Fourth Annual Symposium on Pop Culture and International Law: “My Genocide, My Responsibility” – The 100’s Massacre at Mount Weather and International Criminal Law

[Paul P. Stewens is an incoming PhD candidate with the Department of Criminal Law and Criminology at Maastricht University. He holds a Master in International Law from the Geneva Graduate Institute and a BA in International Relations from Technische Universität Dresden.]

The 100 is set in a post-apocalyptic future where a nuclear fallout has displaced humanity to a space station. After 97 years, a hundred juvenile delinquents are sent to the ground to examine its survivability. Upon arrival, the delinquents discover human populations that survived the apocalypse. These “Grounders” have developed distinct languages and customs—and harbour a hostile attitude towards those they call “Skypeople.” Moreover, a U.S. government bunker at Mount Weather has served as a refuge for survivors of the apocalypse. These “Mountain Men” are confined to their bunker as they have not developed a resistance against the residual radiation—unlike Skypeople and Grounders. Once some delinquents arrive at Mount Weather, their scientists discover that transplanting the newcomers’ bone marrow through a deadly procedure permanently immunises Mountain Men against radiation. To save their people, Skypeople and Grounders form an alliance and attack Mount Weather. The offensive fails, and when three of the delinquents end up in the bunker’s Command Center, they take a drastic decision: Clarke and Bellamy, the delinquents’ two de facto leaders and protagonists of the show, pull a lever which Monty, another delinquent with a background in engineering, had manipulated to reverse the air flow of the Mount Weather ventilation system. This causes irradiated air to flow into the bunker and kill the entire Mount Weather population, leaving only two survivors who had already received the treatment. All Skypeople prisoners survive.

This event is continuously referred to as the “genocide” of Mount Weather throughout the show. This post considers whether this is a correct assessment under substantive international criminal law, as well as the respective individual criminal liability of the three perpetrators.

The Mountain Men: A Protected Group?

Article II of the Genocide Convention exhaustively protects national, racial, ethnical, and religious groups. Most likely, the Mountain Men constitute an ethnical group, or, following the ICTR Trial Chamber in Kayishema and Ruzindana (¶98), “one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)”. The Mountain Men pride themselves to be the stewards of Western ‘civilisation’ and high culture. This self-image of sophistication and class is key to their perceived distinction from the Grounders. In addition, the Mountain Men could qualify as a racial group, which the ICTR in Akayesu (¶514) has considered to be conventionally defined “based on the hereditary physical traits often identified with a geographical region”. The Mountain Men’s physical trait that distinguishes them from both Skypeople and Grounders is their lack of radiation resistance.

Whether the Mountain Men fall within one protected category or another might be of secondary importance. The categories listed in Article II are best understood as corner posts delimiting an area of protection, and once a group sits somewhere in between these posts, a potential overlap of, say, the ethnical and the racial criterion does not take away from its protection under the Convention. Accordingly, it appears safe to say that the Genocide Convention protects the Mountain Men.

Underlying Act

Moreover, genocide requires the commission of an underlying act listed in Article II(a)-(e) Genocide Convention with the corresponding mental element. This is quite straightforward: the three killed members of the protected group of the Mountain Men (as per Article II(a) Genocide Convention), and clearly did so intentionally. Their actions thus amount to “homicide committed with intent to cause death”—the ICTR’s understanding of killing (Akayesu ¶501)—and fall within the scope of the prohibition of genocide.

Genocidal Policy and Lone Génocidaire

It is controversial whether the underlying acts of genocide ought to be committed in the context of a general genocidal policy. This view has no basis in the wording of the Genocide Convention, and the ICTY Appeals Chamber rejected it as “a legal ingredient of the crime” in Jelisić (¶48). Nonetheless, scholars continue to present compelling arguments in favour of such a requirement, and Article 6(a) of the ICC Elements of Crimes expressly require that the commission of genocidal acts “took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”.

It appears difficult to argue in favour of such a genocidal policy regarding Mount Weather when the single objective of the Skypeople operation was freeing the prisoners. This leads us to the problématique of the lone génocidaire, i.e., the question whether a single individual can commit genocide. Heller has pointed out on this blog that the contextual element in the ICC Elements of Crimes is, in fact, disjunctive or alternative to isolated “conduct that could itself effect such destruction”. This is in line with Cassese’s contention that a lone génocidaire is theoretically possible if they may realistically aim at the destruction of a targeted group. This clearly applies to Clarke and Bellamy, whom Monty had enabled to expose almost the entire Mount Weather population to deadly radiation that would instantly kill them. Accordingly, the lack of a genocidal policy and the perpetration by lone génocidaires do not impede a classification as genocide.

Genocidal Intent

Moreover, genocide requires the specific “intent to destroy, in whole or in part” a protected group as such. One can hardly infer this from the perpetrators’ conduct whose intention it was to prevent the killing of the Skypeople prisoners—by whichever means necessary. The fact that they resorted to the taking of hostages and blackmailing first (see below) and only fell back on the ‘nuclear option’ once all else failed rather suggests that the killing of the Mount Weather population was in a sense incidental. Put differently, they were not targeted on account of their membership in the protected group (ICTR, Akayesu ¶521) of the Mountain Men but merely because of their presence in the bunker. What connects the victims is thus not their group affiliation but their incidental joint presence. This lack of genocidal intent on the part of the perpetrators suggests that the massacre of Mount Weather is incorrectly qualified as genocide.

If Not Genocide, What Else?

