You're listening to season nine of Mobile Suit Breakdown, a weekly podcast covering the entirety of Sci-fi mega franchise Mobile Suit Gundam, researching its influences, examining its themes, and discussing how each piece of the Gundam canon fits within the changing context in Japan and the world from 1979 to today.
This is Episode 9.9. Your fave is a War criminal, part two. And we are your hosts. I'm Tom, Gundam fan, and while I may not be remotely competent to practice international war crimes law, I am arguably the most qualified, currently active Gundam podcaster named Tom to tell you why your favorite little Gundam guy is actually a criminal monster.
And I'm Nina, and I wouldn't have thought it was possible, but I'm starting to run low on research ideas. Mobile Suit Breakdown is made possible by 716 paying subscribers. Thank you all for keeping us genki. Special thanks to new patron Josh L. Something and to Slice the Light, who supported us on Kofi, and Thomas, who bought us several books from our wish list. If you enjoy MSB help keep us independent and ad free by subscribing on Patreon, making a one time payment on Ko Fi, buying us research materials from our wishlist, or writing us a review. Wherever you listen to podcasts, links to all of the different ways to support us are on our website. Gundampodcast.com slash support this week, in what I'm going to call a continuation but not a termination, as I suspect we will be revisiting these ideas at a later date. Tom talks a bit more about war crimes in the first Gundam compilation movies.
Welcome back to Part two of Your Fave is a War Criminal, a point by point analysis of the alleged war crimes in the three first Gundam compilation movies. Last week, we covered the first Mobile Suit Gundam movie, Mobile Suit Gundam. This week Soldiers of Sorrow and Encounters in Space. First, a quick disclaimer I am not a practicing lawyer, and this podcast is not legal advice. For the full disclaimer, please refer back to Part one. Before I dive into the movies, I would like to address a few questions that I received after the release of Part One. The first comes from Snow whistle who wanted to know why the Geneva Conventions and the Rome Statute of the International Criminal Court get to define what constitutes a war crime, while other treaties addressing similar issues, like the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict do not. The short answer is that not all treaties are created equal. And the Rome Statute was specifically created to identify, define, prosecute and punish war crimes. The longer version of this answer is that the Rome Statute is a very rare and quite controversial kind of treaty, one that may empower an international non governmental organization, the International Criminal Court, to override a state's sovereign authority in certain circumstances. This is special and controversial because the whole apparatus of international law rests on the foundational idea of sovereignty. And in theory, a sovereign state can only be bound by a treaty if and to the extent that it agrees to be bound. The Optional Protocol on the Involvement of Children in Armed Conflict that I mentioned before was created to prevent children under 18 being used in war. But it doesn't actually forbid the practice. It doesn't have that power because it's really just a voluntary pledge by each signatory nation to adopt domestic policies to prevent the use of children in conflicts. When states sign treaties of this kind, they will frequently add reservations or declarations that change, many would say undermine the intent of the treaty, which they can do because it's all just voluntary. So, for example, Article One of the Optional Protocol reads state Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. The United Kingdom of Great Britain and Northern Ireland signed the Optional Protocol and agreed to Article One, but they issued a declaration clarifying that they were still going to send soldiers under the age of 18 to take direct part in hostilities if there were a genuine military need, whatever that means. Ultimately, this is because there is no central authority to pass and enforce international laws. The United Nations is not a supergovernment ruling over the nations of the world. It's a diplomatic forum for negotiation and agreement amongst countries that are legally and theoretically equals. States bind themselves in voluntary treaties because the inducements of cooperation, commerce, mutual defense, collective action, and international aid together outweigh the freedom of absolute sovereignty. Even the Geneva Conventions don't really have enforcement mechanisms. They anticipate, in a limited kind of way, that the various States party to the Conventions will hold themselves and each other accountable. And there are provisions for other nations to act as observers and guarantors of the Convention. But in the event of a grave breach of the Conventions, the Conventions themselves merely say that once the violation has been established, the parties to the conflict shall put an end to it and