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Beyond the Call of Duty: why shouldn't video game players face the same dilemmas as real soldiers?

Published online by Cambridge University Press:  24 June 2013

Ben Clarke ,
Christian Rouffaer  and
François Sénéchaud
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Abstract

Video games are influencing users' perceptions about what soldiers are permitted to do during war. They may also be influencing the way combatants actually behave during today's armed conflicts. While highly entertaining escapism for millions of players, some video games create the impression that prohibited acts, such as torture and extrajudicial killing are standard behaviour. The authors argue that further integration of international humanitarian law (IHL) can improve knowledge of the rules of war among millions of players, including aspiring recruits and deployed soldiers. This, in turn, offers the promise of greater respect for IHL on tomorrow's battlefields.

Keywords

video gamesinfluencebehaviourundermining effectapplicabilitychallengesmessagesobligationinitiativetrivializing
Type
Ethics, Civil Society and New Technologies
Information
International Review of the Red Cross , Volume 94 , Issue 886: New Technologies and Warfare , June 2012 , pp. 711 - 737
Copyright
Copyright © International Committee of the Red Cross 2013 

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References

1 Fictional account inspired by the authors' experience of video games and an account of the battle of Fallujah in Bellavia, David, House to House – an Epic Memoir of War, Free Press, New York, 2007Google Scholar.

2 In this article, the term ‘video games’ is used to describe electronic first person shooter games depicting combat situations – including contemporary battlefields, such as Iraq, Afghanistan, Lebanon, Somalia, and the Levant – where players fire at enemy targets. ‘First person shooter games’ is the industry's term for electronic games where players fire at enemy targets. As this article is aimed at a broader readership, the term ‘video games’ is used instead.

3 One company, Spil Games, claims to have 130 million active monthly users of its online games. It estimates that 510 million people were playing online games in 2010: SPIL GAMES, 2010 State of Gaming Report. According to one estimate this is multi-billion dollar industry generated at least $70 billion in 2011. See IDATE, World Video Game Market Data & Forecasts, 2011–2015, 17 January 2012.

4 At the time of publication, the most popular video games were Call of Duty: Black Ops 2, Madden NFL ‘12, Halo 4, Assassin's Creed 3, Just Dance 4, NBA 2K13, Borderlands 2, Call of Duty: Modern Warfare 3, Lego Batman 2: DC Super Heroes, and FIFA ‘12. For current sales figures for the various platforms (games), see ‘10 best selling videogames in 2012’, in Market Watch, 10 January 2013, available at: http://www.marketwatch.com/story/10-best-selling-videogames-in-2012-2013-01-10 (last visited January 2013).

5 ‘Militainment’ has been defined as ‘war packaged for pleasurable consumption’ and ‘entertainment with military themes in which the (US) Department of Defense is celebrated’. See Stahl, Roger, Militainment, Inc. – War, Media and Popular Culture, Routledge, New York, 2009, p. 6Google Scholar, and view ‘Militainment, Inc: militarism and pop culture’, available at: http://video.google.com/videoplay?docid=-2373519247173568764 (last visited 25 May 2012).

6 Electronic games can be played on different platforms the most common being PCs and consoles. Games played on PCs are commonly known as ‘computer games’ while those played on consoles are called ‘video games’. This article uses the term video games to refer to both.

7 The same is true of military training simulators that depict contemporary battlefields. Increasingly, they are used by armed forces to operationalize the laws of armed conflict for military personnel. Given their function, military training simulators are more likely to integrate IHL than commercial video games. However, they also reach a far smaller audience. For these reasons the primary focus of this article is on video games.

8 The increasing realism of video games that depict modern battlefields has drawn attention to commercial-military collaboration in the development of games. See, for instance, ‘Documentary – Official Call of Duty Black Ops 2’, available at: http://www.youtube.com/watch?feature=player_embeded&v=Gm5PZGb3OyQ (last visited 24 May 2012).

9 What qualifies as a ‘realistic video game that portrays armed conflict’ is nuanced and somewhat subjective. Some games include realistic looking weapons and battlefield environments but have unrealistic features (e.g., players can come back to life).

10 Australian Government Attorney-General's Department, Community Attitudes To R18+ Classification Of Computer Games, Report, November 2010, available at: www.ag.gov.au (last visited 5 April 2012).

