International Law
| Publication year | 2023 |
| Pages | 42 |
FEATURE | INTERNATIONAL LAW
This article introduces attorneys to the international law doctrines of the law of war, through a hypothetical war crimes trial of everyone's favorite war criminal, Darth Vader.
With high-intensity armed conflicts going on in Ukraine and around the world, it's only a matter of time before a prospective client strolls into your office, accused of some pretty serious war crimes.[1] This article will help you hit the ground running on that case by introducing you to key concepts in the law of armed conflict (LOAC), through the hypothetical trial of the infamous war criminal Darth Vader. Even if you have no intention of taking such cases, having a basic understanding of LOAC can help you better understand important current events as they unfold, and better understand their international law implications.
Forum
Somehow, we've managed to capture Mr. Vader. Before we can charge him with any war crimes, we would need to decide the issue of forum. Where can we prosecute such a unique defendant? Civilian courts, military courts, and international tribunals can all have jurisdiction to try alleged war criminals in certain circumstances.[2] Each type of court[3] has done just that in the past, with varying levels of success.[4] But only so much justice can be served by any one state's civilian or military courts for a defendant who, like Vader, has (allegedly) committed a staggering number of atrocities against a number of people. Our international war crimes court, the International Criminal Court (ICC), is not an option in this case, as no one had the foresight to extend its jurisdiction over extraterrestrial defendants.
Since Vader's offenses affect so many members of the international community, while still escaping the ICC's jurisdiction, the venue would most likely be an ad hoc international tribunal. Like the tribunals that convened in Nuremberg to try Nazi war crimes, in Manila to try Imperial Japanese war crimes, and in The Hague to try former Yugoslavian war crimes, this tribunal
“Civilian courts, military courts, and international tribunals can all have jurisdiction to try alleged war criminals in certain circumstances. Each type of court has done just that in the past, with varying levels of success.”
would likely have a panel of judges made up of leading international law scholars and jurists, as well as a team of defense attorneys and prosecutors drawn from the various victim states.
Extraterritorial Jurisdiction
Once our tribunal convenes, the defense will undoubtedly move to dismiss all charges for lack of jurisdiction. As international law scholar Richard Baxter once put it, "The first line of defence against international humanitarian law is to deny that it applies at all."[5] But Vader would have a point: How does any court on Earth have jurisdiction over crimes allegedly committed "a long time ago in a galaxy far, far away"? Adolph Eichmann raised the same question at his trial. As an SS commander, he oversaw the execution of Hitler's "Final Solution," systematically murdering about 6 million Jewish people and millions of others.[6]After the war, he fled to Argentina and kept a low profile—at least until 1960, when a team of Israeli commandos stopped by and offered him a free trip to Jerusalem.[7] There, Israel's attorney general arraigned him in the city's district court on charges of "crimes against the Jewish people, crimes against humanity, and war crimes."[8]
For most of his trial, Eichmann famously leaned on the so-called Nuremberg defense to argue that he was merely following orders.[9] He stuck to this defense even with his last words: "I had to obey the rules of war and my flag."[10]But first, he argued that Israel could have no jurisdiction over alleged offenses that took place a long time ago (before the state's very existence), in a land that was far, far away.[11]The prosecution disagreed, arguing that his atrocities were so universal in character that they were not only offenses against specific peoples or states, but also offenses against the international order itself. As such, any state—even new ones—should have jurisdiction to prosecute a defendant like Eichmann.
The court found that it had extraterritorial jurisdiction over Eichmann and his offenses.[12]It reasoned that his offenses did not take place a long time ago or in a land far, far away because Israel inherited the sovereign status of the British Mandate, the Jewish population of Palestine actively participated in the Allied struggle against Nazism, and Eichmann himself visited Palestine in 1937 to coordinate with its virulently anti-Semitic leadership.[13] In addition, his offenses harmed the State of Israel by depriving it of millions of citizens, and about half of all Israelis were either Holocaust survivors or relatives of Holocaust victims.[14] The court also found that Eichmann's actions were "grave offenses against the law of nations itself" and therefore afforded jurisdiction to any member of the international community.[15]
That concept has since developed into the modern-day doctrine of universal jurisdiction.[16]Under this doctrine, war criminals can be prosecuted wherever they are found because their crimes are crimes of international concern.[17]The issue of retroactively applying law would also not apply here, because however long ago the events of Star Wars took place, clearly they weren't that long ago if we somehow managed to capture Vader alive. With the preliminary issues of venue and jurisdiction out of the way, let's consider what offenses Vader allegedly committed.
