Background
One of the hallmarks of some of the most recent episodes of Attack on Titan: The Final Season (AOT) has been the continual conflict between all three active parties: Marleyans, Eldians, and The Jaegerists. The Jaegerists, a new local military faction, found its genesis amongst the Paradis Survey Corps who adhered to Eren Jaeger and his pursuit of “The Rumbling.” He and other volunteers were detained by the Paradis military forces as punishment for insubordination during the assault on Liberio at the beginning of the season. We also see the detention of children. Specifically, Falco and Gabi who are members of Marleyan military who fought against the Paradis forces at Liberio and were subsequently captured. In both of these detention instances we see that international humanitarian law (IHL) has been violated.
You might be wondering how it was violated or why do we have rules on detention? Well, the goal of this article is not to address every single detention issue that arose – there are many; rather, it is to address the most prevalent violations. Secondly, it will aim to explain how the Geneva Conventions would apply and the rationale behind the rules.
Host of Violations
Detention itself is not wrong. Detaining prisoners of war (POWs) and civilians stretches back to the earliest forms of human conflict and is seen as a natural part of armed conflict. However, what has changed overtime is what we do with POWs and civilians once they are captured during an international armed conflict (IAC) and a non-international armed conflict (NIAC). An IAC exists when two states are in conflict with one another and a NIAC exists when a state(s) is in conflict with a non-state armed group. With this distinction comes separate IHL rules for the conflicts. IAC has more protections and the rules for detention are found in the Geneva Conventions (GC) – specifically, Common Article 3 (CA3) and GC III and IV apply. When it comes to NIAC, we have a much smaller set of rules and less protections and have only CA3 and Additional Protocol (AP) II that apply. But, the POW status isn’t something to be lightly given out. When looking to see who gets the protections Art. 4 of GC III helps guide us. It tells us there are four critical criteria to be considered:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
In AOT, we have an existing IAC between Marley and Eldian so those detained will have the respective GCs and CA3 apply and will have the coveted POW status. When it comes to the Jaegerists and their relations to respective states, those detained will fall under the smaller subset of rules for NIACs and will not acquire POW status.
a. Gender Separation
When it comes to POW detainment, GC III sets out the rules for how POWs are to be treated spanning from food to shelter to alerting families back home of their capture. When it comes to quartering POWs, Art. 25 states that in any event that women are POWs alongside male POWs that they are to have separate dormitories. Adding to this is that when it comes to overall treatment, CA3 and Articles 13 and 14 inform the detaining powers that they are to treat the POWs with the utmost core and dignity. Just because someone is a POW does not mean they are seen as lesser humans; rather, they should be treated with more care.
This is one of the clearest examples we have of an IHL violation when it comes to detention. As stated above in Art. 25 we are supposed to have separate quarters for individuals of opposite sex. The commentaries to Art. 25 note that in times of conflict securing separate quarters for opposite sexes can be difficult or infeasible; however, they are required to try to the best of the ability. If anything, if they can’t separate they need to ensure the women are not isolated and that they are provided with personal hygienic items.
In episodes 74 and 75, we are shown the Eldians putting all the prisoners in a single cell regardless of their gender. They were not lacking in rooms within the detention center nor was the detention site in a conflict zone which might prohibit gender separation. Rather, the cells were in the capital of the Eldian empire within the HQ building far removed from conflict. Here, Art. 25 speaks to the Marleyan individuals that were detained like Pieck, Gabi, Falco and the rest of Marleyan forces. For the Jaegerists, the gender separation requirement doesn’t apply because they are not covered by GC III. They do get the basic protections outlined in CA3 like “outrages upon personal dignity, in particular humiliating and degrading treatment” cannot be inflicted upon them once in captivity.
