Our panel of lawyers offer their legal analysis on each episode of She-Hulk: Attorney at Law.
In the Matter of the Parole of Emil Blonsky
In episode 3 of She-Hulk: Attorney at Law we get a glimpse into the world of the parole system. But how accurate is it, is Jen’s argument valid, does someone with seven soul mates stand a chance at getting released from prison? Let’s dig in, and find out.
What Happened Last Time:
Before we delve into the real world of laws, let’s take a look at the episode itself. Spoiler alerts through episode 3 of She-Hulk: Attorney at Law abound from here on out, you’ve been warned. Jen finds herself fired from her job as an assistant district attorney, hired by the firm of GLK&H, and placed on the case of Emil Blonsky-AKA: The Abomination. Remember him from The Incredible Hulk (2008)? After his epic fight with The Hulk, Blonsky apparently found himself tried, convicted, and imprisoned. He now resides in the (presumably) federal prison run by Damage Control. During his stay, he has been corresponding with seven women who are his soulmates, and he wants to be released to go live with them. Jen met with him in the prison and is now 100% certain she can win the case. That brings us up to the start of the hearing, do we think Jen can win her case?
Just the Facts:
Could Jen win Blonsky’s release on parole in our world? Well, no. Unfortunately for Jen, the federal government abolished its parole system in the late 1980’s.[1] That means that Blonsky is in prison until his sentence is up. That answer would have made for a really dull episode though, and wouldn’t have been a particularly good start to the career of She-Hulk, attorney for GLK&H. So, it’s a good thing for her that Blonsky’s case isn’t happening in our world. Since this is the world of the MCU we can make some assumptions about how the laws work and call it creative license.
We never really find out what The Abomination was convicted of but we can make some educated guesses. Lucky for us, Josh Gilliland of The Legal Geeks already did that for us in his article Justice for the Abomination. When she meets with Blonsky in episode 2, Jen also starts to form the basis of what would have been a pretty good defense for Blonsky at his trial. Blonsky, it seems, was experimented on by the US government and turned from a decorated soldier into a crazed -well- Abomination. That would give Blonsky a very real chance of prevailing at trial under a theory that he was not in control of his actions because of the unknown side effect of a drug. (We the audience may know that Blonsky also had Samuel Sterns add some of the Hulk blood serum to the Super Soldier serum and that might be a problem, but it doesn’t seem likely the prosecution would know about that and be able to use it in a trial). So, let’s assume that Blonsky agrees to a plea bargain which gives him the option of parole after some number of years and he’s now legally eligible. So, in that world can Jen prevail?
The Law:
Apparently, she can. We know that because we see the ruling at the end of the episode. But how accurate is what we see? We get a short look at the preparation for the hearing at the end of episode 2 and a quick peek at what a hearing might look like in episode 3. Let’s start with the prep though. Jen comes into the case after it’s already started when she’s assigned the file by her boss. This means that there has already been several meetings between the firm’s lawyers and Blonsky: he’s signed a fee agreement, they’ve prepared the necessary application, filed that application with the Parole Board, and gotten a hearing date set. It’s not impossible, or even unlikely, that after signing a big name client the firm partner would pass the case off to a more junior associate which is how She-Hulk would become involved. From there a good first step is to review the file, which we see Jen doing, and then to meet with the client to introduce herself. We see Jen’s first meeting with Blonsky and it’s plausible. She goes over some of the basic law with him and they form a bit of a rapport. It’s not even out of the question that Blonsky would try to sell Jen on his case like he does. Even the walk into the prison is fairly realistic with the warnings and the security checks (though the laser grid isn’t quite what we have in our prisons and Blonsky’s cell is straight out of the MCU). Then we see the time skip to the hearing and, much as I would sometimes like to skip straight to the hearing in a case, that’s one of the least realistic moments in the episode. There’s a Hulk sized amount of work that goes into any hearing, and even assuming that some of it had been done before She-Hulk took her new job, there’s way more than a single meeting with the client that goes into it. Let’s assume, for the sake of the article, that She-Hulk’s predecessor did all the briefing and memo drafting and there’s just the hearing prep left. That still leaves meeting with all the witness to go over their testimony, and that includes Blonsky (but more on that in a bit), meeting with Blonsky as the client to prepare him for how the hearing is going to operate, and of course practicing in front of Nikki like we saw in episode 1. That’s hours of work, so it’s understandable that they wouldn’t put it in a half an hour episode.