11 For an illustration of the scientific debate: Anderson et al, assert a causal link between violent games and violent behaviour: Anderson, Craig A., Shibuya, Akiko, Ihori, Nobuko, Swing, Edward L., Bushman, Brad J., Sakamoto, Akira, Rothstein, Hannah R. and Saleem, Muniba, ‘Violent video game effect on aggression, empathy and prosocial behaviour in eastern and western countries: a meta-analytic review’, in Psychological Bulletin, Vol. 136, No. 2, pp. 151–173CrossRefGoogle Scholar. For Ferguson the link is not proven and attention should be focused elsewhere (e.g., on poverty and domestic violence). See Ferguson, Christopher J., ‘Media violence effects: confirmed truth or just another X-file?’, in Journal of Forensic Psychology, Vol. 9, No. 2, April–June 2009, pp. 103–126CrossRefGoogle Scholar. This is also the conclusion of the Swedish Media Council, Summary of Violent Computer Games and Aggression – An Overview of the Research 2000–2011, Swedish Media Council, Stockholm, 2012, available at: http://www.statensmedierad.se/upload/_pdf/Summery_Violent_Computer_Games.pdf (last visited 20 December 2012), and Brown, Governor of California, et al. v. Entertainment Merchants Association et al., Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 08–1448. Argued 2 November 2010 – Decided 27 June 2011 (hereinafter ‘Brown’) where the majority of the US Supreme Court noted that: ‘Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media’ (Scalia, J., p. 13, who delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., joined. Thomas, J., and Breyer, J., filed dissenting opinions.)

12 Tragic events including mass killings by gunmen at Columbine, Virginia Tech, and Sandy Hook have heightened public concern. Like Norwegian mass murderer Anders Breivik, several US perpetrators regularly played Call of Duty. Police observations regarding similarities between Sandy Hook gunman Adam Lanza's modus operandi and methods used in a video game he frequently played are particularly revealing. See Dave Altimari and Jon Lender, ‘Sandy Hook shooter Adam Lanza wore earplugs’, in Hartford Courant, 6 January 2013, available at: http://articles.courant.com/2013-01-06/news/hc-sandyhook-lanza-earplugs-20130106_1_police-cars-lauren-rousseau-newtown (last visited 10 January 2013).

13 In 2008 an estimated 31,68 million people, worldwide, played online video games, out of which an estimated 3 million played first person shooter games. These figures do not take into account those people who played either on unconnected computers, PlayStations or cell phones. In the Middle East, in 2010, 64 million people played online video games or on PlayStations. In 2012 there are an estimated 211.5 million video-games players in the US. See ‘Mobile gamers now represent the largest gamer segment’, in NPD, 5 September 2012, available at: https://www.npd.com/wps/portal/npd/us/news/press-releases/pr_120905/ (last visited 20 October 2012). In Turkey, in 2012, an estimated 21.8 million people played video games on computers, smartphones, and game consoles. See ‘Infographic 2012’, in NewZoo, 21 June 2012, available at: http://www.newzoo.com/infographics/infographic-turkey/ (last visited 20 October 2012).

14 In the US alone there have been more than 200 studies into violence in the media. Over the last eighty years these studies have gradually shifted from cinema, to television, and now concentrate on video games.

15 Gaël Humbert-Droz, ‘Les jeux vidéos et le droit international’, 2012. This survey was posted on the following forums: jeuxvideo.com, Forum FantabobShow, Forum DpStream : Forum BF-France (battlefield France). The survey is no longer available online (copy on file with the authors).

16 See, for instance, Douglas A. Gentile, ‘Video games affect the brain – for better and worse’, in the Dana Foundation, 23 July 2009, available at: http://www.dana.org/news/cerebrum/detail.aspx?id=22800 (last visited 10 February 2012).

17 By way of example, torture scenes appear in Call of Duty: World at War. See ‘Call of Duty: Modern Warfare 2’, in Wikia, available at: http://callofduty.wikia.com/wiki/Call_of_Duty:_Modern_Warfare_2 (last visited 10 October 2012). In Call of Duty: Black Ops, the player must take part in an act of torture (they must give a command for the hero to hit in the face a detainee in whose mouth shards of glass were previously introduced). In Call of Duty: Modern Warfare 3, the superior of the player tortures a Somali commander before shooting a bullet in his head (Figure 4). While the presence of torture in the narrative of these games certainly leaves no one indifferent, the rationale for its inclusion is unclear.

