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).
Kathryn Sikkink: