Top Gun Maverick: International Law, Empire, and Nostalgia

[John Hursh is a lawyer, writer, and researcher focusing on the use of force, human rights, and international humanitarian law. He was a Visiting Scholar at the Center for Human Rights and Humanitarian Studies at Brown University in 2021 and 2022.]

Earlier this summer, after much anticipation, heightened by production issues and prolonged delays, Top Gun returned to the theater after a 36-year hiatus. The film crushed expectations and succeeded commercially in a way that few movies do outside the Marvel universe or established Hollywood franchises. In the 13 weeks after its May 27 release, Top Gun Maverick made $1.4 billion globally and reinvigorated the debate that some films are still worth seeing in the theater. Some critics even argued that, following industry uncertainty from the Covid pandemic, Top Gun Maverick “saved movie theaters.” It also resonated with audiences and proved to be that rare blockbuster that after years of hype, still delivers. As one critic put it, Top Gun Maverick “really is that good” and the film is “a damn pleasure to just simply watch.”

In Top Gun Maverick, Tom Cruise reprises his iconic role as now Captain Pete Mitchell, call sign Maverick (obviously), from the 1986 film. Maverick is an overqualified test pilot and just about to age out of the Navy. Nearly irrelevant despite a distinguished career, Maverick is drawn back to the Top Gun training program, this time as an instructor, to prepare a team of recent Top Gun graduates to complete a daring mission to destroy a uranium enrichment plant. Included among these pilots is Bradley “Rooster” Bradshaw, the son of Maverick’s fellow aviator and best friend Goose, who died in the original film while flying on a training exercise with Maverick.

Here is my tweet after watching the film in July: I finally saw #TopGunMaverick! It is a gloriously preposterous, nostalgic-fueled film premised around a staggering violation of international law and Iranian boogeyman. And also wonderfully entertaining. Smoke in the air!

While that about sums it up, I expand on these points below because as fun as the film is, purposefully or not, I think it says a lot about how many Americans view international law and unilateral military intervention. It also speaks to how much nostalgia can influence cultural meaning, which in turn can shape how citizens view their county and its actions abroad.

Although it is unsurprising that a movie star vehicle about Navy fighter pilots contains few explicit references to international law, there are numerous international legal issues within the film. I focus on the obvious violation of the jus ad bellum and then examine the jus in bello issues that follow. While this film does not address these legal issues in a meaningful sense, the depiction of the jus ad bellum and jus in bellow are nonetheless instructive. The complete non-acknowledgment of jus ad bellum restraints on the use of force underscores the constantly expanding interpretations of self-defense, bringing states closer to anticipatory self-defense without consideration of necessity or imminence and helping to undergird Forever Wars. In contrast, the jus in bello conduct of U.S. forces is entirely compliant with international humanitarian law (IHL). The portrayal of U.S. forces as entirely compliant with IHL is critical to the film’s logic, and perhaps necessitated by the considerable influence the U.S. military had in the film’s production.

The film also serves as a sort of wish fulfilment for military intervention absent lawful authority under international law, as there are, from the U.S. perspective in the film, no negative consequences or fallout. This depiction relies on a portrayal of U.S. forces as unquestionably good and the enemy state as an unknown, malevolent other. The film also invokes a clever, winking use of nostalgia and over-the-top set pieces (see, e.g., Dogfight Football) that both resonate and disarm the audience. This too speaks to how many Americans see the United States in global affairs, not as a global hegemon or fading empire, but as an unassailable guarantor of, if not peace, then security throughout the world.

The Jus ad Bellum

Within the film, the objective of the U.S. mission is to destroy a uranium enrichment plant built in violation of a “multilateral NATO treaty.” Absent more information, it is decidedly unlikely that a multilateral NATO treaty, whatever that might be, would somehow bind a non-NATO member state from building a uranium enrichment plant within its territory. Nonetheless, the strategic rationale underlying the U.S. objective is that the uranium enrichment plant poses a direct threat to U.S. allies and U.S. forces must destroy it before it becomes operational. (Stop me if you have heard some version of this scenario before.) Maverick is given three weeks to train and prepare a group of recent Top Gun graduates before he must select two teams (four aircraft manned by four pilots and two weapons systems experts) to complete this mission.

