Export Control Licensing of MechaGodzilla

June 1, 2021

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.

Throw Your Hands Up Only If You Mean It

Gage Dabin

May 25, 2021

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.

The Beginning of the End: Understanding the Scope of Attack on Titan’s Final Season

Gage Dabin

May 14, 2021

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!

The Bad Batch: Kaminoans and the Clone Contracts

Stephen Tollafield

May 7, 2021

In the first episode of The Bad Batch, Admiral Tarkin implies that Palpatine is reconsidering the Kaminoan contracts, which “stipulate the continued production” of a clone army, according to Lama Su, the Kamino Prime Minister. Tarkin brushes aside the enforceability of those prior agreements, observing with his characteristic menace that the Kaminoans’ contracts were “with the Republic, which no longer exists.”

Obviously, a fascist autocracy is not governed by the rule of law, so the Emperor can probably get away with breaching any obligations he wants to by virtue of his overwhelming firepower. But the Kaminoans’ distress raises the interesting real-world legal problems of a party to a contract when the other party to the agreement ceases to exist, leaving behind unfulfilled expectations.

Death-defying Contracts

To begin with, a person’s death generally does not relieve the decedent of their contractual obligations. Thanks to sixteenth-century English contract principles, which endure in modern U.S. law, the executor of the decedent’s estate or another successor ordinarily must make good on the decedent’s obligations. Hyde v. Windsor, 78 Eng. Rep. 798, 798 (Q.B. 1597) (holding a decedent’s contractual obligation survives “unless [the promise was] to be performed by the person of the testator . . . [and the executor] cannot perform”). In other words, courts have enforced so-called “impersonal” contracts, which do not necessarily require the decedent to perform the obligation, after the death of a contracting party. Thus, a decedent’s executor will use the estate’s assets to make good on promises involving things like purchases of property, shareholder agreements, and guarantee contracts.

There is an exception to this general rule for personal services contracts, which require the decedent specifically to perform the contract, and which are discharged if one party dies. For example, suppose you commissioned your favorite artist to paint a family portrait, but the artist regrettably passed away before starting the painting. A court would not enforce that agreement since that contract contemplated the unique skills and abilities of the artist, who no longer exists to perform the obligation. (And anyway, would you really want a family portrait that was painted by the artist’s executor?)

The analogy of Palpatine’s Empire as some sort of legal successor to the Republic probably does not hold much water. The Empire would not simply assume the obligations of the Republic to the extent those obligations were inconsistent with Palpatine’s designs. As mentioned previously, no rule of law plus overwhelming firepower generally means that all bets are off.

Commercial Transactions

The agreements between the Republic and the Kaminoans may alternatively be described as a commercial contract. Although commercial entities are not ordinarily overthrown by an evil dark lord of the Sith, a business may simply become insolvent and “die” in the sense that it can no longer perform its end of a commercial transaction. Generally, parties to a commercial contract anticipate and manage, to the best of their lawyers’ abilities, the risk of a counterparty’s inability to perform the contractual obligations, but this is where federal bankruptcy law comes in.

Once an entity becomes insolvent and files for bankruptcy protection, the bankruptcy court assumes control over all of the entity’s property and contractual obligations. The court then determines which contracts can and will be honored, rejected, or otherwise terminated. And in particular, the Bankruptcy Code renders unenforceable common clauses in commercial contracts that purport to terminate contractual obligations upon the insolvency or bankruptcy of either party, known as ipso facto clauses. 11 U.S.C. § 365(e)(1)(A) (a creditor’s contract may not be terminated by a provision that is “conditioned on the insolvency or financial condition of the debtor”); 11 U.S.C. § 541(a) & (c) (defining bankruptcy estate to include any property in which the debtor has an interest notwithstanding “any provision in an agreement . . . that is conditioned on the insolvency or financial condition of the debtor”).

There are other ways to structure transactions to mitigate a vendor’s risk and the uncertainty of bankruptcy proceedings, such as with letters of credit or guarantees. But otherwise, the holder of an unfulfilled (or executory) contract at the time an entity files for bankruptcy becomes an unsecured creditor whose claims go into the bankruptcy estate for the trustee and the court to sort out. While the Kaminoans have slim chances of having their prior contracts honored by the evil Empire, at least they are not unsecured creditors in galactic bankruptcy proceedings.

Government Contracts

Lastly, the Kaminoans’ situation highlights a nettlesome problem when contracting with government entities, which may completely change from one election to the next. Specifically, in the real world, vendors who contract with government entities are exposed to a risk that a subsequent change in administrations or policy will undermine the government’s obligation. For example, suppose your company produces widgets that the more liberal party likes, and while the liberal party controls the legislature, it contracts with your company to produce a bunch of those widgets. Sometime later, the more conservative party wins legislative control in an election and the incumbent legislators decide that they do not want all of your liberal widgets. May the conservative government repudiate the contract that the liberal legislature signed?

