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The Good Fight: The Rebel Alliance & The Law of War
Back in the days when Star Wars was just the original trilogy and the beloved Holiday Special (that’s the correct usage for “beloved,” right?), things were fairly black and white for the Rebellion. Their struggle against the Galactic Empire was daunting, but the Alliance was portrayed as a scrappy but unified group that shared a common goal.
Fast-forward to Rogue One and Star Wars Rebels and suddenly the Rebels’ fight is not so simple anymore. Instead of a cohesive group of do-gooders, these new stories portray the Rebel Alliance in a more realistic fashion. We see the Rebellion as a troubled group dogged just as much by internal fractures as they are by Imperial forces.
A big part of their internal struggle is deciding how exactly they should fight the Empire. The recent Star Wars Rebels episode “In the Name of the Rebellion” dove into the Rebellion’s debate about how to wage war. In it, Saw Gerrera confronts Mon Mothma over her unwillingness to take more extreme measures in the fight against the Empire. Mon Mothma fires back, accusing Saw of breaking the rules of engagement and killing civilians and prisoners.
In her fiery retort, Mon Mothma touches on some very real concerns that are at the heart of the law of war. Long ago, the Latin maxim “Silent enim leges inter arma” (or, “In times of war, the law falls silent”) spoke to the lawless chaos of war. While Saw Gerrera probably has that slogan tattooed on him somewhere, the belief that war was inherently lawless was discarded long ago. Laws, customs, and treaties developed over the course of millennia to help reign in war’s lawless carnage. Those rules collectively became known as the law of war.
The concept of trying to apply rules to something as destructive and frenzied as war might seem silly. However, the law of war serves to bring some semblance of humanity to warfare by protecting fundamental human rights and guarding against unnecessary suffering.
How the Rebel Alliances chooses to wage its war against the Empire is therefore a critically important decision—one that Mon Mothma gets right. Saw Gerrera sees the Empire as a brutal, unyielding foe who must be met with an equally brutal resolve. Imperial forces certainly have little concern for the law of war—to Saw Gerrera, that’s reason enough to show no restraint or mercy. He openly mocks Mon Mothma because he believes that the Rebellion is doomed to failure as long as it tries to fight honorably against such a dastardly opponent.
But Saw is blinded by his unbridled thirst for vengeance. His endgame is not a fight for the fate of the galaxy, but a bloodletting designed to make the Empire pay. His tactics of killing civilians and prisoners severely undermine the larger Rebel effort. In Rebel Rising, Saw’s forces assassinate an Imperial governor and intentionally massacre countless civilians in the process. Saw’s objective was to send a message to Emperor Palpatine about what the Empire was up against. In reality, the mass murder achieved virtually nothing and instead fueled Imperial efforts to portray the rebels as frightening terrorists.
On real world battlefields, violating the law of war is often a similarly powerful motivator for enemy forces. Late in World War II, Hitler ordered his commanders at the Battle of the Bulge to be especially brutal during the battle to frighten Allied forces. In response to Hitler’s orders, Nazi forces in Malmedy, Belgium infamously executed 84 American prisoners of war during the battle. However, word of the “Malmedy Massacre” quickly spread through Allied ranks, sparking outrage that fueled American forces to break the back of the German offensive.
Mon Mothma’s choice to have the Rebels fight according to the law of war is a reflection of the Alliance’s ultimate goal of restoring the galaxy. She recognizes that the Rebellion has no chance at victory if it does not win over the hearts and minds of galactic citizens. The Empire’s willingness to violate the law of war is no excuse for the Rebellion to do the same. Stooping to the Empire’s level and trading in atrocities would all but forfeit the moral high ground and give citizens little reason to rally to their cause—a result that would doom their movement as much as any devastating loss in battle.
Saw’s tirade against Mon Mothma wrongly paints the law of war and rules of engagement as needless restrictions that handcuff Rebel forces. What he fails to see is that sticking to those rules can actually be a “combat multiplier,” or in other words, something that dramatically enhances effectiveness and helps accomplish the mission.
