Electronic Arts recently released DLC, or downloadable content, for Star Wars Battlefront in advance of Rogue One’s premiere this month. The DLC is entitled “Rogue One: Scarif,” referencing the planet of Scarif where much of the new content (and the Rogue One movie) take place. For those unfamiliar with Star Wars: Battlefront, the game and its DLC allow the player to participate in many of the epic battles which take place in Star Wars lore as some of the series’ most iconic characters. Particularly notable about the Rogue One: Scarif DLC was the inclusion of Jyn’s Solution and Krennic’s Offense, two weapons available by completing the appropriate “Hutt Contracts” in game. The “Hutt Contracts” are offered by the incomparable Jabba the Hutt, and are completed by killing other characters with certain weapons a specified number of times. Though the in-game murders are perpetrated by the player’s character, Jabba would also be liable for the player’s criminal actions through the Racketeer Influenced and Corrupt Organizations Act (“RICO”).
RICO states, in part, that “It is unlawful for anyone employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” Racketeering activity is defined, in part, as “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter or dealing in a controlled substance…which is chargeable under State law and punishable by imprisonment for more than one year.” Effectively, RICO extends criminal liability to the leaders of a crime syndicate who ordered another to commit, or assisted another in committing, the serious, specified crimes.
In order to be found guilty of violating RICO, it must be proved beyond a reasonable doubt that (1) an enterprise existed; (2) the enterprise affected interstate commerce; (3) the defendant was associated with or employed by the enterprise; (4) the defendant engaged in a pattern of racketeering activity; and (5) the defendant conducted or participated in the conduct of the enterprise through the pattern of racketeering activity through the commission of at least two acts of racketeering activity.
Jabba’s crime syndicate easily qualifies as an enterprise under RICO, which does not necessitate any sort of business entity, but merely a group of individuals associated in fact. By virtue of Jabba offering the Hutt Contracts to players, the players and Jabba are an enterprise unto themselves. Furthermore, as Jabba’s crime syndicate was substantial enough to be a primary source of wealth for Tatooine, it is safe to say that his criminal enterprise not only effected interstate commerce, but also interplanetary commerce. The Hutt Contracts, in particular, are exemplary of how Jabba’s enterprise impacts interstate commerce. Players who seek to complete the Hutt Contracts are not limited to one physical area to complete said contracts. Instead, players are able to travel from planet to planet to obtain a sufficient number of kills to satisfy the contract. As travel between planets to commit the murders is a necessary part of the gameplay, satisfaction of the Hutt Contracts necessitates an impact on interstate (and interplanetary) commerce. Association with the criminal enterprise is given in this matter, as we are aware that Jabba is the head of the crime syndicate in question by his offering of the Hutt Contracts, and the players are associated by virtue of their acceptance of Jabba’s unlawful contracts to kill people.
Lastly, the player, at the behest of Jabba, engaged in a pattern of racketeering activity by committing multiple murders in order to fulfill any of the Hutt Contracts. In order to establish a sufficient pattern, at least two acts of racketeering activity must be committed within ten years of each other, said activities must be related, and the activities must amount to or pose a threat of continued criminal activity. In the matter of the Hutt Contracts, the murders are completed within a short amount of time, as one is able to complete a contract within several matches. Furthermore, the racketeering activities of the Hutt Contracts are related, as they are offered proximately to one another, have similar goals, payments, methodologies, and rely upon similar repetition of unlawful actions. The Hutt Contracts also pose a threat to continued racketeering activities by the very nature of offering many murder-for-hire contracts which are fulfilled in different ways. One cannot simply complete all of the Hutt Contracts in the same manner.
Though Jabba could have been found liable for the many unlawful activities offered in the Hutt Contracts by means of the RICO doctrine, it is important to remember that Jabba’s criminal enterprise extended far beyond murder-for-hire. Realistically, as one of the Outer Rim’s most notorious crime lords, Jabba’s exposure to potential RICO liability was sizeable. Though Jabba may have been liable for a variety of racketeering activity, he nonetheless evaded the court’s justice for prosecution under RICO. Unfortunately for Jabba, he was unable to avoid Leia.
Every Star Wars fan knows the feeling from that epic moment when Luke fires his proton torpedoes and they go right into the exhaust port causing a chain reaction and blowing up the Death Star. When I attended the re-release many years ago the entire theatre cheered, however at some point you begin to wonder, “Who would design a massive battle weapon that could be blown up by any farm boy who could bullseye womp rats in Beggar’s Canyon in a T-16?” And, if you had family on that Death Star is there someone you could hold accountable for its poor design assuming the Empire were governed by U.S. law?
Who can you sue?
Rebels: Not for the exhaust port issue. There was a weakness, they exploited it and while they did blow up the Death Star they didn’t design it. So, while there are other grounds you may be able to sue them over it won’t be over the poor design of the Death Star. (Besides, even if you do get a judgment, how are you going to collect? You’d have to join up, convince them you had a death sentence on your head, and then hope they coughed up some credits so you could pay it off.)
Manufacturer: Probably not. Death Stars aren’t built for consumer use, at least not yet….
Contractor: Once again, probably not. It wasn’t shoddy work that caused it to explode. It was built as designed, which we know because the rebels are able to determine how to blow it up based on the stolen blueprints.