The Hearing:
So, that takes us up to the actual hearing- or almost. While She-Hulk is doing all of her work the parole board is doing theirs. In our world, the hearing representatives would review the parole application for eligibility and prepare questions for the inmate. There are no live witnesses at our world’s parole hearings, just the inmate and the victim (or a representative for the victim) who can make a statement if they so chose. Instead of testimony, they rely on documents submitted by the inmate, the original sentencing judge, and the US Attorney who prosecuted the case. Clearly, the world of the MCU doesn’t work that way and the parole hearing board took witness testimony. We’ll also need to assume that none of the victims in Blonsky’s case chose to make a statement at the hearing, which of course doesn’t mean that they didn’t submit something in writing which wasn’t read during the portion of the hearing they showed in the episode. The show takes some liberties with how testimony was presented, breaking each witness’ statement up into pieces and mixing them all together. Even in the MCU world though there’s no practical way to do that. It’s more likely that the witnesses would get to make their complete statements, one at a time. The Board would be able to ask each witness questions as well as simply taking their statements. Since we’re making a series of assumptions about the differences between our world and the MCU we don’t know with any great certainty how witnesses adverse to Blonsky would be handled, but there are two possibilities. Either someone would serve in a prosecutorial type role and call them, or -more likely- the Board would have reviewed Blonsky’s records, from before and after prison, and could request or require the appearance of any other witnesses they wanted to hear from.
That takes us to Blonsky’s statement. As the one applying for parole, he would have the right to make a statement in both our world, and presumably the MCU. The purpose of this statement is to convince the Board that he is reformed and should be released from prison on parole. We see how he does this in the episode and it’s not a bad depiction of how I expect it would really be done except for a few things. First and foremost, Jen wouldn’t be surprised by Blonsky making a statement. If he really wants to win his parole the Board is going to want to hear from him about how he’s reformed and why he won’t reoffend if released on parole. Since that’s the ultimate question of the hearing and really only Blonsky can answer it, it’s a good idea to have him speak to the Board. As I mentioned above, Jen and Blonsky would have thought through his statement together and practiced his statement, so there’s really no reason Jen should be surprised by him wanting to give it. The other oddity is Blonsky turning into Abomination. It stretches belief that this wasn’t something he and Jen would have discussed beforehand. It’s a fairly obvious sticking point for the Board in releasing Blonsky so it’s something that he and Jen should have discussed ahead of time. Jen, being an accomplished assistant district attorney, would have had a pretty good idea what the State’s interest would be in keeping Blonsky in prison so she’s in a good position to help Blonsky think of counter arguments to it. Blonsky, wanting to be released, would be strongly motivated to tell his attorney that he could control his Abomination form. Jen could have set that argument up better ahead of time, so that the Board didn’t get scared, the guards didn’t rush into the room, and so no one got accidentally hurt. It also doesn’t help your case to freak out your lawyer. Proper preparation for that hearing and Jen can set the tone for how that is presented. If she’s standing next to him, not running around the room in what appears to be a near panic, and calm instead of worried; that attitude can be infectious to others in the room. Especially the Parole Board. Handled well, Blonsky transforming into a totally controllable Abomination in front of the Board and everyone can be the most powerful bit of testimony in the hearing. You then get to present a decorated war hero, who was turned into a monster by barely sanctioned science (remember there’s no one left who knows that he asked for the Hulk blood that ultimately makes him Abomination), but who has managed to conquer that monster and is ready to be released back into society. The bit with putting his shoes together is an especially nice touch to demonstrate how gentle he is and how much control he has. Handled poorly (and without plot armor), Blonsky is summarily shot/zapped/blasted by whatever security measures the prison has in place and that ends the hearing really quickly.
The End?
So, Blonsky is released with some conditions that he must follow. This in and of itself is pretty normal. Someone released on parole would have a parole officer who checks in on them from time to time and makes sure they’re following the law. Someone who commits a crime in a car might not allowed to have a driver’s license or drive a car. We have little way of knowing however, if the conditions of Blonsky’s release are normal in the MCU. There’s some evidence in the comics to suggest that people released from jail are put under conditions restricting the use of their super abilities, but the MCU hasn’t delved deeply into that issue. Perhaps we’ll see more in the upcoming Thunderbolts project. In the meantime, good luck Emil and your soul mates. Stay out of trouble.