During the Gulf War, Allied forces used leaflets like the one below to tempt Iraqi forces to surrender by highlighting the protections and humane treatment they would receive. The leaflets showcased U.S. respect for the law of war and were a huge success on the battlefield, motivating large numbers of Iraqis to peacefully surrender.
Lord Vader wasn’t the type to throw down his lightsaber just because Rebels played by the rules. Nonetheless, the Alliance’s respect for the law of war led to similar tactical successes. Although the Battle of Endor far from ended the war, countless Imperials surrendered to Rebel forces, including two super star destroyers. Similarly, the Galactic Concordance flexed the rule of law and law of war to help usher the final surrender of remaining Imperial forces, ending the Galactic Civil War. Those successes would have never occurred if Mon Mothma had cast aside the Alliance’s core values and let the law fall silent during war.
Are Surviving Clone Troopers Guilty of War Crimes?
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?
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.
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).
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.
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.
Roger Roger: Star Wars Autonomous Weapons & The Law
KILLER ROBOTS. The very mention of those soulless death machines conjures nightmares of Skynet becoming self-aware, Cylons on the warpath, or renegade Roy Batty. From Terminator to Battlestar Galactica, murderous automatons have woven their way into the public psyche, as has our fear that robots will take over the world and convert us all to batteries Matrix-style.
Star Wars admittedly lacks any single iconic killer robot (sorry, Darth Vader—you’re only part machine). Nevertheless, from battle droids to IG-88 or probe droids, the galaxy far far away is filled to the brim with autonomous weapon systems.
Despite their futuristic depiction in movies, automated weapon systems are nothing new in real world militaries. The U.S. military does not employ any fully autonomous weapon systems, but they’ve been using weapons with varying levels of autonomy for decades. For example, the Army’s Patriot missile system and the Navy’s close in weapon system (CIWS or “Sea-Whiz”), two semi-autonomous “man on the loop” weapon systems, have been in service for years.
The legality of autonomous weapon systems has become an increasingly important and controversial topic as technology has rapidly advanced. In 2015, Tesla founder Elon Musk and renowned scientist Stephen Hawking organized a coalition of 1,000 robotics experts who called for a ban on automated smart weapons. As the U.S. military’s arsenal continues to evolve, the lawfulness of increasingly automated weapons will remain a major issue on the international stage.
While the Galactic Empire has its fair share of automated weapons, we’ll keep our focus on the prequel era and the Separatist army’s droid legions. Before we tackle the legality of all those battle and destroyer droids, let’s take a step back and get some framework on the issue.
First, let’s figure out what the term “autonomous weapon system” means. There is no agreed upon international definition for the term, but the U.S. Department of Defense (DoD) defines automated weapon systems as those that, when activated, are capable of selecting and engaging targets without further human intervention. In other words, although a human operator might have the ability to take control of the system, the system is capable of operating without any human involvement.
The Separatist Army’s legions of battle droids and other mechanical terrors clearly qualify as autonomous weapon systems. Take the mainstay of their forces, the trusty B-1 battle droid. While battle droids became slightly more advanced as the Clone Wars dragged on, they were always built to be capable of operating without further human (or Neimoidian if we’re going to be all technical about it) intervention.
Even in The Phantom Menace, when a single Trade Federation ship controlled the entire droid army, the droids themselves operated without any involvement from federation personnel. While the battle droids may have acted based on programming and Trade Federation orders, they were never directly controlled. Droids can be seen doing all sorts of independent tasks from guarding prisoners in the Theed Palace hangar to mounting a full assault on the Gungan army. The more advanced models, like the Commando Droids or Super Tactical Droids seen in The Clone Wars animated series, performed even more complicated tasks with total independence. Even though Separatist commanders retained the ability to shut down or override the droids, they still qualify as autonomous weapon systems.
While the international community can’t agree on a definition for autonomous weapon systems, there is universal agreement that the law of armed conflict (LOAC) applies to them. To figure out whether a particular weapon is legal, we have to turn to the creatively named area of LOAC known as weapons law.
