War Crimes of the First Order

Kylo Ren is a war criminal with sins equal to the My Lia Massacre. In his pursuit to find and kill his uncle Luke Skywalker, Ren lead First Order Stormtroopers to Jakku to recover a map to Skywalker. The Troopers opened fired on unarmed civilians and captured those left alive. Ren murdered Lor San Tekka with his lightsaber and ordered the Stormtroopers to “kill them all,” when questioned on what to do with the villagers.

All of these acts were before Ren committed Han-icide. While General Leia Organa might have unconditional love for her son, there are limits to a mother wanting a mass murderer back. At what point does Leia order Kylo Ren be killed?

The villagers on Jakku were civilians whose only crime was being in the way of the First Order. There is the legal maxim that “Enemy prisoners are not subject to summary execution by their captors. Military law has long held that the killing of an unresisting prisoner is murder.” United States v Calley, 48 C.M.R. 19, 25 (U.S. C.M.A. 1973), citing Winthrop’s Military Law and Precedents, 2d ed., 1920 Reprint, at 788-91. Moreover, “[w]hile it is lawful to kill an enemy “in the heat and exercise of war,” yet “to kill such an enemy after he has laid down his arms . . . is murder.” Id. Furthermore, nations are prohibited from committing murder on “persons taking no active part in the hostilities.” USCS Geneva IV, Article 3, section (1)(a).

The First Order Stormtroopers quickly overran the Jakku villagers. The civilians were rounded up and summarily executed. There is no colorable argument that the villagers were part of the Resistance, let alone offering resistance.

Kylo Ren literally quoted Lt. William Calley when he ordered the Stormtroopers to “kill them all.” In Calley’s appeal in the My Lia Massacre, the Court found the following:

Conceding for the purposes of this assignment of error that Calley believed the villagers were part of “the enemy,” the uncontradicted evidence is that they were under the control of armed soldiers and were offering no resistance. In his testimony, Calley admitted he was aware of the requirement that prisoners be treated with respect. He also admitted he knew that the normal practice was to interrogate villagers, release those who could satisfactorily account for themselves, and evacuate the suspect among them for further examination. Instead of proceeding in the usual way, Calley executed all, without regard to age, condition, or possibility of suspicion. On the evidence, the court-martial could reasonably find Calley guilty of the offenses before us.

Calley, at *25.

The First Order committed a war crime on Jakku by killing every civilian at the village. Kylo Ren could be prosecuted for giving the order to commit murder. The one person who refused to follow orders was FN-2187. First Order Stormtrooper FN-2199 should watch calling “Finn” a traitor, because Finn is the only one who refused to commit a war crime. That makes Finn the hero.

The Death Star: That’s No Moon—Is it an Orbital War Crime?

The Empire’s prized planet-busting weapon was arguably the pinnacle of destructive technology in the Star Wars universe…at least until the First Order one-upped them with Starkiller Base.

Easy, General Hux. Don’t get too proud of the copycat technological terror you constructed.

If Darth Vader had not sliced him in half like a stick of butter, Archduke Poggle the Lesser would have been proud to see the terror inspired by the battle station his insectoid brethren designed and helped build. The existence and use of such a powerful weapon begs a major question: Was the Death Star an orbital violation of the law of war?

“Oh, dear” is right, Obi-Wan.

Speaking of Poggle’s industrious underlings, the Geonosians, the law of war is more complex than one of their branching underground hives. Also referred to as the law of armed conflict or international humanitarian law, the law of war has evolved over millennia and is deeply rooted in history. In its present state, the law of war is comprised of a network of international agreements (e.g. treaties, conventions, or protocols), international customs (i.e. general and consistent practices of states stemming from a sense of legal obligation), and other similar sources.

Just like other laws, the various aspects of the law of war exist to prevent or control conduct. The law of war has two prongs: (1) Jus ad Bellum, or, for those of us still recovering from high school Latin class, the conduct of going to war; and (2) Jus in Bello, which is the regulation or control of conduct within war. In real world combat operations, military attorneys known as Judge Advocates are there to advise commanders at all levels on the law of war.

Someone please come talk Anakin out of law school. Once he starts down that dark path forever will it dominate his destiny.

