Genocide and Battlestar Galactica

by Kevin Jon Heller

A number of commentators have noticed that the new season of Battlestar Galactica, the best show on television, is a thinly disguised attack on the Bush administration’s policies in the War on Terror. Here, for example, is a snippet from an essay in Slate entitled, appropriately enough, “Does Battlestar Galactica Support the Iraqi Insurgency?”:

It starts with a suicide bombing at the first graduation ceremony for the new security forces. As the occupation official passes through the rows of recruits, pinning their new rank bars onto their uniforms, a nervous policeman bides his time, and then, as she draws closer to him, he whispers to his dead wife—murdered by the occupiers—that he’ll see her soon. His thumb presses the detonator, and the ceremony is ripped apart, along with a sense of security and optimism for the occupying power.

If this sounds like Iraq, it should. But it’s the season premiere of Battlestar: Galactica, the Sci Fi Channel’s acclaimed remake of the kitschy Star Trek also-ran. In its previous two seasons, Battlestar has hinted at war-on-terrorism overtones. The evil Cylon robots have all but eradicated humanity in a nuclear war and chased its remnants to the far reaches of the universe. Humanity’s task was to reconstitute civilization under the direst of threats: the all-powerful Cylons, which are capable of mimicking human form and live among the humans—even among the crew of the Battlestar Galactica, the one remaining dreadnought of the human interstellar navy. When the humans discover that one of their lieutenants is a Cylon, she is brutally tortured, thereby evoking the darker side of the war on terror. Like many science-fiction shows before it, BSG concerns itself with the porous membrane between humanity and barbarism. Unlike most of its predecessors, however, it has the benefit of an open-ended, real-life war as its backdrop, making its lessons about barbarism unavoidably resonant.

This year, BSG is going many steps further. Season 2 ended with the Cylon invasion of the new, dusty, human homeworld, New Caprica, and the self-serving capitulation of President Gaius Baltar. The invasion forced the Galactica into space—meaning humanity is without its defenses and possibly without hope. Season 3 finds that hope can be reconstituted through resistance: that is, through insurgency. The American public may be anti-war, but now BSG is going way beyond public sentiment. In unmistakable terms, Battlestar: Galactica is telling viewers that insurgency (like, say, the one in Iraq) might have some moral flaws, such as the whole suicide bombing thing, but is ultimately virtuous and worthy of support. Wow.

Last night’s episode raised what is, from a doctrinal standpoint, a fascinating question about the crime of genocide. Galactica realizes that it has the opportunity to infect the Cylons with an ancient virus — a biological weapon — that would almost certainly wipe out the entire Cylon race. At first, their excitement is palpable; this is the opportunity to free themselves from the Cylon threat forever. But then Helo, an officer married to a Cylon defector who is helping the humans, condemns the plan as genocide, pointing out that although the Cylons are machines, they are also living, breathing, self-aware ones. An impassioned argument ensues, with the President of the Colonies, Laura Roslin, insisting that the Cylons are legitimate military targets — and that wiping them out would be a justifiable act of self-defense, given the Cylons’ stated intent to do exactly the same thing to the humans. Ultimately, Helo sabotages the Galactica’s plans, knowing full well that he is committing treason (which the Admiral of the colonial fleet refuses to punish, having come to see the wisdom of Helo’s position). Genocide averted.

But what if it wasn’t? What if the Galactica had wiped out the Cylons with the ancient virus? Would they be guilty of genocide?

There is no obvious answer to this question. On the one hand, there do not seem to be any Cylons that qualify as civilians or non-combatants, and the laws of war permit attacks on legitimate military targets. So it seems that the laws of war would not have prohibited Galactica from destroying all of the Cylons. On the other hand, intentionally destroying all of them would seem to qualify as genocide. The Rome Statute defines the crime of genocide as follows:

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
    (a) Killing members of the group;

    (b) Causing serious bodily or mental harm to members of the group;

    (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

    (d) Imposing measures intended to prevent births within the group;

    (e) Forcibly transferring children of the group to another group.

In our hypothetical, the actus reus of genocide is satisfied — Galactica would destroy the Cylon race by killing them. The Cylons qualify as a protected racial group, and perhaps as a national or religious group, as well. (Some of the Cylons are indistinguishable from humans, but they are clearly perceived by the humans to bea different race, much like the Hutus viewed the Tutsis as a different race, despite their physical similarities.) And there is no question that Galactica acted with the necessary mens rea — the specific intent to destroy the Cylons as a group.

