Regarding War Crimes

I actually wasn’t planning on harping on law and war crimes with regards to chapter 101 any more than I’ve already done, and this post is probably premature given what we still don’t know. But I think it might be useful. There’s a lot of debate on what’s going on in Marley right now, and I think it’s safe to say that it’s Eren’s actions that have people most uncomfortable. Specifically, the deaths of the civilians in the building and in the crowd.

So I want to take some time to put this into a real-world context, by looking at our world’s laws as a comparison. Like any comparison of the real world with fiction, this is inherently unfair: these laws don’t exist in the fictional world. And like all laws, they don’t necessarily line up one-to-one with a person’s individual ideas of morality–laws can be just or unjust, and it’s legitimate to disagree with a law, to believe it goes too far or not far enough. But in general, a law represents the distilled and codified version of the sense of ethics of the culture which created them, and because of that they can be very clarifying. So:

By the standards of our world and the International Criminal Court, which has jurisdiction over international crimes like war crimes and genocide, based purely on what we know or can infer as of chapter 101: provided Eren is working with a plan, his actions at the festival would not constitute a war crime, and would not be considered out of place or exceptional in a modern war.

Here’s what the ICC’s Chief Prosecutor said in 2006 when similar questions came up regarding the invasion of Iraq (emphasis mine):

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. […] A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).

A few notes, using the wording directly from the Rome Statute¹:

• “the anticipated military advantage”–it doesn’t matter if something goes wrong and they don’t get the gains they were hoping for, the intention is what matters;
• “the anticipated civilian damage or injury”–it doesn’t matter if something goes wrong and a clearly excessive amount of civilian casualties results, the calculation made beforehand is what matters;
• “would be clearly excessive”.

That last one, you might point out, is exceedingly subjective. What constitutes a “clearly excessive” amount of casualties? But that indicates a very important piece of context: these charges are almost never brought up alone.² Instead they are levied as additional charges against someone whose methods of war were themselves illegal³, or who has violated international law in other ways. This is, among other reasons, because civilian casualties are considered such a common–and unavoidable–part of a war. A commander’s judgment on whether the expected casualties are “clearly excessive” is rarely challenged in the first place.

Of course, there is a key question here: whether Eren is working according to a larger plan. The emphasis that the law places on intentions mean that if Eren is simply rampaging, then the charges of war crimes apply. But if there is a plan, and Eren expects to gain some military advantage from it on behalf of Paradis, then they most likely do not. We can’t answer that question yet, which is why I was hesitant to write this post. But I decided it’s probably worthwhile to add this to the conversation, even prematurely.

My hope is that by writing this up, rather than closing the debate on Eren’s actions, we can clarify the conversation we’re having about them. Because we, as a society, have had this conversation before, and it’s still ongoing: whatever your opinions on this development, someone else, somewhere, has already expressed them more clearly and eloquently in a real-world context; and someone else has clearly and eloquently disagreed with them. Part of the advantage of the clear parallels Isayama draws between this story and real military history is that those conversations are so relevant. Isn’t speculative fiction truly at its best when it provokes thought and debate about our world?

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1. In Article 8(2)(b)(iv) here. Article 51(5)(b) of Protocol I of the Geneva Conventions (here) is also relevant, but says basically the same thing. ↩︎

2. I say “almost never” because I haven’t actually read through all the case law where Article 8(2)(b)(iv) charges were brought up–I only have so much time! ↩︎

3. Our world’s international law is notably silent on the question of whether titan shifters are considered acceptable weapons of war. ↩︎