Weapons law focuses on the overall legality of the weapon, without regard to how it’s used. As an example, a poison like the Blue Shadow Virus in The Clone Wars, is deemed per se unlawful under LOAC, no matter what the intended use. Even if the Separatists wanted to use the virus against a lawful target, such as a group of clone troopers on patrol, it would still be illegal to use.
Whether autonomous or not, the legality of all weapons are determined by the same three distinct rules: (1) The weapon cannot cause unnecessary suffering or superfluous injury by nature; (2) The weapon cannot cause uncontrollable effects; (3) The weapon must not be indiscriminate by nature.
As humanity became increasingly good at creating horrible weapons, the outcry for rules that would reign in the suffering grew. The ban on weapons that cause unnecessary suffering was one of the earliest prohibitions codified in international law, first appearing in the 1899 Hague Convention. The rule, which is now woven into international law, is intended to ban weapons that, by their nature, aggravate a combatant’s wounds. A prime real world example is projectiles filled with glass, which cause major additional wounding. The glass fragments are then very difficult to remove because they cannot be seen on x-ray, which only compounds the suffering.
In Star Wars Rebels, the Empire’s dreaded T-7 ion disruptor rifles are a gruesome example of the sort of weapon that would be banned by this rule. T-7s were long rifles that would disintegrate organic beings atom by atom, leading to an excruciating death. While Boba Fett might fully approve of those effects, the T-7 disruptor is exactly the sort of weapon that would be banned in the real world. Coincidentally, the Galactic senate ultimately banned disruptors due to their terrible effects.
In contrast, the bulk of the Separatist Army would not violate this rule. Battle droids function like normal soldiers, armed with blasters and standard programming to engage and destroy the enemy. Even though those droids could theoretically be programmed or ordered to cause unnecessary suffering, they aren’t designed cause those effects. That distinction is critical because the rule focuses on the weapon system’s effect on a targeted individual, not the manner in which it is used. Any weapon system can be used in an illegal manner, but that doesn’t mean that the weapon itself is automatically illegal.
Second, weapons law prohibits the use of weapons that have uncontrollable effects, regardless of how accurately they can strike targets. Unfortunately for the Separatists, their prized Blue Shadow Virus gets the axe under this rule. While the virus might only be used against a lawful target like clone troopers, there’s no way to control its spread. Those same clones could easily infect civilians and other innocents, triggering an uncontrollable spread of the virus. However, Separatist automated droid forces don’t cause the same spiraling uncontrollable effects. Although swarms of droids were wielded to inflict devastating damage, their blasters, rocket launchers, and other conventional weaponry cause predictable damage with controllable effects. The droids’ automation doesn’t change that conclusion.
Finally, LOAC prohibits weapons that are indiscriminate by their very nature. Under Additional Protocol I of the Geneva Conventions, any means of combat that cannot be directed against a specific military objective is unlawful. In other words, if the weapon cannot be aimed at a lawful military target, it’s probably not legal. Though not autonomous, the Death Star, everyone’s favorite orbital war crime, is a perfect example of an illegal weapon that is indiscriminate in nature. The battle station was designed to destroy entire planets, which is probably the most black and white example of indiscriminate targeting ever (just ask the poor Alderaanians).
Separatist droid forces don’t run afoul of this rule. Battle droids were often made to kill indiscriminately throughout the Clone Wars, as we saw with their killing of Naboo civilians in The Phantom Menace. But just because they can be used in that manner doesn’t mean they are indiscriminate by their very nature. The droid forces aren’t pre-programmed to kill anyone they come into contact with. Similarly, they have the ability to aim their weapons (even if they happen to make Stormtroopers look like crack shots) and select their targets. Given their programming, the lack of individual control over the droids doesn’t render them indiscriminate weapon systems.
Just as with any conventional weapon, the legality of new autonomous weaponry must go through a legal review process. Under Article 36 of Additional Protocol I, High Contracting Parties such as the U.S. are required to determine whether the Geneva Conventions or international law would prohibit the new piece of weaponry. In practice, the U.S. conducts a complex and thorough weapons review process. The process starts early in the weapon’s development process and continues through production to ensure the weapon is legal. As we’ve seen, the fact that a weapon system is automated doesn’t control the analysis, but instead is merely one factor.