The Empire: Nope. Sovereign immunity says that legally the state can do no wrong, so you can’t sue it either criminally or civilly, unless it allows itself to be sued. Also, Darth Vader has killed people for less reason than that, so even if you could sue the Empire it would exponentially increase your chance of being choked to death by the force. But if a military contractor drew up the plans, you might possibly be able to hold them accountable….
Military Contractors scramble for cover
In Boyle v. United technologies, Inc., the Supreme Court held that “Liability for design defects in military equipment cannot be imposed pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States.
So, if some planet had a law saying you could sue the empire for design defects in military equipment you might have a shot. We can be sure, in this situation, that the Empire approved reasonably precise specifications for the Death Star. They knew what the Death Star was, they knew what it was supposed to be able to do, and they were the ones who constructed the “technological terror.” Reasonably precise specifications doesn’t require a contractor to justify the location of every piston in an engine, and is unlikely to require a contractor to justify the location of every thermal exhaust port.
And the equipment conformed to the specifications. They wanted a battle station that could blow up a planet, and they got a battle station that could blow up a planet. Further, everything seems to work as intended. The trash compactor compacts. The tractor beam pulls ships in. The thing even follows the Millenium Falcon through hyperspace. It just has that one flaw, which no one seems to know about until the Rebels show up to exploit it.
It’s the third piece, where the supplier warns the government about the dangers in the use of the equipment that were known to the supplier but not the government where things really fall apart. If you design a tank that has a tendency to overheat, thus causing the engine to kill in the middle of maneuvers, that’s the kind of thing people should know about; if you design a battleship with a hull that collapses on impact with anything, that’s the kind of thing people should know about; and if your technological terror can be defeated by shooting two proton torpedoes, which are readily available throughout the galaxy, into a thermal exhaust port creating a chain reaction that will cause your entire battle station to blow up, that’s the kind of thing you should definitely know about.
The Rebellion is prominent enough that one would assume that sooner or later the Death Star will get attacked. And the Rebels, after only a little time with the blueprints are able to determine the way to blow up the Death Star is to hit a little two meter exhaust port. In the movies, Red Leader takes a shot and while it’s not a direct hit the entire Death Star keels to and fro like a drunken sailor. And, if you knew that one exhaust port would blow up the entire battle station, wouldn’t you put something in front of it like a huge metal wall, or an auto turret? Based on the fact that the Empire didn’t put anything in front of it to keep out proton torpedoes, the reasonable assumption is it was a design defect an architect or engineer knew about but didn’t bother to share. And, by not pointing out that a direct hit would cause a chain reaction blowing up the entire space station, they would be potentially liable for the deaths of all the people on the death star.
Engineers and Architects on Defense
But would the engineers or architects have any defenses to being sued?
Nonjusticable what?
There are some things the courts won’t review out of deference to the other branches of the government, military decisions are one of them. You don’t want your military leaders in the middle of the war worried about whether or not they’re going to get sued because someone slipped and broke their leg. If it’s a nonjusticable political question they can’t be held responsible, but if their actions don’t require an evaluation of a military decision then the case could go forward because it’s reviewable. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1359-60 (11th Cir. 2007).
If the military is telling the contractor what to do then reviewing the contractors actions will require a review of the military order to the contractor, but if the military only provides general guidelines, allowing the contractor to use its own discretion in how something is done, then military decisions are not being questioned and the contractors actions are reviewable. SeeHarris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458, 466 (3rd Cir. 2013).
In the case of the Death Star it’s likely that a contractor would have been given significant discretion over how the Death Star systems were designed, and the Empire did not oversee the placement of every exhaust port, so the decision regarding the exhaust ports would be reviewable.
Things get messier then Jawa’s fighting over who saw a droid first.
This is not an area of settled law, and there are several tests available. We’ll go with the “combatant-activities, command-authority test” which has the most following at this point. It consists of two prongs: “(1) Whether the contractor is integrated into the military’s combatant activities—this ensures that preemption occurs only when battlefield decisions are at issue – and (2) whether the contractor’s actions were the result of the military’s retention of command authority—this properly differentiates between the need to insulate the military’s battlefield decisions from state regulation and the permissible regulation of harm resulting solely from contractors’ actions.” Harris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458 (3rd Cir. 2013)
Combatant activities “include not only physical violence, but activities both necessary to and in direction connection with actual hostilities.” Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948). ([S]upplying ammunition to fighting vessels in a combat area during war is undoubtedly a ‘combatant activity.’) The Court in Harris found that “Maintaining the electrical systems for a barracks in an active war zone is analogous to supplying ammunition to fighting vessels in a combat area and is certainly “necessary to and in direct connection” to the hostilities engaged in by the troops living in those barracks. Harris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458 (3rd Cir. 2013). In contrast, simply drawing up plans for a mobile battle station has little to do with actual hostilities, so likely does not fall under preemption.
Even if it did fall under preemption, the second prong, which asks whether the contractors actions were the result of the military’s retention of command authority, would still be unsatisfied. In Saleh v. Titan Corp. the court found “Because performance-based statements of work describe the work in terms of the required results rather than either ‘how’ the work is to be accomplished or the number of hours to be provided, 48 C.F.R. § 37.602(b)(1), by definition, the military could not retain command authority nor operational control over contractors working on that basis and thus tort suits against such contractors would not be preempted under our holding.” 580 F.3d 1, pp 9-10 (D.C. Cir. 2009) (internal quotations omitted.) In other words, if the Empire told a contractor they wanted a Death Star and, instead of laying out the process for how it should be built let the contractor decide the best way to build it to meet the Empires’ specifications, there would be no preemption.