[1] Those prisoners sentenced for offenses committed before November of 1987 and who were sentenced to over 30 years can still apply for parole since they’re grandfathered into the system.
Gundam Wing: Space terrorists or interstellar combatants?
In 1979, the world was introduced to Mobile Gundam Wing (Gundam Wing) — an anime that depicts a dystopian future of Earth in the year 0068 of the Universal Calendar. Within Gundam Wing, we are shown that a war rages between the Earth Federation and those subjected to live in space – the Principality of Zeon. So, how did an interstellar war come to existence?
The Earth’s overpopulation and lack of communal resources forced the Earth Federation to begin to create orbital habitats in space. These orbital habitats, named Sides, grew from clusters of small colonies to large self-sustaining populations that were controlled by the distant Earth Federation. The Principality of Zeon knew that the Earth Federation’s claims that it accurately could understand and represent the struggles of those in the Sides were hollow. This is because the Earth Federation leaders were living comfortably on Earth.
The Gundam’s were not from Earth but were built in outer space to help equal the playing field against their Earthern counterparts. Despite the Principality of Zeon’s stance being akin to Patrick Henry’s claim of “no taxation without representation” we are presented with questions that must be answered. First, what laws create the legal framework that apply to the situation presented? Are there any even available? If international law is to apply, what kind of conflict exists between Earth and those outside of it? Secondly, what is the legal status of the Principality of Zeon? Lastly, is the creation of the Gundam Wing Suits in direct violation of the 1967 Outer Space Treaty? Answering these will help decide how and what protections if any that the Gundam pilots would be treated with.
Celestial Law
Celestial law is a relatively newer area of law which means its framework is still under development. Currently, states have agreed via the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) to follow certain guidelines when it comes to conducting their affairs off world. Article 1 of the Outer Space Treaty holds that states will follow international law when it comes to applying the laws laid out within the Treaty. Furthermore, within the Annex to the Outer Space Treaty we see that the Treaty incorporates resolutions from the United Nations preventing actions that support acts of aggression and other breaches of the peace. Now, that we know that celestial law has incorporated international law into its framework between states it gives us our needed springboard.
A. International Armed Conflict
International armed conflict (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.” A simple example would be World War II where multiple sovereign states engaged in conflict against one another. 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. 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. At first glance with Gundam Wing, this is perceived to be the conflict between the Earth Federation and the Principality of Zeon. However, the status of the Principality of Zeon makes this analysis murkier.
B. Non-international Armed Conflict
A non-international armed conflict (NIAC) occurs when a sovereign state is involved in an armed conflict with a non-state group. An example would the U.S. fighting against the Taliban or ISIS. 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 (AP) 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. AP II 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.” These aspects of NIAC are crucial and can turn how we approach the situation that is transpiring between the Earth Federation and the Principality of Zeon.
C. Combatants Defined.
The conflict frameworks provide the arena for determining what kind of combatants are to be allowed within their borders. However, not every fighter, soldier gets the ability to be classified as a combatant. Article (4) of AP II states that to be classified as a combatant one must: 1) wear arms openly; 2) wear a fixed symbol; 3) adhere to a chain of command; and 4) adhere to the principles of armed conflict. Typically, members of groups involved in NIACs against sovereign states are not given combatant status which means those individuals lose POW rights – an issue we wont discuss here. This will tie into how we look at both the members of the Earth Federation and those with the Principality of Zeon.
So what are they?
The conflict between the Earth Federation and the Principality of Zeon should be classified as a NIAC not an IAC. Why? At first blush, it seems that the two warring parties are sovereign states. The Earth Federation representing the states on Earth and the Principality of Zeon representing those within the Sides in space. However, the Sides were not designed to be inherently separate from Earth, but rather serve as an extension of Earth’s population and was maintained and operated by the Earth Federation. This means that the Principality of Zeon’s claim for independence exists on land, even if thousands of miles away, belonging to the Earth Federation making the situation a NIAC. The establishment of the conflict being a NIAC reduces the legal protections afforded to the individuals aligned with the Principality of Zeon especially those piloting the Gundam Wing Suits.