shall repress it with the least possible delay. But the Rome Statute is this rare creature that says here are these four categories of crimes genocide, crimes against humanity, war crimes and the crime of aggression that are so bad, so injurious to the world as a whole and so frequently committed by agents of the states themselves that we cannot rely on the honor system of international law to prevent them. So we will create a court that is, in principle, outside the control of any one state and can even in certain circumstances, claim a higher authority over them. Whether they truly succeeded at doing that is another matter. The second question from Matthew in Little Rock was about the period after Amaro took control of the Gundam during the attack on side seven before his incorporation into the federal forces. Matthew wanted to know how Amaro as a civilian taking direct part in combat would be classified and whether his actions would be considered legal. Would Xeon be able to make out a case against him for the willful murders of Jean and Denim? This is a really important question for the international law of armed conflict, and it goes directly to the question of who does and doesn't enjoy the protections of the Geneva Conventions. Let me note first that the following analysis only applies in cases of international armed conflict. The Geneva Conventions mostly do not apply to civil wars and other internal conflicts. While there may be some doubt about the principality of Xeon's exact legal status vis a vis the Federation, at one point during Encounters in Space, Sovereign deguin Zabi mentions that the Federation had already recognized Xeon as the first autonomous space nation. So I take that to be confirmation that the one year war is in fact a conflict between states and is thus covered by the Conventions in full. If you remember from last episode, the Fourth Convention protects civilians not taking part in hostilities, while the first and Second Conventions protect members of the armed forces. So what about civilians like Almaro who do take part in hostilities? The First Convention's definition of protected person is instructive here because it outlines the four categories of legitimate combatants who are entitled to enjoy the full protections of the Convention. First, the regular soldiers serving in the armed forces of a party to the conflict. Second, the members of organized resistance groups, so long as those resistance groups behave like a regular army, carrying their arms openly with a chain of command, displaying a distinctive emblem recognizable at a distance and conducting their operations in accordance with the laws of war. Third, the crews of civilian ships and aircraft. And then fourth and this is the category that Amuro falls into inhabitants of territory that is under attack but not yet occupied, who spontaneously take up arms and fight the invaders. That fourth category of the spontaneous resistance fighter is the most tenuous. It's bounded both by space. It only applies on your own territory and only if it hasn't already been occupied and by time. It only applies if the resistance fighters have not had time to form themselves into a properly organized group. Those who continue fighting after their land is occupied, who do not have a chain of command or distinctive recognizable insignia, who do not carry their arms openly or do not follow the laws of war, lose their legitimacy in the eyes of the Convention.
My brain jumping ahead to F 91.
But within those confines, the farmer who sees an approaching enemy battalion and grabs his old hunting rifle is as much a lawful soldier as any infantry private. Likewise, the solitary computer nerd who hears explosions and runs out to commandeer an experimental mobile suit prototype. To say that someone is considered a legitimate or lawful combatant under international law is to say that such a person has the right to participate in the hostilities to fight against and even kill the enemies of the state to which they give their allegiance. Amaro's theft of the Gundam might be criminal under the Federation's own internal law. Commandant Joaquin says as much in episode four of the show, but that is a separate matter. So now, on with the show. Taken together, Soldiers of Sorrow and Encounters in Space raise two big, persistent questions that I want to address straight away the handling of the White Base's orphan trio and the efforts of both governments, Xeon and Federation to identify and exploit the superhuman capabilities of the individuals they call new types. As I mentioned in part one of this piece, it is a war crime under Article Eight, Section Two, B 26 of the Rome Statute. To use children under the age of 15 to participate actively in hostilities while participate actively in hostilities may require some interpretation. I feel fairly confident that being carried aboard a warship as a refugee does not count while serving as a member of the crew of a warship when it is sent into combat does. During movie One, the orphans fall into the former category but by the time Soldiers