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Are Surviving Clone Troopers Guilty of War Crimes?

A Boalt Law Student on Defending Captain Rex, Gregor, and Wolffe for Executing Order 66.

In the Star Wars Rebels episode The Lost Commanders, we learn that some clone troopers survived past the Clone Wars era and into the Galactic Empire era. Furthermore, during Star Wars Celebration 2017, Star Wars Rebels showrunner Dave Filoni hinted that the old man soldier featured in the Endor strike team in Return of the Jedi could be Rex. This got me thinking, if Rex could have survived into the rise of the New Republic, other clone troopers could have too. Although Rex, Wolffe, and Gregor were able to remove their inhibitor chips (hereafter chips) allowing them to disobey Order 66, many clones like Cody followed through with Order 66. If a clone like Cody survived into the New Republic era, could he be tried for the murders of the Jedi he executed through Order 66?

Rex (left), Gregor (center), and Wolffe (right).

In the Star Wars: The Clone Wars (hereafter The Clone Wars) episode Fugitive, Nala Se, a Kaminoan doctor, states that the chips inhibit aggression in the clones. However it is later revealed that the chips also had the ability to force the clones to comply with complete obedience to preprogrammed orders. The chips had almost a hypnotic effect as depicted in The Clone Wars episode Conspiracy, where the clone Tup, who has a defective chip that activated prematurely to Order 66, repeatedly mutters, “Good soldiers follow orders…” Later in the episode, Tup reacts to another Jedi master by going from a muddled mental state to crazily lunging at the Jedi Master. Tup’s actions were more like a compulsive reaction than a calculated decision. In events depicted in Revenge of the Sith, clones comply with Order 66 without any hesitation, gunning down Jedi Generals who had led them throughout the Clone Wars. The clones’ lack of any aggression in Revenge of the Sith may be a result of improved chip technology. However, Tup’s reaction revealed that the clones’ reaction to orders from the chip may be compulsive in nature.

Inhibitor chip

First, what kind of crimes would these clones be tried for? Technically, they were following the orders of the Supreme Chancellor Palpatine. In the Nuremberg and Eichmann cases, Nazi war criminals were tried for their war crimes, but many defended themselves by saying they were simply following orders. The Nuremberg and Eichmann cases are the closest historical examples we may use to analyze how the clones could be tried. In the Nuremberg and Eichmann trials, the defendants were tried under criminal liability and the defense presented the superior orders defense to show that the individual defendants did not have a “true moral choice” in respect to their actions. The Nuremberg and Eichmann trials focused on the actions and intent of individual defendants. In the Eichmann trial, the court found that Adolf Eichmann, a high ranking SS officer, unsuccessfully presented a “necessity” defense, because he had performed his orders “at all times con amore, that is with full zeal and devotion to the task.” Attorney General of Israel v. Eichmann, 16 Piske Din 2033 (1962) (Isr.) (hereafter Eichmann).

Clone trooper Tup (right) moments before killing Jedi Master Tiplar (left) due to a malfunctioning inhibitor chip.

After applying these standards to clones, it appears that most clones would be able to successfully mount defenses against their crimes against the Jedi. Criminal law seeks to “punish individuals for acts for which they are morally culpable.” Nguyen Thang Loi v. Dow Chem. Co. (In re Agent Orange Prod. Liab. Litig.), 373 F. Supp. 2d 7 (E.D.N.Y. 2005). The clone troopers were unable to make a “moral” decision because the chips in their brains forced them to comply. Thus, the clones could not form any intent or make any moral choices in regards to their decision to execute their Jedi Generals. Instead, they were forced by an artificial compulsion to execute their Jedi superiors. In addition, in the Eichmann trial, the court used specific language stating that Adolf Eichmann performed his duties with “full zeal and devotion to the task.” (Eichmann, 1962). Again, because the clones were following an almost compulsive and subconscious need to follow orders, it is unlikely that they were carrying out their orders with a similar “zeal and devotion.” (Ibid.)

A fervent defender of clones could also introduce a defense to show that the chips were akin to brain damage to the clones. In The Clone Wars episodes Conspiracy and Fugitive, AZI-3, the medical droid aiding Fives investigate Tup’s mysterious actions, first mistakes the chip as a tumor. The chip’s similarity to a tumor means that one could raise the defense that the chips acted as brain tumors which caused the clones to act murderously and irrationally.

Fives’ head after his inhibitor chip is removed.

In Brubaker v. Dickson (hereafter Brubaker), the court found that medical history of the defendant’s brain damage and medical analysis that the brain damage “was ‘of a type often associated with abnormal and otherwise unexplainable conduct’” was significant and remanded the case back down to the district court for further analysis of the significance of the brain damage. 310. F.2d 30, 33 (9th Cir. 1962). The medical analysis also noted that the defendant was not “‘insane’ [but rather] had a compulsive personality marked by strong emotional instability.” (Ibid.) This defense is definitely something one could present when defending a clone trooper. The chips effectively acted as tumors or brain damage that caused the clones to perform “abnormal and otherwise unexplainable conduct.”

As a result, it appears that surviving clones should not fear being successfully prosecuted by any anti-Clone New Republic era prosecutors. Under our understanding of the legal standards of how war criminals are treated and how courts analyze brain damage, clones seem to be able to mount successful defenses against any charges against them.

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