United States for ongoing genocides today.

II. History of U.S. litigation involving the Armenian Genocide: “Impermissibly Intruding on Foreign Affairs”

For the past 100 years, creative lawyers have attempted to bring cases in the United States for descendants of Armenian Genocide survivors, mostly against banks or life insurance groups. Oftentimes those cases would fail: without the executive branch’s recognition (or even after the legislative branch’s recognition in 2019[7]), the judiciary hesitated to deem the killings of 1915 a genocide through its decisions. Courts would often decide that the nature of the 1915 events was not yet fully settled by the executive and fell outside the judicial powers, thereby hindering certain avenues for justice for descendants of those affected in the Genocide. This Section reviews some of those failed cases implicating lack of U.S. recognition of the Armenian Genocide as one of the reasons for dismissal, in order to better understand the legal implications of President Biden’s designation of the 1915 massacres of 1.5 million Armenians as genocide.

Courts have long recognized that foreign affairs are a matter to be left to the executive branch. The Constitution reserves exclusively to the federal government the power to make and resolve war, including the power to legislate restitution and reparations claims.[8] Within the ambit of the executive’s foreign affairs power is the legal designation of a mass killing as genocide. In Sarei v. Rio Tinto, PLC, the dissenting judge articulates the broad scope of this power:

“The political branches may choose to take no action against terrible evils to preserve essential alliances, as they did with respect to the Soviet Union during World War II; to avoid entanglements that would cost blood and money despite the justice of the cause, as with the Rwandan genocide; to avoid giving offense to regimes whose votes are useful to us in the United Nations or whose disinvestment in treasury securities would damage our economy; and to avoid ejection of our military bases from foreign territory if we characterized their history in an offensive manner, as with the Armenian genocide by Turkey. These political decisions are not pretty, but they are an integral part of the management of foreign affairs, and this task is for good reasons not assigned to the judiciary.”[9]

The court’s concern of impermissibly intruding into foreign affairs is what has stopped many U.S. cases related to the Armenian Genocide before they could reach an assessment on the merits. This Part will review four cases: Deirmenjian v. Deutsche Bank A.G.;[10] Bakalian v. Central Bank of Republic of Turkey;[11] Movsesian v. Victoria Verischerung A.G.;[12] and Davoyan v. Republic of Turkey.[13]

A. Deirmenjian v. Deutsche Bank A.G.

In Deirmenjian, California residents of Armenian descent filed a putative class action against German banks operating in Turkey, alleging that the banks withheld money from Armenian account holders following the Armenian Genocide.[14] The defendants claimed that “as a matter of Turkish … and international law the Republic of Turkey is the successor state of the Ottoman Empire,” and it “has not disavowed its acts.”[15] As a consequence, the defendants argued, adjudication of the action could interfere with the United States’ relations with Turkey. The court engaged in a choice of law analysis and decided that Turkish law would apply to the claims, rather than U.S. or, more specifically, California law.[16] The choice of law analysis is consequential. California Code of Civil Procedure poses no statute of limitation on actions brought to recover money or other property deposited with any bank.[17] Thus, under California law, the plaintiffs’ claims would likely not have been time-barred. Conversely, under Turkish law, the claims were time-barred after ten years, and thus the plaintiffs found no recourse.[18]

The choice of law analysis included a governmental interest test. First, the court examined each jurisdiction’s interest in applying its own law to the particular case to determine whether a true conflict existed.[19] Then, the court evaluated and compared the nature and strength of each jurisdiction’s interest to determine whose interest would be more impaired if its policy was subordinated.[20] In carrying out this analysis, the court worried whether its decision would disrupt U.S. relations with Turkey. To prove the possibility of disruption, the defendants cited the fact that in 2000, several former executive officials wrote to the Chairman of the House Committee on International Relations and urged the defeat of a bill that would have officially categorized the Armenian tragedy as genocide.[21] The appellate court ultimately decided that Turkey’s interests in applying its laws to conducts that occurred within its borders and in regulating companies doing business there predominated over California’s interests in applying its law.[22] This finding only served to reinforce judicial hesitation in ruling on cases regarding redress for the Armenian Genocide.

B. Movsesian v. Victoria Verischerung A.G.

Not only are federal courts presumed to relegate any foreign affairs matters to the executive, but states are too.[23] Under the Supremacy Clause, the Constitution and acts of Congress preempt state law.[24] State law therefore must yield to federal law where: (1) an express provision for preemption is included in federal law; (2) federal law was intended to occupy the relevant field; or (3) state law conflicts with federal law.[25] Under this formulation, a state law that interferes with foreign affairs may be unconstitutional if it “may disturb foreign relations.”[26] However, a state law with no more than an “incidental or indirect effect in foreign countries” would be valid.[27] This is known as the “incidental effects test,” whose application the Supreme Court[28] and several circuits have addressed, one example of which is Movsesian.

In Movsesian, the Ninth Circuit held that a California statute vesting state courts with jurisdiction over insurance actions by Armenian Genocide victims and extending the statute of limitations for victims’ claims was unconstitutional. It found that the statute at issue had “more than some incidental or indirect effect” on foreign affairs because it established “a particular foreign policy for California — one that decrie[d] the actions of the Ottoman Empire and [sought] to provide redress for ‘Armenian Genocide victims’ by subjecting foreign insurance companies to lawsuits in California.”[29] Ultimately, the Ninth Circuit held that the California Armenian Genocide insurance statute impermissibly intruded on foreign affairs by “impos[ing] the politically charged label of ‘genocide’ on the actions of the Ottoman Empire (and, consequently, present-day Turkey),” and by requiring courts to make a “highly politicized inquiry” into whether a policyholder “escaped” the Ottoman Empire “to avoid persecution”.[30] The court further said,

“The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 [of the California Code of Civil Procedure: Armenian Genocide victims; insurance policy claims; waiver of statute of limitations] on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world.”[31]

Later cases have cited Movsesian as a representative case for the principle that a state could be deemed to have intruded impermissibly on foreign affairs by “express[ing] a distinct point of view on a specific matter of foreign policy” and “send[ing] a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims.”[32] However, when the federal government designates an atrocity as genocide, such concerns of intruding impermissibly on foreign affairs cease to exist because the act of state defense does not extend to acts of genocide — which constitute  a “‘clear and unambiguous’ violation of the law of nations.”[33] Thus, the California statute in Movsesian might not have been preempted had the genocide designation been in place at the time.

C. Davoyan v. Republic of Turkey

Davoyan, a case brought around the same time as Movsesian, furthered this hesitancy to reach the merits of Armenian Genocide-related cases absent of U.S. designation of the atrocities as genocide. In Davoyan, grandchildren of Armenians and former Turkish citizens brought a putative class action against the Republic of Turkey and Central Bank of the Republic of Turkey, alleging that their grandfathers were deprived of citizenship, deported, and had their property seized and expropriated by Turkey or its predecessor government under the Ottoman Empire.[34] Similar to Movsesian, the Davoyan court declines to decide this case because they did not wish to answer the question of whether the events of 1915 were genocide. The court concluded,

“In either case, [referencing Movsesian], allowing the lawsuit to proceed would involve judicial interference in foreign relations—here because establishing that ‘genocide’ occurred is a jurisdictional prerequisite. In light of the political question doctrine and analogous Ninth Circuit precedent, this Court cannot resolve such an inherently political question that our Constitution reserves for the other two coordinate branches of government. Therefore, this lawsuit must be dismissed.”[35]

It is clear that a case like Davoyan would have been able to move further along had the genocide designation already been in place.

