01 Nov Third Annual Symposium on Pop Culture and International Law: “Guns for Hire” – Mandalorians’ “Status” in the Star Wars Universe
[Chiara Gabriele works as a Legal Advisor at TRIAL International, a Geneva-based NGO fighting impunity for international crimes and as a consultant for multiple organizations. She works with national lawyers to bring mass crimes cases to trial before different jurisdictions. Her favourite The Mandalorian quote is: “I like those odds”.
Ana Srovin Coralli works as a Teaching Assistant in the International Law Department of the Geneva Graduate Institute, where she is pursuing her PhD entitled “Bringing Perpetrators of Enforced Disappearances to Justice: In the Shoes of the Prosecutors”. Her favourite The Mandalorian quote is: “I have spoken”.
“Do not self-destruct. Cover me!” is our Force Quote.]
In a Galaxy Far, Far Away, in the turmoil of the Galactic Civil War, the planet of Mandalore, once home to legendary warriors, fell in ruins. The Galactic Empire, unable to fully control it during the conflict, decided to launch a full-scale attack against its population, killing millions in the so-called Great Purge of Mandalore and almost destroying it by heavy shelling during the Night of a Thousand Tears. Shortly after the defeat of the Galactic Empire in favour of the New Republic, the Imperial remnants, led by Moff Gideon, occupied Mandalore and established a heavily armed secret base on the planet – as of then almost empty – with the aim of using the beskar (extremely resistant Mandalorian steel) to fabricate armors and regain control over the galaxy.
As a result of the destruction and occupation, the surviving Mandalorians went into hiding, using their special armors and fighting abilities all over the galaxy to sustain themselves. While some of them continued attempting to collect means to regain control over their lost world, others went into private businesses. Din Djarin (Mando), one of the most famous Mandalorian warriors, joined the Bounty Guild (the Guild) an institution regulating the bounty hunting trade throughout the galaxy. In this context, many bounty hunters were hired to do jobs that went beyond tracking down bounties, including some implicating direct participation in hostilities, or other tasks of a military or security nature.
As they engaged in different missions and performed diverse activities, often times in the context of armed conflicts of a different nature, Mandalorians’ status under international law changed accordingly. Determining their status is essential, particularly in the context of war, because the rules that apply to them might depend on such a qualification. For instance, while directly participating in hostilities (DPH), Mandalorians might become legitimate targets and lose their protection as civilians, or not be entitled to combatant privileges and status of prisoners of war (PoW). Additionally, should conditions be met, they could be prosecuted as mercenaries.
Although the Galaxy is Far Far Away, the assumption of our analysis is based on the premise that all our international law instruments are applicable. Moreover, as the purpose of the post is not to qualify the multiple potential galactic conflicts, we give different options on qualifications, and change definitions accordingly.
Security Service Providers Around the Galaxy?
As a member of the Guild, but also as a private individual, Mando is contracted for different services, from locating persons in exchange for payments (see Chapter 3) to protecting a village (Chapter 4), and even supporting the evasion of a high security detainee (Chapter 6). Moreover, as mentioned above, Mando is not the only Mandalorian into business. Other Mandalorians, under the direction of Axe Woves, grouped themselves in a collective of privateers that could be hired for bounty hunting but also for all sorts of security or military-related services.
Mandalorians acting as “private business entities that provide military and/or security services” might constitute Private Military and Security Companies (PMSC) (see for instance para. 9a of the Montreux Document, applicable in armed conflicts, and the draft definition contained in the Revised Zero Draft Instrument on PMSCs). Those services might include, for instance, armed guarding and protection of persons and objects, prisoner detention and training of armed and security forces. Similar to the Guild Code of conduct, private security service providers on planet Earth equally have a set of principles, the International Code of Conduct for Private Security Service Providers (the Code) ensuring the respect of international humanitarian law (IHL), human rights and other applicable norms of national and international law while performing security services.
In the case at hand, it seems that most of the services the Guild offers – notably the bounty hunting ones – are outside of the scope of the definitions mentioned in the paragraph above. However, some of the services, such as the protection of villagers from bandits in Chapter 4, might be considered security ones. While providing those services, PMSCs personnel are bound to respect international law, including IHL when the latter applies. Moreover, the PMSC personnel are considered civilians under the law of armed conflict. According to the Code, even when their services imply use of force, they should refrain from using firearms against persons except in self-defence or defence of others. Therefore, Mando could have only employed his special armor and weapons to defend the villagers from bandits threatening their life – which does not seem to always have been the case.
As for the other Mandalorians, most of the services they provide could be qualified as security or military ones. For instance, the protection of a ship and its crew for which the freighter commander Shuggoth wanted to hire them, could be qualified as protection of persons and objects. The same qualification would apply more broadly to the protection of people and State facilities on Plazir-15, where Mandalorians were asked to support securing the Contracting planet and acting in self-defence functions.
However, should their services be of a nature as to constitute DPH in an armed conflict, which might be the case even for acts of defence – see for instance art. 49.1 of the Additional Protocol I (AP I), Mandalorians would lose their protection as civilians and, should the other conditions in the specific context be met, might be considered mercenaries.
Mandalorians are Mercenaries – “I Have Spoken”
One word that is commonly used to define Mandalorians who fled their planet and were “guns for hire” (see Chapter 22 of The Mandalorian) is “mercenaries”. “Do you think I am some kind of mercenary?” “Well you are Mandalorian” – say villagers of Sorgan to Mando in Chapter 4. “Unlike my brothers, I am not a mercenary” affirms Bo-Katan Kryze, a Mandalorian human princess, in Chapter 22. As in our galaxy, the use of this term might however not necessarily reflect the definition of “mercenary” according to international law.
