The Good Fight: The Rebel Alliance & The Law of War

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November 4, 2017

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.

Star Wars dialogue about the law of war? Be still my beating heart.

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.

Perhaps the Ewoks need a bit of…mentorship in the fine art of not being carnivorous war criminals.

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.

The Galactic Empire would like to extend its warm appreciation to Saw Gerrera, whose generous battlefield foolishness helped make this propaganda campaign possible.

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.

Leaflet dropped during the Gulf War. The text on the backside read: The U.S. abides by the rules of the Geneva Convention. Ceasing fire will provide you humane treatment, food and water, medical treatment, shelter, and return to your homes after hostilities.

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.

Rather than attend a class on the law of war, Saw Gerrera chooses obliteration by Death Star.

Ewoks Are War Criminals

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Josh Gilliland

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November 1, 2017

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Forces of Destiny An Imperial Feast has revealed a truth about Ewoks after the battle of Endor: captured Imperials were going to be fire roasted alive. It is unknown if any Storm Troopers were indeed cooked as part of the victory feast seen in Return of the Jedi, but at least one group of prisoners of war were saved from the dinner menu by Leia Organa.

Say what you will about Anakin Skywalker’s many hate crimes, but at least he never ate a Tusken Raider or Youngling.

The issue of eating POWs was the central charges of the war crimes trial for the Japanese officers on Chichi Jima after World War 2. James Bradley tells the full extent of the cannibalism in great detail in his book Flyboys: A True Story of Courage. The trial was the first time that cannibalism and torture were allegations for war crimes. See, BOOK REVIEW: Judgment at Tokyo: The Japanese War Crimes Trials, 171 Mil. L. Rev. 220, 224 and Celebrating Volume 50: The Early History of the Washburn Law Journal, 50 Washburn L.J. 433, 440-441, citing George E. Erickson, Jr., Note, United States Navy War Crimes Trials (1945-1949), 5 WASHBURN L.J. 89 (1965). Torture ultimately was not addressed as a war crime until 1980. Judgment at Tokyo, at *224. Moreover, Bradley explained that since cannibalism, as vengeance killings had never been an issue before, the prosecutors charged the Japanese officers with desecration of a corpse.

The carnivorous Ewoks carried Imperial POWs out on stakes to be cooked over an open fire. Others Storm Troopers were restrained to watch their fellow service members cooked alive. One Ewok struck a bound Trooper when Leia Organa attempted to stop the Ewoks from murdering their prisoners of war. This conduct would fall under the many recognized forms of war crimes including:

I) Torture, because 1) striking a bound POW was designed to inflict physical and mental pain for punishment or intimidation; and 2) imprisoned Storm Troopers forced to watch their fellow service members stripped and cooked alive over an open fire would cause mental suffering;

II) Cooking POWs is cruel or inhuman treatment for the infliction of serious physical and mental suffering;

III) The act of killing Storm Trooper POWs for dinner is murder;

IV) Cooking Storm Troopers would be mutilation or maiming; and

V) Slow roasting Storm Troopers on a rotisserie would intentionally cause serious bodily harm to the prisoners of war.

18 U.S.C.S. § 2441(A), (B), (D), (E), and (F).

If remnants of the Empire captured Ewoks for prosecution, it is very clear that Ewoks purposely committed an opening crawl worth of war crimes. The act of cooking prisoners of war would be horrific crimes of torture and murder. General Organa was justified in stopping these atrocities, but the question remains, how many helmets used as drums during the tribal performance of “Yub Nub,” belonged to Storm Troopers who were eaten by Ewoks?

Halloween Podcast Spectacular with Monster Party!

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Josh Gilliland

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October 30, 2017

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It is time to celebrate Halloween with a special series of spooky podcasts! Jessica and I first analyzed the legal issues in the 1974 Mel Brook’s classic Young Frankenstein. The four members from the wicked podcast Monster Party then individually joined me to share their love, thoughts, and legal questions on The Wolf Man (1941), Creature from the Black Lagoon (1954), The Mummy (1932) and Frankenstein (1931).