The attack plan calls for these teams to fly from a U.S. aircraft carrier, enter enemy territory, execute the strike, and then return to the carrier. A synchronized Tomahawk missile strike from the carrier will launch while the aircraft are en route and crater the enemy runaway to allow the U.S. teams to return without facing technologically superior enemy aircraft. From the time that the U.S. aircraft cross the enemy land-sea border, they have two minutes and fifteen seconds to complete the strike. As made clear in the several training sequences leading up to the mission, the attack route is outrageously difficult, as the aircraft must maintain high speed, but very low altitude to avoid radar detection and surface-to-air missiles (SAMs) while flying through a twisting mountain canyon before ascending one mountain range, diving into a valley to strike the underground target, and then climbing over another mountain range that requires such force that the pilots will experience 10Gs before they must evade enemy fire and return home.

While thrilling, this mission is almost certainly unlawful based on the events depicted in the film. There is no indication that U.S. forces are operating under Chapter VII authority from the UN Security Council, and it is unfathomable that that the Security Council would vote in favor of this mission or that at least one of the Permanent 5 member states would not exercise its veto power. This leaves self-defense from an armed attack under Article 51 of the UN Charter as the only lawful means for launching this strike. While a handful of militarily powerful states have pushed for increasingly expansive interpretations of self-defense, consider, for example, the preemption doctrine put forward in the early years of the George W. Bush administration and then quietly continued by the Obama administration, even these understandings would fail to justify what is clearly a non-imminent, anticipatory strike in violation of the Article 2(4) prohibition on the use of force.

A lawful use of force in self-defense must meet the requirements of necessity, proportionality, and imminence. While one could argue that the U.S. strike meets the proportionality requirement, it clearly fails to meet the necessity or imminence requirements. The lack of imminence is most glaring, as this element requires specificity, meaning that a state must respond to an impending threat from a specific planned attack. The planned attack must be a concrete operation and the decision to attack must represent the “last window of opportunity” to use force to prevent the attack. Even this interpretation is not without considerable criticism, but clearly, the enrichment of uranium alone does not represent an impending threat or specific attack. As Noam Lubbell notes: “The notion of imminence presents a brick wall through which claims of self-defense against non-specific and unidentifiable threats cannot pass” (707).

The closest historical analogy to the Top Gun Maverick strike is Israel’s strike on the Osirak nuclear reactor in Iraq in 1981. That strike received widespread condemnation, as well as reprimand from the UN Security Council. In Security Council Resolution 487 (1981), the Council, “Strongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct” and “Call[ed] upon Israel to refrain in the future from any such threats or acts thereof.”

The Jus in Bello

In contrast to the jus ad bellum, the jus in bello is free of any IHL violations. First, consider the missile strike from the U.S. carrier against the enemy runway. There are, at least on screen, no casualties from the missile strike, which succeeds in destroying the runway and grounding enemy aircraft from takeoff. In addition, since this is an isolated military base, there are no civilian casualties and no damage to civilian property.

Following the missile strike, the two teams have about a minute to maneuver through the canyon, flying at low altitude to avoid radar detection and surface-to-air missiles (SAMs), before landing two precise missile strikes that will destroy the underground uranium enrichment plant. Both teams succeed (“Miracles 1 and 2”) and the second missile strike causes a massive underground explosion that collapses a large swath of land. The film does not allow for a proportionality assessment because we do not know whether there were civilians working in the facility. Nothing in the film suggests that civilians were present at this isolated military base, and without the expectation of civilian harm—from a jus in bello perspective—the strike is lawful. Further, earlier in the film, the commanding officers move the mission forward by one week because the uranium enrichment is proceeding faster than anticipated and striking at this earlier date will ensure that radiation does not contaminate the valley. This point is interesting because it suggests a sensitivity to long-term reverberating effects and the recent international focus to recognize legal protections of the environment during armed conflict.

Following the successful strikes, U.S. forces evade numerous SAMs that fire as they move to higher altitudes. The fighting is intense and Maverick uses countermeasures to save Rooster from being hit, but his aircraft is destroyed and he appears lost. The commanding officer orders the remaining aircraft to return to the carrier. They are not to engage with enemy aircraft and there will not be a search and rescue mission for Maverick.

But Maverick lives! Having ejected and parachuted to safety, he regains consciousness just in time to see an attack helicopter preparing to fire on him. Maverick evades the helicopter artillery fire, and as its pilot prepares to fire a missile, Rooster, who disobeyed orders not to search for Maverick, fires a missile that destroys the helicopter. Rooster’s aircraft is then hit, forcing him to eject, and leaving Maverick and Rooster stranded together in enemy territory.

