Everyone knows that any conversation about video games and the law is going to either revolve around discussions of intellectual property or rehashed First Amendment debates about the impact of violence in video games. So news that the International Committee of the Red Cross (ICRC) recently took time to consider what, if any, role the Geneva Conventions, the well-respected tomes of international humanitarian law, should have in the video game industry was met with confusion by many lawyers, scorn by most gamers, and probably a great amount of indifference by the general public. But as a gamer and a lawyer, and even worse, someone who actually thinks that long, detailed discussions about the rules of war are fascinating things, this news was like finding an epic loot drop. I rarely find people interested in my academic specializations of international criminal, human rights and humanitarian law, although it is a bit easier to find fellow gamers! The chance to combine the two interests, then, is not an opportunity to be ignored.
War games are a huge part of the video gaming industry. Call of Duty: Modern Warfare 3 released recently to record breaking sales. Over the lifetime of the Call of Duty title, Activision, the publisher of the series since the first COD title in 2003, has netted an estimated $6 billion in sales. Over 3.3 million gamers played Modern Warfare 3 on launch day alone. And Call of Duty is just one of multiple war game titles in the video game pantheon.
So why is the ICRC paying attention to video games? Well, for one, titles like Call of Duty, Medal of Honor and Ghost Recon often involve extremely realistic portrayals of violence in a conflict setting. Loosely collected under the term "shooters," these games often put players in the context of working for a military entity, either a real historical or modern military force, or a fictionalized command structure that would give the player "combatant" status under the definitions provided by the Geneva Conventions. For another, the ICRC estimated that approximately 600 million gamers worldwide are playing shooter style games. The ICC's mandate clearly includes "promoting respect for the international humanitarian law" that large of a population segment engaging in an activity that definitely invokes elements of the laws of war is a valid target for ICRC attention.
The ICRC's decision to consider the question of what role the laws of war should have in video games sprang from an award-winning study on the topic by TRIAL, a Geneva-based NGO that conducted a 2009 study [PDF] of over 20 different video games and their recognition of the rules of war in the single player campaigns. TRIAL's conclusions recognized that, as entertainment, there was no need for game designers to take note of international humanitarian law in the context of the games' mission design. They did note that some of the games penalized certain acts that run afoul of international humanitarian law norms, like indiscriminate killing of civilians, or rewarded protection of civilians. But the vast majority of the games reviewed (which, to be honest, looked like a list of many of the games on my shelf at home at that time), included explicit enticements for players to infringe on or even flaunt the laws of war. Promoting torture in interrogation settings, attacking cultural or religious buildings, and participating in extrajudicial killings were all standard fare for the list of games reviewed.
This is not the first time a discussion about the impact of shooter games on cultural perceptions of conflict has occurred. The 2009 movie Gamer featuring Gerard Butler was both a critique of the crassness of modern Internet culture, taken to extremes in the game Society, and a parade of horribles of the modern shooter genre in the game Slayers. The movie featured gamers controlling convicted criminals (via a brain implant) in life threatening combat settings designed solely for their entertainment value. It is basically bread and circuses for the digital age. At one point, Simon, the gamer controlling Butler's character, refers to the civilians being indiscriminately killed in the contest as "Kibbles 'n Bits" and Butler responds with "These are real humans!" To which, Simon replies "Death row psychos, so what? They had it coming anyway, right?" Granted, Gamer was itself a movie that tried to make entertainment out of violence as an example of violence used for entertainment, and it has become one of those movies that is bad enough to actually be funny. The idea of the shooter genre actually encouraging violent behavior generally has been around for a while, and the idea that it has some impact on our global understanding of international humanitarian law is not entirely far-fetched.