of Sorrow opens the regular refugees have all left the White Base and the orphans are increasingly shown performing the duties of regular crew members including putting out fires during combat. At one point, Kai, arguing that the kids should be allowed to stay aboard goes so far as to say our little rascals here have survived dozens of firefights and kept on fighting. So, at least subjectively we know that the White based crew thinks of the kids as active participants in the fighting. The Federation misses several chances to remove the kids to safety. There are the multiple times that Lieutenant Matilda's medea squadron evacuates other refugees then at Belfast and again at Joburo. Ultimately, after running away, foiling a bombing and making a passionate case for themselves the kids are allowed to remain aboard the White Base when it returns to space for Operation Star One. This is a big feelgood moment for the audience. The lovable scamps get their way and the Ursat's family of the White Base stays together just a little while longer. It's very heartwarming and absolutely 100% a war crime. The Rome Statute does not offer an exemption for kids who really, really want to participate in the hostilities or for kids who have nowhere else to go or for kids who are precociously good at fighting. Maybe if the kids had stowed away on the White Base when it left Jaburo you could make the argument that the crew did everything possible to keep them out of the fighting and that the kids still threw themselves into it. But that is not the fact pattern in front of us. So Fravo she has finally got something in common with Amuro. They are both war criminals. The Federation childcare officer who agrees to fudge the paperwork, war criminal Kaishiden, whose snide heck the rules give no cares attitude, led us to dub him Mr. In season one. And who here helps convince the childcare officer to let the kids go? Looks a lot like Mr. War Criminal to me. Bright Noah, as their commanding officer, has a duty to take all necessary and reasonable measures within his power to prevent or punish criminal conduct. Having utterly failed to do so, he is also liable as a war criminal under the doctrine of command responsibility. As for the second point, the new type question hangs heavy over these two movies. What is a new type? Are new types real? Does the enemy have them? Do we have them? Can they see the future? Can they communicate telepathically? Can they fly mobile suits real good? What does it say about you if all of your friends are new types? Do you think that new type awareness can bloom even on a battlefield? Both the Earth Federation and the Principality of Xeon are shown to be engaged in new type research. For Xeon, this manifests most tangibly during encounters in space with the Flanagan Institute Lala and Her Elmeth, the Federation approaches more laissez faire. At first, the idea of a new type corps is no more than a justification for sending the White Base on dangerous missions with inadequate support. It's not entirely clear that it ever becomes anything more than that. We are told that they will be tested for new type potential once they reach Jaburo, but the medical tests actually performed there look to be little more than perfunctory physicals. Amuro even mentions that these doctors don't actually believe in new types. The White Base eventually receives what seems to be a formal designation as an autonomous new type unit, but that's just a ploy to attract even more Xeon attention to the ship part of its diversionary mission. All of this is relevant because under the Rome Statute, it is a war crime to conduct unjustified medical or scientific experiments on a person. This is covered in two relevant sections of the Rome Statute, and the specific elements of the offense are slightly different. But in natural language, both provisions prohibit human experimentation that kills, injures or seriously endangers its subject, either physically or mentally, so long as the subject is either a a protected person under the Geneva Conventions, or b any person in the power of an adverse party. They use the various terms medical, scientific, and biological experiments, and although these have slightly different nuances, I read them to be broad enough to cover basically any human experimentation. But there is an exemption if the experiment was done for legitimate therapeutic purposes. On this definition, it looks very much like the Flanagan Institute is in fact a war crimes factory. They're definitely experimenting on humans. And those experiments injure Lala, both mentally and physically, ultimately culminating in her death. The experiments are being conducted to turn her into a human weapon, not for therapeutic reasons. The only real question is whether she counts as a protected person under the Geneva Conventions or as a person in the power of an adverse party. We know from external sources that Lala is an Earthnoid, a Federation national and a civilian when she's recruited. Thus she seems to be both a protected person and a person in the power of an adverse party. She