The Principality of Zeon members exist within a gray area of the law when it comes to status in the conflict. As stated above, the NIAC determination tends to preclude individuals from receiving combatant and POW status as the Geneva Conventions don’t apply to them except for AP II. So, even if Principality of Zeon members met this criteria, which I think they would satisfy, they still wouldn’t get combatant protection. However, they may get a generic status as a fighter and get protections under national laws for directly participating in hostilities. This means the Earth Federations law would have a lot of controlling weight here on how they would be classified and what rights they might have. What can be guaranteed though for those who fight for the Principality of Zeon is that they would get the protections afforded under Common Article 3 which ensures they won’t get tortured and their human dignity would be respected.
Out of this world
Gundam Wing Suits do not violate the Outer Space Treaty because they do not violate international law. International law contemplates the evolution of weapons and their use in both IACs and NIACs. The boundary lines for weapons really tends to focus on how the state or armed group chooses to use them. This means that an important factor in their use is to see if there is a human element that can differentiate between the targets to ensure a war crime isn’t committed. Here, the pilots of the different suits both for the Earth Federation and the Principality of Zeon have the means to distinguish between civilians and those fighting in the conflict. Further, the suits and their weapons are not designed to inflict superfluous injury and unnecessary suffering upon their opponents.
Watching the Gundam series, the individual suits are able to wreak havoc at a scale that one could equate to that of a nuclear bomb. Yet, the Gundam Wing Suits are not to be banned under the potential classification of being weapons of mass destruction (WMDs). Why? Wouldn’t it make sense that we banned something that could kill that many people? It does. But even in today’s world we still have nuclear weapons despite having a nuclear proliferation treaty that seeks to prohibit further development of this weapon system. Nuclear weapons exist within a gray area of international law; just know they play a critical role in global security despite the collective dislike of their existence. The suits don’t violate the treaty because they haven’t been classified as a WMD, and they are not nuclear based which would be a breach of the 1967 Outer Space treaty. Thus, they are still permitted to exist regardless of their ability to cause havoc at an unprecedented level.
Conclusion
Celestial law is the last frontier of law to be developed. With the application of international law, we are given a basic framework to build upon moving forward. International law provides us the basic left and right limits on how states and armed groups are to act in space, especially when it comes to conflict. This is needed because without guard rails we would see an abundance of issues that wouldn’t have any punishment mechanisms to deter these actions.
International law helps us understand that the conflict between the Earth Federation and Principality of Zeon is a NIAC based on one being a state and the other being an armed group rising up within the other’s territory. Because this is a NIAC this means they don’t get the maximum level of protection because they are not in an IAC and not combatants. From AP II to Common Article 3 to the Earth Federation’s national laws helps us see that Principality of Zeon members get basic protections if and when they are captured during their conflict. This means that
The Gundam Wing suits themselves don’t violate international law regardless of how dangerous people may believe them to be. They have a human pilot which helps them distinguish between protected classes and can make crucial decisions on using certain attacks. Further, the suits are not inherently designed to cause superfluous injury nor unnecessary suffering. Lastly, these suits are not nuclear based, and even if they were to be classified as a WMD I do not see them being banned because we have yet to even a universal ban on nuclear weapons. New weapons will always be a part of war to meet the needs of the conflict at hand. The Gundam Wing suits are just a clear example of this. Their deployment may change the international law frameworks that currently bind the Earth Federation and the Principality of Zeon. Yet, the Gundam Wing suits are not a violation of IHL and the pilots and members of the Principality of Zion are afforded some protections due to the nature of the conflict.
The Legal Geeks Panel Schedule @ SDCC 2022
We are proudly presenting three panels at San Diego Comic Con 2022, the first SDCC since 2019! Join us as we celebrate our 10th Anniversary with three panels celebrating Jaws, Star Wars, and Marvel movies.
Thursday 7/21/22
7:00PM – 8:00PM Jaws: The Trial – The Town of Amity is being sued by the families of shark attack victims! Was it right for Mayor Vaughn to keep the beaches open after the death of Chrissie Watkins? Was the medical examiner right to change Watkins’s cause of death to a boating accident? Join attorneys Michael Dennis, Mark Zaid, Danna Nicholas, and Kathy Steinman, as they argue before Judge Carol Najera. Featuring Valerie Tosi as Mrs. Kintner and Jeff May as Mayor Vaughn. Presented by The Legal Geeks. Room Grand 12 & 13, Marriott Marquis San Diego Marina.