18 More than two-fifths of youth (41%) believe there are times when it is acceptable for the enemy to torture captured American prisoners, while only 30% of adults agree. More than half of youth (56%) believe that there are times when it is acceptable to kill enemy prisoners in retaliation if the enemy has been killing American prisoners, while only 29% of adults agree. Gutierrez, Brad A., DeCristofaro, Sarah and Woods, Michael, ‘What Americans think of international humanitarian law’, in International Review of the Red Cross, Vol. 93, No. 884, December 2011, pp. 1009–1034CrossRefGoogle Scholar.

19 For a brief history of how ‘virtual worlds of war became a mutual enterprise uniting the media and military industries’, see Andersen, Robin and Kurti, Marin, ‘From America's Army to Call of Duty: doing battle with the military entertainment complex’, in Democratic Communique, Vol. 23, No. 1, 2009, p. 45Google Scholar, available at: http://www.democraticcommunications.org/communique/issues/Fall2009/andersen.pdf (last visited 20 February 2012). See also, Tony Fortin, ‘Jeux vidéo et monde militaire, un couple inséparable?’, in Rue89, 22 September 2012, available at: http://www.rue89.com/2012/09/22/jeux-video-et-monde-militaire-un-couple-inseparable-235526 (last visited 20 October 2012).

20 For example, in 2002, Bohemia Interactive, creators of the video game ARMA II, developed a battlefield simulation system for the US armed forces. Virtual Battlespace (VBS) 1 and 2 are now used by armed forces including the US Marine Corps (and several other branches of the US armed forces), the British, Australian, New Zealand, and Canadian armed forces, and NATO. See also, ‘US Army's new virtual simulation training system’, in Defence Talk, 30 May 2011, available at: http://www.defencetalk.com/army-virtual-simulation-training-system-34543/ (last visited 20 October 2012).

21 US military research suggests that 75% of male staff enlisted in the US military may play video games at least once a week, compared to 40% of the general US population. B. W. Knerr, ‘Virtual media for military applications’, Paper 21, Current Issues in the Use of Virtual Simulations for Dismounted Soldier Training Data, 2006. The study does not specify the type of game played (e.g., first person shooter or role-playing game).

22 Robert T. Hayes, ‘The effectiveness of instructional games: a literature review and discussion’, Naval Air Warfare Center Training Systems Division, Orlando, 2005, p. 6, available at: http://www.stottlerhenke.com/projects/matisse/background_docs/Instr_Game_ReviewTr_2.005.pdf (last visited 10 January 2012).

23 ‘US war woe: suicide kills more soldiers than combat’, in RT, 23 December 2011, available at: http://www.rt.com/news/us-soldiers-suicide-combat-487/ (last visited 20 May 2012).

24 See Laurin Biron, ‘Virtual reality helps service members deal with PTSD’, 11 June 2012, available at: http://www.defensenews.com/article/20120611/TSJ01/306110003/Virtual-Reality-Helps-Service-Members-Deal-PTSD (last visited 20 June 2012). See generally, McGonigal, Jane, Reality Is Broken: Why Games Make Us Better and How They Can Change the World, Penguin Press, New York, 2011Google Scholar (this post-doctoral work assesses how to harness the power of games to solve real-world problems).

25 Multiplayer games are set in an open battlefield. Dozens of people connect to the Internet compete to capture the enemy flag or eliminate other players.

26 Jeremy Hsu, ‘For the US military, video games get serious’, in Live Science, 19 August 2010, available at: http://www.livescience.com/10022-military-video-games.html (last visited 15 June 2012).

27 One example is the notion of hero: biographies of ‘real heroes’ in the US army can be found on the America's Army website, available at: http://www.americasarmy.com/realheroes/ (last visited 24 May 2012).

28 Kim Ghattas, ‘Syria launches Arab war game’, in BBC News, 31 May 2002, available at: http://news.bbc.co.uk/2/hi/middle_east/2019677.stm (last visited 15 June 2012).

29 Tom Perry, ‘Hezbollah brings Israel war to computer screen’, in Reuters, 16 August 2007, available at: http://www.reuters.com/article/2007/08/16/us-lebanon-hezbollah-game-idUSL1662429320070816 (last visited 10 January 2012).

30 Peter W. Singer, ‘Meet the Sims … and shoot them’, in Foreign Policy, March 2010, available at: http://www.foreignpolicy.com/articles/2010/02/22/meet_the_sims_and_shoot_them (last visited 24 May 2012).