A big thank you to Matt Weinhold, Shawn Sheridan, James Gonis, and Larry Strothe from Monster Party for their detailed discussions on these classic films. Each of them could be qualified as an expert witness for their knowledge of these characters. Plus they all have amazing action figures and collectables that would make Forrest Ackerman proud.

The Mummy’s Curse of Liability

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Josh Gilliland

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October 29, 2017

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The 1932 Universal Monster Classic The Mummy, tells the story of Imhotep, who was mummified alive for the crime of sacrilege for attempting to resurrect Princess Ankh-es-en-amon with Scroll of Thoth over 3,700 years ago.

Imhotep was awaken from death when an archeologist read the Scroll of Thoth in 1921. After a decade of “living” in the 20^th Century, Imhotep assumed the identity Ardath Bey and directed an archeological team to find the tomb of Ankh-es-en-amon. Following a failed attempt to resurrect Ankh-es-en-amon’s mummified remains failed, Imhotep learned Ankh-es-en-amon had been reincarnated multiple times and was living as Helen Grosvenor. Imhotep planned to kill Helen in a ceremony to bring Ankh-es-en-amon back as a living mummy, her soul purified of the other lives she had lived.

Let’s unwrap a few layers of the Mummy’s legal issues.

Mummifying Imhotep Was Cruel and Unusual Punishment

Imhotep’s attempt to resurrect Ankh-es-en-amon was a capital offense that was punishable by death that extended into the afterlife. Even though Imhotep’s sentence was carried out 3,500 years before the formation of the United States, the death sentence of mummifying a person alive is the exact sort of punishment the Eighth Amendment precludes.

An execution is cruel and unusual punishment if the method presents a “substantial” or “objectively intolerable” risk of serious harm. Baze v. Rees, 553 U.S. 35, 40 (2008). Other courts have articulated the legal standard for determining whether a form of execution violations the prohibition of cruel and unusual punishment as follows:

1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution;

2) Violates the evolving standards of decency that mark a mature society, and

3) Minimizes physical violence and mutilation of the prisoner’s body.

State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008)

The United States has a history of allowing executions, starting with hangings at the founding of the country, later firing squads, to finding the most “humane and practical” methods for executions “known to modern science.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). These methods have included electrocution, because it was thought to be less painful and more humane than hanging, to the gas chamber, to lethal injection. Id.

Mummifying Imhotep alive would pose an “objectively intolerable” risk of serious harm. First off, Imhotep was wrapped alive and sealed in a totally dark sarcophagus to die, either from starvation or the lack of air. It does not take an archeologist who can read hieroglyphics to see that Imhotep would suffer unnecessary and wanton pain in an execution by suffocating to death in darkness. Furthermore, the Pharaoh had the slaves who buried Imhotep killed, followed by the soldiers who killed the slaves also killed. This double digit body count would go against the evolving standards of decency that mark a mature society, where executing one man requires several dozen more to also die for national security. Finally, leaving Imhotep in total darkness to either starve or suffocate does not limit the physical violence he suffered in death.

Based on the above, “death by mummification,” would be cruel and unusual punishment.

Can Ankh-es-en-amon Be Resurrected under the Free Exercise Clause?

Imhotep illegally entered the Cairo Museum to perform a religious ceremony with the Scroll of Thoth in an attempt to resurrect Ankh-es-en-amon’s mummified remains. Imhotep murdered a guard who discovered him during the ceremony.

If this had been in the United States, the “Free Exercise Clause” under the First Amendment gives people the right to “believe and profess whatever religious doctrine one desires.” Parker v. Hurley, 514 F.3d 87, 103 (1st Cir. 2008). However, it is not a general protection of religion or religious belief. Id.