Episode I: The Phantom Menace
Vader is a 9-year-old in The Phantom Menace, born as Anakin Skywalker. He is a slave, but he quickly earns his freedom in a dangerous race, and then joins a pair of Jedi space wizards on a diplomatic mission.[18] Being very responsible adults, they immediately bring him into a war zone and let him join the fight as a child soldier.
Fighting as a child soldier—would this be Vader's first offense against the law of armed conflict?[19] In most areas of criminal law, our answer lies in a statute that defines all of the offenses, their elements, and key terms. To keep things interesting, the rules governing lawful wartime conduct are spread across dozens of treaties. Each of these treaties has its own unique array of signatories, and its own unique way of defining hardly any key terms. The laws of armed conflict also derive from the norms of states engaged in war ("customary international law"), like a common law of war.[20]
Is there any treaty or norm addressing child soldiery? In fact, there is. The Hague C onvention of 1907 and Geneva Conventions serve as the foundational texts of the law of armed conflict, and they receive occasional updates from treatises known as the Additional Protocols.[21]In Article 4(3), the Additional Protocol of 1979 establishes an age limit to soldiery: people under age 15 "shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities."[22]
Given this language, Anakin's Jedi friends might want to lay low for some time, having let an underage child take part in hostilities. But Anakin himself commits no offense by fighting as a 9-year-old. To the contrary, child soldiers who are captured are typically treated as victims, not offenders. Like any other combatant, though, l'enfant Vader is lawfully targetable by hostile forces for as long as he fights, and he can still commit a war crime while fighting.[23] As repulsive as it may be to target child soldiers, combatants and noncombatants alike have a right to self-defense, and letting children fight in safety would only encourage bad actors to arm even more children. Episode I does not depict him committing a war crime, leaving his prosecutors with nothing to charge him for—so far.[24]
Episode II: Attack of the Clones
In Attack of the Clones, Anakin is a 19-year-old serving as a bodyguard for Senator Padme Amidala. He has a mixed record as a guardian, considering that he goes beyond the call of duty to save her life several times and even chases down a would-be assassin, but he also spends the entirety of the film sexually harassing her.[25] That peacetime misconduct is neither here nor there, though. The LOAC analysis picks up toward the middle of the film, when Anakin starts having nightmares about his mother.
Concerned, Anakin abandons his post to visit her on the desert planet of Tatooine. There, he learns that a nomadic group, the Tusken Raiders, has abducted her. He tracks down a Raider campsite and finds her there, gravely injured. She dies in his arms. In a fit of rage, he unsheathes his lightsaber and starts striking down every Raider in sight, just as the camera cuts away. If there is any uncertainty about what happened, he later admits to Amidala that he killed everyone in the camp, including women and children. (She marries him anyway just a few scenes later.)
The massacre of the Raiders certainly sounds like a war crime, but is it? There is no shortage of international treaties that prohibit the intentional targeting of noncombatants during an armed conflict, but is there an armed conflict in this scene? Anakin's attack can only be a war crime if there is a war going on.[26] If the massacre is unrelated to any armed conflict, it is certainly still tragic and worth prosecution, but the governing law would be Tatooine's criminal code, or perhaps the code of Jedi ethics, but not international law.
The main armed conflict in Episode II pits the Galactic Republic against a separatist movement of breakaway planets. Assuming that planets are the equivalent of states, Episode II s armed conflict involves violence between two or more states, and therefore falls into the category of armed conflict known as international...
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