Collectively, both the Jaegerists and the POWs may have been subjected to another violation during their tenure in the cramped cell. At one point a Marleyan military member came into the detainment area and brandished a gun towards the prisoners threatening to shoot one or multiple members. Although the threat was short lived, they were killed, the action alone may have violated CA3. Specifically, it could be seen as violation subsection A of CA3 which provides that a violation occurs if there is “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”
The POWs and Jaegerists were not given adequate treatment at the threshold they are expected to have during a time of conflict. The lack of humane treatment, separation, and exposure to violence makes it more difficult for other states to see the need to reciprocate the GCs rules when it comes to when they detain since their own people didn’t have those protections.
b. Children and Detention
Children have no place in war. I mean GC IV and other treaties tells us that they are a protected class. Yet, in AOT, at the very front and center we see two children fully immersed in the horrors of war – Gabi and Falco. That alone is a law of war violation and won’t be covered here but if you’re curious here is another article that covers issues with children being involved in conflict. Instead, the focus here is to determine if there was a violation with Gabi and Falco in episode 70.
Gabi and Falco, ignoring the fact that they are children, qualify as POWs. How? As laid out above from Art. 4 of GC III, we need the individuals to carry arms openly, respond to a chain of command, wear a distinguishing symbol, and participate in actions that follow the rules and customs of the law of war. Gabi and Falco both wear the Marleyan uniform, have the symbol affixed to them, adhered to a chain of command in their respective unit, and for the most part followed the customs of war during armed conflict.
This means that their detention in AOT must meet the higher standards set out in GC III. In episode 70, we are shown that these two are detained together in what looks like a bedroom, a violation of Art. 25 if we’re being picky. Further, the guard enters the room and seems to go after Gabi. We don’t know his true intentions, so it is murky to try and claim a CA3 or Art. 13/14 violation. But, we do know Gabi responded with violent force ultimately killing the guard before she and Falco make their escape. Now, Gabi’s action on its face seems like it should be a violation; however, Art. 91, 92, and 93 of GC III which cover escapes are silent to this. The commentary for Art. 92 tells us that it’s a longstanding practice not to punish a POW for their actions taken during their attempted escape; rather, the only punishment should ascribed to the escape itself and no more. This is drawn from many historical treaties like the he 1874 Brussels Declaration, the 1907 Hague Regulations, agreements adopted during the First World War, and the 1929 Geneva Convention on Prisoners of War. So, I would say that the death is permissible and not a violation as the guard was a member of the opposing armed forces and is thus targetable. Just because the POW is detained doesn’t nullify their ability to target enemies in an armed conflict and stymieing this, I think would cause greater issues.
Conclusion
Detaining members of opposing forces is a natural element of an armed conflict. We know that how we treat those designated as POWs or with other legal statuses can effect how opposing forces will treat our own in this conflict and in conflicts yet to come. This means it is imperative to not only recognize GC III but to try and follow the articles as set out. Understandably this can be hard given varying circumstances of detention.
The Eldians could have done a much better job in failing to adhere to GC III with their flagrant mistreatment of their POWs and the Jaegerists under their purview. They had the means, the space, and the supplies to easily prevent the violations that were listed and the many that were not focused on. You can see that the failure to provide separate quarters or allowing the threat to multiple lives could lead to harsh reciprocal treatment to their forces by Marleyans if detained. This is exactly what we don’t want. It’s a tit-for-tat that can be avoided. Yet, this kind of maltreatment leaves an open wound that can fester and in the next conflict can make opposing parties more recalcitrant to adhering to the rules and willing to punish their POWs.
Lastly, is dealing with Falco and Gabi. Morally, most of the world finds children soldiers repugnant and directly considers their conscription to be a war crime. I agree, of course. However, here the task was to overlook this and to understand their detention scenario. Legally, Gabi and Falco got the correct treatment afforded to them as POWs and there didn’t seem to be any direct violation outside of separating the kids. Furthermore, Gabi’s killing of the guard is a natural part of armed conflict and he assumed the risk of death by wearing the uniform. She cannot be punished for it nor if she and Falco were recaptured could they have it used them as an aggravating factor that would make the next punishment more severe.
The Eldians, despite their rightful grievances against Eren and Marleyans, shouldn’t have let their emotions supersede the legal obligations they owed to those detained. The failure to adhere will only cause more waves in their relationships and shows to us the importance of maintaining clarity and due respect to others. Detention in armed conflict although common is important. It is a reflection on how we show the world how we perceive our enemies and is a way to provide a form of armed mercy. It is not something Eldia nor Marley nor the Jaegerists strive to achieve. It is something that they must achieve time and time again for the sake of future conflict.