Conclusion:
A case could be brought against a contractor who drew up the plans for Death Star because of the poor placement of the one exhaust port that caused the entire station to blow up, the court would just need to get to the contractor before Lord Vader does.
Fans across the world were filled with outrage and astonishment as they watched their hero Han Solo get carted off in Boba Fett’s Slave I at the end of The Empire Strikes Back. Who would be so evil as to turn in a hero of the rebellion to the Empire, just to have him frozen in carbonite? What if I told you that Boba Fett may not have been so evil? In fact, Boba Fett may have simply been carrying out a perfectly legitimate aspect of his employment as a bounty hunter.
Bounty Hunting Law
Bounty hunting is a profession which most people are most likely to hear about in movies or T.V.. However, bounty hunting is still a very real profession. The concept of bounty hunting people are familiar with is very different than actual bounty hunting. The idea that someone can abscond with a person after a price is put on his or her head sounds more like kidnapping than bounty hunting. The actual laws that govern bounty hunting in the United States date back well over 100 years. In 1872, the United States Supreme Court decided the case of Taylor v. Taintor. 83 U.S. 366 (1872). As a part of that decision, the Court determined that the person to whom an accused is remanded as part of his or her bail has sweeping rights to the accused. This essentially gave bounty hunters carte blanche to do as they wanted.
Today, those sames laws are not necessarily held as precedent. In fact, as is the case for all bounty hunting laws, each individual state determines the powers and authority a bounty hunter has within its jurisdiction. The common core to all of these laws though, revolves around the idea of bails. Not to be confused with the hay variety, bails are executed in criminal cases when a bail bondsperson or an agent acts as a surety and pledges money or property as a promise for an accused person to appear in court. Typically the accused executes a contract with the bondsperson whereby they are obligated to pay the bondsperson the premium amount on the bond, while in exchange they get the freedom to leave police custody.
Ultimately, the government of any jurisdiction determines when a bond can issue, as well as what the terms are for retrieving someone who jumps on the bond. Not all states require that something be done. In fact, in 2007 four states banned the process for commercial bail bonds altogether (Illinois, Kentucky, Oregon, and Wisconsin). However, it would appear that that same ban did not reach the jurisdiction of the Empire.
Securing the Bounty
Image Source: The Empire Strikes Back
In the Empire Strikes Back, Darth Vader contacted bounty hunters in an effort to track down Han Solo and the crew of the Millennium Falcon.The likely motivation was to capture those close to Luke Skywalker so the Empire could eventually trap him. Darth Vader goes on to say that he wants the crew captured by any means necessary as long as they’re alive, “no disintegrations.” Contrary to what Bon Jovi would have you believe, not every fugitive is wanted dead or alive. Boba Fett made this distinction clear when he raised his concerns on carbonite freezing to Darth Vader. He made it clear that he could not bring Han Solo back to Jabba the Hutt unless he was alive. Thankfully, this is how actual bounty hunters operate, although the rules governing this can vary.
Although jurisdictions differ on bounty hunting regulations, Connecticut General Statutes Sec. 29-152o-1 is clear on the application process for becoming what the state calls a “bail enforcement agent.” Assuming the Empire has similar regulations, the bounty hunters called by Darth Vader would need a license to enforce the bail laws set by the Empire, within the Empire’s jurisdiction.
Han Solo’s Bail Agreement
The first question is whether or not Han Solo had executed a bail agreement. Without a bail agreement, and without “skipping” on that agreement, then there would be no reason to apprehend Han Solo. It was made clear in A New Hope that Jabba was angered by Han Solo after he jettisoned cargo while his ship was threatened to be boarded by Imperial Authorities. Afterward, Jabba sent “bounty hunters” after him. Eventually, when Han Solo brokered a deal with Jabba to pay him back, plus interest, Jabba agreed to let Han Solo leave on his own recognizance. Ostensibly, Jabba is acting in his capacity as a crime lord, and is using Boba Fett to capture Han Solo so that he can “shake him down” for the money he owes him. Arguably though, if Boba Fett is acting as a government body on Tatooine, then he may have been tracking Han Solo in the capacity of a bail enforcement agent.
Since the Desilijic clan seems to be the only acting authority on Tatooine (other than the Empire), they may be a legitimate government entity, which can set bail. If Han Solo’s actions were viewed as a crime, which I’m sure in Jabba’s eyes they were, then allowing Han Solo to leave and pay him back more money acts as a kind of bail. This makes sense as after Jabba learns that Han Solo joined the Rebel Alliance, he sets another bounty on Han Solo because he has “skipped” on his bail. In this instance, the government entity would set the bail, as well as provide the bond. While this may seem unusual in the United States, the only countries that use a commercial bail bond system are the United States and the Philippines. In a global sense, other countries do not have privatized bail bonds, so Jabba’s issuance of a bond would not be that unusual.