If the Free Exercise Clause is raised as a defense to a tort (in this case, trespassing), the issue is whether the defendant’s conduct was religious. Wisconsin v. Yoder, S. Ct. 1526, 1533-34 (1972). Arguably reading the Scroll of Thoth in an attempt to resurrect Ankh-es-en-amon would be a form of praying. However, the Free Exercise Clause does not shield clergy from wrongdoing or allow them to ignore laws of general applicability. See, Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1174 (N.D. Tex. 1995). This would include trespassing and there is no religious exception to committing murder.

Praying to bring Ankh-es-en-amon back to life arguably would be protected conduct, however, that free exercise ends with intentional torts and crimes.

Desecration of a Corpse and Attempted Murder

Imhotep’s plan to kill Helen Grosvenor in order to bring Ankh-es-en-amon back as a living mummy has multiple legal problems. The first was burning Ankh-es-en-amon’s mummy, because that was desecration of a corpse. Many states recognize there is a tort for abuse or mishandling of a dead body. See, Frys v. City of Cleveland, 107 Ohio App. 3d 281, 284, (1995). The wrinkle with Ankh-es-en-amon’s mummy was it was not in its tomb, but in its sarcophagus on display at the Cairo Museum. That being said, burning the body still required it being removed from its resting place and destroyed.

Imhotep planned to murder Helen Grosvenor in order to make her a living mummy. There is no exception to murder in order to cleanse a reincarnated soul of other past lives. This would be a crime…. provided a 3,700 year old living mummy could be incarcerated on this plane of existence.

Mummy Dearest

Imhotep is a cold and calculated killer, not just because he is a reanimated corpse. Imhotep acted with a specific intent to manipulate others for his ultimate goal of brining Ankh-es-en-amon back from the dead. The problem for Imhotep is he killed at least two people, enslaved another, committed fraud in representing who he was to the British expedition, destroyed historic artifacts of cultural significance at the Cairo Museum, and attempted to murder Helen Grosvenor. There is no legal justification for these crimes, however, the Egyptian Goddess Isis claimed jurisdiction of Imhotep’s wrongful conduct.

Lycanthropy isn’t the Wolf Man’s Only Problem

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Josh Gilliland

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October 26, 2017

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The 1941 Universal Classic The Wolf Man tells the tragic story of Larry Talbot, who is the heir to the Talbot Estate, suffers from Lycanthropy, and is a peeping tom. For every man who is pure of heart and says his prayers at night, he can still be prosecuted when the autumn moon is bright.

Don’t Look at People in Windows with Telescopes

Larry Talbot discovered his love interest Gwen Conliffee in a way normal only for a horror movie: with a telescope watching her put on earrings. Larry then ventured to Gwen’s haberdashery for a mix of stalking and shopping in the hopes of getting a date with Gwen. This is the creepiest scene in the movie.

Watching another person with a telescope through a window would be the classic definition of being a “peeping tom.” Most states specifically prohibit this conduct, some even naming the laws “Peeping Tom” statues.

Georgia has a traditional legal definition of “Peeping Tom”: a person who peeps through windows or doors, or other like places, on or about the premises of another for the purpose of spying upon or invading the privacy of the persons spied upon and the doing of any other acts of a similar nature which invade the privacy of such persons. Ga. Code Ann. § 16-11-61(b).

Louisiana’s definition of “Peeping Tom,” includes drones, which generally means this was a problem the legislature had to respond to with a new law: “[O]ne who peeps through windows or doors, or other like places, situated on or about the premises of another or uses an unmanned aircraft system for the purpose of spying upon or invading the privacy of persons spied upon without the consent of the persons spied upon. It is not a necessary element of this offense that the “Peeping Tom” be upon the premises of the person being spied upon.” La. Rev. Stat. Ann. § 14:284.

The great state of Mississippi is even more specific with its law:

(1) (a) Any person who enters upon real property, whether the original entry is legal or not, and thereafter pries or peeps through a window or other opening in a dwelling or other building structure for the lewd, licentious and indecent purpose of spying upon the occupants thereof, shall be guilty of a felonious trespass.