The ICRC, in its December 1, 2011 news bulletin, described the meeting as one in which "partners discussed their role and responsibility to take action against violations of [international humanitarian law] in video games." While I am a lawyer strongly in favor of improving international humanitarian law compliance, and see games as a relevant part of social discussion, I do not see any attempt to actually force game designers to abide by the laws of war as beneficial. At the end of the day, these activities are still just games. The vast majority of gamers will not be involved in situations where they are faced with the choice of whether or not to fire a rocket-propelled grenade into a civilian structure while under fire from a concealed enemy. Given the complete lack of enforcement power of international organizations to apply international humanitarian law in actual settings of armed conflict, I would have serious questions about whether or not an attempt by the ICRC to mandate international humanitarian law compliance on the part of game designers is an appropriate use of time. That is a fairly mild reaction, especially compared to the comments the Voodoo Extreme news site received when they posted the story. My favorite has to be "lol @ international law." The ICRC makes very clear in their follow up FAQ on December 8, 2011 that they know the nature of international humanitarian law has no direct application to video games, despite the journalistic hype.
That is not to say that there is not room here for a dialogue to occur between game designers and international humanitarian lawyers. Interactive visual media, which is all that video games really are, has been demonstrated as an effective teaching tool. I still recall the capitals of many nations thanks solely to the hours my brother and I spent chasing criminals around the globe in "Where in the World is Carmen Sandiego?" And while attempting to bully the game industry into a righteous crusade to clean up the shooter genre is guaranteed to fail (take for example Jack Thompson), an actual discussion between international humanitarian lawyers and video game designers could open the doors from some interesting projects.
There used to be more penalties in old style shooters for killing civilians. In fact, in the deep recesses of my video game memory, I can recall several cases where killing too many civilians actually resulted in mission failure. And given the story-telling nature of the single player campaign modes in most shooter games, there certainly is room to provide discussion to the player's character in-game about the need to conduct themselves in accordance with the rules of war. Given the number of games and amount of financial support that the Activision charity Call of Duty Endowment and other video game-based charities send to veteran and active duty US military personnel, I am certain that you could find opportunities for actual US military lawyers, and even members of other nations' militaries, trained in how to comply with international humanitarian law to provide commentary on actual conflict to players. There are ways to engage both parties in this issue in interesting and rewarding ways that can accomplish both the goal of selling video games and promoting international humanitarian law.
The 2009 TRIAL report noted that "computer and video games are not meant to serve as didactical tools to teach the rules of war, but rather to entertain." This is why the ICRC is not, despite what some of the reports from the gaming news websites were originally alleging, attempting to apply international humanitarian law norms to gamers. Because the ICRC knows that any attempt to force video game designers to comply with these standards, a patently absurd notion for even the most novice of international scholars, will be a failure either because it will not work and the reputation of the ICRC is damaged or because it will and people will stop playing shooter games bound by these standards. This is not a zero-sum equation, however. We do not have to accept either a world where killing civilians indiscriminately in a shooter game is not penalized or a world in which only lawyers want to play shooters. There is a middle ground.
The ICRC should reach out to video game developers and designers now, at the initial stages of this conversation. Gaming news website Kotaku should not be the one letting Randy Pitchford, founder of the game development studio responsible for the Brothers in Arms games, know about this development. If you approach anyone in any industry and tell them a bunch of people with no connection to the modern gaming community are sitting in Geneva, Switzerland deciding whether or not real world international law should apply to your video game, you are going to get a negative reaction every time. But if you reach a hand out to those same people, tell them that the leading experts on international humanitarian law want their opinions on how to best incorporate the realities of the horror of war's impact on civilians into your artistic medium, then you may just get a very different reaction. I would be willing to bet that very few game designers are going to actively dismiss the International Committee of the Red Cross when it says that it wants to have a serious discussion about the role of video games as an artistic medium and shooter games as a specific genre in the promotion of international humanitarian law. Not a lecture, not an attempt to control game designers from the outside in, but an actual conversation about how the gaming industry can contribute to making the world a better place that may just get some different results. That could set the stage for a game that can be both entertaining and reflect the realities of conflict from someplace other than behind the trigger.
That is a game that I would like to play.
D. Wes Rist is an Adjunct Professor of Law and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He earned an LL.M. with Distinction in International Human Rights Law from the University of the West of England Bristol Law School. Rist was a member of JURIST's staff from 2004-2006, serving as JURIST's International Law Editor from 2005-2006.
Suggested citation: D. Wes Rist, Playing Games with International Humanitarian Law, JURIST - Forum, Dec. 10, 2011, http://jurist.org/forum/2011/12/wes-rist-video-games.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org