Maverick quickly makes a plan and he and Rooster sneak onto the damaged enemy airfield and steal a very dated F-14. They manage to take off, but encounter two “fifth generation” enemy aircraft. Against great odds, Maverick and Rooster destroy both aircraft. Flying back to the carrier, they unexpectedly encounter one more fifth generation aircraft. Damaged and out of ammunition, Maverick begins to fly to a higher altitude that will allow for a safe ejection, but Rooster is unable to eject and both appear doomed as the enemy aircraft locks the target and initiates a missile strike. Hangman, the most talented, but supremely arrogant pilot that Maverick decided to leave off the two teams, also disobeys orders, suddenly appears in his jet, and fires a missile that destroys the enemy aircraft, saving Maverick and Rooster.

While wildly improbable, none of these actions violates IHL. The act closest to violating IHL is Maverick and Rooster attempting to trick the enemy pilots into believing that they are members of the same military before they engage in combat. But this act is at most a ruse, which is permissible, as opposed to a perfidious act, which is not.

Empire and Nostalgia

While undoubtedly entertaining, this film can also be read as highly-produced agitprop for supporters of unilateral military intervention, as U.S. forces complete a daring strike against an enemy state without incurring U.S. casualties or harming civilians. As a cultural referent, those advocating for military intervention without considering international law or wishing to observe its restraining features on the use of force could hardly have better propaganda. It is also worth noting that the original Top Gun led to a spike in military recruitment, and at least the Navy was hoping that the sequel would spur a second recruiting boom.

The use of an unnamed enemy state is interesting, and after the film’s release, several commentators speculated as to the state’s identity. The decision to keep the enemy state unnamed may be as simple as not wanting to invite a similar outcome to the 2014 Sony hacks, which saw North Korean hackers steal huge amounts of data and sensitive information from Sony in retaliation for The Interview, a (really bad) film depicting the assassination of Kim Jong Un. In 2017, the U.S. Department of Justice released its indictment of the three North Korean hackers and alleged that they worked for an arm of North Korea’s military intelligence.

In Top Gun Maverick, the unnamed enemy state most closely resembles Iran. Like Iran, it is still enriching uranium and presumably does not yet have nuclear capability. But keeping the enemy state unnamed is a better choice since it avoids delving into historical events or policy debates that could detract from the viewer’s enjoyment of the film or unsettle its very clear dichotomy, which portrays the U.S. forces as courageous agents of good and the enemy state as faceless, secretive, and evil. Nuance is the enemy of propaganda and Hollywood action blockbusters alike.

The method of the strike too is telling. Instead of simply destroying the uranium enrichment plant with a missile strike or high-altitude bombing, or disabling it with a cyber operation, options that pose no or minimal risk to U.S. personnel and certainly would have a higher chance of succeeding, the film depicts selfless teamwork where all characters make not just the right choice for the operation to succeed, but the necessary moral choice for their characters to achieve meaningful personal growth. Maverick, as instructed by Iceman, finally lets go; Rooster forgives Maverick for pulling his papers from the Naval Academy and setting his career back four years, and Wingman finally learns humility and the importance of teamwork.

It is also telling that the film centers on what a handful of men must do (the mission), Maverick’s growth and redemption, and the proxy father-son relationship between Maverick and Rooster, storytelling tropes that are traditional if not conservative, and subtly (or not) contribute to a theme of reflexive patriotism. Indeed, as fun and silly as the film is, there is a thread running through it that encourages the audience to trust the U.S. military establishment—and by extension the U.S. government—to make the right choices to keep America and the world safe.

Finally, the current film’s success owes much to the original and for the sense of nostalgia that it creates. From the opening scenes replaying Kenny Loggins’ Danger Zone to recurring pictures of Maverick, Goose, and Iceman to Maverick putting on his old bomber jacket and riding his vintage motorcycle, the film absolutely drips in nostalgia. Some technological advances are welcome, like Maverick flying a test R&D plane at Mach-10, while others, like the overreliance on drones, exemplified by Rear Admiral Cain, “The Drone Ranger,” coming to shut down Maverick’s test program and absorb these funds for his drone program, are not. Maverick, and is there a better character name to stand-in for American exceptionalism than Maverick, more than once is reminded that “The future is coming and you’re not in it.”

But Maverick will not be deterred. He risks a court marshal and dishonorable discharge to show that the mission is possible. He selects Rooster as his wingman and then saves his life during combat. He even gets in once last buzz of the control tower after the mission is complete. This simultaneous combination of subversiveness and fidelity to a higher cause is also profoundly American. As is Tom Cruise, who, as one critic notes, is “the ultimate icon of pre-irony, can-do Americanism.” One suspects than many Americans feel similarly about international law, both acknowledging its importance, while also demanding that its interpretation reflect American values and not impede U.S. interests.