D. Bakalian v. Central Bank of Republic of Turkey

Most recently in Bakalian, grandchildren of Armenians and former Turkish citizens brought a putative class action against two Turkish national banks, similarly seeking compensation for property taken from their ancestors. They brought the case under the Foreign Sovereign Immunities Act (FSIA), which establishes the limitations on whether a foreign sovereign nation may be sued in U.S. courts.[36] While foreign sovereigns enjoy jurisdictional immunity by default, exceptions exist under the FSIA.[37] One of these exceptions is the expropriation exception, which grants U.S. courts jurisdiction over foreign states in cases where rights in property taken in violation of international law are at issue.[38]

Although the court in Bakalian did not reach the substantial legal questions concerning FSIA jurisdiction, it did raise an important question, of whether the judiciary could be the first branch to decide that a genocide has occurred. The court rested its decision “on a straightforward statute of limitations determination” and found that the plaintiffs’ claims were time-barred.[39] Otherwise, the court further elaborated, it would have had to decide “a complex issue of first impression: whether the FSIA necessarily authorizes the judiciary to decide in the first instance whether a genocide has occurred even if a foreign state denies that it has.”[40] The genocide determination was critical in this case because it was necessary to allow the cause of action to properly fall within the expropriation exception. For many years, including when Bakalian was decided, there was a judge-made exception to the FSIA in which courts had interpreted the expropriation exception to incorporate international human rights law. Thus, some courts held that a state’s systematic expropriation of its nationals’ property in conjunction with an alleged genocidal scheme could establish jurisdiction under the FSIA’s expropriation exception.[41]

While this legal path could have been available for descendants of Armenian Genocide survivors just a few months prior to President Biden’s official recognition, it is unfortunately cut off by a quiet ruling by the Supreme Court in February 2021.[42] In Germany v. Philipp, the Court held that the expropriation exception to the FSIA does not cover expropriations of property belonging to a country’s own nationals, on the reasoning that the expropriation exception is tied to the international law of expropriation specifically, and does not incorporate broader international law, including human rights law.[43] Under international human rights law, including laws prohibiting genocide, there might be a cause of action against a sovereign in a foreign court; by contrast, under the international law of expropriation, a foreign sovereign’s taking of its own nationals’ property — that is, a domestic taking — remains a domestic affair.[44] Thus, descendants of those Armenians who were citizens of the Ottoman Empire and whose property was taken by the Ottoman Empire would not be able to use this exception to hold the Turkish government or its instrumentalities accountable for their ancestors’ loss of property since the Supreme Court held that the expropriation exception excludes domestic takings.

III. Conclusion

While the expropriation exception of the FSIA may no longer be a viable litigation avenue, there are still available paths for genocide litigation in the United States through civil federal statutes like the Alien Tort Statute,[45] possible criminal prosecution under the Genocide Statute,[46] and both primary and secondary liability state law tort claims, including negligence per se, intentional infliction of emotional distress, unjust enrichment, conspiracy, aiding and abetting of wrongful death, assault, battery, and more. In each of the four cases discussed above, an official genocide designation by the United States would have likely helped the cases go further and preserved the plaintiffs’ day in court.

This can be seen in one comparative case currently being litigated in New York, Kashef v. BNP Paribas. The plaintiffs brought this case against a French corporation for aiding and abetting the Sudanese regime in its perpetration of genocide and raised twenty tort claims under New York law.[47] The atrocities that took place in Sudan are widely known and have been condemned by the United States as genocide.[48] The Second Circuit held that the act of state doctrine does not apply,[49] because “international law does not recognize an act that violates jus cogens as a sovereign act.”[50] In other words, acts of genocide and other atrocities allegedly committed by the Sudanese government violated jus cogens norms[51] and thus could not be considered “official acts” of Sudan.[52]

Kashef demonstrates how genocide recognition can help defeat the act of state doctrine defense. According to the district court, the act of state doctrine also bars claims against private entities if an inquiry into “the motives of [a] foreign government” is necessary to determine whether the defendant’s alleged conduct caused the plaintiff’s injury.[53] Thus, to impose secondary liability on BNP Paribas, the court held that it would need to conclude that the Sudanese government engaged in tortious conduct within its territorial boundaries against its own people, and having an official genocide determination is certainly one way to do that.[54]

The Kashef case demonstrates a way forward for accountability for jus cogens violations through state tort law against corporations or banks operating within and beside those sovereign states. In this scenario, foreign sovereign immunity might not pose a bar. To the extent that banks or corporations are not agents or instrumentalities of the state, they are not immune from jurisdiction in the United States. Even for national banks which are considered to be state agents or instrumentalities, the commercial activities exception under the FSIA might help absolve that immunity. The commercial activities exception applies when a cause of action is based on (1) a commercial activity carried on in the United States by the foreign state; (2) an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or (3) an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.[55] Numerous foreign banks and corporations have been held to lack immunity through this exception, and it is reasonable to expect the same exception to continue to apply in similar situations.[56] Thus, with ways around immunity and the act of state doctrine, genocide litigation has a foreseeable path forward in the United States.

While the same reasoning may well be true for litigation of Armenian Genocide claims, the United States perhaps does not intend the recognition to implicate any FSIA exceptions. Tellingly, the State Department said that “[t]he President’s recent statement was not intended to impact Turkey’s sovereign immunity from the civil jurisdiction of United States courts.”[57]

However, as Davoyan demonstrated, new statutes can be written to preclude the statute of limitations from another country, and state courts are bound by their state law unless the statute is unconstitutional. Now this specific California statute might be favored over foreign law because it may not raise as many red flags as before the recognition. Movsesian would have moved further without the determination of a “highly politicized inquiry” of the genocidal nature of the 1915 events. The same was true for Bakalian.

Just the idea that the official genocide recognition could open legal avenues that were closed due to the lack of genocide designation, is a striking testament to the importance of political will in order for certain legal avenues to be available. Official genocide designations have a value and significance that can be felt tangibly within the law, in addition to the intangible added political pressure along with the catharsis in feeling a sense that the victims and survivors’ dignity has been at least partially restored.

Official U.S. recognition/designation is particularly important for the ongoing human rights abuses and genocides in Myanmar and China today, as recourse to those countries’ legal systems are clearly unavailable and any complicity that can be litigated in U.S. courts can help provide some form of redress to those affected by the conflicts in real time. In recent history, such designations have been retroactive, leaving little recourse for those who suffered and only opening narrow avenues for litigation after the fact. However, designations as the crimes are happening are critical to stopping them and preventing more harm while we still can. In the field of U.S. human rights litigation, legal avenues are often blocked in the absence of political will. Hence, it is important to note the legal significance that comes from designations of ongoing genocides to identify how U.S. litigation can be a valuable avenue for efforts of redress and accountability today and in the future.

 

[1] See, e.g., Miriam Berger, What it means for the U.S. to recognize massacre of Armenians as genocide, Washington Post (Apr. 24, 2021), https://www.washingtonpost.com/world/2021/04/22/armenia-genocide-recognize-biden-turkey/.

[2] See, e.g., Natalie Longmire-Kulis, Recognizing the Armenian Genocide Marks a Historic Turning Point in American Foreign Policy, Just Sec. (Apr. 25, 2021), https://www.justsecurity.org/75881/recognizing-the-armenian-genocide-marks-an-historic-turning-point-in-american-foreign-policy/.

[3] The act of state doctrine prohibits courts from sitting in judgment of another government’s acts. See generally, John Harrison, The American Act of State Doctrine, 47 Geo. J. Int’l L. 507 (2016).

[4] Statement by President Joe Biden on Armenian Remembrance Day, The White House (Apr. 24, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/24/statement-by-president-joe-biden-on-armenian-remembrance-day/.

[5] Fadel Allassan, Biden signs historic bill punishing China for Uyghur genocide, Axios (Dec. 23, 2021), https://www.axios.com/biden-signs-uyghur-forced-labor-bill-f4280bcb-adc4-4a7e-87e9-36307e29f83a.html.

