Loki has not made the best life choices in the Marvel Cinematic Universe. From embittered younger brother who attempted to overthrow his father, to attempted murder of Thor multiple times, to getting mixed up with Thanos and a failed invasion of Earth, there are many crimes for Loki to be charged and prosecuted for violating. Like personally killed 50 people. Or ripping out a man’s eye. A War of Aggression. And now in the Loki series, we learned there was air piracy.
In the real world, the case of D.B. Cooper happened on November 24, 1971, when a 727-100 was hijacked. The hijacker claimed to have a bomb, demanded $200,000, and four parachutes. After getting his demands he parachuted out of the plane and into pop culture and unsolved mysteries.
The Loki series offered that “D.B. Cooper” was actually Loki who lost a bet with Thor.
There are so many problems with that.
First, hijacking a plane is aircraft piracy. 49 U.S.C. § 46502(A) defines the crime as seizing or exercising control over an aircraft by “force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.” The punishment is a minimum 20 years and if anyone is killed in the crime, either put to death or imprisoned for life.
A 20-year minimum is a blink of an eye to an Asgardian (or Frost Giant), but sentencing could be modified to account for their long lives.
There is another haunting issue with Loki hijacking a plane…and that it was because he lost a bet to Thor. This raises the issue of a conspiracy to hijack an aircraft, which means Thor and Heimdall could also be prosecuted for the air piracy and Loki taking an explosive device onboard a plane. 49 U.S.C. § 46505.
The lessons from all of this? Make Good life choices. Like don’t hijack airplanes on a bet or invade New York.
The Time Variance Authority put Loki on trial with the punishment tantamount to a death sentence that looked like traffic court. The entire proceeding raised the issue of what is a “fair” trial? While there is the legal maxim that a defendant is “entitled to a fair trial but not a perfect one,” an administrative proceeding without attorneys pushes that precedent to absurdity. State v. J.A.W., No. A-5255-17T4, at *24 (N.J. Super. Nov. 12, 2020).
There are multiple troubling issues with the lack of fairness in Loki’s trial. The first is there was no pretense of an attorney to assist in Loki’s defense. Federal Courts first gave this right to those accused of crimes in Federal cases, which was expanded to the States in Gideon v. Wainwright. The Due Process Clause of the 14th Amendment and the Sixth Amendment require criminal defendants to have effective counsel. Loki had nothing but a ticket to nonexistence.
Courts have quoted the axiom “It is beyond cavil that a fair trial may be obtained without a jury.” Com. v. Wharton, 495 Pa. 581, 599-600 (Pa. 1981). This is born from the fact a fair trial requires an impartial and properly instructed jury. Rivera v. Illinois, 556 U.S. 148 (2009). While there can be an exception in a case with substantial publicity, Loki was not on trial in New York City for his war of aggression against the Earth; he was on trial for violating the “sacred timeline.” This sounds more like a trial in the Star Chamber than any trial concerned with fundamental fairness.
Verdict: the TVA has unjust trials lacking fairness.
In Godzilla vs Kong, the real monster is a Florida billionaire who decided to build a giant robot and ship the components to Hong Kong through a hyperloop connecting the two cities. Shipping weapons to the People’s Republic of China raises significant red flags, including violating export control licensing. That is the polite way of saying the United States does not want private companies accidently improving the military of countries hostile to the United States. One such example was Loral Space Systems accidently improving the accuracy of China’s ICBMs in the 1990s by providing improvements to guidance systems for launching satellites.
Responsibilities of the President of the United States include:
(1) In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.
(2) Decisions on issuing export licenses under this section shall take into account whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.
(3) In exercising the authorities conferred by this section, the President may require that any defense article or defense service be sold under this chapter as a condition of its eligibility for export, and may require that persons engaged in the negotiation for the export of defense articles and services keep the President fully and currently informed of the progress and future prospects of such negotiations.