Before someone like General Veers rolls his eyes and blasts me out of an airlock for raising the silly notion of rules for combat, Star Wars is no stranger to the core concepts behind the law of war. For example, Governor Tarkin himself acknowledged the difference between civilian and military targets in A New Hope when he threatened Leia with the destruction of Alderaan. Republic forces grappled with Separatist use of Twi’lek civilians as living shields in Season 1 of The Clone Wars. In Marvel’s Poe Dameron #4, everyone’s favorite bro, Poe Dameron, scolds a fellow pilot for breaking the rules of engagement by firing on First Order troops. While Star Wars may be littered with subtle references like these, scenes of galactic lawyers debating the rules are no more thrilling than the taxation of trade routes and senate hearings in The Phantom Menace. Nevertheless, that sort of foundation means that it is no stretch for us to apply the modern principles of the law of war to the Star Wars universe. For simplicity’s sake, we’ll use the real world rules that the United States follows in an international armed conflict.

It’s as if millions of voices [of movie watchers] suddenly cried out in terror…
The Death Star was the ultimate power in the universe, which means we should look to the law of war’s second prong, jus in bello, to best judge its uses. Four key principals make up the foundation of this prong: (1) military necessity; (2) distinction/discrimination; (3) proportionality; and (4) unnecessary suffering. Thanks to a suspiciously convenient design flaw (I’m looking at you, Galen Erso), the Death Star saw limited combat. Its two engagements provide a stark, but useful contrast. We’ll assess the destruction of Alderaan here and contrast it against the Battle of Yavin in a subsequent article.

 

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Let’s state the obvious here: had they not been blasted into a fine particulate, Tarkin, Motti, and the whole gang would be in big bantha poodoo for the attack on Alderaan. As an underpinning of the four principles above, the law of war explicitly prohibits intentional attacks on civilians and non-combatants. Additionally, civilian populations are protected from direct attack. The Hague Tradition, named for the 1899 and 1907 Hague Conferences, also outlaws the attack or bombardment of undefended towns or villages.

If the law of war were illustrated, its various authors would have used a picture of a bunch of Alderaanians as the textbook example of persons you definitely cannot target. Alderaanian society was steeped in pacifism and its people generally possessed no weapons. The planet itself was also undefended, with no defensive fleet or orbital/planet-based offensive weaponry.

Despite this, Alderaan still had meaningful ties to the Galactic conflict and the Rebellion. One of the planet’s most prominent figures, Viceroy Bail Organa, was a founding member of the group. Princess Leia followed in her adoptive father’s footsteps, escalating her role with the Alliance as she got older. With two of the most powerful Alderaanians actively aiding the Rebellion, it’s reasonable to conclude that others on the planet were also involved with the group in some similar way.

The Empire might therefore argue that those circumstances offered a clear military advantage that outweighed the inevitable collateral damage of the planet’s destruction. Civilians do not enjoy an unending wellspring of protection. Pursuant to Additional Protocol I of the 1949 Geneva Conventions, civilians lose their protection while they take direct part in hostilities. Similarly, under Hague Regulation IV, Article 25, civilian structures can lose their immunity to intentional attack if their destruction would offer a definite military advantage. Imperials would argue that Bail had long forfeited his civilian protection due to his role with the Rebellion. The same goes for any Alderaniaans engaged in acts that were likely to cause actual harm to Imperial armed forces. For argument’s sake, we’ll assume that Organa and certain Alderaanian rebels lost their protection as civilians.

Ever the calculating tactician, Tarkin would forcefully proclaim that a high value target like Organa was a valid and necessary military objective. He would think the same of other Alderaanian Rebel agents. By destroying Alderaan, the Empire could achieve two critical military objectives with one swift stroke: (1) deliver a hammer blow to the Rebellion by eliminating one of its key leaders and sources of support; and (2) quell potential Alliance support in other systems by sending a resounding message about their fate if they rebelled. Accomplishing those objectives would destabilize the Alliance High Command, disrupt Rebel supply lines, and likely crush Rebel morale across the galaxy. Those would have been definite major military advantages. Although Tarkin conceded that Alderaan was not a military target, he would have coldly brushed that concern aside, reasoning that those military advantages demanded use of the Death Star.

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Unfortunately for Tarkin and his comrades, the existence of military necessity does not justify using measures that are forbidden by the law of war. Military necessity is generally not a defense for acts in violation of customary and conventional laws of war. Protected persons, such as civilians, may not be intentionally targeted under any circumstances. Even dire military necessity is not an exception. Additionally, the concept of distinction and discrimination, set forth in Additional Protocol I of the Geneva Conventions, requires that military attacks be directed at military targets and combatants, not at civilians.