Executing a Bond in a Different Jurisdiction
Image Source: The Empire Strikes Back
The problem then arises as to whether or not Boba Fett could have legally gone to Cloud City to apprehend Han Solo. Depending on the laws of Bespin, unless Boba Fett was properly licensed to act as a bail enforcement agent, then his actions would have amounted to criminal abduction. The Virginia Supreme Court recently decided this issue in Collins v. Commonwealth of Virginia, 720 S.E.2d 530 (2012). In that case, a bounty hunter from North Carolina travelled to Virginia to apprehend someone skipping bail. The Court determined that a bail bondsman licensed in another state does not have the authority to apprehend a fugitive bailee in Virginia. Similarly, Boba Fett may not have been licensed to operate in Bespin, and thus was not authorized to apprehend Hans Solo in Cloud City.
However, since Bespin, like Tatooine, is an Outer Rim planet, and the Empire was exerting control over those territories, it serves to reason that if we are assuming Boba Fett is licensed as a bail enforcement agent under the jurisdiction of the Empire, then he legally had the ability to apprehend Han Solo on any of those planets.
At the end of the day, Jabba’s “bounty” on Han Solo may have simply been a crime lord trying to collect the money owed to him. However, if we conclude that Jabba was in fact operating as part of a governmental entity on Tatooine, then Boba Fett may have been justified in bringing the criminal Han Solo to justice. Whether or not we conclude any actions by the Empire to be “just” is an argument for another post.
After our not-so-flattering analysis the Death Star’s strike on Alderaan, Tarkin probably would have reassigned us with the rest of the battle station’s Judge Advocate attorneys to the spice mines of Kessel to be smashed into who knows what. While our analysis demonstrated that Alderaan’s destruction was a grave breach of the law of war, that does not mean that any use of the battle station falls into the same category.
When you’re just trying to give a little sound legal advice…
We should feel a little pity for poor Director Orson Krennic, Governor Tarkin, and all those hardworking Geonosian builders. Despite all of the Galactic Empire’s resources and military prowess, their prized battle station was barely around for two combat engagements before some womp rat-murdering farm boy from Tatooine blew it up. Fortunately for us, the epic battle at the end of A New Hope provides an excellent chance to more fully assess the big question: Was the Death Star really just a gigantic floating war crime in space?
Once again, our analysis centers on four key principles: (1) military necessity; (2) distinction/discrimination; (3) proportionality; and (4) humanity/prevention of unnecessary suffering.
1. Military Necessity
In last week’s article, we saw that the Empire had no military necessity for destroying the peaceful planet of Alderaan. The Empire publicly tried to spin its destruction as a necessary act to safeguard security. However, in reality, they had intentionally obliterated a civilian populace. But Yavin IV was categorically different. The pristine moon hosted the Alliance’s secret central base, which was the priority target the Imperials had been relentlessly hunting for.
Anakin searched his feelings and knows the truth: Leia is a liar liar pants on fire.
Given Yavin’s importance, Admiral Motti, General Tagge, and the other Imperial Joint Chiefs would have rushed to green light the Death Star’s next laser light show by concluding that targeting the moon was undeniably necessary. The U.S. Army’s Field Manual 27-10, which covers the law of land warfare, defines military necessity as those measures indispensible for securing the complete submission of the enemy as soon as possible that are not forbidden by international law.
Imperials would first argue that attacking Yavin IV was a military requirement to eliminate the threat posed by the Rebellion, which formed the basis for their military necessity to attack. By the time of A New Hope, the Rebellion was not simply some disparate and disorganized group of agitators. From the Empire’s point of view, they had become a legitimate threat.
The Empire saw the Rebels as a mounting terroristic threat to its citizens. This view was driven in part by the fervent actions of some splinter Rebel cells, including the Plasma Devils squadron from Marvel’s Darth Vader comic and the Free Ryloth Movement from the Lords of the Sith novel and Rebels TV series. These cells often publically struck nonmilitary targets, causing alarming collateral damage. Despite often acting independently of the larger Rebellion, the Empire saw them as a single entity jeopardizing galactic stability.
The larger Rebellion’s ever-growing capabilities in armaments, espionage, and combat operations further fueled the Empire’s position that a decisive strike was essential. When the Death Star was completed, the Rebels weren’t fighting with mere Ewok spears or energy slingshots. They had amassed a sizeable fleet manned by highly skilled leaders, pilots, and soldiers.
Calculated Rebel espionage operations, such as the theft of the Empire’s top secret five-year plan in Rebels, compromised critical Imperial information. The Rebellion repeatedly showcased its ability to leverage that sort of information into effective attacks on Imperial forces, culminating in the operation to steal the Death Star plans, which we’ll soon see gloriously depicted in Rogue One.
General Tagge: Proving that the voice of reason can also have spectacular sideburns.
Therefore, the Rebellion had graduated from a pitiful band (admit that you just read that in Emperor Palpatine’s voice) into a sophisticated military force. Moreover, the growing swell of political support for the Alliance only enhanced the problem they posed. Influential Core World leaders like Mon Mothma and Bail Organa gave the Alliance a foundation of key legitimacy. Additionally, the Empire’s own tactics, such as Darth Vader’s brazen attack on Princess Leia’s consular ship, was readily galvanizing more political support for the Rebel cause. To the Empire, this combination threatened to trigger a repeat of the mass galactic secession that led to the Separatist Alliance and the awful destruction of the Clone Wars. Given this very real threat, the Imperials had an ample military requirement to pursue a pivotal strike against the heart of the Alliance.
