‘God Made Me Do It’: Divine Commands, Cultural Difference and International Criminal Responsibility

Dr Laurence Atkin-Teillet, Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/laurence-teillet

Photo by Jon Tyson on Unsplash

Imagine that Falen, a soldier from the fictional province of Valenwood, consumes the bodies of enemy combatants killed during an armed conflict. To an outside observer, the conduct is horrifying. It may even constitute a crime within the jurisdiction of the International Criminal Court (ICC).

Falen, however, does not understand his actions as desecration. As a follower of the Green Pact, he believes that the natural world is sacred and that nothing taken from it may be wasted. The Pact’s “Meat Mandate” requires fallen enemies to be consumed. Compliance is, at the same time, a religious duty, a cultural obligation and a condition of belonging within his community. Refusal may lead to spiritual consequences, social ostracism and, in Falen’s understanding, disruption of the natural order itself.

Should Falen be judged in the same way as someone who performs the same act without any perceived divine command or cultural compulsion?

The question is uncomfortable: how can the law condemn conduct that causes harm without presenting one culturally situated understanding of morality as universal?

The Rome Statute contains no defence of “divine command”, religious obligation or cultural necessity. Its established grounds for excluding criminal responsibility are framed mostly through concepts familiar to secular criminal law.

Mental incapacity applies where a disease or defect destroys a person’s capacity to appreciate the nature or unlawfulness of their conduct, or to control it. Duress requires a threat of imminent death or serious bodily harm and a necessary and reasonable response. Superior orders, with or without any element of duress, may operate in narrowly defined circumstances, but orders to commit genocide or crimes against humanity are deemed manifestly unlawful.

A deity cannot easily qualify as a “superior” whose authority and orders can be assessed by a court. Nor should a sincere, culturally shared religious belief automatically be classified as mental illness as this would convert cultural difference into pathology.

Duress offers a potentially closer analogy, but it also presents difficulties. Falen believes that violating the Green Pact will produce grave consequences. Yet the threat is spiritual rather than empirically verifiable. A court would have to assess not only whether Falen sincerely held the belief, but whether the perceived threat was sufficiently imminent and whether his response was “reasonable”.

Reasonableness, however, is not culturally neutral. A decision that Falen’s response was unreasonable may conceal a prior decision that his understanding of the world was itself unreasonable.

International criminal tribunals have encountered spiritual beliefs before, although rarely as an autonomous basis for excluding responsibility.

In the proceedings against Moinina Fofana and Allieu Kondewa before the Special Court for Sierra Leone, Kondewa’s status as High Priest of the Civil Defence Forces was relevant to questions of authority and control. Initiation ceremonies were said to make fighters, including children, immune from bullets. The prosecution characterised Kondewa as exercising supervision over initiations and a form of authority over particular units.

The case nevertheless left an important issue unresolved. Can effective control arise partly from subordinates’ belief in an individual’s supernatural powers? International criminal law is comfortable examining military rank, organisational structure and the ability to issue or enforce orders. It is less equipped to evaluate forms of authority operating through ritual, sacred status and belief.

Similar questions appeared in the prosecution of Dominic Ongwen. The defence presented evidence concerning the spiritual world of the Lord’s Resistance Army and Joseph Kony’s claimed supernatural powers. Kony was presented not just as a military commander, but as an apparently omnipresent spiritual authority from whom escape could seem impossible.

The prosecution challenged both the consistency and the practical effects of these beliefs. Some people escaped; some doubted Kony’s powers; and Ongwen himself sometimes disobeyed instructions. Expert evidence also warned against treating culturally shared spiritual beliefs as delusions only because they fall outside Western epistemological frameworks.

The ICC convicted Ongwen and sentenced him to 25 years’ imprisonment. His experiences, personal history and mental condition were discussed extensively in arguments concerning responsibility and sentence, but they did not establish a general religious or cultural defence.

In Al Mahdi, religious ideas were similarly central to the circumstances surrounding the destruction of protected mausoleums and religious buildings in Timbuktu. Ahmad Al Faqi Al Mahdi’s conduct was linked to his position in Ansar Dine’s morality police and his understanding of religious duties. The Court nevertheless approached the case through the established war crime of intentionally directing attacks against religious and historic buildings. Al Mahdi’s religious motivations did not operate as a defence as he pleaded guilty.