Friday, 7/22/22
7:00PM – 8:00PM Law of the Star Wars Underworld. From bounty hunters to powerful syndicates and smuggling runs, the seedy criminal underworld of Star Wars isn’t for the faint of heart, but it plays an important role in the galaxy far far away. Have you ever wondered whether Din Djarin could legally carbon freeze his bounties, or if Boba Fett had grounds to demand tribute in Mos Espa? Join our panel featuring Circuit Judge John Owens, Judge Carol Najera, Stephen Tollafield, Christine Peek, and Gabby Martin, as they venture into the Star Wars underworld to explore some of the biggest legal issues, from the complicated business of bounty hunting to the shadowy operations of groups like the Hutts, Pykes, and Crimson Dawn. Moderated by Joshua Gilliland of The Legal Geeks. Room: 7AB
Saturday, 7/23/22
7:00PM – 8:00PM Law and Thunder: Legal Analysis of Thor and Doctor Strange. Who is the true owner of Mjölnir? What is the liability for breaking the multiverse? What are the legal defenses for Wanda of 838 for being possessed by Wanda of 616? And is there a cause of action for Zeus flicking too hard? Join our panel of lawyers for their legal analysis of Doctor Strange and the Multiverse of Madness and Thor: Love and Thunder. Featuring Judge Stan Boone, Jessica Mederson, Gabby Martin, Stephen Tollafield, and Megan Hitchcock. Moderated by Joshua Gilliland of The Legal Geeks. Room: 23ABC
Dungeons and Detention: How Marley Improperly Imprisoned Combatants and Civilians
Background
One of the hallmarks of some of the most recent episodes of Attack on Titan: The Final Season (AOT) has been the continual conflict between all three active parties: Marleyans, Eldians, and The Jaegerists. The Jaegerists, a new local military faction, found its genesis amongst the Paradis Survey Corps who adhered to Eren Jaeger and his pursuit of “The Rumbling.” He and other volunteers were detained by the Paradis military forces as punishment for insubordination during the assault on Liberio at the beginning of the season. We also see the detention of children. Specifically, Falco and Gabi who are members of Marleyan military who fought against the Paradis forces at Liberio and were subsequently captured. In both of these detention instances we see that international humanitarian law (IHL) has been violated.
You might be wondering how it was violated or why do we have rules on detention? Well, the goal of this article is not to address every single detention issue that arose – there are many; rather, it is to address the most prevalent violations. Secondly, it will aim to explain how the Geneva Conventions would apply and the rationale behind the rules.
Host of Violations
Detention itself is not wrong. Detaining prisoners of war (POWs) and civilians stretches back to the earliest forms of human conflict and is seen as a natural part of armed conflict. However, what has changed overtime is what we do with POWs and civilians once they are captured during an international armed conflict (IAC) and a non-international armed conflict (NIAC). An IAC exists when two states are in conflict with one another and a NIAC exists when a state(s) is in conflict with a non-state armed group. With this distinction comes separate IHL rules for the conflicts. IAC has more protections and the rules for detention are found in the Geneva Conventions (GC) – specifically, Common Article 3 (CA3) and GC III and IV apply. When it comes to NIAC, we have a much smaller set of rules and less protections and have only CA3 and Additional Protocol (AP) II that apply. But, the POW status isn’t something to be lightly given out. When looking to see who gets the protections Art. 4 of GC III helps guide us. It tells us there are four critical criteria to be considered:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
In AOT, we have an existing IAC between Marley and Eldian so those detained will have the respective GCs and CA3 apply and will have the coveted POW status. When it comes to the Jaegerists and their relations to respective states, those detained will fall under the smaller subset of rules for NIACs and will not acquire POW status.
a. Gender Separation
When it comes to POW detainment, GC III sets out the rules for how POWs are to be treated spanning from food to shelter to alerting families back home of their capture. When it comes to quartering POWs, Art. 25 states that in any event that women are POWs alongside male POWs that they are to have separate dormitories. Adding to this is that when it comes to overall treatment, CA3 and Articles 13 and 14 inform the detaining powers that they are to treat the POWs with the utmost core and dignity. Just because someone is a POW does not mean they are seen as lesser humans; rather, they should be treated with more care.