We are left, then, with a curious dilemma. If Galactica had destroyed the Cylons through “ordinary” military action, without specifically intending to destroy them as a group, they would not be guilty of genocide. That would be true even if they had wiped out the Cylons all at once. By specifically intending to destroy the Cylons as a race, however, the Galactica turned what would otherwise have been legitimate military action into a criminal act of genocide.

This is true, it is important to note, despite President Roslin’s claim that destroying the Cylons would be a justifiable act of self-defense. It is well-established in international criminal law that the motive for a genocidal act is irrelevant to the criminal liability of the perpetrator; all that matters is whether the perpetrator specifically intended to destroy the group as such. So even though Galactica’s motives for killing all of the Cylons would have been understandable, that would not detract from the fact that those motives were accompanied by the specific intent to destroy the Cylons as a race.

The bottom line: committing genocide against a group that is intent on committing genocide against you is still genocide. A fascinating result!

http://opiniojuris.org/2006/11/15/genocide-and-battlestar-galactica/

7 Responses

  1. Or, as mom and dad incessantly told us: two wrongs don’t make a right.

  2. Of course, all of this analysis would be meaningless in the actual situation described – i.e. humanity facing annihilation. The laws of nature and survival would take over. No one would let his civilization be wiped out because of a fear of international law. Just as the Constitution is not a suicide pact, neither is international law. Remember, international law could only be enforced by the victor (or a third party) against the losers. However, if your entire civilization has been annihilated, you obviously could not be punished by anyone. No possible sanction could compare to annihilation, so there is no plausible deterrent.

    International Law would never have any actual application in such a situation. Its tempting, as lawyers, to apply the tools we know. But, as the saying goes, when your only tool is a hammer, every problem looks like a nail.

  3. Thanks, Kevin, this is a really interesting post. I wonder whether the Cylons are technically human at all, though. Would human rights law apply to non-humans? And the prohibition against genocide assumes, I think, that there would never be an instance where an entire people was identical with its armed force; is that distinction true of the Cylons? Aren’t they all, in a sense, their army, and therefore legitimate targets?

    NdD is probably right that int’l law wouldn’t play much of a role in deterring action in a situation where national survival is thought to be at stake. [Although what if the humans were not completely convinced that their effort would work? What about the fearful deterrent effect of the resulting Intergalactic Cylon Criminal Court (ICCC)?]

    One can hope, however, that human rights law might help remind us of basic moral principles that should limit our behavior even in wars in which we think our civilization is at risk.

  4. To follow up on John’s comment:

    The example suggests that if a social group is composed entirely of combatants then the law of war permits its intentional destruction while the law of genocide forbids the same thing. This puts us in the awkward position of arguing either that genocide is sometimes justifiable, which seems perverse, or that a society of combatants has the same immunity from intentional destruction as a community of noncombatants, which seems absurd. The paradox dissolves, however, if we make an element of the crime of genocide that which is already an element of crimes against humanity: an attack directed at a civilian population. We can thereby have both an exceptionless prohibition of genocide and a doctrine that reserves immunity to noncombatants. The law of genocide has never had to incorporate such an element, because as John writes no human society is composed entirely of combatants. It took a science-fiction show to bring the need for the amendment to light.

    I did want to make two other points: Kevin rejects a self-defense rationale on the ground that the definition of genocide turns on intent rather than motive. But to assert a justification is not to deny that the elements of the crime are satisfied; it is to concede that one has committed a wrong but to claim that one did so for a reason sufficiently strong as to warrant what remains a violation of a protected interest. So it is possible to dissolve the tension by arguing that genocide can sometimes be justified as a form of self-defense. I just think it makes more sense to revise our understanding of the underlying prohibition.

    Finally, international criminal law is supposed to track moral principles, so the absence of self-interested reasons for compliance doesn’t make the norms Kevin discusses irrelevant. It’s also worth asking whether circumstances in which we imagine we would commit a wrong actually justify (or excuse or mitigate) that wrong, or whether we’re just morally weak people.

  5. Nerds, all of you!

  6. Una,

    I’ve been as a laborer in a sign shop, driven a furniture truck, worked on a fire crew in the forest service, constructed and maintained trails in the backcountry, worked as construction laborer and eventually as a finish carpenter–among other jobs–so, I take perverse pride in being called, of all things, a nerd (all the more so as I look a bit like an aging biker)!

  7. strike first ‘as’ above

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