Third Annual Symposium on Pop Culture and International Law: What if – On the Value of Justice for Thanos

[Jens Iverson is an Assistant Professor at Leiden University and a Visiting Professor/Lecturer at Vermont Law School, Santa Clara University School of Law, and University of California College of the Law, San Francisco.]

Dr. Stephen Strange is one of the most intelligent characters in the Marvel Cinematic Universe.  He was able to switch fields, learn languages, and master the mystic arts later in his career.  According to the Sorcerer Supreme, he was supposed to be the best of all of us, the one who could shape the future in unexpected ways.  

Which raises the question after his allegation of genocide against Thanos — if this doctor, this genius, can’t master the basics of international criminal law, what hope is there for the general public?  Or is there more to Dr. Strange’s apparently erroneous allegations of genocide than there seem to be?  What do they reveal?

It is clear that Dr. Strange knows Thanos’s approach to mass killing.  

Banner: “He’s a plague, Tony, he invades planets, he takes what he wants, he wipes out half a population. He sent Loki. The attack on New York, that’s him, If he gets his hands on all six stones…”

Dr. Strange: “…He could destroy life on a scale hitherto undreamt of.”

But when confronted with Thanos, he appears to assert this mode of killing is genocide.

Thanos: “Titan was like most planets; too many mouths, not enough to go around. And when we faced extinction, I offered a solution.”

Dr. Strange: “Genocide?”

Thanos: “At random. Dispassionate; fair to rich and poor alike. They called me a madman… and what I predicted came to pass.”

One can imagine, somewhere in the What If multiverse, a world where all of the Avengers were taught international criminal law as an extension of the obligation to disseminate international humanitarian law.  Perhaps in this alternate universe Tony Stark might have imprisoned Thanos and his army in a heavily armored pre-trial detention instead of destroying them, reasoning that if such an alternative was possible with the combined power of the infinity stones, it was preferrable if not necessarily required.  What a tribute Power would pay to Reason in that gesture.  

I do not blame Marvel Studios for not ending with an extended trial.  While it might be interesting to see their version of The Hague, and educational, it would not sell as many tickets.

But what if?  What if it was worth an animated special?  What if Thanos were put on trial?  The Trial of the Blip?  Justice for Thanos?  Marvel, I’d be happy to consult.

Potential Charges and Defenses

Murder as a crime against humanity would be obvious, but not interesting.  Given the expressivist function of international criminal law, it would be important to charge him with other crimes that met the Blockburger test.  There would be clearcut cases of torture in his past, if that was in the jurisdiction of the tribunal.  More interesting would be charges of aggression, war crimes, and genocide.  

One would think conduct that resulted in half of all living organisms dying would amount to an act of aggression, and Thanos would certainly fulfill the leadership requirement.  It is questionable, however, whether the Blip was attributable to a state.  Thanos’ army did not seem to have a permanent territory or population, nor the capacity to enter into relations with other states.

With respect to war crimes, particularly outside earth, it might be unclear whether there is a sufficient nexus to armed conflict.  It could not be an international armed conflict, given the reasoning above. It is an interesting question whether a single, instantaneous use of force (which should presumably be described as a use of force, however unconventional the weapon) would amount to a non-international armed conflict under current jurisprudence.  Under the Tadić standard, such conflicts must be protracted.  Additional Protocol II does not apply to “isolated and sporadic acts of violence” – although it is interesting to consider whether that is in time or in space.  The best argument for a nexus to armed conflict applying to the Blip outside earth would be Common Article III of the Geneva Conventions of 1949, which require only a certain minimum level of intensity and the requirement that the non-state armed groups must possess organized armed forces (command structure and the ability to sustain military operations).  Thanos’s army certainly had that.  Thus a claim could be made that the Blip violated Common Article 3’s prohibition of “(a) violence to life and person, in particular murder of all kinds[.]”