does appear to be serving voluntarily in the Xeon forces and to have consented to the Flanagan Institute's experiments at Shah's request. But that raises thorny questions about her capacity to consent to something like this. The book Ms Era shows a photo of a young Lala being escorted by burley's Secret Service agents into a limousine where Shar is waiting. And the caption reads in the latter days of the one Year War, many young adults were drafted for the research of so called new type psionics. But it was nothing but a kind of kid buying. Can a purchased child in such circumstances actually consent to anything, much less to being a human guinea pig for dangerous experiments? Likewise, it is also a war crime to coerce a protected person like Lala by act or threat to serve in the forces of a hostile power. But what about implicit threats? I'm not sure how the Interside Criminal Court and the Space Hague would handle the Lala case, but my instincts tell me that if they started seriously investigating the Flanagan Institute, they would find more than enough unambiguous war crimes to put Dr Flanagan away for a long, long time. Over on the other side, I think you could make a good argument that the Federation's haphazard approach to new type testing doesn't even qualify as medical, biological or scientific experimentation. They're just sending soldiers into combat. The white base's unusually difficult assignments are justified on the basis of their extraordinary performance. But Federation officers do keep referring to them as guinea pigs. So for the sake of argument, let's say that this does count as an experiment within the meaning of the Rome Statute. If that's the case, then I think we can also say that the experiments endangered all who participated and that they were not done for therapeutic reasons. But again, is the experiment being performed on protected persons or persons in the power of an adverse party? As I noted last week, side Three native Salem, Mass is the only member of the crew who might qualify under either provision. But Sala has actively concealed her nationality. She reveals it only to Bright, and only after the Battle of Solomon. The Federation officers responsible for the Newtype experiments have no idea of her real identity, and so they lack the necessary mental element to establish criminal liability. Who knows what would have happened had sela revealed herself and claimed the protection of the Geneva Conventions. But this ain't that kind of story. With those broader issues out of the way, let's now go through the two movies point by point. Soldiers of Sorrow opens with a recap of the events of the first movie, followed by a pan across the inhospitable desert landscape of Central Asia where Xeon Commander makave has built his stronghold. Within 20 seconds of the opening titles, we see a close up on an antique porcelain vase. In the background, there are more ceramic pieces in display cases. While the dialogue stops short of explicitly identifying these as looted artifacts, the context leaves little doubt that they are. Meanwhile, Makuve's soldiers are engaged in the large scale extraction of raw material and its transfer into orbit for use by the Xeon war machine. Makuve's systematic appropriation of precious artifacts for his own personal enrichment is an unambiguous war crime under the broad doctrine of pillage that we discussed last week, covered by Section Two, B 16 of Article Eight of the Rome Statute. Since he is appropriating the property of enemy civilians, which is to say the protected property of protected persons, and since that seizure is not justified by military necessity, it is also the somewhat narrower war crime of seizing the enemy's property. Vase theft, a serious war crime. The looting of Earth's natural resources to feed Xeon's war machine presents a more difficult problem. The Geneva Conventions contain explicit carveouts, allowing the appropriation of otherwise protected property if it is justified by military necessity, and that may be the case here. We know from the dialogue that the resources are necessary for Xeon's war effort. Recall the line about sending enough material to space to allow Xeon to fight on for another ten years. The Rome Statute explicitly adopts this same military necessity exemption in its Section B 13 prohibition on seizing enemy property. However, the B 16 prohibition against pillage requires some interpretation. It forbids, quote, pillaging a town or place even when taken by assault. There is no explicit mention of military necessity, so we have to ask whether the use of the term pillaging necessarily implies that the seizure at issue is unjustified. If so, then a justified seizure cannot be pillage and would not fall within the meaning of this section. In The Elements of Crimes, a related document published by the International Criminal Court and meant to guide interpretations of the Rome Statute. The Court asserts that pillage must be for the private or personal use of the perpetrator. In a footnote, they further clarify that appropriations justified by