Yavin IV presented the Empire with the target they had been chasing for years: a centralized collection of Alliance leadership and military forces. For years, the Rebellion’s decentralized structure made it incredibly difficult for the Empire to deliver any type of crippling blow. Imperial leadership therefore knew that catching the Alliance military en masse was their single best chance to end the conflict. Yavin IV was that chance.
Destroying the base would wipe out everything the Rebellion had built. The Alliance’s command and control would be gone and the bulk of its weapons and supplies destroyed. If that were not enough, the strike would doom Rebel morale, undoubtedly eradicating any remaining support for the group across the galaxy. That kind of distinct military advantage makes it clear that use of the Death Star against Yavin IV was an indispensible means of securing the Rebellion’s complete submission. Thus, the Empire had a major military necessity to destroy the moon.
When someone asks Han whether the Empire really had military necessity to blow up an entire moon.
2. Distinction/Discrimination
Next, unlike Alderaan, Yavin IV did not present the same types of major complications with distinction/discrimination. Recall that discrimination/distinction requires that military attacks be directed at military targets, not civilians or their property.
Unlike Alderaan, Yavin had no civilian population that would have been indiscriminately targeted by the Death Star’s attack. The moon’s original inhabitants, known as the Massassi, were long extinct. That left Rebel military forces as the only tenants on the planet. So, the Empire would face no issues with distinction/discrimination as to civilians on Yavin.
Likewise, the Empire’s attack would not have violated the law of war’s protection of civilian property. The Hague Conventions of 1899 and 1907 and the 1954 Hague Cultural Property Convention establish a general prohibition against attacking cultural property, including buildings dedicated to religion and historic monuments. The Rebel base sat within an ancient Massassi temple. Given the temple’s age and cultural significance it would be considered galactic cultural property and would therefore enjoy general protection from attack.
However, even protected places can lose their status and become valid military objectives. Article 52 of Additional Protocol I of the Geneva Conventions defines a military objective as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Furthermore, civilian property can lose its protection when the enemy misuses it. Cultural properties like the Massassi temples are no exceptions.
Despite being located in an ancient temple, the Alliance’s military headquarters on Yavin IV had certainly become a military objective based on its refurbished purpose and use. The temple had effectively been transformed into a major military fortification, complete with a command and control center, weapons, star fighters, and supplies of munitions and fuel. Accordingly, the Alliance’s Property Brothers-style conversion represents a misuse that would strip it of any protection under the law. While the temple may have originally been cultural property, its use as an Alliance headquarters made it a clear military target. Thus, there are no issues with distinction/discrimination when targeting it.
The inevitable destruction other unused temples in the attack would also not trigger a law of war violation. While their loss would certainly have been a serious concern, it was necessary under the circumstances, as we’ll see in our proportionality analysis.
The Massassi would be most displeased with the Rebellion’s major alterations to their interior decorating scheme.
3. Proportionality
Use of the Death Star against Yavin IV also would not violate the principle of proportionality. Generally, the principle dictates that the incidental loss of civilian life or property must not be excessive in relation to the anticipated military advantage. In Yavin IV’s case, civilian life was not an issue. However, as we noted above, obliterating the entire moon would destroy a fair amount of important cultural property. Despite the baseline rule, the law of war allows for the destruction of civilian property if military necessity imperatively demands it. In other words, protected property may be destroyed if necessary. This is also known as the “Rendulic Rule,” named for German General Lothar Rendulic, who employed scorched earth tactics in World War II, devastating large areas of northern Finland as his forces withdrew.
In Yavin IV’s case, wiping out an entire planet and its cultural property to destroy one base seems excessive on its face. But consider the alternative facing the Empire. They theoretically could have staged a conventional attack that would have spared the planet. The Rebel base was heavily shielded, similar to Echo Base on Hoth, which means that ground combat would have likely been necessary. Imperial troops would have to land and fight their way through the Yavin jungle before assaulting the temple. Once there, they would face a brutal and protracted battle through each level of the temple. Imperial units would inevitably suffer heavy losses with no guarantee of capturing or eliminating any high value targets. While the Rebels would also take casualties, their key assets would likely escape, just like in The Empire Strikes Back.
Alternatively, the Death Star gave the Empire the ability to achieve all of its goals with a single kyber crystal-enhanced shot. They would expend far fewer resources and would suffer no casualties in the process. Under those circumstances, that sort of huge military advantage is not outweighed by the costs of destroying the planet.
What’s the easiest way to get Force choked? Suggest that Yavin IV should be spared because of a few crusty old temples.
4. Humanity/Unnecessary Suffering
Finally, use of the Death Star on Yavin IV would not violate the principle of humanity. The Hague Regulations forbid using arms calculated to cause unnecessary suffering. Star Wars has its fair share of these, whether it’s Lok Durd’s defoliator cannon from The Clone Wars which could wipe out organic beings, or the Empire’s dreaded T-7 ion disruptor rifles which were used to disintegrate beings atom-by-atom. Even though the Death Star’s superlaser had incredible destructive power, it was not calculated to cause unnecessary suffering. Instead, it was intended as a tool capable of instantly wiping out large targets. So, despite causing a catastrophic loss of life, the superlaser remains a valid weapon.