Art. 47.2 of AP I defines mercenaries as any person who (cumulatively) directly participates in hostilities; is specially recruited to fight in an armed conflict; is motivated by desire for private gain; is promised excessive material compensation by or on behalf of a Party to the conflict; is neither a national nor a resident nor a member of the armed forces of a Party to the conflict / on official army duties from a Third State. Importantly, the use of mercenaries is not prohibited under IHL, however, should Mandalorians act as such, they would not be entitled to PoW status upon capture by the adverse Party and might be prosecuted for their participation in hostilities. Moreover, they would be targetable while DPH, notably, according to the ICRC Interpretive Guidance, while carrying out acts in support of a party to the conflict directly causing harm to another.
Differently from AP I, the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (UN Convention) forbids resorting to mercenaries and is applicable in international armed conflicts (IAC), non-international ones (NIAC) – and beyond. For instance, should the self-defense services demanded by Plazir-15 include fighting in an armed conflict and should Mandalorians not be incorporated in the armed forces of the planet, Plazir-15 and its officials would be in violation of international law. Mandalorians would also be at risk of being prosecuted domestically, as the Convention equally criminalizes the participation of individuals to armed conflicts as mercenaries.
The main Mandalorian’s mission in the series, interesting for the potential qualification of mercenary, is when Mando is directly contracted by the Client to acquire an asset of vital importance, Grogu (The Child) (see Chapter 1 and 2). The Client is operating under the command of the Imperial remnants of Moff Gideon, who are planning to regain control of the Galaxy – and, as such, might qualify as a party to the conflict with the New Republic (provided that the Galactic Civil War, a potential NIAC, is still ongoing). However, although depriving the enemy of a vital asset such as Grogu will have an impact on the New Republic capacities, this might not be enough to qualify Mando as specially recruited in order to fight in an armed conflict.
In the alternative, however, the preparation to reconquer the Galaxy might still be considered at a minimum a “concerted act of violence aimed at overthrowing a government or otherwise undermining the constitutional order or the territorial integrity of a State”, in which case it would still be covered under art. 1.2 of the UN Convention.
Mando, by his own admission, is acting in private capacity and exclusively motivated by private gain in providing his services, for which the Client paid 21 beskar lingots, a material gain of an extremely high value compared to market, meeting the UN Convention requirement of compensation to be substantially excessive. This criterion is however usually very difficult to prove. The 1977 OAU Convention for the Elimination of Mercenarism in Africa, the only regional instrument on the subject, limits for instance the private gain to being promised material compensation – without any further specification.
Finally, Mando could be at minimum considered a resident of a territory controlled by the New Republic (a potential party to the conflict / the “State” against which the concerted act of violence is directed), therefore making this last requirement difficult to satisfy. Unlike AP I and the OAU Convention, the UN Convention does not require an individual to actually take a direct part in hostilities to be defined as a mercenary. Should we additionally examine this criterion, we could however still argue that in order to acquire Grogu, Mando had to fight Nikto guards protecting him – killing several of them – which might amount to DPH should they belong for instance to the armed forces of the New Republic.
Lastly, although in the third season of the show Mandalorians are clearly participating in hostilities during the reconquest of Mandalore, they are essentially regaining their home world and fighting the Imperial remnants secretly occupying it. The qualification of the conflict for the purpose of this final battle is unclear. It might either be linked to the potentially ongoing NIAC between the New Republic and the Imperial remnants, be covered under a potential ongoing parallel IAC, which started when the Empire occupied Mandalore during the Great Purge, or be a new NIAC in itself (should we consider neither the Mandalorians nor the Imperial remnants as equivalent to a State actor). In this last case it is worth noticing that both parties are organized (Mandalorians under the ruling of Bo-Katan and Imperial remnants under the strict military structure established by Moff Gideon) and the hostilities might be considered of a sufficient intensity.
In any of the above cases, Mandalorians would still not qualify as mercenaries, given both their motivation and nationality. The only difference is whether they would have the right to participate in hostilities, as combatants, or be regarded as civilians with a continuous combat function. We tend to uphold the first possibility, considering the occupation of Mandalore by a foreign power ongoing and the Mandalorians part of the armed forces of the planet, therefore qualifying them as combatants and entitled to PoW status (see art.43 and art.44 AP I).
So, What is The Way?
While we are applying international law to a fictional universe for the purpose of this post, in reality qualification is a complex task whose implications are of the utmost importance (e.g. qualifying as a mercenary may result in domestic criminal prosecution). Thus, labels should be used carefully and adapted to the given context. As in our universe, when dealing with “Guns for Hire”, one needs to take into account several factors, including the existence of an armed conflict, the characteristics of involved individuals, whether they constitute an entity engaged in security/military services – or a party to the conflict – or both, and the type of conduct – or service – carried on. With respect to the Mandalorians, some qualification criteria might be difficult to meet.
However, as the Mandalorians who live by the creed would say: “This is The [International Law] Way”.
[The opinions expressed in this publication are those of the authors. They do not reflect the opinions or views of the organizations the authors work for. The authors are grateful to Jelena Aparac, Antoine Perret and Revaz Tkemaladze for their insightful comments on the previous versions of this blog post.]