31 Air Marshall Brian Burridge, ‘Post-modern warfighting with unmanned vehicle systems: esoteric chimera or essential capability?’, in RUSI Journal, Vol. 150, No. 5, October 2005, pp. 20–23CrossRefGoogle Scholar.

32 Philip Alston and Hina Shamsi, ‘A killer above the law’, in The Guardian, 2 August 2010, available at: http://www.guardian.co.uk/commentisfree/2010/feb/08/afghanistan-drones-defence-killing (last visited 1 August 2012).

33 Muñoz-Rojas, Daniel and Frésard, Jean-Jacques, ‘The roots of behaviour in war – understanding and preventing IHL violations, in International Review of the Red Cross, Vol. 86, No. 853, March 2004, pp. 169–188CrossRefGoogle Scholar (hereinafter ‘the study’).

34 ‘Moral disengagement is a complex process and malicious acts are always the product of interactions between personal, social and environmental influences’. Ibid., p. 197. ‘Moral disengagement is not only a gradual process but also one that determines behaviour which draws from past actions the force needed to sustain future actions’. Ibid., p. 199.

35 Combatants resort to different justifications or a combination thereof, such as declaring oneself not as a torturer but as a victim; arguing that circumstances render some reprehensible behaviour not only admissible but also necessary; invoking violations by the enemy and sometime blaming the victims themselves; or denying, minimizing, or ignoring the effects of their actions through the use of euphemisms to refer to their operations and their consequences. Ibid., pp. 198–200.

36 ‘The humanity of the other side is denied by attributing to the enemy contemptible character traits or intentions …’, sometimes equating it with vermin or viruses to be eradicated. ‘Combatants thus find it easier not only to attack but also to rationalize the most extreme kinds of behaviour and to convince themselves that they are justified and necessary’. Ibid., p. 199

37 Ibid., p. 189.

38 ‘Ordinary men submit willingly to an authority when they believe that it is legitimate; they then perceive themselves as its agents … This principle … is further reinforced when it is a question of combatants placed within a military hierarchy, a framework generally more constraining than any civilian authority … Although, under these conditions, the individual commits acts which seem to violate the dictates of his conscience, it would be wrong to conclude that his moral sense has disappeared. The fact is that it has radically changed focus. The person concerned no longer makes value judgements about his actions. What concerns him now is to show himself worthy of what the authority expects of him’. Ibid., pp. 194–195.

39 According to Article 19, International Covenant on Civil and Political Rights, entered into force on 23 March 1976 (adopted on 16 December 1966) (hereinafter ‘ICCPR’), ‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice’. For similar guarantees under international and regional instruments, see Article 19 of the Universal Declaration of Human Rights, Article 10 of the European Convention for the Protection of Human Rights, Article 9 of the African Charter on Human and Peoples’ Rights, Article 10 of the European Convention on Human Rights and Article 13 of the American Convention on Human Rights.

40 The right to property is found in Article 17 of the Universal Declaration of Human Rights; Article 1 of Protocol I to the European Convention for the Protection of Human Rights; Article 21 of the American Convention on Human Rights; and most explicitly in Article 14 of the African Charter on Human and Peoples’ Rights (ACHPR).

41 Article 17 of the ICCPR guarantees the right to protection from unreasonable interference by the state with respect to how computers and the Internet are used in private life.

42 Articles 1 and 31 of the Convention on the Rights of the Child, entered into force on 2 September 1990 (adopted on 20 November 1989).

43 By way of example, attempts to persuade US courts to ban or impose restrictions on games that depict violence rarely succeed. The outcome usually rests on whether games fall within exemptions to freedom of speech. See American Amusement Machine Association v. Kendrick, CA7 2001, 244. F. 3d 572, 577 (video games are protected on free speech grounds: no compelling justification was offered for the restriction sought); Benoit v. Nintendo of America, Inc. 2001 Lsa. Dist. Ct. (even if the death of a child during epileptic seizures was caused by exposure to violence in Mortal Kombat, the speech in the video game was protected unless it was an ‘incitement to violence’, which it was not); Video Software Dealers Association v. Schwarzenegger, Appeals Court upheld 2005 District Court 2009 US CA 9th Cir. (legislation restricting sale of violent video games to minors was unconstitutional. For the Supreme Court appeal, see Brown, above note 11); Entertainment Software Association v. Granholm 2005 Mich. Dist. Ct. (violent game protected as free speech, insufficient evidence of harm); and Entertainment Software Association; Entertainment Merchants Association v. Minnesota 2008 US CA 8th Cir. (injunction granted against law banning the sale or rental of violent video games to minors: freedom of speech and absence of proof of harm were decisive).