I’m going to go out a limb and declare that the Separatists don’t have any mechanism for reviewing the legality of their weaponry. Their frequent loose adherence to the law of war strongly suggests that they’re not all too concerned with the opinions of galactic lawyers. Nevertheless, Viceroy Gunray can rest easy on his robot chair—while the Separatist droid hordes may be fully automated, they don’t run afoul of the law of armed conflict.
Thrawn’s Web: Were Rebel Forces in Zero Hour a Lawful Target?
Cue up those ominous pipe organs from Grand Admiral Thrawn’s theme song, because the Empire’s master tactician finally cornered the Rebellion in Zero Hour, the season finale of Star Wars Rebels. After discovering the Rebel Alliance’s secret base on the planet Atollon, Thrawn swept in with his fleet to crush the Alliance and, in true bad guy style, delivered some dastardly lines to the heroes about their impending doom.
In Zero Hour, Imperial forces took decisive offensive action against the Rebel fleet and its secret base (as well as a very pissed off Bendu). The episode was truly unique because we have never seen the Imperials launch a large-scale attack against a combined element of the Rebel Alliance in the show.
In the real world, offensive military operations are shaped through careful and deliberate planning. A critical part of that planning process involves making sure that the use of force will be lawful. Since the audience was mercifully spared from any scenes involving the inner workings of the lengthy and arduous military planning process, let’s fill in the gap by analyzing whether Thrawn’s assault was legal.
The nature of the attack really sets the Imperial assault on Atollon apart from other skirmishes in Rebels. Time and again Rebels has shown the Imperials in a reactive stance in which the Rebels attack and the Imperials respond. In those situations, Imperial forces typically rely upon their inherent right to self-defense to justify their use of force. Unlike those scenarios, Thrawn’s assault in Zero Hour is an offensive operation in which the Imperials seize a tactical advantage to surprise and destroy the Alliance. Here, instead of defending themselves from attack, the Imperials are the ones pressing the fight.
One of the central legal issues is whether the Empire could lawfully attack the Rebels, who were not actively engaged in any type of combat at the time. Militaries cannot legally use force against anyone they wish. Under the law of war, force can only be used against those who are considered hostiles or are part of a hostile force. A person or group can be considered “hostile” in one of two ways: By being declared a hostile force or by demonstrating hostility through one’s conduct.
Certain high-level officials have the legal authority to designate (or declare) that a group is a hostile force. Once the proper authority makes that designation, that group is officially called a “declared hostile force.” That status has a serious effect. Declared hostile forces can be lawfully attacked even if they are not openly engaged in hostilities. For example, in World War II, the German Army was declared a hostile force as part of the United States’ declaration of war. That status means that if Americans spotted a group of German soldiers singing kumbaya around a campfire they could attack them, even though the Germans weren’t engaged in combat.
Alternatively, if an person or group is not part of a declared hostile force, they can become a lawful target through certain conduct. If a person or group displays hostile intent or commits a hostile act, they can be lawfully attacked based on that hostile conduct. In other words, if someone’s conduct reveals that they are hostile, they can be lawfully attacked. The Jedha ambush scene in Rogue One is a great example of conduct-based targeting. Before the attack, Saw Gerrera’s fighters were indistinguishable from other civilians milling about in Jedha City. Therefore, Imperial forces had no legal basis to attack them. However, once they started firing on the stormtroopers, they were committing hostile acts—conduct that revealed their status as fighters and legally justified the Imperials’ use of force against them.
In Star Wars Rebels, those in Imperial high command would have almost certainly designated the Rebel Alliance as a declared hostile force by the time of Thrawn’s attack. The Alliance would have given them good cause to do so, having staged numerous significant attacks against the Empire across the galaxy. These attacks meant that the Rebellion was engaged in open hostilities with the stated purpose of overthrowing the Imperial government, which would have justified the designation.