As has been commented elsewhere, Dr. Strange’s allegation of genocide against Thanos is unlikely to result in a conviction in court.  There is no evidence Thanos specifically intended to destroy a group protected under the standard definition of genocide.  If I were tasked with making this charge, I would focus on the difference between motive and intent and the multiplicity of potential intents of such a perpetrator.  Most killings from the Blip would not qualify, but in his wide travels, surely he would be aware that certain small protected groups would likely be physically destroyed, in whole or in part, as a result of his action.  While his motive was some sort of temporary delay in population increase, apparently, it might be possible to find example planetary populations that would not likely survive a reduction by half, and thus fulfill the literal requirement that the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.  It would be interesting to try to make that charge, in any case.

Ecocide was not customary law at the time of the Blip.  The best we could go for in terms of the destruction of the environment (I’m a bit unclear if there is any limit to this, given the rationale of restoring natural resources and the damage to ecosystem services implied by a maximalist Blip) is the war crime of “Intentionally launching an attack in the knowledge that such attack will cause […] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” (See Rome Statute Article 8(2)(b)(iv).) All the more important for this to be recognized as a war crime in non-international armed conflicts.

Are there any defenses for the Mad Titan?  Unlikely.  One does not avoid criminal responsibility on a nickname.  Thanos retained the capacity to appreciate the unlawfulness and nature of his conduct.  He retained the capacity to control his conduct to conform to the requirements of law.  He will not avoid conviction on mental incapacity or illness.  

To be honest, as defense counsel, I would mostly focus on problems with inchoate crimes in international criminal law in the context of time travel.

I would like to see these debates played out by Marvel.  I would like not only the Avengers, but their many fans, to be educated in international criminal law.  Many are more familiar with Wakanda than some of the places around the world where atrocities take place.  We have to start somewhere.

Reflection

What really bothers me, however, is the casual equating of genocide with mass killing.  That is what prompted me to write this short piece.  I have been reflecting on why this bothers me to the point where it prompts me to write, but also why I am hesitant to write about it.

Dr. Strange and Thanos both appear to casually equate genocide with mass killing.  They are not alone.  Back in the real world, the general understanding of “genocide” as the mass killing of any type of group is widespread, and frequently in the mouths of the aggrieved.  It is in the news uncorrected.  When Raphael Lemkin coined the term, he was specifically trying to broaden our moral imagination to comprehend something beyond mass killing “[G]enocide does not necessarily mean the immediate destruction of a nation […] It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.”  

Why?  Why do Marvel’s writers make Dr. Strange mouth the word “genocide”?  I suspect it is more than just the need for a pithy, witty retort.  It is the power of the word.  It holds more emotional energy than “the crime against humanity of murder.”  One can name the perpetrator of genocide a genocidaire, and the perpetrator of war crimes a war criminal, and an aggressor is always an aggressor.  But we have no noun that I am aware of for one who perpetrates crimes against humanity.  One cannot spit it as an epithet.  

Part of me recoils at the inaccurate use of the term by victims’ groups.  I understand the want to claim that mantle for the suffering of one’s group.  This is, after all, this is what was called in Akayesu the “gravest crime”, or the “crime of crimes” in Kambanda.  But I worry this social meaning of genocide not only obscures the legal meaning, but weakens the moral punch of the term over time.

Part of me feels that genocide doesn’t belong on Dr. Strange’s lips, not just because it is largely inaccurate.  Popular uses of the term genocide, or genocidal conduct, can seem almost pornographic in popular culture.  Who gave you the right to take this horror and turn it into entertainment?  Why does Magneto need that backstory?  And yet…

When I teach international criminal law, and when I have practiced, I joke.  I bring in popular culture.  I try to engage and entertain my students.  I leaven darkness with humor.  I write this blog post.  I hope that the educational value outweighs any harm.  I feel that just as there is a duty for militaries to teach International Humanitarian Law, there is a duty for anyone who plays or works with the idea of atrocity in the public eye to do so in a way that expresses the values embedded in International Criminal Law.  Anyone who uses the terms of International Criminal Law in public should think of themselves, in part, as Publicists.

This post is a critique of an utterance by a fictional character.  It is also a pitch.  Marvel has the power to provide more International Criminal Law education than any of us.

What I’m saying is… Marvel, I think you owe us a trial.  Justice for Thanos.