In the end, the Empire would not have violated the law of war by using the Death Star on Yavin IV. Had the Death Star not been blown to smithereens, Tarkin would have offered a stern nod of approval at this sort of analysis. Because of this, the Alliance must have been relieved that Luke put a proton torpedo up the battle station’s gut. After all, there’s definitely no way the Empire would ever build the exact same weapon again…
Droids are not just made to suffer; Droids are made to be discriminated against. The bartender at the Mos Eisley Cantina took one look at C-3PO and R2D2 and told Luke Skywalker: We don’t serve their kind in here. We don’t want them here.
That is discrimination based upon being a droid. This is not surprising for spaceport known for being a wretched hive of scum and villainy. Whether or not it is illegal on Tatooine is another matter.
States and cities across the United States have made it illegal to refuse to serve people because of their race or color at taverns, tippling houses, or saloons. See, D.C. Code § 47-2902. The Equal Protection Clause of the Fourteenth Amendment prohibits discriminatory state action. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). In a case where two women challenged a tavern’s men only policy, the Court found that the licensing of the tavern was a state action to warrant compliance of the Fourteenth Amendment for the female plaintiffs. Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F. Supp. 593, 604-605 (S.D.N.Y. 1970).
California law states that all “persons” are “free and equal” and are entitled to the services in all business establishments of every kind. Cal. Civ. Code § 51. The Code further outlines that “free and equal” includes “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” Id.
Mos Eisley Cantina had an extremely broad range of patrons. There were humans, Defels, Lutrillians, Sakiyan, Advozse, Duros, Gotal, and multiple other races, varying in skin color, fur, limbs, horns, tusks, horns, and eyes. (For a detailed list, check out the forum in The Bothan Spy). The Cantina clearly accepted all races and genders, regardless of some extreme physical differences.
The problem for droids is they are not organic life forms. Droids are arguably not “alive” in the biological sense, despite the fact droids are programmed to have emotions. The fact droids are robotic devices with artificial intelligence can put them in a separate category from “organic” lifeforms. As evidenced in every Star Wars film, droids are treated as personal property, just as are pets.
Many places of public accommodation do not allow pets where food is sold, served, or handled. See, National City, California Code of Ordinances Sec. 8.16.060. While many of the patrons at the Cantina have many similar features to domestic and wild animals on Earth, those individuals were allowed in the Cantina.
Droids on the other hand are not organic. While many droids are often made in the image of human beings, such as C-3PO, they are not a “person” with “genetic information.” As human as droids are in Star Wars, they are not organic life forms. At best, they are lovable and loyal pets. Now, if the droids were like service animals, then that is possibly a different result if a human was denied bringing his service droid to the Cantina. See, N.M. Stat. Ann. § 28-11-3. Let’s be honest, we all want a comfort R2-D2.
The Mos Eisley Cantina’s discrimination against C-3PO and R2-D2 was purely on the fact they were droids. There is no justification based on health and safety to prohibit droids from entering the Cantina, especially considering a [naked] Chewbacca, Ponda Baba, and everyone else with fur could walk freely around the Cantina that served drinks for consumption. The practical reason the droids were not wanted in the Cantina, is they do not eat or drink, thus taking up attendee space that could be used by a paying patron. This is a discriminatory reason for refusing service, however, one that might be without a remedy on Tatooine.
Kylo Ren is a war criminal with sins equal to the My Lia Massacre. In his pursuit to find and kill his uncle Luke Skywalker, Ren lead First Order Stormtroopers to Jakku to recover a map to Skywalker. The Troopers opened fired on unarmed civilians and captured those left alive. Ren murdered Lor San Tekka with his lightsaber and ordered the Stormtroopers to “kill them all,” when questioned on what to do with the villagers.
All of these acts were before Ren committed Han-icide. While General Leia Organa might have unconditional love for her son, there are limits to a mother wanting a mass murderer back. At what point does Leia order Kylo Ren be killed?
The villagers on Jakku were civilians whose only crime was being in the way of the First Order. There is the legal maxim that “Enemy prisoners are not subject to summary execution by their captors. Military law has long held that the killing of an unresisting prisoner is murder.” United States v Calley, 48 C.M.R. 19, 25 (U.S. C.M.A. 1973), citing Winthrop’s Military Law and Precedents, 2d ed., 1920 Reprint, at 788-91. Moreover, “[w]hile it is lawful to kill an enemy “in the heat and exercise of war,” yet “to kill such an enemy after he has laid down his arms . . . is murder.” Id. Furthermore, nations are prohibited from committing murder on “persons taking no active part in the hostilities.” USCS Geneva IV, Article 3, section (1)(a).
The First Order Stormtroopers quickly overran the Jakku villagers. The civilians were rounded up and summarily executed. There is no colorable argument that the villagers were part of the Resistance, let alone offering resistance.