When considering whether the Rome Statute represents universal protection or a form of cultural hegemony, one response is that there is no real difficulty. The Rome Statute prohibits conduct that is so gravely harmful that no religious or cultural justification should be permitted. Genocide, crimes against humanity and serious war crimes cannot be excused by appealing to tradition, spirituality or collective identity.

International criminal law would lose its protective purpose if communities could immunise violence simply by characterising it as sacred. A religiously framed defence might become a convenient route through which perpetrators present coercion, persecution, or organised brutality as obedience to a higher authority.

The negotiated character of the Rome Statute also distinguishes it from the unilateral imposition of one State’s criminal law upon another society. Its prohibitions result from international negotiation and overlap substantially with longer-established rules of international humanitarian and customary international law.

Nevertheless, negotiation does not eliminate disparities of power. Nor does widespread State acceptance prove that the concepts through which international criminal law evaluates intention, choice, rationality and coercion are culturally neutral.

The concern is not that international law should tolerate genocide, ritual killing, apartheid or other violations of peremptory norms. States and communities cannot insulate such conduct from international concern by invoking religion or culture.

The more difficult cases lie closer to the boundaries of criminalisation: conduct viewed by one community as an indispensable sacred duty, but by another as abhorrent, degrading or unlawful. If international criminal law treats the latter response as self-evidently correct, it risks “ironing out” radically different cultural practices through a creeping form of Western cultural hegemony.

Yet the opposite conclusion is equally troubling. Respect for difference cannot mean indifference to victims. In Falen’s case, the spiritual significance of consuming the dead does not remove the likely anguish of their families or the affront to the dignity accorded to human remains by the victims’ own community.

Cultural respect and victim protection therefore cannot be resolved by simply selecting one and discarding the other.

A useful distinction may be drawn between direct and mediated divine commands.

Where a defendant claims to have received instructions directly from a deity, the Court would have to evaluate the content and sincerity of an essentially personal spiritual experience. It cannot summon or examine the alleged divine authority. The risk of unverifiable claims is substantial, as is the danger that judges will assess unfamiliar beliefs through culturally particular assumptions about rationality.

The situation changes where the command is mediated through another person. A spiritual leader may use religious authority to issue instructions, threaten supernatural punishment or create a coercive environment. The Court need not determine whether the supernatural claim is true. It can instead examine the human relationship: what the intermediary said, the authority they exercised, the defendant’s opportunities for resistance and the consequences that they could reasonably anticipate.

This does not make the case straightforward. It does, however, make it more justiciable. The question goes from the truth of a religious belief to the demonstrable exercise of authority and coercion between individuals.

Recognising cultural and spiritual context does not require the ICC to create an expansive new defence.

In appropriate cases, the Prosecutor could consider such circumstances when deciding whether proceeding would serve the “interests of justice” under Article 53 of the Rome Statute. The Office of the Prosecutor has historically treated this as an exceptional consideration rather than a broad licence to decline difficult cases, but it remains part of the statutory framework.

The danger of opening the floodgates is real. Spirituality cannot become a vocabulary through which calculated perpetrators repackage criminal policy as faith. Claims would require exacting evidence of sincerity, social context, coercive pressure and the actual effect of the belief upon the defendant’s capacity to choose.

But categorical refusal to engage with such evidence is not neutrality either. It simply privileges a secular account of agency while concealing the cultural assumptions on which that account rests.

International criminal law must condemn atrocities without presuming that it has escaped culture. Its legitimacy depends not only upon the firmness of its prohibitions, but upon its willingness to understand the worlds in which individuals act.

Falen’s divine command may not excuse his conduct. It should, however, require the Court to ask a more difficult question than whether the act occurred: what did obedience, refusal and choice genuinely mean to the person standing before it?

Further Reading:

Adina-Loredana Nistor, Andrew Merrylees, and Barbora Holá, ‘Spellbound at the ICC: the intersection of spirituality and international criminal law’ in Julie Fraser and Brianne McGonigle Leyh (eds) Intersections of Law and Culture at the International Criminal Court (Elgar, 2020).

Noelle Higgins, ‘In defence of culture: should defences based on culture apply at the ICC?’ in Julie Fraser and Brianne McGonigle Leyh (eds) Intersections of Law and Culture at the International Criminal Court (Elgar, 2020).

Pascale Chifflet and Ian Freckleton, ‘The Mental Incapacity Defence in International Criminal Law: Ramifications from the Ongwen Trial Judgement’ (2022) 11 International Criminal Law Review 751.