Fourth Annual Symposium on Pop Culture and International Law: The “Panem Statute” – the Reconfiguration of the State of Panem and the Trial of Coriolanus Snow for War Crimes and Crimes Against Humanity

[Carla Riera González is a legal advisor at Avocats Sans Frontières Canada in Guatemala, where she works with the defense team of victims of the Mayan ixil genocide, as well as of criminalized human rights defenders, together with the Centro para la Acción Legal en Derechos Humanos. She is also an Academic Collaborator at ESADE Law School.]

Introduction

“I volunteer! I volunteer as  tribute!” – These words evocate the same image in the minds of every fan of The Hunger Games: Katniss Everdeen, putting herself forward, so that her sister Primrose Everdeen, who is only 12 at the time of the “reaping”, will not have to compete on the deadly 74^th edition of the Hunger Games.  There begins a literary and cinematic saga that portrays an authoritarian regime governed by the Capitol, which exerts control over 13 subjugated Districts, fostering systemic poverty and inequality. However, it is the prequel, The Ballad of Songbirds and Snakes, that elucidates the foundations of Panem’s state and governance. It is also the starting point of this article, which will imagine what enforcing international criminal law in Panem would look like, thereby providing a critical lens through which to view the intersections of fiction, philosophy, and international justice.

Who and How Shall a Nation be Governed?

Suzanne Collins, the author of the Hunger Games, which we could safely say has become one of the most successful sagas in the world, has claimed to write only “when having something to say”(e.g., the first book was inspired by the war in Iraq), rendering the question of how shall a nation be governed central to her work. It is therefore no coincidence that The Ballad of Songbirds and Snakes starts with quotes of different political philosophers and their understanding of the question: Hobbes’ Leviathan (1651), Locke’s Second Treatise of Government (1690), and Rousseau’s Social Contract (1762).

Nonetheless, we did not have to wait for Collins to write a prequel to know whose State theory won over the others. Despotic, submissive, cruel and personalistic, Coriolanus Snow embodies the perfect figure of the ruler under the Leviathan, coined by Thomas Hobbes, who believed only an absolute monarch who has the power and monopoly of the exercise of violence can “save” individuals from being “a constant peril to each other”. Indeed, the Hunger Games universe begins after the First Rebellion, where the 13 Districts of Panem revolt against the Capitol in a war that lasts 13 years. After they lose, the Treaty of Treason is adopted, and the Hunger Games established. Central to the narrative, therefore, is the yearly ‘reaping’ organized by the Capitol whereby children will be chosen to fight each other to death. They are known as ‘tributes’. However, far from the actual definition, they do not participate in the event freely. Rather, according to Professor Gaul, the Games exist to punish the Districts so harshly that they will not ever forget how they “wronged” the Capitol. In other words, every year they serve as a reminder of the horrible violence only one can exercise: the Capitol – the Leviathan.

Under that premise, the peoples of Panem live decades of oppression. Yet, and after joining Katniss in her revolution against the Capitol and succeeding, the expected transformation of Panem into a democratic state post-revolution, characterized by social rights and the rule of law, is subverted. The end of the saga – as told in Mockingjay – is not marked by one, but two executions: Presidents Alma Coin and Coriolanus Snow, encapsulating Hobbes’s assertion that “man is a wolf to man.“

Law as an alternative to violence

This outcome makes us question an alternative scenario would look like. In particular, how would the story be told if the fall of the Capitol led to the establishment of an ad hoc international criminal tribunal with jurisdiction to prosecute heads of State?

Firstly, we must assume that this Panem Statute would grant such a tribunal jurisdiction over the First Rebellion, the Dark Years that succeeded, the 75 years of Hunger Games and, finally, the Second Rebellion with the overthrow of the Capitol.

Secondly, the First Rebellion involved rebel groups along the different Districts rising against their central government – the Capitol – within the same overarching political entity – Panem. As the uprising did not come from fighting against colonial domination, alien occupation or a racist regime, the situation can be qualified as a Non-International Armed Conflict (“NIAC”), thereby rendering common article 3 of the four Geneva Conventions of 1949 and Additional Protocol II of 1977 applicable. Still, in the prequel, it is revealed that District 13 was granted independence in exchange for withdrawing its support to the rebels. Therefore, the question  arises as to whether the Second Rebellion is a NIAC or an International Armed Conflict (“IAC”). District 13, having its own political and military structure, clearly complies with the classical criteria for statehood (Montevideo Convention, 1933), which requires (a) permanent population; (b) a defined territory; (c) government; and (d) the capacity to enter into relations with other states. Yet, it has been recognized (ICRC Commentary of 2016) that NIACs can involve extraterritorial aspects, when a foreign State – District 13 – joins one party to the conflict – the rebel groups from the other Districts, rendering the conflict non-international  in nature, as long as the State does not exercise effective control of the groups, which is not the case.