Kylo Ren literally quoted Lt. William Calley when he ordered the Stormtroopers to “kill them all.” In Calley’s appeal in the My Lia Massacre, the Court found the following:
Conceding for the purposes of this assignment of error that Calley believed the villagers were part of “the enemy,” the uncontradicted evidence is that they were under the control of armed soldiers and were offering no resistance. In his testimony, Calley admitted he was aware of the requirement that prisoners be treated with respect. He also admitted he knew that the normal practice was to interrogate villagers, release those who could satisfactorily account for themselves, and evacuate the suspect among them for further examination. Instead of proceeding in the usual way, Calley executed all, without regard to age, condition, or possibility of suspicion. On the evidence, the court-martial could reasonably find Calley guilty of the offenses before us.
Calley, at *25.
The First Order committed a war crime on Jakku by killing every civilian at the village. Kylo Ren could be prosecuted for giving the order to commit murder. The one person who refused to follow orders was FN-2187. First Order Stormtrooper FN-2199 should watch calling “Finn” a traitor, because Finn is the only one who refused to commit a war crime. That makes Finn the hero.
The Empire’s prized planet-busting weapon was arguably the pinnacle of destructive technology in the Star Wars universe…at least until the First Order one-upped them with Starkiller Base.
Easy, General Hux. Don’t get too proud of the copycat technological terror you constructed.
If Darth Vader had not sliced him in half like a stick of butter, Archduke Poggle the Lesser would have been proud to see the terror inspired by the battle station his insectoid brethren designed and helped build. The existence and use of such a powerful weapon begs a major question: Was the Death Star an orbital violation of the law of war?
“Oh, dear” is right, Obi-Wan.
Speaking of Poggle’s industrious underlings, the Geonosians, the law of war is more complex than one of their branching underground hives. Also referred to as the law of armed conflict or international humanitarian law, the law of war has evolved over millennia and is deeply rooted in history. In its present state, the law of war is comprised of a network of international agreements (e.g. treaties, conventions, or protocols), international customs (i.e. general and consistent practices of states stemming from a sense of legal obligation), and other similar sources.
Just like other laws, the various aspects of the law of war exist to prevent or control conduct. The law of war has two prongs: (1) Jus ad Bellum, or, for those of us still recovering from high school Latin class, the conduct of going to war; and (2) Jus in Bello, which is the regulation or control of conduct within war. In real world combat operations, military attorneys known as Judge Advocates are there to advise commanders at all levels on the law of war.
Someone please come talk Anakin out of law school. Once he starts down that dark path forever will it dominate his destiny.
Before someone like General Veers rolls his eyes and blasts me out of an airlock for raising the silly notion of rules for combat, Star Wars is no stranger to the core concepts behind the law of war. For example, Governor Tarkin himself acknowledged the difference between civilian and military targets in A New Hope when he threatened Leia with the destruction of Alderaan. Republic forces grappled with Separatist use of Twi’lek civilians as living shields in Season 1 of The Clone Wars. In Marvel’s Poe Dameron #4, everyone’s favorite bro, Poe Dameron, scolds a fellow pilot for breaking the rules of engagement by firing on First Order troops. While Star Wars may be littered with subtle references like these, scenes of galactic lawyers debating the rules are no more thrilling than the taxation of trade routes and senate hearings in The Phantom Menace. Nevertheless, that sort of foundation means that it is no stretch for us to apply the modern principles of the law of war to the Star Wars universe. For simplicity’s sake, we’ll use the real world rules that the United States follows in an international armed conflict.
It’s as if millions of voices [of movie watchers] suddenly cried out in terror…The Death Star was the ultimate power in the universe, which means we should look to the law of war’s second prong, jus in bello, to best judge its uses. Four key principals make up the foundation of this prong: (1) military necessity; (2) distinction/discrimination; (3) proportionality; and (4) unnecessary suffering. Thanks to a suspiciously convenient design flaw (I’m looking at you, Galen Erso), the Death Star saw limited combat. Its two engagements provide a stark, but useful contrast. We’ll assess the destruction of Alderaan here and contrast it against the Battle of Yavin in a subsequent article.
Let’s state the obvious here: had they not been blasted into a fine particulate, Tarkin, Motti, and the whole gang would be in big bantha poodoo for the attack on Alderaan. As an underpinning of the four principles above, the law of war explicitly prohibits intentional attacks on civilians and non-combatants. Additionally, civilian populations are protected from direct attack. The Hague Tradition, named for the 1899 and 1907 Hague Conferences, also outlaws the attack or bombardment of undefended towns or villages.
If the law of war were illustrated, its various authors would have used a picture of a bunch of Alderaanians as the textbook example of persons you definitely cannot target. Alderaanian society was steeped in pacifism and its people generally possessed no weapons. The planet itself was also undefended, with no defensive fleet or orbital/planet-based offensive weaponry.
Despite this, Alderaan still had meaningful ties to the Galactic conflict and the Rebellion. One of the planet’s most prominent figures, Viceroy Bail Organa, was a founding member of the group. Princess Leia followed in her adoptive father’s footsteps, escalating her role with the Alliance as she got older. With two of the most powerful Alderaanians actively aiding the Rebellion, it’s reasonable to conclude that others on the planet were also involved with the group in some similar way.