In World War II, Germans employed a concept known as Kreigsraison, which was frequently used to justify civilian casualties. Under Kreigsraison, a battlefield commander could set aside the rules of warfare if he determined that the military situation required it. German commanders repeatedly used the concept as justification for numerous brutal practices, such as attacks on civilian merchant shipping and the execution of prisoners. Their rationale was largely rejected in the Allied criminal prosecutions that followed the war. In United States v. List (the “Hostage Case”), the Tribunal was emphatic in its rejection of the concept, stating “[m]ilitary necessity or expediency does not justify a violation of the positive rules…the rules of international law must be followed even if it results in the loss of a battle or even a war.”

The Death Star was no precision weapon, which means that Alderaan’s entire population was unavoidably in its crosshairs. Distinction between a handful of military targets and swaths of civilians was therefore impossible. Furthermore, no amount of Imperial military necessity overcomes the prohibition against indiscriminately attacking the entire planet’s civilian populace. Consequently, Tarkin’s rationale cannot justify use of the Death Star against Alderaan.

The Emperor is most displeased.

As if Tarkin needed another reason to cast his Imperial Judge Advocates into the Great Pit of Carkoon, the Death Star also presents a proportionality problem. The concept of proportionality does not mean that the Imperials must fight Rebels with similar weapons. For example, if an enterprising Rebel soldier fires on Imperials with a DH-17 blaster pistol, proportionality does not mean that the Imperials can only fire back with another blaster pistol.

Instead, under Article 51 of Additional Protocol I to the Geneva Conventions, proportionality is the requirement that in an attack expected to cause injury/death to civilians or damage/destruction of civilian property, such loss must not be excessive in relation to the anticipated concrete and direct military advantage. If the target is purely military with no known threat to civilian personnel or property, proportionality is not an issue. So, to go back to our woefully unequipped Rebel friend, if he was firing that trusty DH-17 on Imperials while standing in an empty and wide-open field on Lothal, the Empire could happily fire on him from orbit with a Star Destroyer’s turbolasers if they wished. Proportionality would not come into play, even though the Empire was effectively squashing an ant with an anvil.

However, in Alderaan’s case, proportionality analysis would be necessary. As discussed above, the Death Star’s lack of precision means that the death of civilians and destruction of their property was a given. Alderaan itself was not a valid military target, but Viceroy Organa and other Rebels on the planet were. Despite Organa’s importance to the Alliance, he was just one man. Furthermore, while many Alderaanians likely sympathized with the Rebellion’s cause, it’s unlikely that more than a small contingent of them were participating in a manner than would strip them of protection under the law. Reducing an entire civilian planet to an asteroid field in order to destroy a few Rebels and make a point to the galaxy is per se excessive. Even a very generous assessment of the military advantage gained in eliminating them would not outweigh the catastrophic loss of civilian life and property.

Ultimately, the Empire knew exactly what it was doing when striking Alderaan. Tarkin is no fool and he built his military career upon brutal yet effective tactics that routinely stepped over the line. From his ruthless beginnings reclaiming the Seswenna sector and committing the Antar Atrocity in the Tarkin novel to smashing resistance on Lothal in the Rebels TV series, Tarkin’s record speaks volumes about his approach to warfare. For a commander like him, a peaceful planet like Alderaan was always going to be the Death Star’s first target. Obliterating it sent a resounding message: If the Empire can so coldly destroy a pacifist planet like Alderaan, they would have no mercy for any system supporting the Alliance.

 

 

DISCLAIMER: The author is writing in his individual capacity. His views are expressly his own. He does not speak on behalf the Department of Defense or the United States Army.

Vader knows: You gotta have a good bad guy.

“We have hope. Rebellions are built on hope.” So says Jyn Erso in Rogue One: A Star Wars Story. On December 16th we get to see the early days of the Rebellion, formed to fight Darth Sidious, who has transformed the Republic into an empire with him at the head.