The Empire would have wanted to grant field commanders like Thrawn the tactical flexibility to respond to the growing threat and crush Rebel forces. Labeling the Rebels collectively as a declared hostile force would have done just that, opening the doors for Imperial forces to hunt and destroy without first waiting to observe a hostile act or hostile intent. In Zero Hour, that meant that the Rebel base on Atollon and fleet above it were valid and legal military targets, even though they weren’t actively engaged in any sort of fighting. Having discovered the location of the base, Thrawn was free to bring his tattooed Star Destroyer and the rest of Seventh Fleet to bear on the unsuspecting Rebels.
Even if the Empire had not declared the Rebel Alliance to be a hostile force, Thrawn could have still been legally justified to attack based on the Rebels’ actions. To do so, the Rebels would have to display certain conduct in the form of hostile intent or a hostile act. Under the law of war, hostile intent is defined as the threat of imminent use of force against friendly forces.
At the start of Zero Hour, Thrawn reveals that a Rebel attack is indeed imminent. Thrawn first discloses Imperial intelligence reports that a large Rebel attack is coming. Additionally, General Dodonna’s Massassi Group, one of the largest Rebel military cells, was known to be on the move for a rendezvous, which strongly suggested that a coordinated attack was coming. Thrawn surmised that the TIE Defender factory on Lothal was the target, given its location and significance.
Agent Kallus then delivered the final piece of the puzzle, as his intercepted transmission synced with Dodonna’s trajectory to reveal the hidden Rebel base. That last bit of intelligence effectively corroborated the other pieces, thereby establishing that the Rebels were moving to launch their first coordinated multi-cell attack.
Under the circumstances, the Rebel attack on Lothal would have almost certainly been deemed to be an imminent use of force. Phoenix Cell was heavily armed and had a history of combat operations against the Empire. Meanwhile, General Dodonna was a known Rebel military commander flying through hyperspace with a bunch of combat-ready vessels, not some gaggle of cargo freighters. The Rebels ordinarily avoided massing their forces, so the rendezvous of Phoenix Squadron and Massassi Group strongly suggested that an attack was in the works.
Similarly, the impending rendezvous also underscored the imminent nature of the attack. Dodonna’s forces were on the move at the start of the episode, which meant that the Rebels were in the process of marshaling their forces. Given the Rebellion’s aversion to massing their fleet for extended periods, it was highly likely they would spring their attack soon after linking up.
Under the law of war, Thrawn had no obligation to wait and engage the Rebels above Lothal. Once Imperials determined that the Rebels were displaying hostile intent, they were free to move in and use force. Grand Admiral Thrawn did what all tactically proficient commanders should by seizing upon the element of surprise and attacking at a place and time the enemy was not ready. Therefore, the Rebels’ conduct represented hostile intent that justified Thrawn’s attack.
Thrawn’s devastating attack on the Rebels showcased the escalating stakes of war for the Alliance. Although the law of war sets certain boundaries for lawful conduct within a war, it does not guarantee that you get to fight on favorable terms. The Rebellion’s own successes painted an ever-growing target on their backs, fueling the Empire’s desire to burn them out. Fortunately for the Alliance, buffoons like Admiral Konstantine and Admiral Ozzel exist, helping them escape and fight another day.
Episode II: Is The Death Star An Orbital War Crime?
After our not-so-flattering analysis the Death Star’s strike on Alderaan, Tarkin probably would have reassigned us with the rest of the battle station’s Judge Advocate attorneys to the spice mines of Kessel to be smashed into who knows what. While our analysis demonstrated that Alderaan’s destruction was a grave breach of the law of war, that does not mean that any use of the battle station falls into the same category.
We should feel a little pity for poor Director Orson Krennic, Governor Tarkin, and all those hardworking Geonosian builders. Despite all of the Galactic Empire’s resources and military prowess, their prized battle station was barely around for two combat engagements before some womp rat-murdering farm boy from Tatooine blew it up. Fortunately for us, the epic battle at the end of A New Hope provides an excellent chance to more fully assess the big question: Was the Death Star really just a gigantic floating war crime in space?
Once again, our analysis centers on four key principles: (1) military necessity; (2) distinction/discrimination; (3) proportionality; and (4) humanity/prevention of unnecessary suffering.
