With dozens of large-scale armed conflicts going on in the world, in Ukraine and elsewhere, a prospective client is bound to walk through your door one day, accused of war crimes. Well, the chances are at least higher if you practice this area of law. Should you receive such a client, this article will prepare you for your first war crimes case by exploring the violations of the law of armed conflict (LOAC) committed by everyone’s favorite war criminal, Darth Vader.
Let’s assume that somehow we’ve managed to capture Mr. Vader. Where could we try someone like this, whose alleged war crimes affected hundreds of states all over the galaxy? If each of his victim states tried him in their courts, he would die of old age without ever serving a day in prison. Instead, defendants with this many victims have historically been tried in an ad hoc international war crimes tribunal, with his various victim states contributing to the tribunal’s judges, prosecution team, and defense team.
This tribunal should anticipate that as soon as it convenes, Vader will try to wiggle out of liability by challenging its jurisdiction. And he would have a strong point, to argue that no court on Earth has any right to try an alien whose alleged crimes took place “a long time ago in a galaxy far, far away.”
As unique as this case may be, the trial of Adolph Eichmann offers useful precedent. As an SS officer, Eichmann designed and executed the Holocaust, murdering about 6 million Jewish people. After the Nazi government fell, he fled to Argentina and assumed a new identity—at least, until 1961, when Israeli commandos swung by his new home and brought him on an all-expenses-paid trip to Israel. There, the attorney general arraigned him in Jerusalem’s district court on charges of war crimes.
His defense team argued that Israel lacked jurisdiction, because the alleged conduct took place in Europe, years before Israel even existed. This would be a compelling argument in most cases, but LOAC keeps things interesting. The court found that his alleged crimes were so universal in character as to be crimes against the international order itself, and therefore prosecutable by any state. This concept has since evolved into the doctrine of universal jurisdiction.
While Vader can convincingly argue that he should be tried on a planet where his actions took place, that would not deprive an Earthly tribunal of its universal jurisdiction. Vader cannot even claim that the law is being retroactively applied to him, as the Nazis argued in their Nuremberg trials. The events of Star Wars may have taken place “a long time ago,” but they couldn’t have been that long ago if he’s still alive.
With those issues resolved, let’s see what charges he might face.
In “The Phantom Menace,” Vader is a 9-year-old, born as Anakin Skywalker on the planet Tatooine. He is a slave, but he wins his freedom in a podrace, then joins some Jedi on a diplomatic mission. Like most of the Jedis’ diplomatic missions, this one ends with extreme violence, and his Jedi friends let him fight on a battlefield as a child soldier.
Would that have been his first war crime: fighting as a child? For guidance, we would first look to the Hague Conventions and Geneva Conventions, which serve as the foundational texts of the law of war. They say nothing about child soldiers, but they receive updates from treatises known as Additional Protocols. In Article 4(3), Additional Protocol of 1979 establishes an age limit to combatancy, providing that people under 15 years old “shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.”
This prohibition affects the Jedi who let Anakin take part in hostilities, but it does not penalize him for fighting while underage. That said, for as long as he fights he is lawfully targetable and still liable for any war crimes he commits while fighting underage.
“Attack of the Clones” takes place a decade later. Anakin is now a Jedi in training, but he starts having nightmares about his mother. Concerned, he returns to Tatooine, only to learn that she has been abducted by a group called the Tusken Raiders. He finds her in a raider camp, gravely injured. She dies in his arms. Enraged, he massacres the camp, and later confesses that he killed everyone—man, woman, and child.
For a defense lawyer, evidence of your client committing a massacre is pretty bad news. But Vader’s team has two points to make. First, Anakin’s attack cannot be a war crime if there’s no war going on. The war in Episode II is a fight between the Galactic Republic and a separatist movement of other planets. This is an armed conflict between two or more states, so it would be classified as an International Armed Conflict (IAC).
The Raiders belong to neither side in that IAC. If anything, they are probably unaware of the “star war” going on around them. But they may still be engaged in another kind of armed conflict, the Non-International Armed Conflict (NIAC). An NIAC occurs when organized actors are engaged in prolonged violence, such as a civil war or insurgency.
The Raiders are an organized group, violently raiding people all over Tatooine. This has been going on so long that raiding is right there in their name. As such, the tribunal might find that at the time Anakin retaliated, there was an ongoing NIAC between the Raiders and, well, everyone else on Tatooine.
If so, LOAC applies, and LOAC requires belligerents to distinguish between lawful and unlawful targets. Anakin would be liable for a serious offense if he intentionally targeted any unlawful targets during his rampage. But could his defense team argue the Raiders were all lawful targets?
Civilians are unlawful targets unless they are directly participating in hostilities (DPH). When the Raiders kill and abduct people, that is about as hostile as it gets. Arguably, the raid that involved Anakin’s mother was not quite over, since they were still holding her hostage. Should that mean that everyone in that camp was still DPH? That is what Vader would insist. There are no surviving witnesses to this event, and scavengers have long since seized or taken apart the evidence; so I have a bad feeling about the prosecutors’ ability to prove otherwise.
In the next part of this series, we’ll examine Vader’s other alleged crimes, picking up with Episode III and then exploring “Rogue One” and the original trilogy of films.