(b) Any person who looks through a window, hole or opening, or otherwise views by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, drones, camera, motion-picture camera, camcorder or mobile phone, into the interior of a bedroom, bathroom, changing room, fitting room, dressing room, spa, massage room or therapy room or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside and without the consent or knowledge of every person present, for the lewd, licentious and indecent purpose of spying upon the occupant or occupants thereof, shall be guilty of a felony.

Miss. Code Ann. § 97-29-61.

California does not use the phrase “Peeping Tom,” but does have laws designed to protect a person’s reasonable expectation of privacy:

A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments.

Cal. Penal Code § 647(j)(1).

Larry Talbot might not have originally intended to be a Peeping Tom, but he certainly became one when he spied on Gwen Conliffee. Talbot could be prosecuted for invading on Gwen’s privacy by watching her with his high powered telescope. Moreover, if Larry had not sought out Gwen for a date, Bela the Werewolf would have never bitten Larry.

Duty to Warn Future Victims of Werewolf Attacks

Humans suffering from the curse of the werewolf can see a pentagram on the palm of their next victim. This gives the human knowledge of who will be harmed when they next turn into a werewolf.

The California Supreme Court has held in cases with inmates being released, that there is no duty to warn the public of violent inmates where the inmate has made nonspecific threats of harm directed at nonspecific victims. Thompson v. Cty. of Alameda, 27 Cal. 3d 741, 754 (1980). As such, this means there has to be a specific threat against a specific person in order for there to be a duty to warn.

The human suffering from the curse of the werewolf has specific knowledge of who will be harmed by the werewolf with the specific harm of death. This knowledge would put someone like Larry Talbot in a special relationship with a future victim, because Larry would need to control the actions of the wolf in order to prevent harm, and with direct knowledge of the foreseeable victim of the wolf’s conduct. See, generally, Ewing v. Northridge Hosp. Med. Ctr., 120 Cal. App. 4th 1289, 1297, (2004), for a discussion of Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425 (1976).

Larry Talbot had direct knowledge that Gwen was going to be his next victim. As such, Larry owed Gwen a duty to warn her that the wolf was going to kill her. Moreover, Larry could have taken preventative measures to protect Gwen from the wolf, such as changing himself up, locking himself in a cell, or some other means to keep the wolf from leaving the Talbot Estate.

Insanity Defense for Unknown Victims

Larry Talbot could argue that he was not responsible for deaths caused by the Wolf Man, because he was not in control of his actions because he turned into a wolf.

The insanity defense applies when a defendant 1) had a mental disease when they committed a crime; and 2) they did not understand the nature and quality of their actions or understand that the act was legally wrong. See, 2007-3400 CALCRIM Archive 3450 (2017).

Larry Talbot clearly had the medical condition of Lycanthropy, where he looked and behaved like a wild animal. Talbot’s attorneys with expert witnesses could prove 1) Talbot had a mental disease when he killed people; and 2) Talbot did not understand the wrongfulness of his actions.

The problem for Larry Talbot is he knew he turned into the Wolf Man. Talbot at first was in denial, refused the amulet from gypsy that would have protected him, and took no preventative measures to imprison the wolf. While there is a clear argument for the insanity defense, it ignores the fact Talbot knew he would transform into a killing machine.

Bad Moon Rising

Larry Talbot is a tragic character who turns into a beast after trying to save Jenny Williams from Bela the Werewolf. That being said, Larry Talbot should not have invaded the privacy of Gwen Conliffee. The chain of events that followed resulted in Larry’s own father having to kill him, after Larry’s final transformation into a wolf. If Larry had respected the privacy rights of others, he would have never fallen to the Cruse of the Werewolf.

Diving into the Legal Depths with The Creature from the Black Lagoon

By

Josh Gilliland

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October 22, 2017

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The Universal Classic Creature from the Black Lagoon starts as an archeological expedition, which evolved into hunting an endangered species in the Amazon for importation to a marine institute in the United States. It’s time to swim into the murky legal issues with Dr. Mark Williams’ goal to capture the Creature.