[6] Secretary Antony J. Blinken on the Genocide and Crimes Against Humanity in Burma, U.S. Dep’t of State (Mar. 21, 2022), https://www.state.gov/secretary-antony-j-blinken-at-the-united-states-holocaust-memorial-museum/.

[7] Anoush Baghdassarian, Congressional Recognition of the Armenian Genocide – 104 years of Denial, Harvard Hum. Rts. J. (Dec. 27, 2019), https://harvardhrj.com/2019/12/congressional-recognition-of-the-armenian-genocide-104-years-of-denial/.

[8] See, e.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 965–66 (9th Cir. 2010).

[9] Sarei v. Rio Tinto, PLC, 671 F.3d 736, 815–16 (9th Cir. 2011).

[10] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756 (C.D. Cal. Sept. 25, 2006).

[11] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229 (9th Cir. 2019).

[12] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067 (9th Cir. 2012).

[13] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084 (C.D. Cal. 2013).

[14] Deirmenjian, 2006 WL 4749756, at *1.

[15] Id. at *24.

[16] Deirmenjian v. Deutsche Bank A.G., 548 F. App’x 461, 463–66 (9th Cir. 2013).

[17] Cal. Civ. Proc. Code § 354.45 (West).

[18] Deutsche Bank A.G., 548 F. App’x at 466.

[19] McCann v. Foster Wheeler LLC, 225 P.3d 516, 524 (Cal. 2010).

[20] Id. at 527.

[21] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756, at *26 (C.D. Cal. Sept. 25, 2006).

[22] Deutsche Bank A.G., 548 F. App’x at 466. It is interesting to note, though, that the district court was not completely without favor towards California’s interests in adjudicating the case. For example, earlier in the litigation, when presented with a motion to dismiss the case from U.S. courts on grounds of forum non conveniens (that is, the U.S. being a comparatively inconvenient forum), the court held that California had a local interest in resolving the controversy as “California is home to the largest populations of Armenians in the world outside the Republic of Armenia…California has expressed strong localized interest in ensuring that Armenian residents obtain relief for claims arising out of or related to the Genocide.” Deirmenjian, 2006 WL 4749756, at *16–17. In response to the defendant’s arguments that Germany has a strong interest in monitoring the activities of its banks, the court agreed but held that “Germany’s interest is outweighed by the interest of the United States and California in ensuring that residents are able to obtain adequate redress for their grievances.” Id. at *16. Lastly, the court held that “in the absence of any similar public sentiment in the European forum under consideration in this case, or a more tangible present-day connection to this subject matter of plaintiffs’ claims, this forum has the stronger public interest in adjudication of plaintiffs’ claims.” Id. at *17. These quotes are important because they demonstrate that perhaps with enough public policy reasons to support the decision in one forum, a foreign country’s interests can be outweighed.

[23] Deutsch v. Turner Corp., 324 F.3d 692, 714 (9th Cir. 2003) (“In the absence of some specific action that constitutes authorization on the part of the federal government, states are prohibited from … modifying the federal government’s resolution of war-related disputes.”).

[24] Const. art. VI, cl. 2.

[25] See generally Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).

[26] US Awami League, Inc. v. City of Chicago, 110 F. Supp. 3d 887, 892 (N.D. Ill. 2015) (citing Zschernig v. Miller, 389 U.S. 429, 434–41 (1968)).

[27] Id.

[28] See generally Zschernig v. Miller, 389 U.S. 429 (1968). The Court struck down an Oregon law it deemed to be an “intrusion by the State into the field of foreign affairs” because it required judges to determine the overlap of rights protected by foreign law and Oregon law. The Court distinguished this from an earlier decision of its regarding a California law, reiterating the fact that state laws with only “some incidental or indirect effect in foreign countries” do not intrude on the federal domain. Id. at 432–33.

[29] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067, 1076 (9th Cir. 2012).

[30] Id.

[31] Id. at 1077. To demonstrate this political turmoil, the Court referred to New York Times and BBC articles that discussed Turkey’s retaliatory response to the French bill that criminalized Armenian Genocide denial, and President Obama’s circumvention of the use of the word so as not to anger Turkey. Id.

[32] Id.; Cassirer v. Thyssen-Bornemisza Collection Found., No. CV 05-3459-GAF (CTX), 2012 WL 12875771, at *17 (C.D. Cal. May 24, 2012), aff’d in part, rev’d in part, 737 F.3d 613 (9th Cir. 2013) (citing Movsesian).

[33] See, e.g., Filartiga v. Pena-Irala, 577 F.Supp. 860, 862 (E.D.N.Y. 1984).

[34] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084, 1090–93 (C.D. Cal. 2013).

[35] Id. at 1104.

[36]  28 U.S.C. § 1604 (“Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.”).

[37] 28 U.S.C § 1605 (General exceptions to the jurisdictional immunity of a foreign state).

[38] 28 U.S.C. §1605(a)(3).

[39] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229, 1235–36 (9th Cir. 2019).

[40] Id.

[41] Cases in Seventh, Fifth, and Ninth Circuits demonstrated this exception. See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012), aff’d sub nom. Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir. 2015). Additionally, the 7th circuit observed that all U.S. courts to consider the issue recognize genocide as a violation of customary international law. Id. The Ninth Circuit stated that it is settled that genocide violates international law. See, e.g., Sarei v. Rio Tinto, PLC, F.3d 736, 759 (9th Cir. 2011).

[42] Federal Republic of Germany v. Philipp, 141 S. Ct. 703, 705 (2021).

[43] Id. at 714.

[44] Id. at 705.

[45] 28 U.S.C. § 1350.

[46] 18 U.S.C. § 1091.

[47] Kashef v. BNP Paribas S.A., 925 F.3d 53, 55 (2d Cir. 2019).

[48] Steven R. Weisman, Powell Declares Genocide in Sudan in Bid to Raise Pressure, N.Y. Times (Sept. 9, 2004), https://www.nytimes.com/2004/09/09/international/africa/powell-declares-genocide-in-sudan-in-bid-to-raise.html.

[49] Kashef, 925 F.3d at 61–62.

[50] Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992).

[51] “A jus cogens norm, also known as a peremptory norm of international law, is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id. at 61.

[52] Id. at 60.

[53] Kashef v. BNP Paribas S.A., 316 F. Supp. 3d 770, 774 (S.D.N.Y. 2018), vacated and remanded, 925 F.3d 53 (2d Cir. 2019) (quoting O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 453 (2d Cir. 1987)).

[54] Kashef, 925 F.3d 53. While the district court was concerned that it would be impermissibly intruding on the foreign affairs powers of the other branches in issuing this decision, the Second Circuit reversed and said that applying the act of state doctrine would actually contradict the legislative and executive branches since they have already made clear that they believe atrocities have been committed in Sudan. See Brief of Members of Congress as Amici Curiae at *1, Kashef, 925 F.3d 53 (No. 18-1304).

[55] 28 U.S.C. § 1605(a)(2).

[56] See, e.g., United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336 (2d Cir. 2021), petition for cert. pending, No. 21-1450 (filed May 17, 2022).

[57] Michael Hernandez, Biden’s 1915 events move to not affect legal status, Anadolu Agency (Apr. 30, 2021), https://www.aa.com.tr/en/americas/bidens-1915-events-move-to-not-affect-legal-status/2225900.