The U.S. Supreme Court has held that the federal government is liable for breach of contract if the government reneges on previous promises, notwithstanding the government’s authority to alter previous regulatory positions. United States v. Winstar Corp., 518 U.S. 839, 910 (1996) (holding United States liable for breach of contract where congressional legislation had effect of breaching prior agreements with financial institutions regarding accounting methods).

That said, a state government contract is not enforceable to the extent that the contract limits the sovereign authority of succeeding state legislatures to change policy over time. U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 23 (“[T]he Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty.”); see Maryland State Tchrs. Ass’n, Inc. v. Hughes, 594 F. Supp. 1353, 1362 (D. Md. 1984) (holding that contract setting compensation of state employees was invalid as it improperly bound subsequent legislatures with respect to core legislative authority). However, local governments may be bound to honor proprietary or business contracts signed by previous administrations even if the contract requires enforcement of a regulatory scheme that the incumbent administration does not like. E.g. Town of Graham v. Karpark Corp., 194 F.2d 616, 619 (4th Cir. 1952) (municipality’s contract with parking meter company enforceable since government contracts relating to government’s proprietary or business powers are binding “even though they extend beyond the term of office of those entering into them”).

These nuanced distinctions are difficult to navigate, but they demonstrate the important ways that a democratic government tries to predictably and rationally regulate its contractual obligations with private parties. This scheme stands in stark contrast to the lamentable situation of the Kaminoans, who are entirely at the mercy of an evil tyrant’s caprice. In any event, the question of whether a contractual obligation is enforceable across a peaceful transition of power in a democracy has little bearing on a situation where an autocratic regime entirely overthrows a democracy. A transactional advocate for the Kaminoans will have to be very strong in the Force to overcome that kind of disruption to the client’s contractual expectations.

Analysis of The Patch Act on The Falcon and the Winter Soldier

Josh Gilliland

April 22, 2021

Forcibly removing people from their homes never ends well. The Falcon and the Winter Soldier episode 5, “Truth,” had the “Global Repatriation Council” debate the “Patch Act,” which would return people back to their countries of origin in order to reestablish borders. There is a lot wrong with it, from both a storytelling perspective and legally.

The premise of the fictional Global Repatriation Council is to help those who had “vanished” after Thanos’s Snap to return to their lives. Spider-Man Far from Home referenced this challenge, where Aunt May reappeared in her apartment to find a new family living there and five years had passed. Being the super aunt she is, May organized a fundraiser with the friendly neighborhood Spider-Man to help those who had returned.

Falcon and the Winter Soldier have turned this societal challenge on its head, with those who survived the Snap being forced out of their homes to make way for the returned. Legally that makes zero sense. It means probate laws were ignored for five years. It is one thing for those who “returned” to be in camps in order to rebuild their lives, it is another to toss people on the street who lived someplace for years.

The Global Repatriation Council appears similar to the United Nations, expect it exists for the specific purpose of helping people reset, restore, and rebuild. Such an international organization would require a charter and exist by treaty.

A US Senator represented the United States at the GRC meeting. That’s just wrong. No Senators go to the United Nations to represent the country; that is the job of an ambassador, appointed by the President, and confirmed by the Senate. Moreover, a Senator bragging about the ability to send US Troops to remove human beings from cities is horrific on multiple levels, starting with the fact the PRESIDENT is the Commander in Chief of the military. No Senator can do a damn thing to issue an order to the military, short of a subpoena to appear at a committee hearing. Senators do not deploy troops.

The GRC debating the Patch Act is further problematic, because a vote by an international organization does not automatically become a law. Flashing back to School House Rock, any treaty voted on by the GRC would still need to be ratified by the US Senate. Even then, there likely would need to be enabling legislation to enforce the treaty.

This should go without saying, but the United States cannot enact a treaty that would violate the Constitution. For example, say the UN voted on a treaty to strip voting rights of all women. It is gender-based discrimination that violates the 19^th Amendment to the Constitution. That would not fly.

The Patch Act was described as the military removing people from different countries and returning them to their country of origin. This is the stuff of fascism, with the military removing people from a country without due process of law. While immigration is exclusively Federal jurisdiction, anyone in the United States is protected by the Constitution and cannot be denied Due Process of law. Soldiers removing people from their homes and placing them in trains, planes, or trucks, lacks any form of Due Process. It also raises the issue of the military being used for law enforcement, which is prohibited under the law.

The United States Congress needs to be alerted within 48 hours of US troops being placed in harm’s way. The army sent out to different countries to remove human beings and ship them to other countries reeks of the Indian Removal Act. No member of Congress should think, “YES, this is what our military is meant to do” and sign a check for a new trail of tears.