1. Military Necessity
In last week’s article, we saw that the Empire had no military necessity for destroying the peaceful planet of Alderaan. The Empire publicly tried to spin its destruction as a necessary act to safeguard security. However, in reality, they had intentionally obliterated a civilian populace. But Yavin IV was categorically different. The pristine moon hosted the Alliance’s secret central base, which was the priority target the Imperials had been relentlessly hunting for.
Given Yavin’s importance, Admiral Motti, General Tagge, and the other Imperial Joint Chiefs would have rushed to green light the Death Star’s next laser light show by concluding that targeting the moon was undeniably necessary. The U.S. Army’s Field Manual 27-10, which covers the law of land warfare, defines military necessity as those measures indispensible for securing the complete submission of the enemy as soon as possible that are not forbidden by international law.
Imperials would first argue that attacking Yavin IV was a military requirement to eliminate the threat posed by the Rebellion, which formed the basis for their military necessity to attack. By the time of A New Hope, the Rebellion was not simply some disparate and disorganized group of agitators. From the Empire’s point of view, they had become a legitimate threat.
The Empire saw the Rebels as a mounting terroristic threat to its citizens. This view was driven in part by the fervent actions of some splinter Rebel cells, including the Plasma Devils squadron from Marvel’s Darth Vader comic and the Free Ryloth Movement from the Lords of the Sith novel and Rebels TV series. These cells often publically struck nonmilitary targets, causing alarming collateral damage. Despite often acting independently of the larger Rebellion, the Empire saw them as a single entity jeopardizing galactic stability.
The larger Rebellion’s ever-growing capabilities in armaments, espionage, and combat operations further fueled the Empire’s position that a decisive strike was essential. When the Death Star was completed, the Rebels weren’t fighting with mere Ewok spears or energy slingshots. They had amassed a sizeable fleet manned by highly skilled leaders, pilots, and soldiers.
Calculated Rebel espionage operations, such as the theft of the Empire’s top secret five-year plan in Rebels, compromised critical Imperial information. The Rebellion repeatedly showcased its ability to leverage that sort of information into effective attacks on Imperial forces, culminating in the operation to steal the Death Star plans, which we’ll soon see gloriously depicted in Rogue One.
Therefore, the Rebellion had graduated from a pitiful band (admit that you just read that in Emperor Palpatine’s voice) into a sophisticated military force. Moreover, the growing swell of political support for the Alliance only enhanced the problem they posed. Influential Core World leaders like Mon Mothma and Bail Organa gave the Alliance a foundation of key legitimacy. Additionally, the Empire’s own tactics, such as Darth Vader’s brazen attack on Princess Leia’s consular ship, was readily galvanizing more political support for the Rebel cause. To the Empire, this combination threatened to trigger a repeat of the mass galactic secession that led to the Separatist Alliance and the awful destruction of the Clone Wars. Given this very real threat, the Imperials had an ample military requirement to pursue a pivotal strike against the heart of the Alliance.
Yavin IV presented the Empire with the target they had been chasing for years: a centralized collection of Alliance leadership and military forces. For years, the Rebellion’s decentralized structure made it incredibly difficult for the Empire to deliver any type of crippling blow. Imperial leadership therefore knew that catching the Alliance military en masse was their single best chance to end the conflict. Yavin IV was that chance.
Destroying the base would wipe out everything the Rebellion had built. The Alliance’s command and control would be gone and the bulk of its weapons and supplies destroyed. If that were not enough, the strike would doom Rebel morale, undoubtedly eradicating any remaining support for the group across the galaxy. That kind of distinct military advantage makes it clear that use of the Death Star against Yavin IV was an indispensible means of securing the Rebellion’s complete submission. Thus, the Empire had a major military necessity to destroy the moon.
2. Distinction/Discrimination
Next, unlike Alderaan, Yavin IV did not present the same types of major complications with distinction/discrimination. Recall that discrimination/distinction requires that military attacks be directed at military targets, not civilians or their property.
Unlike Alderaan, Yavin had no civilian population that would have been indiscriminately targeted by the Death Star’s attack. The moon’s original inhabitants, known as the Massassi, were long extinct. That left Rebel military forces as the only tenants on the planet. So, the Empire would face no issues with distinction/discrimination as to civilians on Yavin.