military necessity cannot constitute the crime of pillage. But this interpretation is extremely controversial, and it, to quote one commentary on the subject, likely only applies, if at all, to the International Criminal Court itself. Another commentary criticizes this personal or private purposes requirement as being out of step with accepted understandings of the offense in customary international law, which is about as scathing a condemnation as you are ever likely to find in a legal treatise. Other relevant international war crimes courts, like the International Criminal Tribunal for the former Yugoslavia, have declined to adopt the ICC's narrow interpretation of pillage. Even under the broader definition of pillage, there are still circumstances in which an occupying army can legally seize property from the occupied territory. For example, an army can seize certain resources essential to its immediate upkeep. But transferring resources out of the occupied territory, as is done here, tends to negate that exception. The related doctrine of Yusufracht is more relevant. Yusufracht says that an occupying army may collect the fruits of the land so long as they do not damage the source of those fruits. And I mean that literally. The doctrine derives from an old Roman rule that said you could eat the fruit from an occupied orchard so long as you didn't injure the trees. Yusufrut has historically been applied to permit limited mineral resource extraction in occupied territory. But again, this is controversial, and the law and practice seem to be moving gradually away from it. After all, minerals are not renewable the way fruits are, and any extraction necessarily does reduce the value of the source. In actual historical practice, people have been prosecuted for pillaging natural resources from occupied territory, including, for example, Paul Plyger, a Nazi mining executive sentenced to 15 years imprisonment for his role overseeing the mass plundering of mineral resources from occupied territory during World War II. Incidentally, the area plundered by Plyger included much of the same territory pillaged by makave during the One Year War. So is Makave's whole mining operation a grand scale war crime? Well, it seems like that might depend entirely on which court hears his case, but I gotta say, it does not look good for him. Shortly afterward, we see the movie's only depiction of a prisoner of war, kozun Graham from the Ramba RAL Unit cozun is rendered or de combat, a French term that just means unable to fight and is then captured. He is interrogated, and his pilot suit and other effects are confiscated before he is confined in the ship's brig. This first phase of captivity is covered in the Third Convention in Article 17, governing the Questioning of Prisoners, and Article 18, Property of Prisoners. There's no evidence in the movie to suggest that Kozun has been tortured or coerced to give up information, so no war crimes here. As for his effects, Kozun's Federation jailers are permitted to take his arms, military equipment and any military documents he may be carrying. Once alone, Kozun mocks the amateurs who searched him for failing to find and confiscate his false gold tooth, which actually contains a small explosive charge that he uses to destroy the lock on his cell and attempts to escape. Bright orders his crew to shoot Kozun if they have to. Sela twice aims her sidearm at him, and on both occasions he sees her and escapes behind cover. He seals himself into one of the ship's airlocks and prepares to jump out with the aid of a stolen jetpack. But Omar Fang destroys the door with a bazooka. Kozun is caught in the blast and thrown free of the ship. His stolen jetpack is damaged and he plummets to what we presume must be his death. Did Omer or anyone else involved commit a war crime? This is a complicated situation. The Third Geneva Convention acknowledges that a prisoner of war may be duty bound to attempt escape, and it extends significant protections to escapees, both successful and not. A successful escapee who is later recaptured may not be punished for the first escape. An unsuccessful escapee may be subjected to disciplinary punishments, fines, discontinuance of special privileges, up to 2 hours of hard labor per day, or confinement, but no more than that. Most crimes committed during the escape, like destruction of government property, relevant here because Kozan uses explosives to destroy a door or theft without intention of self enrichment since he steals the jetpack, are likewise only punishable by the same disciplinary measures. But that doesn't mean that the crew of the White base is obliged to let him go while the Convention stops short of saying you can shoot escapees to prevent them from getting away. Its Article 42 provides that the use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure which shall always be preceded by warnings appropriate to the circumstances. Omar's use of the bazooka here was not preceded by a warning to Kozan, and it did result in the death of a protected person. That looks like it could be a