44 Freedom of expression can be limited under domestic law to protect the rights and reputations of others, national security, public order, public health, or morals. See Article 19(3) ICCPR.

45 In addition to the treaties mentioned above, others of relevance to video games include: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force on 26 June 1987 (adopted on 10 December 1984) (hereinafter ‘CAT’), the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, entered into force on 12 February 2002 (adopted on 25 May 2000, whether this Protocol is considered as part of IHL or of IHRL is a matter of debate), and the Convention on the Elimination of All Forms of Discrimination against Women, entered into force on 3 September 1981 (adopted on 18 December 1979).

46 Aside from games made available for free by their creators, video-game software is usually protected by copyright laws, international copyright treaties, and other treaties, and intellectual property laws. International agreements on copyright include the Berne Convention for the Protection of Literary and Artistic Works, 1886; Universal Copyright Convention, 1952; WIPO Copyright Treaty, 1996; and The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994.

47 Domestic legislation can apply to various activities associated with video games. Domestic copyright, property, privacy, and criminal laws (e.g., offences involving inciting racial hatred, providing support for a terrorist organization, etc.) may regulate the creation, distribution, use, and enjoyment of video games. On ‘counselling’ a criminal offence through video games, see R. v. Hamilton, Supreme Court of Canada, 29 July 2005, 2 S.C.R. 432, 2005 SCC 47.

48 The law enforcement regime (IHRL) is the set of rules regulating the resort to force by state authorities in order to maintain or restore public security, law, and order.

49 These rules are found in treaties (e.g., ICCPR; International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Rights of the Child) and non-binding instruments (e.g., Standard Minimum Rules for the Treatment of Prisoners; Code of Conduct for Law Enforcement Officials; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Basic Principles for the Treatment of Prisoners; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; Declaration on the Elimination of Violence against Women).

50 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the eighth United Nations Congress on the prevention of crime and the treatment of offenders, Havana, Cuba, 27 August to 7 September 1990, in particular, provisions 5, 9 and 10.

51 Frida Castillo notes that: ‘To define which IHL apply in a given situation, it is necessary to check what instruments were ratified by the state in question. While the 1949 Geneva Conventions were ratified universally, there are other IHL treaties, such as Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non International Armed Conflicts of 8 June 1977 (AP II), which have not been ratified by all states. So here too, it is necessary to verify, whether the states involved in the conflict have ratified the relevant instruments. Rules considered to be customary law on the other hand, apply to all states.’ Report by Frida Castillo, Playing by the Rules: Applying International Humanitarian Law to Video and Computer Games, TRIAL, Pro Juventute, Geneva, October 2009, p. 3, footnote 1.

52 Combatants and civilians if and for such time as they directly participate in hostilities. See AP I, Articles 48 and 51(3), and Rules 1 and 6 of the ICRC Customary International Humanitarian Law Study. ICRC, Customary International Humanitarian Law, Vol. I: rules, Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Cambridge University Press, Cambridge, 2005 (‘the ICRC Customary Law Study’).

53 While any resort to armed force between two states constitutes an international armed conflict, in order for the threshold of non-international armed conflict to be reached, there must be ‘protracted armed violence’ involving a sufficient intensity of the violence and level of organisation of the parties. For the intensity requirement, relevant factors cited in case law include: the number, duration, and intensity of individual confrontations; the types of weapons used; the number of casualties; the extent of material destruction. See, inter alia, International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Ramush Haradinaj, Idriz Belaj, Lahi Brahimaj, Case No. IT-04-84-T, Judgement (Trial Chamber I), 3 April 2008, para. 49. Indicative factors for the organisation requirement include: the existence of a command structure and disciplinary rules; headquarters; the fact that the group controls a certain territory; the ability to plan, coordinate, and carry out military operations. See, inter alia, ICTY, Ibid., para. 60.

54 IHL and IHRL contain common prohibitions that must be respected at all times during armed conflict. Examples include the prohibitions against discrimination, summary execution, rape, torture, and cruel and degrading treatment. Both legal regimes also include provisions for the protection of women and children; prescribe basic rights for persons subject to a criminal justice process; and regulate aspects of the right to food and health.