22 U.S.C. § 2778(A)(1) and (2).
A giant robot in the shape of Godzilla with missiles and lasers absolutely would be covered under the control of arms exports and imports. Shipping the material in secret from Florida to China through a hyperloop over 8,500 miles long clearly was done to avoid inspection and all those “pesky” regulations. Moreover, the transcontinental hyperloop raises serious issues of not filing permits for soil removal, which can cause property damage across the United States. Furthermore, an accident with those weapons in transit can further pose a risk to human life.
Export control licensing exists to protect the United States from an arms race and keep nations hostile from improving their military. In Godzilla vs Kong, Apex ignored these laws. After the final battle between the titans, removing the wreckage would be highly problematic, as the People’s Republic of China would claim jurisdiction for remediating MechaGodzilla, raising the exact threat export control licensing is supposed to prevent.
How Not to Advance Your Position
Attack on Titan: The Final Season (“AoT”) throws us quickly into the middle of an international armed conflict in the first episode. Focusing on the young Eldian warriors forced to fight on behalf of Marley, we see the warriors fighting from entrenched bunkers reminiscent of WWI. The young Eldian warriors, led by Gabi, are pinned down by machine gun nests from the Mid-East Allied Forces and are quickly running out of options.
Gabi, driven by a need to prove her worth to Marleyan commanders, finds a way to advance her unit forward and eliminates the machine gun nests. How does a young girl with no weapons eliminate an entrenched machine gun post? She chose to falsely surrender and then used hidden grenades when the opposing soldiers dropped their guard because they didn’t perceive her to be a threat. Her victory came at the cost of violating long standing principles of war.
Surrendering Gone Wrong
Kids fight all the time. When one kid is losing the fight and doesn’t want to be harmed further, they tend to a variety of things. For instance, they may cry “uncle” or throw their hands up or say they surrender and then the aggressor tends to back off relinquishing their advantage. If the kid who surrenders lies and tries to harm the aggressor via their duplicity, understandably, the aggressor kid is angry because his trust has been violated and is harmed further because of it. Next time, the aggressor may not fully be willing to stop after another surrenders. This action of faux surrender in order to harm others is called “perfidy” and in international law it is especially prohibited.
When a party e.g., Gabi, intentionally fakes surrendering herself to gain a tactical advantage she committed the war crime of “perfidy.” Additional Protocol I (“AP I”) defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” For international armed conflicts, Article 23(c) of the Hague Relations holds that is especially prohibited to “kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion.” Articles 41(1) and 85(3)(e) of AP I show further that when a party surrenders, they are considered hors de combat meaning they are not targetable and that the opposing force has the responsibility of handling them. This same principle is codified for non-international armed conflict via Common Article 3 and in AP II Article 4.
Where is the honor?
The laws of war have a baseline of reciprocity premised on the idea of mutual honor. Although honor is not explicitly codified, implicitly we incorporate honor into this reciprocity because we want both sides to be treated fairly. Why? Because without this mutual respect for each other and the rules, war is unbound and becomes total. War is not meant to be total. Neither can it be neatly contained. Instead, the mutual adherence helps to try and constrain war to prevent it from harming protected classes of people and breaching protected areas. The lack of adherence is a slippery slope. Gabi exemplifies these present dangers.
When Gabi returns from her perfidious assault, her teammate, Falco, rescues a fallen enemy soldier because he is hors de combat. She questions his motives and says that we shouldn’t care about the enemy. More importantly, she asks, tells Falco “you really think obeying the laws of war will earn you the spot of Armored Titan?” and then calls him a “weirdo” for his continued adherence. Gabi sees these laws as an impediment and that their adherence puts the risk of more lives on the line. To Gabi, war is total and better unfettered with laws. Gabi has no honor. Committing perfidy, even if it may save 800 men which was Gabi’s rationale for her actions, cannot be condoned nor will it ever be. Falco has the right idea. We adhere to these rules to protect ourselves and others and we cannot abandon it for the risk of total war is to great.