grave breach of the Geneva Conventions falling within Section Two A, one of the Rome Statute, the war crime of willfully killing protected persons. But was this a willful killing? Omer's lawyers will no doubt argue that he only intended to use the bazooka to open the locked door. Thus he was not using weapons against a prisoner of war, and he had no obligation to issue a warning. No doubt Sela will testify to the look of surprise and horror on his face when he saw the deadly results of the explosion. His lawyers could also argue that Cozen was aware Sela was trying to breach the door with her sidearm and reasonably should have anticipated that his captors would use a more powerful weapon. That is to say that the gunshots, although ineffective at opening the door, served as an appropriate warning under the circumstances for the subsequent use of the bazooka. They might also argue that Omer could not have warned Kozen through the airlock door. What is an appropriate warning in a situation where no warning could possibly be effective? On this fact pattern, I think Omer would be acquitted in a brief but high profile trial at the Space Egg, after which he would write a best selling memoir of his experiences during the war, and spend a few months on the talk show circuit, mostly answering questions about what it was like to fight alongside Amuro Rey. Speaking of that perfidious war criminal, what about Amuro's desertion? Well, I think this is basically fine. He is probably breaking a dozen Federation laws and regulations, but at least as far as the movie is concerned, he doesn't kill anyone, steal anything, blow up any churches, misuse the emblems of the International Red Cross, or do anything else that looks like a war crime on its face. The battles against Ramba RAL, the Black Tristars, and the whole Odessa Dei operation don't seem to raise any new issues either. As for Belfast Miharu and Flanagan Boone's infiltration of the white base in the guise of a civilian fisherman. It is true that the Geneva Conventions and customary international law don't offer spies much in the way of protection. But spying itself is not per se a violation of the laws of war. And none of the spies in question committed any truly profidious actions. There's just one more specific incident I want to address in Soldiers of Sorrow, and it's the Xeon Commando raid on the Jim manufacturing facilities in Jabaro. Things go off the rails when one of the squads encounters Kika Katz and Letts during their escape from the Jabaro Childcare Center. The commandos swiftly subdue the children and then leave them bound and gagged in the factory, surrounded by a bunch of time bombs. Besides being cartoonishly villainous in a snidely, whiplash tying winsome maidens to the train tracks kind of way, this is just a flagrant war crime. The orphans do escape, but had they failed to do so, the commandos would have willfull
Next Time on Episode Nine Point Ten. Goodbye. Summer. It's another Food History episode. I plan to take a look at the history of Kakigori, which is Japan's own shaved ice dessert and the history of tomatoes in Japan. We will see how that shakes out. I might only do one or the other, but I'm hoping to do both. Until then, stay genki, folks.
Mobile Suit Breakdown is written, recorded and produced by us, Tom and Nina in scenic New York City within the ancestral and unceded land of the Lenape people and made possible by listeners like you. The opening track is Wasp by Misha Dioxen. The closing music is Long Way Home by Spinning Ratio. You can find links to the sources for our research, the music used in the episode, additional information about the Lenape people and more in the show notes and on our website, Gundampodcast.com. You can get in touch with us on Twitter or Instagram at gundampodcast or by email to hosts@gundampodcast.com. And thank you for listening. You want me to make the decisions? Me, a person who knows nothing. You would kill me like this? You would kill me dead?
Well, I mean, in that vein, it can often feel to me as though I have been set up for failure.
Right? You have said? Oh, I would like scroll option A. And then they go, well, scroll option B might actually work better for you.
They solicited my opinion only to tell me that I was wrong. Why would they do that?
That sounds like perfidy. At which point you pound on the table and say, I don't care what you think. You ask me and I want the brocade.
I mean, it's all brocades, but I'm.
Nina and I say it's brocade or brocade.
I think they're both correct.
Brocade just sounds so much fancier.
Does it?
I think so. Mr war Criminal is probably the worst regional variant of Mr. Mime.
I took a witch muppet. Are you quiz from Autostraddle? And I am Gonzo, which doesn't really surprise me, to be honest.
I don't really know the muppets well enough to know whether that's accurate or not.
I mean, the one bit that doesn't quite square is Gonzo's bit of a daredevil. And I don't think I am at all. But gonzo's weird. Gonzo's real weird.
Are you saying that you're a weirdo?
Yes. That can't possibly surprise you.
Sam. Sam.