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*       Anoush Baghdassarian is a JD Candidate at Harvard Law School. She has a Master’s in Human Rights Studies from Columbia University, and a Bachelor’s in Psychology and Genocide Studies from Claremont McKenna College. She is Co-founder of the Rerooted Archive, documenting over 200 testimonies from Syrian-Armenian refugees who have fled Syria in the last ten years. She has a career focus on transitional justice and international criminal law and some of her work experiences include interning as an advisor to the Armenian Permanent Mission to the UN, an intern at the UN Office of the High Commissioner for Human Rights, and serving as an upcoming visiting professional at the International Criminal Court.

Content, Online Scholarship, Perspectives

The Shapes and Shades of Global Legal Dissent: An International Human Right to Protest Online?

By /

QERIM QERIMI*

Introduction

Protest is an inherent part of human history. The process of formation and transformation of democratic polities, old and new, is rooted in protest. † Every new human discovery or technology has exerted its impact and transformed protest, not so much its substance as much as its manifestation. From Gutenberg’s printing press and its impact on the Protestant Reformation; to the role of radio during the People Power Revolution in the Philippines, which ousted the Ferdinand Marcos regime and restored the country’s democracy; to the mobile phone-enabled “Text-Messaging Revolution”—the People Power II Revolution in the Philippines—which allowed information on former President Joseph Estrada’s corruption to be shared widely and, ultimately, deposed him from power; and to the role of “Facebook revolution” during the Arab Spring, human invention has been at the forefront of protest and its many faces, testifying to both the perpetual validity of protest and its indispensable power for change. In all these circumstances, however, technology has either complemented or enhanced, but never (completely) replaced or substituted physical protests.

What we have now, a trend most prominently exposed during the Covid-19 pandemic, is an all-virtual protest, standing in absolute autonomy from the classic physical gatherings. Advances in digital innovation have enabled the creation of a radically new and different space for critique, creativity, community, consensus, conflict, control and common civility. Faced with an unprecedented situation dictated by a lately unforeseen pandemic, many governments took measures encompassing restrictions on a number of internationally guaranteed human rights and fundamental freedoms, including the right to peaceful assembly—the common formal denomination of the notion of protest in international legal discourse.

In many countries, critical voices have emerged in relation to the broad scope of restrictions on people’s right to assemble or the implementation of such restrictions, or other public concerns. Where physical protests were suspended or cancelled, protests were then transferred to online spaces. Environmental activists assembled around Fridays for Future moved their assemblies online. In Hungary, civil society put in place the first online protest on social media to oppose the Hungarian “corona law” and attracted nearly 40,000 viewers. The protest was shut down after half an hour. In Poland, human rights advocates protested virtually against the new abortion bills during Covid-19 lockdown by posting selfies with the #ProtestAtHome hashtag. In the United States, a Pew Research Center analysis of tweets found that the #BlackLivesMatter hashtag on Twitter had been used roughly 47.8 million times between May 26 and June 7, 2020, a hitherto unprecedented figure. According to another survey conducted by Pew Research in June 2020, 54 percent of social media users of ages 18 to 29 responded that they had used social media platforms in the last month to look for information about protests or rallies happening in their area. This indicative list of online protests depicts an inescapable trend of the future. An essential by-product of real life problems, law comes as the next natural step. This Article seeks to contribute to this discussion by delimiting and defining the status and contents of a right to protest online on a global scale.

I. International Legal Foundations of the Right to Peaceful Assembly

In 1948, the Universal Declaration of Human Rights (UDHR) recognized everyone’s right to freedom of peaceful assembly and association (art. 20, § 1). Article 21 of the International Covenant on Civil and Political Rights (ICCPR) reaffirmed and elaborated on this right, as well as set out exceptions to it:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

A number of regional human rights instruments complement this broader international framework, enabling direct enforceability in national jurisdictions, notably the European Convention on Human Rights (ECHR) (art. 11), American Convention on Human Rights (art. 15), American Declaration of the Rights and Duties of Man (art. XXI), African Charter on Human and Peoples’ Rights (art. 11), and Arab Charter on Human Rights (art. 24).

Given the interdependent nature of rights generally and the contents of the right to peaceful assembly specifically, this right is inextricably intertwined with other rights, primarily freedom of association and freedom of expression. Indeed, some of the international instruments such as the ECHR treat assembly and association as part of a singular legal right, secured in article 11, whereas others, such as the ICCPR, provides for two separate rights, codified in articles 21 and 22, respectively. Moreover, the very notion of assembly or protest would be meaningless if stripped of the conditioning cause, dissent, or displeasure which it seeks to express. As stated by the European Court of Human Rights (ECtHR), one of the aims of freedom of assembly is to secure a forum for public debate and the open expression of personal opinions (Ezelin v. France, ¶ 37). The link between the two rights is most apparent where the national authorities’ intervention against an assembly or protest is at least in part related to the “views held or statements made by participants.” (Stankov v. Bulgaria, ¶ 85).

The rights of assembly, association, and expression share a common element of necessary and tolerable critique for democracy and human beings to continue to progress:

“Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man. … [I]t is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the [s]tate or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means … that every “formality”, “condition”, “restriction” or “penalty” imposed … must be proportionate to the legitimate aim pursued.” (Handyside v. United Kingdom, ¶ 49).

Likewise, freedom of assembly protects a demonstration that may “annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.” (Platform Arzte fur das leben v. Austria, ¶ 32).

II. The Case for the Right to Protest Online

To begin with, there is no express articulation in the existing binding corpus of international instruments of a right to protest online. At the same time, there is no prohibition of it. Indeed, the very phrasing of the relevant provisions in the international instruments referenced above is neutral as to the form of manifesting protest. These provisions do not limit the freedom of assembly or the corresponding freedom of association or expression only to physical presence, encounter, or expression. To recall article 21 of the ICCPR: “[t]he right of peaceful assembly shall be recognized;” and article 11 of the ECHR: “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others…” Given the growing magnitude of digital interaction, one might observe a higher degree of association happening online than offline.

In any event, the relevant judicial praxis, as evidenced by judgments of international courts, has set no bar to applying these rights to events occurring in, or disputes emerging from, the online sphere. For instance, ECtHR jurisprudence has routinely applied the rights and freedoms guaranteed in the ECHR to the internet and new technologies. While no case has been brought to the ECtHR on the specific right to protest online, there are numerous judgments on the right for private and family life, including right to respect for correspondence. Indeed, it would be truly incomprehensible to think of the right to privacy and correspondence as limited to classic, physical context only, which is overshadowed by online interaction. The same is true with regard to the freedom of expression. As observed by the ECtHR, “the [i]nternet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.” (Yildirim v. Turkey, ¶ 54). Any interference from national authorities will constitute a breach of the protected right unless it is prescribed by law, pursues a legitimate aim, and is required to achieve the aim in a democracy (¶ 56). This jurisprudential approach represents a naturally evolved application of the ECHR rights to online contexts. The same standard would be equally applicable to the right to protest online, such as in the scenario when internet service providers and intermediaries can potentially restrict online assemblies or the privacy of participants.

III. Existing Practice and Trends in U.N. Bodies

At a global context, on 6 July 2018, the U.N. Human Rights Council, a 47-member body, adopted by consensus a resolution on “the promotion and protection of human rights in the context of peaceful protests.” The resolution makes clear that, unlike the way it has been understood by some, an assembly does not require a physical gathering of people. Rather, “human rights protections, including for the rights to freedom of peaceful assembly, of expression and of association, may apply to analogous interactions taking place online.” The Human Rights Council expresses concern about undue restrictions that hinder internet users from gathering or sharing information at important political moments, thereby impairing their ability to organize and participate in assemblies. It recognizes that the safe and private usage of communications technology under the protection of international human rights law is essential for the realization of the freedom of expression and the right to peaceful assembly. Hence, the resolution calls on all states to stop or refrain from measures aimed at blocking internet users from obtaining or distributing information online. Although a soft law instrument by formal characterization, the resolution is a significant normative development because it is adopted by consensus under the umbrella of a U.N. organ.