The Empire might therefore argue that those circumstances offered a clear military advantage that outweighed the inevitable collateral damage of the planet’s destruction. Civilians do not enjoy an unending wellspring of protection. Pursuant to Additional Protocol I of the 1949 Geneva Conventions, civilians lose their protection while they take direct part in hostilities. Similarly, under Hague Regulation IV, Article 25, civilian structures can lose their immunity to intentional attack if their destruction would offer a definite military advantage. Imperials would argue that Bail had long forfeited his civilian protection due to his role with the Rebellion. The same goes for any Alderaniaans engaged in acts that were likely to cause actual harm to Imperial armed forces. For argument’s sake, we’ll assume that Organa and certain Alderaanian rebels lost their protection as civilians.
Ever the calculating tactician, Tarkin would forcefully proclaim that a high value target like Organa was a valid and necessary military objective. He would think the same of other Alderaanian Rebel agents. By destroying Alderaan, the Empire could achieve two critical military objectives with one swift stroke: (1) deliver a hammer blow to the Rebellion by eliminating one of its key leaders and sources of support; and (2) quell potential Alliance support in other systems by sending a resounding message about their fate if they rebelled. Accomplishing those objectives would destabilize the Alliance High Command, disrupt Rebel supply lines, and likely crush Rebel morale across the galaxy. Those would have been definite major military advantages. Although Tarkin conceded that Alderaan was not a military target, he would have coldly brushed that concern aside, reasoning that those military advantages demanded use of the Death Star.
Unfortunately for Tarkin and his comrades, the existence of military necessity does not justify using measures that are forbidden by the law of war. Military necessity is generally not a defense for acts in violation of customary and conventional laws of war. Protected persons, such as civilians, may not be intentionally targeted under any circumstances. Even dire military necessity is not an exception. Additionally, the concept of distinction and discrimination, set forth in Additional Protocol I of the Geneva Conventions, requires that military attacks be directed at military targets and combatants, not at civilians.
In World War II, Germans employed a concept known as Kreigsraison, which was frequently used to justify civilian casualties. Under Kreigsraison, a battlefield commander could set aside the rules of warfare if he determined that the military situation required it. German commanders repeatedly used the concept as justification for numerous brutal practices, such as attacks on civilian merchant shipping and the execution of prisoners. Their rationale was largely rejected in the Allied criminal prosecutions that followed the war. In United States v. List (the “Hostage Case”), the Tribunal was emphatic in its rejection of the concept, stating “[m]ilitary necessity or expediency does not justify a violation of the positive rules…the rules of international law must be followed even if it results in the loss of a battle or even a war.”
The Death Star was no precision weapon, which means that Alderaan’s entire population was unavoidably in its crosshairs. Distinction between a handful of military targets and swaths of civilians was therefore impossible. Furthermore, no amount of Imperial military necessity overcomes the prohibition against indiscriminately attacking the entire planet’s civilian populace. Consequently, Tarkin’s rationale cannot justify use of the Death Star against Alderaan.
The Emperor is most displeased.
As if Tarkin needed another reason to cast his Imperial Judge Advocates into the Great Pit of Carkoon, the Death Star also presents a proportionality problem. The concept of proportionality does not mean that the Imperials must fight Rebels with similar weapons. For example, if an enterprising Rebel soldier fires on Imperials with a DH-17 blaster pistol, proportionality does not mean that the Imperials can only fire back with another blaster pistol.
Instead, under Article 51 of Additional Protocol I to the Geneva Conventions, proportionality is the requirement that in an attack expected to cause injury/death to civilians or damage/destruction of civilian property, such loss must not be excessive in relation to the anticipated concrete and direct military advantage. If the target is purely military with no known threat to civilian personnel or property, proportionality is not an issue. So, to go back to our woefully unequipped Rebel friend, if he was firing that trusty DH-17 on Imperials while standing in an empty and wide-open field on Lothal, the Empire could happily fire on him from orbit with a Star Destroyer’s turbolasers if they wished. Proportionality would not come into play, even though the Empire was effectively squashing an ant with an anvil.
However, in Alderaan’s case, proportionality analysis would be necessary. As discussed above, the Death Star’s lack of precision means that the death of civilians and destruction of their property was a given. Alderaan itself was not a valid military target, but Viceroy Organa and other Rebels on the planet were. Despite Organa’s importance to the Alliance, he was just one man. Furthermore, while many Alderaanians likely sympathized with the Rebellion’s cause, it’s unlikely that more than a small contingent of them were participating in a manner than would strip them of protection under the law. Reducing an entire civilian planet to an asteroid field in order to destroy a few Rebels and make a point to the galaxy is per se excessive. Even a very generous assessment of the military advantage gained in eliminating them would not outweigh the catastrophic loss of civilian life and property.
Ultimately, the Empire knew exactly what it was doing when striking Alderaan. Tarkin is no fool and he built his military career upon brutal yet effective tactics that routinely stepped over the line. From his ruthless beginnings reclaiming the Seswenna sector and committing the Antar Atrocity in the Tarkin novel to smashing resistance on Lothal in the Rebels TV series, Tarkin’s record speaks volumes about his approach to warfare. For a commander like him, a peaceful planet like Alderaan was always going to be the Death Star’s first target. Obliterating it sent a resounding message: If the Empire can so coldly destroy a pacifist planet like Alderaan, they would have no mercy for any system supporting the Alliance.
DISCLAIMER: The author is writing in his individual capacity. His views are expressly his own. He does not speak on behalf the Department of Defense or the United States Army.