Attack on Titan: The Final Season is finally upon us. With the first half of it now completed we are left in anticipation in how it finally wraps up. Attack on Titan’s (“AoT”) 16 episodes covered a lot of ground and began to connect plot lines laid in prior seasons and caused some crazy shockwaves in terms of character arcs. More importantly, these 16 episodes offered up many great opportunities to discuss international humanitarian law issues and how we should go about approaching them. This article is the first of many that will be written about this show and for now the articles will focus on this current season. Before we dive into the deeper issues, we have to talk about the parties in play and the conflicts that exist and what kinds of laws apply to the different conflicts.
The Parties in Play
AoT has a lot of characters and factions within the show that makes it hard to track. However, AoT’s most recent season deblurred the lines of characters and factions which makes it easier to discuss. For this article, I will remain high level to talk about the groups and in follow up articles I will go deeper to analyze the different situations, individuals. This season there are four main factions that exist within AoT: the Marleyans, the Yeagerists, the Eldians, and the Hizuros. Going forward it is important to know what requirements have to be met for a party to be considered a state. Under the Montevideo Convention a state exists when it has a: a) permanent population; (b) defined territory; (c) government; and (d) capacity to enter into relations with other states. Therefore, Marley, the Eldian Empire, and Hizuro all are states under this rubric.
A. The Marley Empire
The Marley Empire acts as the central antagonist throughout the season. Marley co-existed on the central continent with Eldia and through its continued success in the Great Titan Wars acquired more power and territory; thus, it was able to overtake the Eldian Empire as the central power on the continent. Due to the power imbalance, the Eldians relocated to Paradis Island to prevent further losses. Marley prevented the Eldians from expanding by continually creating titans and depositing them on the island as a form of revenge for Eldia’s actions during the Great Titan War. Marley maintains a powerful army that is technologically superior to the opposing states and uses powerful titans as tools to subjugate their opponents and those on Paradis Island. It is shown to have tanks, machine guns, planes, and an extensive navy. Marley remains one of the most powerful states in the AoT universe and other foreign states are wary of angering it in fear of retaliation. Because Marley is a sovereign state and is engaged against Eldia its actions fall under rules governing international armed conflicts (IAC). Marley’s actions against the Yeagerists hold it to the rules required by Non-international Armed Conflict (NIAC).
B. The Eldian Empire
The Eldian Empire acts as the central protagonist for this season. The Eldian Empire’s last bastion is located on Paradis Island. Originally, Eldians shared the central continent with the state of Marley. However, due to their continual losses during the Great Titan Wars, King Fritz moved the state to Paradis Island which shielded them from harsher losses. The Eldians on Paradis Island were ignorant of this background because of King Fritz’ action of erasing every citizens memory pertaining to Marley and the past wars. However, the remaining Eldians on Marley were stigmatized, marked, and treated as a sub-class and were used to create titans that helped contained the Eldians on Paradis Island. The Eldian Empire exists behind three central walls designed to protect them from titan attacks. Their technology and military forces are underdeveloped compared to Marley and other foreign states. Its military forces are subdivided into three distinct units. First, the Survey Corps acts as the exploratory arm of the military looking for new, habitable territory while also eliminating titans they encounter. Second, the Garrison acts as the central defense component of Eldia and maintains the defenses of the three central walls protecting the citizenry. Lastly, the Military Police Brigade exerts central authority over the citizens within the walls. In this season, the Eldian Empire becomes an international player when it begins to engage Marley in multiple skirmishes via its military. The Eldian Empire’s international involvement beholds it to rules governing IAC. It’s actions against the Yeagerists hold it to the rules required by NIAC.