The U.N. General Assembly has subsequently endorsed the Human Rights Council’s position. In a resolution adopted on 17 December 2018, the General Assembly called upon all states to ensure that “the same rights that individuals have offline, including the rights to freedom of expression, of peaceful assembly and of association, are also fully protected online,” in particular by holding back from internet shutdowns and content regulation in a manner that violates international human rights law. The resolution was adopted by a significant 154 votes in favor, none against, and 35 abstentions, yet it failed to pass without a vote.

The U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has also recognized that digital technology forms an integral part to the exercise of the rights of peaceful assembly and association. The Human Rights Committee, the treaty body that monitors implementation of the ICCPR, has affirmed that the right to peaceful assembly extends to online sphere. In its General Comment No. 37 on article 21 of the ICCPR, the Committee clarifies that this provision “protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof.”

Although all the instruments discussed above fall under the notion of “soft law” rather than representing legally binding obligations, they are nonetheless authoritative and unanimous in conceiving the application of relevant “hard law” framework to the rights to freedom of peaceful assembly and association online. Therefore, international law ought to protect the right to protest online.

IV. Process, Prospects, and Problems of the Realization of a Right to Protest Online in Real-Life Settings

Despite the existence of a clear and strong international legal protection of the right to peaceful assembly, this right is not absolute. In law and reality, it means that the right is subject to limitations. Such limitations, although clearly expressed in legal terms, provide space for potential contention and abuse. The general international human rights standard requires any restriction be (1) prescribed by law; (2) necessary in a democratic society; and (3) in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others. Similarly in the digital context, the freedom to access and use digital technologies for purpose of exercising the right to freedom of peaceful assembly constitutes the default, with limitations being the exception. Whenever such exceptions are invoked, it is incumbent upon states to demonstrate the necessity of the restrictions and implement them only to an extent proportionate to the pursuance of legitimate aims. In no case can a restriction be applied or invoked in a manner that would result in the impairment of the essence of the right (Human Rights Committee, General Comment No. 31).

Being “one of the foundations” of a democratic society, the right to freedom of peaceful assembly should not be interpreted restrictively, unless in gatherings where the organizers and participants have violent intentions, actually incite violence, or otherwise reject the foundations of a democratic society. In order to avert the risk of a restrictive interpretation, the ECtHR has “refrained from formulating the notion of an assembly, which it regards as an autonomous concept, or exhaustively listing the criteria which would define it.” (Navalnyy v. Russia, ¶ 98). However, in its relevant jurisprudence, the ECtHR has clarified that the right to freedom of assembly covers “both private meetings and meetings in public places,” and can be exercised by “individual participants and by the persons organising the gathering.” (Kudrevičius v. Lithuania, ¶ 91). It is of distinct significance that a violation of, or interference with, the right to freedom of peaceful assembly does not need to amount to an outright ban of assembly, be it legal or de facto, but can consist in various other measures imposed by public authorities. The existing case law of the ECtHR has provided several examples (Kudrevičius v. Lithuania, ¶ 100), which could apply and be equally valid to an online context. A prior ban can create a chilling effect on those who may plan to participate in a protest and thus arise to the level of interference, even if the protest subsequently proceeds without obstruction from the authorities. A prior ban of an online platform intended to serve as a venue of protest can likewise have a chilling effect on those planning to participate in that protest. A refusal to permit individuals to travel with the goal of attending a meeting—which in the digital context could translate into blocking an individual’s access to the internet—amounts to an interference with the right to freedom of peaceful assembly. So do the measures taken during the protest, such as dispersal of the meeting, apprehension of participants, or other punishments inflicted upon protesters—the same measures can be equally applicable to participants and organizers of an online protest.

It has been increasingly common for states to shut down access to the internet and communication services during public protests, alternatively known as “blackouts” or “kill switches.” According to data collected by Access Now and the #KeepItOn coalition, one of the most commonly observed causes of internet shutdowns in 2019 was protests. Consequently, “when a government says it is cutting access to restore ‘public safety,’ in reality it could mean the government anticipates protests and may be attempting to disrupt people’s ability to organize and speak out, online or off.” When “a government claim that a shutdown is necessary to fight ‘fake news,’ hate speech, or incendiary content,” it “could be an attempt to hide its efforts to control the flow of information during periods of political instability or elections.” Indeed, internet shutdowns—the most frequent tool employed by governments to suppress online dissent and protest—is impermissible under international human rights law, even in times of conflict or other emergencies. As stated by four Special Rapporteurs on the field of freedom of expression respectively appointed by the U.N., the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples’ Rights in a Joint Declaration on Freedom of Expression and responses to conflict situations, web content filtering and complete shutdown of communication systems “can never be justified under human rights law.” (¶ 4.c.). To substantiate this statement, it must be noted that whereas the rights to freedom of expression and freedom of assembly and association are not qualified as normatively absolute rights in the sense that they are subject of legally prescribed limitations, such limitations must be necessary and proportionate, and “must be narrowly interpreted.” (Kudrevičius v. Lithuania, ¶ 142). However, a complete internet shutdown is more analogous to a complete denial of the rights than a narrowly qualified limitation.

As the U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has explained, the right to freedom of peaceful assembly not only imposes a negative obligation on the state to not interfere with the enjoyment of the right; it also creates a positive obligations on public authorities to secure and facilitate the effective enjoyment of this right. States must therefore act in consonance with their international obligation to protect the right to freedom of peaceful assembly online by permitting protesters to peacefully gather online. In other words, states should ensure that access to the internet is not blocked, censored, restricted, or shut down entirely; that the privacy of those peacefully participating in an online assembly is respected; and that they face no actual or subsequent consequences for participation or organization of an online protest, such as arrest, detention, or imposition of penalties. The primary responsibility of states for the realization of the right of peaceful assembly also entails the responsibility to prevent non-state actors, including businesses, from unduly interfering with individuals’ freedom of peaceful assembly. According to Human Rights Council, states should “ensure effective remedies for human rights violations, including those related to the internet.”

Conclusion

Those who undertake to imagine the future of online protests or digital dissent on earth or in space can do so not only on the basis of their power of imagination but also knowing that the byproduct of that imagination is protected by law. As many tragic events in human history that have given rise to new legal and institutional inventions (to name a few, the United Nations, the Universal Declaration of Human Rights, and the Genocide Convention after Second World War), the Covid-19 pandemic and the subsequent governmental limitations on peaceful assembly have brought the right to protest into a new light. However, while the analysis here reveals the existence of legal foundations and safeguards of a right to protest online, including its composite principles, it nonetheless points to a demand for the development of a universally agreed framework and its enforcement. One out of many possible courses of action—at least as an initial step—could be the adoption by heads of state and government at the next U.N. General Assembly plenary of a joint declaration that affirms the right to protest online. In operational practice, courts are the obvious natural candidates to recognize and implement the right to protest online.

 

*       Qerim Qerimi is a professor of international law, international law of human rights, and international organizations at the University of Prishtina. He is also a visiting professor and member of the Law and Development Research Group at the University of Antwerp Faculty of Law. Additionally, he is a member of Council of Europe’s European Commission for Democracy through Law (Venice Commission) and chair of its sub-commission on the protection of national minorities, and serves as Rapporteur for Oxford International Organizations (OXIO). He has pursued postdoctoral research at Harvard Law School on a Fulbright scholarship.

†       See generally, Cass R. Sunstein, Why Societies Need Dissent (2005); Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (2001).