Likewise, the Empire’s attack would not have violated the law of war’s protection of civilian property. The Hague Conventions of 1899 and 1907 and the 1954 Hague Cultural Property Convention establish a general prohibition against attacking cultural property, including buildings dedicated to religion and historic monuments. The Rebel base sat within an ancient Massassi temple. Given the temple’s age and cultural significance it would be considered galactic cultural property and would therefore enjoy general protection from attack.
However, even protected places can lose their status and become valid military objectives. Article 52 of Additional Protocol I of the Geneva Conventions defines a military objective as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Furthermore, civilian property can lose its protection when the enemy misuses it. Cultural properties like the Massassi temples are no exceptions.
Despite being located in an ancient temple, the Alliance’s military headquarters on Yavin IV had certainly become a military objective based on its refurbished purpose and use. The temple had effectively been transformed into a major military fortification, complete with a command and control center, weapons, star fighters, and supplies of munitions and fuel. Accordingly, the Alliance’s Property Brothers-style conversion represents a misuse that would strip it of any protection under the law. While the temple may have originally been cultural property, its use as an Alliance headquarters made it a clear military target. Thus, there are no issues with distinction/discrimination when targeting it.
The inevitable destruction other unused temples in the attack would also not trigger a law of war violation. While their loss would certainly have been a serious concern, it was necessary under the circumstances, as we’ll see in our proportionality analysis.
3. Proportionality
Use of the Death Star against Yavin IV also would not violate the principle of proportionality. Generally, the principle dictates that the incidental loss of civilian life or property must not be excessive in relation to the anticipated military advantage. In Yavin IV’s case, civilian life was not an issue. However, as we noted above, obliterating the entire moon would destroy a fair amount of important cultural property. Despite the baseline rule, the law of war allows for the destruction of civilian property if military necessity imperatively demands it. In other words, protected property may be destroyed if necessary. This is also known as the “Rendulic Rule,” named for German General Lothar Rendulic, who employed scorched earth tactics in World War II, devastating large areas of northern Finland as his forces withdrew.
In Yavin IV’s case, wiping out an entire planet and its cultural property to destroy one base seems excessive on its face. But consider the alternative facing the Empire. They theoretically could have staged a conventional attack that would have spared the planet. The Rebel base was heavily shielded, similar to Echo Base on Hoth, which means that ground combat would have likely been necessary. Imperial troops would have to land and fight their way through the Yavin jungle before assaulting the temple. Once there, they would face a brutal and protracted battle through each level of the temple. Imperial units would inevitably suffer heavy losses with no guarantee of capturing or eliminating any high value targets. While the Rebels would also take casualties, their key assets would likely escape, just like in The Empire Strikes Back.
Alternatively, the Death Star gave the Empire the ability to achieve all of its goals with a single kyber crystal-enhanced shot. They would expend far fewer resources and would suffer no casualties in the process. Under those circumstances, that sort of huge military advantage is not outweighed by the costs of destroying the planet.
4. Humanity/Unnecessary Suffering
Finally, use of the Death Star on Yavin IV would not violate the principle of humanity. The Hague Regulations forbid using arms calculated to cause unnecessary suffering. Star Wars has its fair share of these, whether it’s Lok Durd’s defoliator cannon from The Clone Wars which could wipe out organic beings, or the Empire’s dreaded T-7 ion disruptor rifles which were used to disintegrate beings atom-by-atom. Even though the Death Star’s superlaser had incredible destructive power, it was not calculated to cause unnecessary suffering. Instead, it was intended as a tool capable of instantly wiping out large targets. So, despite causing a catastrophic loss of life, the superlaser remains a valid weapon.
In the end, the Empire would not have violated the law of war by using the Death Star on Yavin IV. Had the Death Star not been blown to smithereens, Tarkin would have offered a stern nod of approval at this sort of analysis. Because of this, the Alliance must have been relieved that Luke put a proton torpedo up the battle station’s gut. After all, there’s definitely no way the Empire would ever build the exact same weapon again…
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.
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?
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.
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.
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.
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.
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.