55 Common Article 1 of the four Geneva Conventions of 1949; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 (hereinafter ‘GCI’); Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949 (hereinafter ‘GCII’); Convention Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (hereinafter ‘GCIII’); Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (hereinafter ‘GCIV’). See also, Rule 139 of the ICRC Customary Law Study states that: ‘Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control’.

56 GCI Art. 47, GCII Art. 48, GCIII Art. 127, and GCIV Art. 144 all provide: ‘The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof [if possible] in their programmes of … civilian instruction, so that the principles thereof may become known to the entire population’. See also, GCIII, Arts 39 and 41; GCIV, Art. 99; AP I, Art.83; AP II, Art. 19.

57 On the obligation of continuous dissemination, see Pilloud, Claude, Sandoz, Yves and Zimmermann, Bruno (eds), Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)Google Scholar, 8 June 1977, ICRC, 1987 (Commentary to Article 80), p. 929, para. 3290.

58 Detailed study of relevant state practice on ‘how far these obligations extend’ in the context of training tools and ‘what are the consequences of failure to fulfil them’ exceeds the word constraints of this article. Comprehensive research on these important issues would be useful.

59 These provisions are based on the customary rule pacta sunt servanda as enshrined in Article 26, of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.

60 According to the Commentary of Article 1 of GCI, p. 26, ‘if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises’. See also, Commentary AP I, p. 41; Commentary GCIV, p. 16; Commentary GCIII, p. 18; Commentary GCII, p. 25. According to Art. 1(1) of Protocol Additional I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter ‘AP I’), such respect is required ‘in all circumstances’.

61 F. Castillo, above note 51.

62 In one game only, Call of Duty 4 (Modern Warfare), attacking a church resulted in termination of the mission (game over). Attacking mosques never triggered this outcome. Ibid., p. 24.

63 In many cases, the interrogation ends with extrajudicial execution. Ibid., p. 42.

64 Ibid., p. 42.

65 Tom Clancy Rainbow 6 Vegas. See ibid., p. 37.

66 Examples include World in Conflict and Frontlines: Fuel of War. See ibid., pp. 30–31. The Convention on Cluster Munitions of May 2008 (open for signature since 3 December 2008) prohibits the use of cluster munitions by states parties. However, their use in circumstances where civilians and combatants are indiscriminately targeted is always prohibited.

67 For the applicable law see The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (entered into force 2 December 1983) 1342 UNTS 137.

68 F. Castillo, above note 51, pp. 34 and 42.

69 Ibid., pp.15–16, 42. Relevant games include: Call of Duty 5 (World at War), Call of Duty: Modern Warfare 3, ARMA II, Call of Duty: Modern Warfare 2, Call of Duty: Black Ops. See also, 24, The Game.

70 For example, in various scenes in the Call of Duty games, torture of captives attracts no penalty, whereas in other games shooting civilians results in ‘game over’.

71 For example, Call of Duty games set in Paris and Tehran.

72 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 30th International Conference of the Red Cross and Red Crescent, October 2007, ICRC, pp. 30–31, available at: http://www.icrc.org/eng/assets/files/2011/30ic-8-4-ihl-challenges-report-annexes-eng-final.pdf (last visited 10 January 2012).

73 In Call of Duty: Black Ops, players watch a superior coldly execute prisoners of war. Forced onto their knees and begging the executioner for mercy, all prisoners receive a shot to the head, except the last one – who is slain with a knife. On another instance in Call of Duty: Black Ops, the player must take part in an act of torture (they must give command for the hero to hit in the face a detainee in whose mouth shards of glass was previously introduced).

74 ICCPR, Art. 7; Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3; CAT, Art. 2.

75 Common Article 3 of the four Geneva Conventions of 1949 prohibits torture or cruel, inhuman, degrading, or humiliating treatment. See also, Articles 50, 51, 130 and 147 of the four Geneva Conventions respectively, Art. 75 of AP I, Art. 4 of AP II, and CIHL Study, rule 90.

76 There is no commonly agreed legal definition of ‘terrorism’. See Additional Protocol II (APII), Art. 4(2)(d). In addition, both Additional Protocols to the Geneva Conventions prohibit acts aimed at spreading terror among the civilian population. See API, Art. 51(2), and AP II, Art. 13 (2). For a discussion on IHL and terrorism, see ICRC, ‘International humanitarian law and terrorism: questions and answers’, 2011, available at: http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm (last visited 10 January 2012).