Having settled the previous delimitations, it would be necessary to identify the incidents that would form the basis for the prosecution of President Snow. In that regard, the following instances of alleged international criminality could be cited:

1. The bombardment of District 13 during the First Rebellion;
2. The indiscriminate killing of civilians who oppose or seem to oppose the Capitol (mainly from Districts 11, 12 and 13), during the inter-war period;
3. The public whipping of those who show any defiance to the Capitol, even if only verbal, as well as the summary executions of everyone who, according to the Capitol, commits treason, starting as early as in the aftermath of the First Rebellion. These executions, furthermore, taking place in the public space by the “Peacekeepers”;
4. The exercise of the right of ownership over the tributes during the Hunger Games, as the moment they are selected from the “reaping”, they become property of the State of Panem;
5. The alterations introduced by the “Gamemakers” to the Arena, whose purpose is to inflict intense pain and suffering to the arbitrarily selected tributes, as well as the partial elimination of them, such as the acid fog in the 75^th edition of the Games or the venom from genetically modified bees;
6. The assassination of Seneca Crane, the Head “Gamemaker” during the 74^th Hunger Games, for allowing both Katniss and Peeta to survive;
7. The use of child soldiers, training them in Districts 1, 2, and 4 and enlisting them to participate in hostilities, as early as the Hunger Games years;
8. The sexual slavery and enforced prostitution undertaken, at least, against Finnick, who was rewarded and/or “rented” directly by President Snow during the Hunger Games years;
9. The bombardment of District 12 at the uprising of the Second Rebellion after Katniss destroys the Arena, killing most of the inhabitants and forcing every survivor to flee to other Districts looking for shelter;
10. The imprisonment and torture of, at least, Peeta and Johanna Mason, two of the Victors, during the Second Rebellion, where they suffered waterboarding, electrical shocks and the injection of bee venom, a demonstrated common practice within the Capitol interrogation methods;
11. The use of the murder and execution of civilians as propaganda, either during the Hunger Games – where everything is televised, and where we can document, at least 1, 701 victims – as well as during the Second Rebellion.

As previously noted, these acts occurred in the context of a NIAC, and were committed as part of a large-scale plan. Nevertheless, they may also constitute a widespread and systematic attack against a civilian population in furtherance of a state policy: the elimination of the political dissidence. Indeed, on the basis of the evidence collected and examined, there are reasonable grounds to believe that President Snow bears criminal responsibility – using tbe Rome Statute as a guide – for the following War Crimes (“WC”) and Crimes Against Humanity (“CAH”), that he either committed, authorized or had knowledge and failed to prevent and punish:

1. Persecution as a CAH, contrary to article 7(1)(h), in coherence with the jurisprudence by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the Tadic case, where persecution for political grounds was addressed for the first time, as long as it had a discriminatory intent and was committed in connection to another crime falling under the Statute, such as in the present case. Along with the Prosecution’s observations following the Pre-Trial Chamber’s 14 June 2021 Decision on the Venezuela I situation, that references the Report on Preliminary Examination Activities (2020), and contemplates under the scope of the investigation the repression of, not only actual, but also perceived opponents of the government;
2. Murder as a CAH, contrary to article 7(1)(a), and as a WC, contrary to article 8(2)(c)(i);
3. Imprisonment as a CAH, contrary to article 7(1)(e), together with torture as a CAH, contrary to article 7(1)(f), and also as a WC, contrary to article 8(2)(c)(i), in the context of captivity;
4. Outrages upon personal dignity as a WC, contrary to article 8(2)(c)(ii), in particular humiliating and degrading treatment, in violation of the Geneva Convention III relative to the treatment of the Prisoners of War (“POW”), which mandates in article 13 to shield them from public curiosity;
5. Intentionally directing attacks against a civilian population – as they were directed to persons taking no active part in the hostilities and therefore protected by common article 3 of the Geneva Conventions, taking hostages, conscripting or enlisting children, and the passing of sentences without previous judgement, as WCs, contrary to articles 8(2)(e)(i), 8(2)(c)(iii), (8)(2)(e)(vii) and 8(2)(c)(iv) respectively;
6. Rape and other acts of sexual violence as CAH, contrary to article 7(1)(g). Even if only one victim was identified, different crimes can be combined to configure      the conception of the widespread attack against a civilian population (The Prosecutor v. Clément Kayishema et al, ¶ 122); and
7. Extermination, forcible transfer of population and enslavement, as CAHs, contrary to articles 7(1)(b),  7(1)(d) and 7(1)(c) respectively.

As for individual criminal responsibility, President Snow – as holding ultimate leadership throughout all the incidents listed, committing some of them directly – could be tried as either a co-perpetrator, as well as a non-military superior, through the command responsibility doctrine, for his Orders to Commit War Crimes as well as for his failure to Prevent and Repress them.

Needless to say, in a potential ad hoc Court, Alma Coin could also be charged for WCs, as she gives orders to bomb civilians and humanitarian personnel in District 2 and in the Capitol, even targeting her own forces (contrary to article 8(2)(e)(i) & (iii)). Actually, the bombs designed by Gale which end up killing Prim are a clear example of an explicitly forbidden weapon, for being indiscriminate by nature (art  8(2)(b)(iv)). This, because they were built under a “two-explosions” mechanism, exploding for a second time minutes after the first, when medical personnel, among      others, had already gone to the aid of the wounded. Consequently, they did not distinguish between civilians and military objectives and their effects could not be limited, as required by international humanitarian law, according to Rule 71 of IHL. Even with the conclusion that the Second Rebellion was a NIAC, the prohibition can be extended to NIACs by virtue of the decision of the Appeals Chamber of the ICTY on the Tadic case, which emphasized that customary rules prohibiting the use of specific weapons are equally applicable to NIACs.

Closing Remarks

Guilty and sentenced, instead of killed by a crowd after the newly constituted President has been shot dead by our main character: Would it have led to more peaceful days? We shall believe so, as our whole international system of justice is built upon that idea: the fundamental premise that we can achieve peace through justice. However, and as the world bears witness to genocide and war crimes committed by leaders whose ideas are not far from Snow’s, I can only say:

May the odds be ever in our favor.