Frontpage Features, Print Journal, Volume 63

Volume 63, Issue 1

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Front Matter

Articles

“Just” Sharing: The Virtues of Digital Sequence Information Benefit-sharing for the Common Good

By: Margo A. Bagley

The Unable or Unwilling Doctrine: A View from Private Law

By: Gabriella Blum & John C. P. Goldberg

The Independence of National Focal Points Under the International Health Regulations (2005)

By: Sam Halabi & Kumanan Wilson

Japan’s Transnational War Reparations Litigation: An Empirical Analysis

By: Timothy Webster

Note

Towards a New Standard for Assessing Compensation in Cases of Collective Human Rights Violations

By: Stanisław Krawiecki

Content, Forum, Online Scholarship

Fireside Chat with Prof. Alette Smeulers and Dr. Thijs Bouwknegt

By /

Editorial note: This exchange is part of the ILJ Forum series “International Criminal Law and the Criminal Mind”.

International criminal jurisprudence, principally that of the International Criminal Tribunal for the former Yugoslavia (ICTY), notes that “under customary law, ‘purely personal motives’ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated.”[1] Similarly, at the International Criminal Court (ICC), “the [Rome] Statute does not envisage any requirement of motive or purpose to prove that a policy to commit an attack against the civilian population exists.”[2] Against this background, we ask …

 

Alette Smeulers is professor at the University of Groningen, the Netherlands and works at the Law Faculty and the University College of Groningen. She studied political science and did her PhD in international criminal law. Her main expertise and research focus is on the psychology of perpetrators of mass atrocities. Her most important publications include an article on how ordinary people transform into perpetrators and a book chapter in which she presented a typology of perpetrators. She can furthermore be considered one of the founders of Supranational Criminology, the criminology which focuses on international crimes. In her research she also looks at concepts of individual criminal responsibility from a criminological perspective. She is a passionate scholar and teacher and has published widely in this field. See here for more about her research. She can be contacted a.l.smeulers@rug.nl.

Dr. Thijs B. Bouwknegt is historian of mass atrocity violence and transitional justice. He is a researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam (part of the Royal Netherlands Academy of Arts and Sciences, KNAW). Bouwknegt also directs the Master’s programme “Holocaust and Genocide Studies” at the University of Amsterdam. He has previously worked as researcher at Amnesty International, the ICTR and the ICC, and as international justice Correspondent for Radio Netherlands Worldwide and Editor of the International Justice Tribune. Since 2003, Bouwknegt has attended and monitored over 150 atrocity crime trials at the ICC, international tribunals (ICTY; ICTR; SCSL; ECCC; STL; KSC) and jurisdictions in Europe and Africa. Bouwknegt is currently finishing his book “Transitional History”, which deals with mass violence and transitional justice in Africa between 1884 and 2022, and is working on a project on atrocity and the illiberal use of transitional justice in settler colonies. He can be contacted at t.bouwknegt@niod.knaw.nl and @thijsbouwknegt.

 

The mental element required to convict a person of international crimes, under the Rome Statute, varies from knowledge to specific intent.[3] Should these provisions have a more nuanced reference to the mental processes that take place when a person participates in these types of crimes?

A.S. Yes, I think they should. From a purely legal perspective these provisions might make perfect sense. But when we consider the psychology of perpetrators, some of the provisions could indeed be perceived as odd.

Let me explain: for the elements of a crime against humanity to be fulfilled the suspect needs to have the knowledge that his or her conduct is part of a widespread or systematic attack.[4] The point is that social-psychological research has consistently shown that human beings are social beings who look at others to see what appropriate behavior is and then tend to follow suit. In the famous Asch experiment, participants were placed in groups of six and were asked to indicate which line (out of three) was equal in length to another line. Not known to the actual participants, all other people in the group were confederates of the experimenter and had been instructed to deliberately give the wrong answer at times. When being alone almost no one erred; but when confronted with a unanimous wrong answer from all others in the group, many actual participants also gave the wrong answer. This experiment and social-psychological research in general show that people are likely to go along with the group and conform.

Interestingly they do so for different reasons. Some believe that the group must have it right and that hence their own perception is wrong (informational conformity). Others simply do not want to go against the group (normative conformity).  The first reason is especially intriguing and seems to be at odds with the knowledge requirement in international criminal law. To put it differently: the normal and ordinary human reaction to knowing that his or her act constitutes part of a widespread attack and thus knowing that many others participate, in itself can make the person believe that it must therefore be the right thing to do. I would say that those perpetrators seem less guilty than the ones who do not know this but still decide to participate. International criminal law as it stands today would, however, conclude the exact opposite.[5]

In my opinion, the law would indeed have much to gain if it takes a better look at the mental processes of the low-ranking perpetrators. Research on perpetrators has shown that many of them (albeit not all of them) are ordinary people acting within extraordinary circumstances. In other words, they commit their crimes in a very specific political, ideological, institutional, and social context. Roxin’s idea of “organisationsherrschaft” gives room to explaining the power of organizational environment which to a large extent can shape the behavior of people working within it. Roxin’s analysis was strongly based on the lessons learned from the Holocaust, but it is confirmed by Milgram’s obedience to authority experiments. Milgram’s findings have often been misinterpreted: he did not show that people blindly obey just any order no matter what it is. What Milgram’s experiments show is that people are inclined to trust a person in a position of authority and conform to his or her request. Human beings are social beings and are heavily influenced by their surroundings, but they are not automatons: they do have a choice, although the choice is often much more confined than we can see from the outside. Roxin’s ideas seem to acknowledge that.

In that sense, it is good that the ICC took up these ideas by using the control theory as a liability theory because there is indeed a certain level of control. However, I have argued that the current requirements of almost absolute control in ICC’s case law are too high because human behavior can rarely be controlled to such a degree.[6] We need to acknowledge that people high up in the chain of command can stir and direct human behavior and thus indirectly incite international crimes. They are the ones who create the atrocity-producing situations which make others commit horrendous crimes, and therefore should be held responsible for that. International criminal law, however, is often too much focused on direct forms of incitement and ordering and — as in the case of the ICC — on absolute control. This narrow focus makes those higher up in the chain of command get off the hook too easily. By putting the focus and blame much more on higher-ranking commanders, international criminal law would become more just and therefore more effective.

T.B. I am not sure. I have come to realize that social scientists, even historians, expect way too much from what courts (international or national) could realistically contribute to empirical, judicially unbiased knowledge and understanding about how the processes and dynamics of mass violence work in the first place, and the role of individual perpetrators in that context. Also, as an observer and professional historian of legal and quasi-legal reckonings with mass violence through courts and truth commissions, I would feel uncomfortable to comment on what courts “should do” or what states ought to consider to include, or change, in the mandates of the institutions they set up. That is not my mandate.

However, when I gauge the modern development of international justice, it is quite clear to me that the orientation of the political, legal, and activist agents who set up the ICC in the 1990s was primarily towards the victims. The ICC was supposed to be forward-looking, not reflective: founders of the ICC were envisaging lofty extra-legal effects such as deterrence and contribution to peace, rather than unraveling root causes and discerning macro-, meso-, and micro motives. More importantly, inspired by positivistic human rights ideologies, the founders desired the ICC to be victim-centred instead of being perpetrator-centred: give the victims a voice, have them participate (distantly, phantom-like, through counsel, though), and compensate their suffering through reparations. Such a desire trumped over the need to hear the suspects. The goal was no longer to fathom the undercurrents of mass violence, nor to get to the bottom of why it happens and why individuals might get caught up, or choose to participate, in it (a false expectation raised in light of Israel’s “didactic” trial of Adolf Eichmann in the 1960s). As a result, at the ICC the trial-encounters with alleged perpetrators — the traditional sole focus of individual criminal proceedings — are shallowed, rendered less important: the goal has become to simply adversarially investigate, prosecute, convict, and sentence them, and have them pay reparations if convicted. Defendants — with exceptions like Bosco Ntaganda — have also become increasingly reluctant to testify or to address the ICC judges. We saw in the case of former Congolese militiaman Germain Katanga that there are risks in doing so. Controversially, after Katanga gave a statement, the judges changed the charges accordingly and convicted him.