77 See ICRC, above note 72, pp. 6–7. IHL essentially distinguishes between two categories of people in armed conflict, members of the armed forces and civilians. While the latter are protected at all times, except and only for such time as they take direct participation in hostilities, the former are only protected against attack once out of combat (due to illness, injury, surrender, or capture). In contemporary armed conflicts there is a blurring of civilian and military functions. One example is the involvement of civilian agencies (e.g., the CIA drone programme) in military operations. This highlights another difficulty when it comes to distinguishing between civilians and the military: the problem of civilians who directly participate in hostilities.

78 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, Art. 2.

79 On anti-personnel landmines see, for instance, the ICRC website, available at: http://www.icrc.org/eng/war-and-law/weapons/anti-personnel-landmines/index.jsp (last visited 25 May 2012).

80 One exception is a playable scene from Call of Duty: Modern Warfare II that includes the mass killing of civilians inside an airport (although this scene does not take place on a battlefield proper). Players can participate in this killing spree without penalty.

81 For the notion of ‘direct participation in hostilities’ see also, Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009Google Scholar.

82 These include, in particular, Call of Duty: Modern Warfare 3 and Call of Duty: Black Ops 2.

83 The identity card is the basic document with which the status and identity of persons who have fallen into the hands of the adverse party can be determined, and it must be issued by states to any person liable to become a prisoner of war (GC III, Art. 17). It must contain at least the owner's surname, first names, date of birth, serial number or equivalent information, rank, blood group, and Rhesus factor. As further optional information, the identity card may also bear the description, nationality, religion, fingerprints or photo of the holder, or the date of expiry. In parallel with this measure, the authorities are required to issue specific identity cards for military personnel carrying out special tasks or for certain categories of civilians, The authorities may supplement the above measures by providing identity discs (GC I, Art. 16; GC II, Art. 19). The identity disc is worn permanently round the neck on a chain or strap. It can be a single or double disc made, as far as possible, of durable, stainless material that is resistant to battlefield conditions. The inscriptions it bears are similar to those on the identity card and should be indelible and fade-proof.

84 The Red Cross emblem became synonymous with ‘health care’ in video games upon the release of Doom in 1993. In ARMA II, the Red Cross, Crescent, and Crystal emblems are highly visible (Figure 5). Armoured vehicles rigged with an emblem do not carry weapons, only medical equipment. However, ‘artificial intelligence’ units controlled by the game do not differentiate between persons and objects bearing the protective emblem and those that do not. In the game Crisis 2, players can attack an ambulance with impunity. No warnings or penalties are triggered by attacks on ambulances.

85 In multiplayer games each player chooses a class or function. In addition to snipers, grenadiers, or engineers there are often nurses or combat medics whose function is to heal or resurrect fallen comrades. Nurses, sometimes dressed in white and often bearing a Red (or other coloured) Cross, are generally equipped with light weapons and a short reach, but good offensive skills when performing combat functions. Such games send several inaccurate messages about the rules of war (e.g., protective emblems may be worn by persons with offensive combat roles, and attacks on medical personnel are acceptable).

86 See ICRC, Health Care in Danger: A Sixteen-Country Study, ICRC, Geneva, 2011, available at: http://www.icrc.org/eng/assets/files/reports/4073-002-16-country-study.pdf (last visited 2 August 2012). States and Red Cross and Red Crescent National Societies unanimously passed a resolution on this issue at the 31st International Conference of the Red Cross and Red Crescent. See ‘Resolution 5, Health Care in Danger: Respecting and Protecting Health Care’, document prepared by the ICRC, adopted at the 31st International Conference of the Red Cross and Red Crescent, Geneva, 28 November–1 December 2011, available at: http://www.rcrcconference.org/docs_upl/en/R5_HCiD_EN.pdf (last visited).

87 See for example changes between Battlefield 1 and 3. In the later version, players do not have to see or act out torture.

88 Alec Meer, ‘Why you can't shoot civilians in Battlefield 3’, interview of Patrick Bach CEO of DICE, in Rock, Paper Shotgun, 30 August 2011, available at: http://www.rockpapershotgun.com/2011/08/30/why-you-cant-shoot-civilians-in-battlefield-3/ (last visited 2 August 2012).

89 While civilians may not be visible in the game, it is difficult to imagine an armed conflict taking place in downtown Tehran (Battlefield 3) or Paris (Call of Duty: Modern Warfare 3 and Battlefield 3) without any civilians being present.