This is one of the clearest examples we have of an IHL violation when it comes to detention. As stated above in Art. 25 we are supposed to have separate quarters for individuals of opposite sex. The commentaries to Art. 25 note that in times of conflict securing separate quarters for opposite sexes can be difficult or infeasible; however, they are required to try to the best of the ability. If anything, if they can’t separate they need to ensure the women are not isolated and that they are provided with personal hygienic items.
In episodes 74 and 75, we are shown the Eldians putting all the prisoners in a single cell regardless of their gender. They were not lacking in rooms within the detention center nor was the detention site in a conflict zone which might prohibit gender separation. Rather, the cells were in the capital of the Eldian empire within the HQ building far removed from conflict. Here, Art. 25 speaks to the Marleyan individuals that were detained like Pieck, Gabi, Falco and the rest of Marleyan forces. For the Jaegerists, the gender separation requirement doesn’t apply because they are not covered by GC III. They do get the basic protections outlined in CA3 like “outrages upon personal dignity, in particular humiliating and degrading treatment” cannot be inflicted upon them once in captivity.
Collectively, both the Jaegerists and the POWs may have been subjected to another violation during their tenure in the cramped cell. At one point a Marleyan military member came into the detainment area and brandished a gun towards the prisoners threatening to shoot one or multiple members. Although the threat was short lived, they were killed, the action alone may have violated CA3. Specifically, it could be seen as violation subsection A of CA3 which provides that a violation occurs if there is “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”
The POWs and Jaegerists were not given adequate treatment at the threshold they are expected to have during a time of conflict. The lack of humane treatment, separation, and exposure to violence makes it more difficult for other states to see the need to reciprocate the GCs rules when it comes to when they detain since their own people didn’t have those protections.
b. Children and Detention
Children have no place in war. I mean GC IV and other treaties tells us that they are a protected class. Yet, in AOT, at the very front and center we see two children fully immersed in the horrors of war – Gabi and Falco. That alone is a law of war violation and won’t be covered here but if you’re curious here is another article that covers issues with children being involved in conflict. Instead, the focus here is to determine if there was a violation with Gabi and Falco in episode 70.
Gabi and Falco, ignoring the fact that they are children, qualify as POWs. How? As laid out above from Art. 4 of GC III, we need the individuals to carry arms openly, respond to a chain of command, wear a distinguishing symbol, and participate in actions that follow the rules and customs of the law of war. Gabi and Falco both wear the Marleyan uniform, have the symbol affixed to them, adhered to a chain of command in their respective unit, and for the most part followed the customs of war during armed conflict.
This means that their detention in AOT must meet the higher standards set out in GC III. In episode 70, we are shown that these two are detained together in what looks like a bedroom, a violation of Art. 25 if we’re being picky. Further, the guard enters the room and seems to go after Gabi. We don’t know his true intentions, so it is murky to try and claim a CA3 or Art. 13/14 violation. But, we do know Gabi responded with violent force ultimately killing the guard before she and Falco make their escape. Now, Gabi’s action on its face seems like it should be a violation; however, Art. 91, 92, and 93 of GC III which cover escapes are silent to this. The commentary for Art. 92 tells us that it’s a longstanding practice not to punish a POW for their actions taken during their attempted escape; rather, the only punishment should ascribed to the escape itself and no more. This is drawn from many historical treaties like the he 1874 Brussels Declaration, the 1907 Hague Regulations, agreements adopted during the First World War, and the 1929 Geneva Convention on Prisoners of War. So, I would say that the death is permissible and not a violation as the guard was a member of the opposing armed forces and is thus targetable. Just because the POW is detained doesn’t nullify their ability to target enemies in an armed conflict and stymieing this, I think would cause greater issues.
Conclusion
Detaining members of opposing forces is a natural element of an armed conflict. We know that how we treat those designated as POWs or with other legal statuses can effect how opposing forces will treat our own in this conflict and in conflicts yet to come. This means it is imperative to not only recognize GC III but to try and follow the articles as set out. Understandably this can be hard given varying circumstances of detention.
The Eldians could have done a much better job in failing to adhere to GC III with their flagrant mistreatment of their POWs and the Jaegerists under their purview. They had the means, the space, and the supplies to easily prevent the violations that were listed and the many that were not focused on. You can see that the failure to provide separate quarters or allowing the threat to multiple lives could lead to harsh reciprocal treatment to their forces by Marleyans if detained. This is exactly what we don’t want. It’s a tit-for-tat that can be avoided. Yet, this kind of maltreatment leaves an open wound that can fester and in the next conflict can make opposing parties more recalcitrant to adhering to the rules and willing to punish their POWs.