Having said so — and having observed all trials at the ICC since 2006 — I find that there is another dynamic at play, which might provide an explanation as to why the ICC produces hardly any usable resources on perpetrators’ motives and circumstances. There is a trial record, but it is a problematic historical source. First, the records hardly ever provide any perpetrator testimony. Second, even while international judges are not psychologists and are not professionally trained to deal with those very complex matters, they “could” have chosen a different style in proceedings, a style that is more inquisitorial and more oriented towards “understanding” the accused’s reasons for doing what they did. For example, the International Crimes Chambers at The Hague’s District and Appeals Courts do things very differently, and often engage extensively in “conversations” with accused persons at trial, even if they do not always opt to provide answers. Coming from a civil law tradition, I am always quite surprised by the lack of engagement of individual international judges (or chambers as a whole) with the defendants: they never choose to question, examine, or enter into a dialogue with accused persons, but rather take a distanced approach as “arbiter” over the competing narratives and theories offered by the Prosecution, Victims’ Representatives and the Defense. So, to me, it is not so much the Rome Statute that poses an obstruction or a problem; it is the way in which judges actually operate and position themselves — opting to settle with adversarial custom — towards suspects of mass violence.

 

To what extent does the disregard of motives in international criminal trials come at the expense of not entirely understanding, in the international legal profession, how the human mind works in connection with the commission of atrocity crimes?

A.S. By not taking the underlying psycho-sociological processes and the mind of the perpetrator into account, international criminal law risks not only putting most of the blame on the wrong people but also failing to identify the true causes and true nature of such crimes. The power of top leaders to create atrocity-producing situations has been underestimated and needs to be better understood and addressed. Whereas there are legal provisions that prevent low-ranking soldiers from relying on the defense of superior orders,[7] the true nature of the pressure that results from explicit and implicit orders is still not completely understood.

Kelman and Hamilton have developed the term “crimes of obedience.” They did not mean to say that each individual is a passive automaton and blindly follows orders. Rather, they were saying that we trust people who have legitimate authority, such as heads of states, government officials, and military leaders. It is a natural human tendency to follow their lead. Low-ranking soldiers have often not only stated that they merely obeyed orders, but I also found in my own research that they thought they were doing the right thing — at least within the duty they perform. Such statement has often been brushed aside as a petty excuse, but I think it is important to look more into who made the soldiers believe that committing horrendous crimes was the right thing and how such person did this. Not making this inquiry works to the advantage of the top leaders who play a crucial role in generating atrocities and helps them escape the blame too easily. More importantly, not sufficiently listening to the foot soldiers prevents us from fully understanding the causes of atrocities. This is a missed opportunity, because merely locking up the perpetrators is not going to make the world a safer place. To make it safer we need to address the underlying causes. In order to do so we need to understand them first.

T.B. I would not say that all international(-ized) criminal trials disregard motive and/or personal circumstances, particularly in some civil law courts with universal jurisdiction, or even at some hybrid tribunals. At the first trial before the Extraordinary Chambers in the Courts of Cambodia, for instance, Kaing Guek Eav (alias “Duch”) – who confessed his crimes – was invited to attend and responded at large to many questions relating to why he did what he had done in the 1970s, and how he reflected on it 40 years later. At the Special Court for Sierra Leone, former President Charles Taylor — in his own defense — was allowed to testify for hundreds of hours.[8] In the Netherlands, I have attended many atrocity crime trials in which the judges inquired in-depth about what motivated the defendants to participate in certain acts. This month (April 2022), for example, the Dutch war crimes chamber spent three days in interrogating and talking with a Dutch-Ethiopian suspect, Eshetu Alemu. The chamber asked how the suspect got caught up in mass murder and torture in the late 1970s, and how he thinks and feels about that now – including towards victims. There are, thus, opportunities to gauge at least post-fact explanations and rationalizations of the historical mind. The ICC is different. In April also started the trial over the alleged atrocities in Sudan’s west-Darfur region. But from the outset, the judges did not even bother to ask the accused, Ali Muhammad Ali Abd-Al-Rahman — who is a Muslim in his 70s and was practicing Ramadan during the trial — whether he was able to concentrate on the proceedings.

Whether one comes out of such judicial experience with useful, let alone truthful, information is another massive question. Calculating potential life consequences (i.e., a long prison sentence), the perpetrator rationalizes the past in a trial setting and comes up with what the late anthropologist Bert Ingelaere called “pragmatic truth” — which oftentimes is not “the” (entire) truth. Could cosmopolitan legal professionals without (social) psychology training really comprehend how “the mind” of divergent actors works in the context of mass violence, which took place in foreign countries? I do not think so. I do not think it is possible for judges to come to a consensus about any generalizable feature of the mentality of atrocity, for three simple reasons. First, a courtroom is something completely different from a professional psychological “laboratory.” Second, international judges deal with too wide a range of different individuals from myriad societies with completely different cultures, practices, and norm-and-value systems. It would be empirically odd to draw generalities from these culturally, socially, and economically incomparable individuals about “the mind”. Third, not a single case of mass violence is similar with one another, even while political scientists want us to see it that way: a Rwandan farmer probably killed for completely different reasons than a Syrian member of the Shabiha. The legal umbrella label of “atrocity crimes” — which includes dozens of violent acts against both humans as well as historic, cultural, or military objects — does little justice in capturing the unique local dynamics and multiple layers of actual mass violence. Apart from those aspects, what can retrospectively and anachronistically asking oftentimes aged defendants about the crimes they committed many years — sometimes decades — ago, really tell us about their actual mental state in the past?

Trying to understand both the “agency” and “structure” of mass violence (in addition to rendering a legal opinion about it and meting out punishment) is thus a complex, perhaps impossible, challenge — that requires deep and long-term engagement, such as in some proceedings at the ICTY and International Criminal Tribunal for Rwanda (ICTR). This challenge is even more prominent at the ICC, which is essentially a broad collection of mini-tribunals dealing with widely diverging “situations” and “perpetrators”. What can a single judge — let’s say an aged white man from a modern western country that has not experienced any war, violence, or repression for nearly a century — really learn and understand about the “criminal atrocity mind,” when they — rather artificially and intermittently — deal with incomparable suspects (a former child soldier, a former President, a former teacher, a former nurse) who have committed incomparable crimes (enlisting child soldiers, smashing a mosque’s door, ordering a massacre, killing drug dealers) in completely different social-historical contexts (Myanmar, Venezuela, Afghanistan, Democratic Republic of the Congo, etc.)?

A.S. Thijs, you questioned whether “an aged white man from a modern western country that has not experienced any war, violence, or repression” can “really learn and understand about the criminal atrocity mind.” That is true, but the judge does not need to fully understand as this might indeed be an impossible task. The point, however, is that it is the job of an ICC judge to decide on the extent of blameworthiness in the context of atrocity crimes. This job can only be done by trying to understand the actual social context and the psychological reality in which the suspects committed their alleged crimes. The judge needs to make an effort and get a good grasp of what has happened and the mental state of the suspect. Otherwise, they should merely judge on the basis of actus reus and not mens rea. In the Ongwen case, for instance, the horrendous past and its devastating effect on Ongwen were in my view not sufficiently considered. How can it be that in the Lubanga case it is acknowledged that the children who were recruited to become child soldiers suffer a long term trauma and that their development was strongly affected,[9] and yet a former child soldier who then stands trial was merely told that there was no duress and that he could and should have escaped?[10] I am not saying it is easy — quite the contrary — but we need to take the social context in which the perpetrators operate and their state of mind into account. If that cannot be done sufficiently then we should maybe reconsider whether to try these cases, because international criminal law can only be effective if it is fair.