DarthVader_2744-150x150As much as I loved A Force Awakens, I am very excited to see Rogue One because it brings back one of the all-time great Hollywood villains: Darth Vader (Kylo Ren is for the young kids). And this should be Vader at his most evil, before his son softened him up. This Vader, after all, is not too far removed from the angry Anakin who slaughtered the younglings in the Jedi temple (a mass murder/potential hate crime, although Anakin may claim insanity).

As Lord Vader, he’s still settling into his workplace management style. This may be our chance to see just how evil he was in his early days as a “manager.” We know, of course, that by the time of A New Hope he’s willing to choke (but not kill, thanks to Grand Moff Tarkin) a commander who mocks the Force…

Not only could this be viewed as creating a hostile workplace (it could be argued that Vader is choking the commander because they have different religious beliefs), but assault is always a criminal offense and no more permitted in the workplace than it would be anywhere else.

By the time of The Empire Strikes Back, Vader isn’t holding back anymore. This time, he has no qualms about killing an admiral who has displeased him:

While some employee errors can be so serious as to warrant immediate termination, that means termination of the employment, not of the employee’s life.

Needless to say, Vader will not be held accountable for any of these crimes because his leader has taken the Republic (which presumably had laws that were suppose to apply equally to all) and transformed it into a dictatorship, under which the Emperor’s people may disregard the law and abuse or kill others with impunity. It makes for a great movie but this kind of disregard for basic laws and individual rights is not what any of us would want to experience in real life.

So I’m excited to see my favorite bad guy this December (I’m also excited to run into him at Comic Con), but I prefer that he stays in a galaxy far, far away.

Commandeering Vehicles to Fight Goat Demons

Could Sheriff Evie Barret commandeer a pick-up truck in the Stan Against Evil episode “Know, Know, Know, Your Goat”?

The current laws of New Hampshire do not specifically address police commandeering private vehicles. However, the state had allowed for it in the past. In a New Hampshire Supreme Court case, the Court discussed statutory authority for police vehicles, ambulances, and “private cars, when commandeered for use by the police,” were exempted from speed limits. See, Vandell v. Sanders, 155 A. 193, 194-95 (N.H. 1931), citing P. L., c. 103, s. 18.

New Hampshire law speaks to police powers and “vehicles when driven with due regard for safety under the direction of the peace officers in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation…” N.H. Rev. Stat. Ann. § 265:61.

Sheriff Barret did drive the commandeered pick-up with due regard of safety in order to apprehend suspected violators of the law. In this case, that suspected violator was a demon goat. There is a high likelihood that the mayor of Willard’s Mill would respond to demonic goats the same way that Mayor Larry Vaughn did to shark attacks in Jaws. There would be denial, ridicule, followed by a massive lawsuit by anyone who lost a loved one to demonic forces.

Thank You! We Made the ABA Journal Blawg 100 for Fourth Time!

Jessica and I are deeply humbled to have made the ABA Journal Blawg 100 for the fourth time. We are honored people enjoy our blog.

Thank you to everyone who nominated us and the editors at the ABA Journal.

We work hard to have fun with the law and pop culture. There was no shortage of great topics to blog about, thanks to all of the comic book and science fiction movies/TV shows that came out in 2016.

We also have had a great time attending Cons this year. Here are just a few of the highlights:

We had an the Mock Trial of the Winter Soldier at San Diego Comic Fest;

Presented five panels at the first San Francisco Comic Con

Presented at Long Beach Comic Con for the first time;

Moderated the Firefly panel at Alien Con with Jewel Staite; and

Presented at San Diego Comic Con with my brother on Supergirl and Star Trek with California Supreme Court Justice Mariano-Florentino Cuellar.

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I want to thank all of our guest bloggers for their posts: Neel Chatterjee who helped us celebrate the 50th Anniversary of Star Trek; Sylvia La RosaChristina McAmisKean Zimmerman, and Jordon Huppert for honoring the 75th Anniversary of Captain America; Brad Blanchard for asking who owns the Millennium Falcon; Megan Smith analyzing the HIPAA violations in Doctor Strange; and Jack Yang who took on the data security issues in the X-Men. Stay tune for upcoming guest posts on Star Wars to celebrate Rogue One.

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Thank you to all of our readers and the ABA Journal for making 2016 awesome.

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From the Mock Trial of the Winter Soldier 

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Medical Experiments in Seagate Prison Were Totally Illegal

Luke Cage gained his enhanced strength and bulletproof skin from an experimental treatment at Seagate prison after injuries sustained from a beating orchestrated by corrupt prison guards. See, Marvel’s Luke Cage on Netflix, Episode 4, “Step in the Arena.”