As stated before, none of this makes sense from a storytelling perspective. The world went on living as best it could after 50% of humanity disappeared. The very idea that the “vanished” have displaced survivors is opposite of the truth.

You Cannot Escape the Long Arm of the Law: How Gendo, Cohorts, and U.N. Officials Will Be Punished

Gage Dabin

April 19, 2021

Quick Refresher

In my last post, I discussed how Gendo Ikari (Gendo), Misato Katsuragi (Misato) and Ritsuko Akagi (Ritsuko) and certain U.N. officials committed war crimes (collectively referred as “war criminals”) – enlisting and requiring children to fight in an international armed conflict. Their actions violated peremptory norms and multiple treaties including the Geneva Conventions and the Rome Statute. With that being established, the next issue is accountability. For this article, Gendo, Misato, and Ritsuko are citizens of Neo-Japan, and the U.N. officials are citizens of Switzerland as it has a headquarters in Geneva and had command authority over Germany in the series.

Basis For The Reach

Before the international legal system can hold people accountable, it first requires the specific states where the war crimes took place or where the perpetrators are from to try and resolve the issue with its domestic legal system. These requirements are embedded in the international treaties that those states ratified and therefore they are bound to their processes. This is an important component of the domestic, international law relationship. The international tribunals do not want to supersede a state’s sovereignty, but in some cases when a state consciously fails to uphold both the treaty obligations and customary international law then the tribunals will assert their jurisdiction. The war criminals can be tried by the International Criminal Court (ICC) and by domestic courts via the Geneva Conventions.

Geneva Convention

The war criminals clearly violated the Geneva Convention. For purposes of this argument, Neo-Japan and Switzerland remain to have ratified all the Geneva Conventions and Additional Protocols – Japan still hasn’t ratified Additional Protocol III. This means the states are bound by the responsibilities laid out within them for breaches of international law.

In Article 50(2) of the Fourth Geneva Convention (“GCIV”), it held that occupying powers were not to enlist children “in formations or organizations subordinate to it.” Pertaining to international armed conflicts (IAC) – Additional Protocol I (“AP I”), Article 77(2) states that “parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.” Under Art. 147 of GCIV it is considered a grave breach to compel a protected person to serve in in the forces of a hostile power. Further, Art 148 of GCIV holds that no High Contracting Party shall be allowed to absolve itself of liability for any breaches incurred. GCIV doesn’t stipulate the specific forum that the grave breach inquiry has to start in; rather, Art. 149 states that interested parties need to decide the form of inquiry and the umpire to conduct the process. This is a highly dynamic approach that gives latitude to the reporting state and alleged violating state.

The states of Neo-Japan and Switzerland cannot absolve themselves of the grave breaches they committed when they required children to fight the Angels. Because GCIV does not specifically designate that the forum be domestic first, the war criminals could be given over to international tribunals. However, there exists a reluctance for the states to give up their authority to the international community to try individuals like this. This means it would be more likely that each state would individually charge their respective citizens with their domestic statutes for the breaches. Concretely, Neo-Japan would charge Gendo and his cohorts under its laws. Switzerland would do the same for the U.N. officials. Although disparate sentences may be created, this is a means of accountability. However, there are other avenues.

ICC approach

The war criminals violated the Rome Statute triggering the possibility of the ICC having jurisdiction over their actions. Echoing GCIV and AP I, Article 8(2)(b)(xxvi) of the Rome Statute states that if a state enlists children under the age of fifteen into armed forces or groups that action constitutes a war crime in IACs. Before the ICC can activate its jurisdiction two prerequisites need to be satisfied: first, the state needs to have ratified the Rome Statute; and second, the ICC has to determine that the state failed to properly prosecute those who committed the war crimes. The first prerequisite is straightforward and can be dealt with quickly – all states where the war criminals are from have ratified the Rome Statute and accept the ICC’s jurisdictional capabilities. However, the second prerequisite is where the international community may be hindered.

The Rome Statute allows for the ICC to have jurisdiction over war crime punishments if states where the criminals reside or where the events took place fail to effectively prosecute. This is referred to as the principle of complementarity and may be the most important part of the Rome Statute. Understanding the nuances of complementarity is beyond the scope of this piece, but there are breakdowns to help tease out the applications. What we really have to consider is the admissibility of the case before the ICC. Under Art. 17 of the Rome Statute, it lays out the jurisdictional requirements: is the state currently dealing with the case, did the state investigate the same case and did it not prosecute, or has the same case been prosecuted at the state level. The second jurisdictional action is two part: did the state investigate the same case AND did it choose not to prosecute – if the answer to one is no then the ICC can come forward. What makes this difficult is that even if the ICC takes the case, there exists a small success rate in holding parties accountable.