This is of course not to say that the actions of Clarke, Bellamy, and Monty were not criminal. A detailed analysis is beyond the scope of this post but the massacre of Mount Weather may amount to the crime against humanity of extermination (if one assumes a widespread attack against the Mount Weather population, Article 7(1)(b) Rome Statute) or, alternatively, to a war crime (assuming the existence of an armed conflict). Specifically, the war crimes of intentionally launching an attack in the knowledge that such attack will cause incidental excessive loss of life or injury among the civilian population (Article 8(2)(b)(iv) Rome Statute) and of murder (Article 8(2)(c)(i) Rome Statute) come to mind. It is with these alternatives in mind that I proceed to discuss the criminal responsibility of the three.

Criminal Responsibility

Bellamy and Clarke pulled the lever together which irradiated the bunker and killed all Mountain Men. This amounts to commission of the crime which, according to the ICTY Appeals Chamber in Tadić (¶188), means “first and foremost the physical perpetration […] by the offender himself”—and both had physical control over the decisive act.

In addition, they appear to be share what Ambos calls a “common criminal design or purpose” (p. 121). After seeing the immediate threat to their friends’ lives on the security cameras, Clarke whispers, “I have to save them,” and Bellamy responds “Together!”. This clearly speaks in favour of a joint commission/co-perpetration by Clarke and Bellamy in accordance with the customary international law reflected in the second alternative of Article 25(3)(a) Rome Statute.

Monty probably shares that same common purpose; it was him who broke them into the Command Center, equally determined to save the prisoners. He made an indispensable contribution to the commission of the crime, with both Bellamy and Clarke lacking the technical capabilities to manipulate a ventilation system in the desired fashion. This would make him a joint co-perpetrator, criminally responsible to the same extent as Clarke and Bellamy. In any event, Monty’s criminal responsibility would be engaged because of the assistance he knowingly rendered to Clarke and Bellamy as the principal perpetrators. In the words of Article 25(3)(c) Rome Statute, he was “providing the means for its commission”.

Self-Defence

Commentators to the show have suggested, however, the self-defence attaches as a ground for excluding responsibility—a general principle of law, reflected in Article 31(1)(c) Rome Statute. First of all, it cannot be emphasised enough that this is a matter of individual criminal responsibility and that, as a matter of state responsibility, the exercise of a state’s inherent right to self-defence can never preclude the wrongfulness of a violation of a jus cogens norm like the prohibition of genocide. Second, self-defence requires the accused to have acted reasonably and proportionately and in response to an imminent and unlawful use of force against themselves or others. Such a threat to the prisoners’ lives and bodily integrity was clearly present: the deadly extraction operations were already underway. The more pertinent question is whether Clarke, Bellamy, and Monty reacted reasonably and proportionately.

It is generally accepted (¶628) that killing in self-defence can be proportionate: as the ultima ratio to avert serious bodily harm or death. On the other hand, Ambos warns that “acts of genocide and crimes against humanity—albeit not per se excluded from the scope of Article 31(1)(c) […]—will in most cases be disproportionate” (p. 342). On the contrary, a proportionate measure is the least severe suitable means for defence of equal effectiveness.

To that end, the perpetrators have exhausted the less severe alternative of blackmailing: Clarke first threatened to kill the former President of Mount Weather (whom they held hostage) if the prisoners were not released, and when the incumbent President refused to agree to her terms, executed their hostage and threatened to irradiate the whole bunker. This threat was equally unsuccessful and led to a military officer being sent to the Command Center to kill the three. They only pulled the lever once the officer had arrived and the extraction was already under way. It is therefore difficult to conceive of an equally effective alternative for Clarke, Bellamy, and Monty in this life-or-death situation without any outside support and after unsuccessfully exhausting all leverage they had.

On the other hand, if one were to approach the matter of proportionality in a sheer quantitative approach (in a utilitarian fashion that is anything but unproblematic), then the killing of over 350 Mountain Men to save a group of under 50 Skypeople prisoners appears to be clearly disproportionate. This is a terrible calculus, but Clarke, Bellamy and Monty must have performed it—achieving the opposite result. What tips this balance even further is the fact that not all the Mountain Men that died were authors of the threat to the prisoners’ lives. Rather, the radiation killed a large number of harmless civilians. Moreover, the prisoners only represented a rather small fraction of the larger Skypeople group. To save them, the perpetrators fully eradicated the Mountain Men. Even in the absence of genocidal intent, this clashes with the object of the Genocide Convention: “to safeguard the very existence of certain human groups,” as the International Court of Justice determined in its 1951 advisory opinion.

So, if I were to imagine myself on the bench of a criminal tribunal in the world of The 100 that has set out to prosecute the crimes committed at Mount Weather, I would be inclined to reject self-defence. But my fellow judges might disagree: because of their different background, ethical convictions, political affiliation (a tribunal of Skypeople judges might lean more towards acquittal than one of surviving Mountain Men—if there were any). It is therefore an important realisation that, ultimately, the law gives us little guidance in this proportionality assessment on which the entire question of criminal responsibility depends. It is, more than anything else, a value judgment whose quality depends on the quality of its justification but where neither result seems entirely absurd nor inevitable.

Conclusion

The events of Mount Weather are inaccurately qualified as genocide—Clarke, Bellamy, and Monty lack the specific intent which such a qualification would require. In all likelihood, they still committed an international crime for which all of them bear criminal responsibility (and not only Clarke, who receives virtually the entire blame for it), and raising self-defence should not absolve them from it.