T.B. Thank you, dear Alette, for bringing Ongwen into our conversation. I have observed this trial extensively, and have written together with criminologist Barbora Holá on the problems you raise, and I fully agree with you. The judges there heavily leaned towards understanding the victims’ trauma and needs, while they basically disregarded Ongwen’s presence in the courtroom — including his unsworn statement, in which he narrated how he was victimized when he was 9 years old, and how his parents were murdered by his abductors. More fundamentally, the Ongwen trial was marred by contradictions as to who the ICC considers victims or perpetrators. There was no space to explore the grey zones.

 

If we accept one of the objectives of international criminal justice is deterrence and prevention of atrocity crimes, should personal motives to participate in the commission of these crimes play a more central role in international trials, so we can understand the motives of the crimes we aim to prevent?

T.B. I understand the symbolic tropes of “deterrence” and “prevention” as philosophical or utopian phrases that legitimize the existence of international criminal justice institutions socio-politically. The empirics are against the hypothesis that atrocity crime trials — whether national, hybrid, or international — contribute to immediate or future peace, or processes of reconciliation that may then lead to peace. Nuremberg did not stop nations — including those involved in running the military tribunals — to inflict mass atrocity violence themselves soon thereafter; over 5,000 trials for politicide through a national judicial system (1992-2010) did not deter new wars in Ethiopia; Srebrenica happened two years after the ICTY’s establishment in 1993; the Democratic Republic of the Congo has been in permanent war since 1994, despite ICTR and ICC’s “interventions”. Last but not least, did international justice deter Russia from attacking Ukraine, or did Russia weaponise the language of international law to legitimize its acts? The question at hand thus triggers more questions than there are scholarly answers. Could trying to understand Thomas Lubanga Dyilo’s (a former psychology student himself) motives to use child soldiers as bodyguards, help prevent Ahmad al-Faqi Al Mahdi (a former primary education student) from destroying the door of an ancient mosque with a pickaxe?

Moreover, atrocities are always driven by some political motives. If prevention is a goal, then trying to comprehend the political processes more generally, rather than asking the defendants why in the distant past they did an “alleged” crime — which they often deny — might provide more guidance? In addition, oftentimes we already know that defendants would rationalize and explain what they did by attributing it to particular political or social circumstances, external pressure, or — and it is a reason often forgotten — fear or opportunity. So, we are back to “Arendtism”: human beings are just susceptible to violence-producing situations when circumstances either direct or allow them. If prevention of mass violence is a purpose — even while genocide scholars, particularly historians who study the longue durée of mass violence, agree that mass violence is, sadly but simply, a cyclic continuum in the history of homo sapiens, and thus unpreventable — of individual criminal trials, then — perhaps at maximum — trying to understand an individual’s motive could only assist in preventing that individual from atrocity-crime recidivism.

Not many (would-be) perpetrators fear international justice, for they (ironically including some leaders of large democracies like the United States of America and India) resist to subscribe to it. In plain evidence today are Vladimir Putin, Bashar Assad, and the Tatmadaw. Perhaps what judges could at least apprehend about “the mind” of many perpetrators, is that those people hardly ever see themselves as perpetrators at all — but rather as liberators, peacemakers, or even victims. Yes, they were involved in violence, but they believe it was the right thing to do and thus not criminal. The only time international judges took this self-perception into consideration was in the trial of the Civil Defence Forces’ leadership in Sierra Leone. What is regularly at play, however, is a collision between different world views and appraisals of realities, including mentality, on the ground.

A.S. Thijs, I fully agree with your last statements on Putin and others but I strongly disagree with one of your other points, namely that: “trying to understand an individual’s motive could only assist in preventing that individual from atrocity-crime recidivism”. I totally understand that judges are not psychologists, but they can make more use of the work of social scientists to better understand the social-psychological reality in which perpetrators operate. It would lead to a fairer international criminal justice system and a better understanding of atrocities. In this regard, using typologies of perpetrators as a general and theoretical framework can help. You are right that perpetrators differ: they have different roles, ranks, and motives, and they operate in different political and cultural contexts. However, there are also many similarities even across cultures and time periods. It is important to understand both these differences as well as the similarities and to understand how all these different individual “cogs” (small, bigger, and biggest) play a role in a destructive or genocidal machine. That understanding is important in order to prevent such crimes from happening in the future. It is also important in the prosecution and sentencing of the perpetrators.

Let’s take the example of Ukraine. It matters whether a Russian foot soldier participates in the attack (i) because he genuinely believes that Ukraine is committing a genocide against the Russian people there (which he might believe because he is told so) and that he comes to their rescue; or (ii)  because participation will give him the opportunity to outlive his violent urges; or (iii) because he is forced to participate; or (iv) because he is just doing as he is told in order to enhance his chances to build a career in the military. It matters if we look at the aims, functions, and purposes of the international criminal justice system; it also matters because we can then better see how the Russian top leaders managed to create an atrocity-producing situation. It shows how the foot soldier who believes that he needs to come to the rescue of his former fellow countrymen has been affected by the propaganda of the state authorities. Uncovering his motive shows where the main (not sole) guilt lies. We need to understand the dynamics between the perpetrators: understand how someone like Putin, a head of state, affects the beliefs and hence behavior of his foot soldiers. The international criminal justice system can much better fulfill its role and task if it uncovers, blames, and subsequently deters a powerful head of state like Putin than it could ever do by blaming and deterring the foot soldier. The foot soldier is not innocent (unless he is coerced), but he committed his crimes in a context that was created by political top leaders and his close associates, who made him believe that committing horrendous crimes is the right thing to do as an act of self-defense. Uncovering these motives would show much better how dangerous propaganda (and fake news) can be and make us get closer to understanding the actual cause of such crimes. We absolutely need to more efficiently criminalize and prosecute creating such atrocity-producing situations and for that we need to understand motive.

[1]       See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, ¶ 270 (ICTY July 15, 1999);  Prosecutor v. Kvočka, Case No. IT-98-30/1-A, Appeals Judgment, ¶ 463 (ICTY Feb. 28 2005); see also Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeals Judgement, ¶ 49 (ICTY July 5, 2001); Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeals Judgement, ¶ 102 (ICTY Sept. 17, 2003); Prosecutor v. Martić, Case No. IT-95-11-A, Appeals Judgement, ¶ 154 (ICTY Oct. 8, 2008).

[2]      Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶ 213 (Jan. 23, 2012).

[3]      Rome Statute of the International Criminal Court arts. 6, 25(3), 30, July 1, 2002, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].

[4]      Rome Statute art. 7(1).

[5]      See id.

[6]      See also Prosecutor v. Lubanga, ICC-01/04–01/06, Separate Opninion of Judge Adrian Fulford, ¶ 18 (Mar. 14, 2012); Prosecutor v. Ngudjolo Chui, ICC-01/04–02/12, Concurring Opinion of Judge Christine Van den Wyngaert, ¶ 42 (Dec. 18, 2012).

[7]      See, e.g., Rome Statute art. 33.

[8]      See also Thijs B. Bouwknegt, Unravelling Atrocity: Between Transitional Justice and History in Rwanda and Sierra Leone, in Genocide: New Perspectives on its Causes, Courses and Consequences 217 (Uğur Ümit Üngör ed., 2016).

[9]      Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on Sentence pursuant to Article 76 of the Statute, ¶ 39 (July 10, 2012) (citing testimony of expert witness Ms. Schauer).

[10]     Prosecutor v. Ongwen, ICC-02/04-01/15, Trial Judgment, ¶ 2668 (Feb. 4, 2021).

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