Forcing prisoners to fight and conducting medical experiments without their consent are massive Civil Rights violations. The Eighth Amendment prohibition of cruel and unusual punishment includes anything from “physically barbarous punishments” to punishments that are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” See, Bailey v. Lally, 481 F. Supp. 203, 218-19 (D. Md. 1979), citing Gregg v. Georgia, 96 S. Ct. 2909 (joint opinion) and Trop v. Dulles, 78 S. Ct. 590.

Recording prisoners fighting for online videos is a barbaric punishment that is incompatible with any standard of decency. Subjecting those prisoners to medical experiments would be a second Civil Rights violation.

Individuals have a “liberty interest in their bodily integrity” that is protected by the Due Process Clause of the Fourteenth Amendment. In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995) and Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994).

Courts take these rights serious. One case found that nonconsensual experiments with high doses of radiation supervised by military doctors that were performed by city physicians violated that right. Id.

Medical experiments on human beings were one of the dominating issues at the war crimes trials of the Nazis. The judgment from trial is known as the “Nuremberg Code.” The Code states the following on consent:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health and person which may possibly come from his participation in the experiment.

In re Cincinnati Radiation Litig., at *820, citing the “Nuremberg Code.”

Luke Cage clearly had his rights violated with being forced into fighting matches, threats, and being beaten. The medical experiment that saved his life is more complicated. Luke had been severely injured in a beating. Dr. Reva Connors (Luke’s future wife killed by Jessica Jones under the control of Kilgrave) took the dying Luke Cage to Dr. Noah Burstein’s lab for an experimental medical procedure.

Dr. Burstein did not attempt to get informed consent from Luke Cage on the medical experiment. Dr. Burstein had a personal duty to get Luke’s consent before engaging in the procedure. This could not be delegated to Dr. Reva Connors, as she was not performing the experiment. In re Cincinnati Radiation Litig., at *820.

Luke was in danger of dying, but was not incapacitated to give informed consent. Dr. Burstein could argue he acted in an emergency situation, however, that argument would be stronger if Luke had been unable to answer questions.

It is unlikely any of the prisoners at Seagate who were experimented on gave Dr. Burstein their consent. One prisoner experiment case had a multidisciplinary oversight committee composed of physicians and non-physicians, including professors of law, social work, pharmacology, and psychology. No such oversight was done at Seagate to vindicate prisoner rights. See, Bailey, at *213.

Seagage prison is a massive lawsuit waiting to happen in the Marvel Cinematic Universe. If only there was a fictional lawyer who could take the case…

Green Arrow Rebirth Guest Post for Exterro

Check out for my guest post on the Exterro blog on the new Green Arrow Rebirth series!

Some people might think of comic books as flights of fancy filled with characters wielding supernatural powers to fight foes from other planets, and yes, that’s true. But there are other comics that, while still being imaginative fictions, ground themselves in the real world. Even in the world of Big Data and E-Discovery.

A great example of this is Green Arrow. The title character — who’s alter ego is Oliver Queen, CEO of Queen Industries — has no superhuman or special powers other than being an amazing archer with a lot of resources and a drive for social justice. In the latest iteration, Oliver Queen uses technology to his advantage when fighting crime in his home city of Seattle, and real-life elements that mirror our world – computer forensics, wire fraud, banking laws, even a DC version of Bitcoin (aptly named Lexcoin after Superman’s nemesis Lex Luthor) – show up in the stories.

I recently spoke with Green Arrow writer, Benjamin Percy, about his thoughts on this, and he said, “So much of our lives are presently online. Socially, financially, professionally — our tracks are everywhere. We can so easily end up violated or even…possessed, erased by hackers, viruses. Green Arrow is a comic that — more than most — taps into the zeitgeist. I’m channeling cultural anxieties onto the page, and it’s natural that electronic data and commerce will play into my storylines.”

For further analysis relating Percy’s narratives to the legal world, I asked Joshua Gilliland, Esq. — blogger for Bow Tie Law, and one of the two founding attorney bloggers for The Legal Geeks – to take a look at the latest story arc in Green Arrow: Rebirth. Here’s what he had to say:

Check out the Exterro blog for my analysis on Comic Book eDiscovery!