90 F. Castillo, above note 51, p. 37.

91 Alternatives to the use of lethal force against friendly forces include allowing players to arrest and court-marshal soldiers that commit war crimes. The challenge for designers is to find ways to implement such changes without affecting the flow of the game.

92 Unlike early versions of these games, Call of Duty 4 and Halo 3 also integrate changes to avoid improper use of the emblems. For example, the Red Cross emblem is no longer used in these games as an indicator of how players can recuperate and replenish their health.

93 Subject always to the rules on distinction, proportionality, and precautions.

94 In direct contrast to IHL, the general rule in video games is that ‘no one surrenders’ to enemy fighters. The requirement to release the enemy if they cannot be detained is entirely absent. As noted above, in games tested by the ICRC, wounded persons generally struggle or try to fight back with a firearm. Others just wait until their adversary kills them. In some (unplayable) scenes, injured fighters are shot at while trying to surrender.

95 An exception is ARMA II, which includes three of the distinctive emblems of the Red Cross and Red Crescent Movement.

96 When they carry and use light weapons to defend themselves or to protect the wounded and sick in their charge, medical personnel do not lose the protection to which they are entitled. The wounded and sick under their care remain protected even if the medical personnel themselves lose their protection. See AP I, Art. 13, rules 25 and 28 of the ICRC Customary Law Study (see also p. 85 of the commentary to rule 25, in the ICRC Customary Law Study, above note 52).

97 For several problematic scenes in Version 1 of Call of Duty – Modern Warfare 3, see F. Castillo, above note 51, pp. 23–25.

98 Such innovations suggest the involvement of military and/or legal advisors in game design. See also, Dave Their, ‘The real soldier behind the ‘Call of Duty’ games’, in The Washington Post, 19 October 2010, available at: http://www.aolnews.com/2010/10/19/the-real-soldier-behind-the-call-of-duty-games/ (last visited 30 July 2012).

99 D. Muñoz-Rojas and J.-J. Frésard, above note 33.

100 See ICRC, Study on the Use of the Emblems: Operational and Commercial and other Non-operational Issues Involving the Use of the Emblems, ICRC, Geneva, 2011Google Scholar.

101 Art. 37 of AP I prohibits acts of perfidy or ‘inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence’. Examples include: feigning intent to surrender or negotiate under a flag of truce; feigning incapacitation by wounds or sickness; feigning civilian, non-combatant status; and feigning protected status by the use of signs, emblems, or uniforms of the UN or of neutral or other states not Parties to the conflict’. The Rome Statute of the International Criminal Court (hereinafter Rome Statute), opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), includes as war crimes, the improper use of distinctive emblems resulting in death, serious injury, intentional attacks on buildings, material, medical units and transport and personnel using the distinctive emblems of the Geneva Conventions. See Art. 8(2) (b)(vii) and (xxiv), and (e)(ii) of the Rome Statute.

102 G. Humbert-Droz, above note 15. According to this French language survey, few players knew much about IHL. Interest in integration of IHL into video games was low.

103 For instance, in 2012, Call of Duty: Modern Warfare 3 (in which game-makers have gone to some lengths to avoid making civilians and civilian infrastructure targets – a feature of Version 1) ranked number eight within the top ten best-selling games and number two among first person shooter games depicting combat situations (Call of Duty; Black Ops 2 being number one). See ‘10 best selling videogames in 2012’, above note 4.

104 According to McGonigal, tens if not hundreds of millions of people play video games each year. See Jane McGonigal, ‘Gaming can make a better world’, TED Talk filmed in February 2010, available at: http://www.ted.com/talks/jane_mcgonigal_gaming_can_make_a_better_world.html (last visited 30 July 2012). See also Entertainment Software Association, Sales, Demographic and Usage Data: Essential Facts about the Computer and Video Game Industry, Entertainment Software Association, Washington, D.C., 2011Google Scholar, available at: http://www.theesa.com/facts/pdfs/ESA_EF_2011.pdf (last visited 30 July 2012).

105 See G. Humbert-Droz, above notes 15 and 102.

106 See B. A. Gutierrez, S. DeCristofaro and M. Woods, above note 18, p. 1038 (‘many Americans have never been taught about the Geneva Conventions, except perhaps that they exist … two in five young people and one in three adults in the US believe that American soldiers detained abroad can be tortured’).

107 See B. W. Knerr, above note 21.