Importation of Endangered Species

The Creature was possibly the last of its kind from the Devonian Era. Fossilized remained were found of another “creature,” which was the genesis of the expedition into the Amazon. Upon first sighting the Creature, Dr. Mark Williams shot a speargun at the animal. Dr. Williams made clear his goal was to capture the Creature for his aquarium.

Dr. William’s objective to bring the Creature to the United States would violate the prohibition of importing animals that are either wild or endangered into the United States, or its territorial waters, or on the high seas. Safari Club Int’l v. Babbitt, No. 1993 U.S. Dist. LEXIS 21795, at *19-20 (W.D. Tex. Aug. 12, 1993), citing 50 C.F.R. § 10.12 and 16 U.S.C.S. § 1538(A)(1)(A), (B), and (C). Moreover, the Secretary of the Interior can regulate the wild animals that are “injurious to human beings” to be prohibited from being imported into the United States. 18 U.S.C.S. § 42(a)(1). Furthermore, it is unlawful to import any wildlife taken in violation of any State or foreign law. 16 U.S.C.S. § 3372(a)(2)(A).

Federal and State law could view the Creature as a dangerous wild animal, like an alligator or gorilla. Moreover, the Secretary of the Interior could find the Creature is “injurious to human beings,” since the Creature killed three people without provocation (which is very different than the situation in Frankenstein).

There is a strong argument that the Creature is an endangered species under the Endangered Species Act. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20); Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013). A species is considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E).

The Creature appeared to live alone, with no evidence of any other living members of the species. The only evidence of another animal were fossilized remains, so unless the Creature reproduces asexually, it could be the last of its kind. The Rita expedition into the Creature’s range introduced Rotenone into the Black Lagoon and armed hunting parties with spearguns and rifles. As such, the Creature was under threat of extinction from the lack of the opportunity to reproduced and humans hunting the Creature.

Williams’ actions were to kill and then capture the Creature for profit. United States law would not permit the Creature to be brought into the United States. Moreover, Brazil also would have its own national interest to protect the Creature from being exported to the United States as a museum exhibit.

Duties as a Common Carrier

The Creature stalked Kay Lawrence during her solo swim in the Black Lagoon. As a passenger on the Rita, Captain Lucas owed Kay a duty to protect her from “from ill treatment from other passengers, intruders or employees.” White v. Norfolk & S. R. Co., 115 N.C. 631, 636-37, 20 S.E. 191, 192 (1894).

The Creature boarding the Rita would classify the Creature as an “intruder.” Captain Lucas owed all of the passengers onboard the Rita a duty to protect them from harm. Maintaining a watch for the Creature, with appropriate counter-measures, would have been reasonable to protect the passengers onboard Rita. Immediately leaving the Black Lagoon would have been a wise course of action.

Dr. Edwin Thompson was injured by the Creature and was hospitalized in a bunk below decks. The Creature was able to access the injured Thompson through an open porthole. Ensuring portholes were closed would have been an appropriate response to knowing there was an undiscovered lethal gill-man harassing the passengers onboard the Rita.

Just Leave Him Alone

The Creature was an endangered species from an era time forgot. Not entering the Creature’s habitat would be the best course of action, for the safety of both human beings and the Creature himself. This is best evidenced by Dr. Mark Williams, who behaved like someone who tried to ride a bear at a National Park. The best way to avoid the loss of life is to leave the bear alone. The same is true for Devonian Creatures in lagoons.

Are Surviving Clone Troopers Guilty of War Crimes?

By

James Liu

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October 16, 2017

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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?

Rex (left), Gregor (center), and Wolffe (right).

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).

Clone trooper Tup (right) moments before killing Jedi Master Tiplar (left) due to a malfunctioning inhibitor chip.

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.

Fives’ head after his inhibitor chip is removed.

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.