C. The Yeagerists
The Yeagerists are a new faction created out of the defectors from the Eldian Empire’s three military units. They came onto the scene this season. The Yeagerists belong to no state and are actively claiming to try and establish a “New Eldian Empire” in place of the current Eldian Empire. The Yeagerists operate centrally out of Paradis Island but have units within Marley’s borders. Although the Yeagerists are new to the conflict, they have quickly amassed power by destabilizing the current Eldian Empire, killing many Marleyan government officials and civilians, and acquiring some of the most powerful titans within Marley’s arsenal. The Yeagerists do not comprise a state and are thus operating as a domestic terrorist group within the Eldian borders on Paradis Island. This designation holds that when they engage other states it is guided by NIAC principles.
D. The Hizuro Nation
Prior to the Great Titan War the states of Eldia and Hizuro were allies. Hizuro maintained a presence in Eldia via a son of a Hizuru feudal lord who was close to then King Fritz. This son would go on to head the Azumabito clan which in turn would become connected to the Ackerman clan – both which are immune to King Fritz’ titan ability. Hizuro remained dormant throughout the series and didn’t become a player until its ambassador to Eldia agrees to help the Eldian empire combat Marley. Hizuro does not enter any conflict with Marley or Eldia with its military units. However, Hizuro’s support is nuanced and intentionally behind the scenes. Yet its financial involvement and active support of Eldia then the Yeagerists brings them in as a key faction. Their actions will be guided by NIAC principles when with the Yeagerists. However, their actions will be governed by IAC if they engage in hostilities against Marley or the Eldian Empire.
The Present Types of Conflicts
A. International Armed Conflict
International armed conflict or IAC is the most straightforward classification of conflicts. Under Common Article 2 of the 1949 Geneva Conventions IAC occurs when two sovereign states enter an inter-state conflict with one another. This status is affirmed even if one of the states in the conflict does not declare “war.” It also applies to situations when one sovereign state partially or totally occupies territory of another sovereign state regardless if the occupation doesn’t include violence. Additional Protocol I extended the IAC definition to armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination. Ultimately, when analyzing if an IAC is occurring, we look to actual events occurring on the ground. No formal declaration or conflict threshold is required to establish the creation of an IAC. Within AoT this is the primary conflict that exists between Marley and the Eldian Empire. Both states actions are then governed by the Geneva Convention and other central governing documents.
B. Non-international Armed Conflict
A non-international armed conflict or NIAC occurs when a sovereign state is involved in an armed conflict with a non-governmental group (think terrorist group). The protections and responsibilities are laid out in Common Article 3 of the 1949 Geneva Conventions. Unlike IAC, there is a threshold of conflict that has to be reached in order to distinguish NIAC from internal disturbances like riots, banditry, etc. This distinction is adopted from both Additional Protocol II 1(2) and the International Criminal Tribunal for Yugoslovia’s The Prosecutor v. Dusko Tadic case. The first threshold that has to be passed is the minimum form of conflict. To be a NIAC it has to be of such a collective character that the government is obligated to use military forces to counteract the insurgency. Second, the non-governmental groups have to be considered “parties to the conflict” meaning that they have a command structure and have the capacity to conduct military operations. APII Art. 1(1) offers a slightly different analytical framework for NIAC: “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.” Moving forward, NIAC is the form of conflict that the Yeagerists are engaged in with the Eldian Empire and Marley. In regard to actions between these groups, Common Article 3 and APII operate as the governing documents for handling issues.
Internationalized armed conflict is a subset of NIAC and occurs when a foreign state who is a non-party to the conflict provides material support to a party that is. The authorities that govern NIAC also are applicable to situations like this. For our purposes, this will cover Hizuro and its financial contributions to the Eldian Empire and then to the Yeagerists.
Conclusion
AoT has a lot of moving parts and can be confusing at times when trying to understand who is fighting who. This article endeavored to give a high-level gloss of the parties involved and the forms of conflicts that exist within the show presently. Further, this article provided the governing frameworks that will detail the responsibilities that the parties owe to each other and to the international community. However, these frameworks will not be the only laws discussed as states are accountable under many other treaties and under rules established through customary international law. The complexity of AoT and the many IHL violations committed will provide many articles to come. Please stay tuned for more!