Collectively, the war criminals may not be punished by the ICC. As a court of “last resort” the ICC is restrained from acting until the states themselves finish investigating, and/or prosecute the individuals. This is designed to respect the sovereignty of the states but also to promote legal efficiency so that the ICC doesn’t hear every case. Since the states are members of the ICC it is possible to be brought before the tribunal, but Neo-Japan and Switzerland are more than likely to handle the punishments themselves. They would prosecute the citizens and handle the case in such a way as to prevent the Art. 17 jurisdictional triggers from activating. Handling the war criminals internally prevents continued international embarrassment and would allow for quicker results than what the ICC typically is able to produce. In the end, although they recognize and support the Rome Statute and the ICC, they wouldn’t let a supernational tribunal decide the fate of their citizens.

Conclusion

Any way the cake is sliced we will see the parties be held responsible for their violations of international law. The violations were blatant, the violations were repeated, and the ramifications upon the children constantly disregarded. The states will likely hold individual trials and will be publicized internationally to show how they are enforcing their commitments to the treaty obligations. With the state’s prosecuting the cases it prevents the ICC from intervening with the affairs. This enshrines sovereignty and reinforces the authority of the state. No matter how just they thought their cause to be, the war criminals cannot escape the long arm of the law. At the end of the day, children are not meant to be vehicles for war – they are to remain just that, children.

Was Hayley Travis Negligent in Pacific Rim The Black?

Josh Gilliland

April 8, 2021

In Pacific Rim The Black, Hayley Travis, a minor living in a community of children for 5 years, found an abandoned Jaeger, activated it, and in a series of events, the Kaiju known as Copperhead killed Hayley’s entire community. Hayley blamed herself for the incident.

Is Hayley legally correct in considering herself the cause of her friends’ deaths?

Drifting with Negligence

The question to determine Hayley’s responsibility for the deaths of others is whether she was negligent. Negligence has its origins in Common Law and has been codified in code sections across the planet. California jury instructions define Negligence as follows:

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

CACI No. 401. Basic Standard of Care

Since Hayley is a minor, she is not held to the same standard as an adult. The jury instructions state that a “child is required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation.” CACI No. 402. Standard of Care for Minors.

Hayley’s actions are critical in determining whether she was negligent. Below are the relevant facts of Hayley’s actions after finding the Jaeger designated Atlas Destroyer:

Introduced herself to the Jaeger’s AI “Loa”;

Skipped through the virtual training that required 6 months by saying “next”;

Loa informed Hayley the walk cycle training would start once her copilot arrived;

Hayley’s brother Taylor discovered her and the two argued;

Loa announced, “Commencing Walk Cycle”;

Loa started opening the hangar doors and triggered alarms;

Copperhead was attracted to Shadow Basin by the activity.

Hayley’s Standard of Care

Let’s face it, kids since the 1950s have been dreaming of finding a giant robot. The issue for Hayley after that dream came true is, did she use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation?

There is a Jaeger size exception to a child’s standard of care and that is whether they are engaged in an adult activity, such as driving. Prichard v. Veterans Cab Co. 63 Cal.2d 727, 732 (1965).

There is a strong argument that taking a Jaeger in combat is an adult activity. However, as Taylor had been a training cadet while a minor, there appears to be a grey zone with Jaeger training beginning with minors. As Hayley was trying to learn how to use Atlas Destroyer, it is not unreasonable to hold her to the reduced standard of care for minors.

Regardless of the standard that applies, Hayley was on actual notice the walk cycle training would start once her copilot arrived. Hayley had no idea what that entailed, because she skipped through the entire pilot training course catalog. If we compare taking a Jaeger for a walk to taking a car for a spin, Hayley did not bother to look in the owner’s manual for the instructions. This on its face seems unreasonable.

Was Hayley the Cause of Copperhead Discovering Shadow Basin?

Causation is the legal concept that connects a person’s actions to the harm that follows those actions. California follows the “substantial factor” test, which states:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

CACI No.430.Causation: Substantial Factor

Should Hayley have considered that engaging Atlas Destroyer’s walk cycle would have been a substantial factor in attracting a Kaiju to Shadow Basin? Stated more plainly, would taking a giant robot for a walk attract a Kaiju?

The answer to this question undoubtedly is YES. Hayley witnessed a Kaiju attack their parents’ Jaeger five years earlier. The community of child had purposively laid low to avoid being discovered by Kaiju. Starting a giant robot without any regard for the risk, whether as an adult of child, was wildly negligent.

There are issues such as the fact Hayley could skip through training simply by saying next, or the fact there was not a confirmation command from Loa that can mitigate Hayley’s actions, but there is no way around the fact that her actions were a substantial factor in getting her friends killed. That said, suing a teenager who is living in a post-apocalyptic wasteland is the definition of “judgment proof.” Sue the company that made a giant robot without a child safety lock.

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