Lastly, is dealing with Falco and Gabi. Morally, most of the world finds children soldiers repugnant and directly considers their conscription to be a war crime. I agree, of course. However, here the task was to overlook this and to understand their detention scenario. Legally, Gabi and Falco got the correct treatment afforded to them as POWs and there didn’t seem to be any direct violation outside of separating the kids. Furthermore, Gabi’s killing of the guard is a natural part of armed conflict and he assumed the risk of death by wearing the uniform. She cannot be punished for it nor if she and Falco were recaptured could they have it used them as an aggravating factor that would make the next punishment more severe.
The Eldians, despite their rightful grievances against Eren and Marleyans, shouldn’t have let their emotions supersede the legal obligations they owed to those detained. The failure to adhere will only cause more waves in their relationships and shows to us the importance of maintaining clarity and due respect to others. Detention in armed conflict although common is important. It is a reflection on how we show the world how we perceive our enemies and is a way to provide a form of armed mercy. It is not something Eldia nor Marley nor the Jaegerists strive to achieve. It is something that they must achieve time and time again for the sake of future conflict.
Obi-Wan Kenobi Audio and Video Podcasts
Here is our review of Obi-Wan Kenobi, starting with Episodes I and II recorded at Star Wars Celebration.
Episodes I and II
Episode III
Episode IV
Episode V
Episode VI
Interrogating a Minor Princess of Alderaan
The Inquisitor Reva captured, shackled, and transported Princess Leia of Alderaan from Mapuzo to Nur. Could any information learned from a custodial interrogation of the 10-year old Princess be admissible in court?
Federal law requires that when a juvenile is arrested, the arresting officer “shall immediately” tell the child of their legal rights in language they can understand AND immediately tell the juvenile’s parents, guardian, or custodian, that the child was taken into custody. 18 U.S.C. § 5033.
The “rights” that 18 U.S.C. § 5033 include Miranda. The Miranda opinion was the result of a long line of cases that bars the government from using the statements of a defendant made during a custodial interrogation, to prove the case against the defendant, provided the statements were made before the defendant was told of their rights to remain silent and to an attorney. See, Miranda v. Arizona, 384 U.S. 436, at 444 (1966). The goal of this “exclusionary rule” is to prevent unlawful police conduct.
The Miranda Court specifically held:
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).
Assuming the Galactic Empire has similar laws to 18 U.S.C. § 5033, Leia’s parents clearly had not been notified of Leia’s arrest. Considering that Reva had Leia kidnapped in the first place, it is unlikely Reva is going to start following child protection laws at this point in the story. It is also a safe bet no Miranda rights were given to Leia. As such, nothing learned from interrogating Leia would be admissible in court.
Given the facts that Leia was both in shackles, in an interrogation room, had been transported from one planet to another, it is clear she is being detained. The scene begins with her [rightly] throwing down she was royalty and her father a Senator. Reva’s response to Leia’s “Don’t You Know Who I am” defense was that she had no rights on Nur as a Jedi sympathizer.
Children in custody have Miranda rights just as adults do to protect against self-incrimination and vindicate their right to counsel. Children can waive Miranda rights, but there are specific factors to evaluate. In a denial of a petition to the California Supreme Court, the rules for child waivers are spelled out. The case involved a 10-year old boy who shot and killed his sleeping father. The child was questioned by police, in the living room, with his step-mother present. The questioning was recorded on video.
In order for a Miranda waiver to be valid, it must be “made voluntarily, knowingly and intelligently.” The waiver must be made “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” In re Joseph H., 200 Cal. Rptr. 3d 1 (Cal. 2015), citing Moran v. Burbine 475 U.S. 412, 421, (1986).
The following considerations must be given to a juvenile’s waiver: age, experience, education, background, and intelligence, and “whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.’ ” In re Joseph H., at *2, citing People v. Nelson 53 Cal.4th 367, 375 (2012).
As Princess Leia is 10 going on 30, she had the intellect and maturity to understand her rights. This is evident from the Princess telling her captor she would tell them nothing, which was within Princess Leia’s right to remain silent.
Reva deciding to torture Leia is a very big Constitutional no-no.