The Law of Superheroes

by James Daily

  Outer space is quite similar. There is, in fact, a statute 9 that extends federal jurisdiction to spacecraft flying the US flag and that also discusses maritime jurisdiction with similar results. State laws do not apply, but federal laws do. But again, note that enforcement would require bringing a defendant back to US soil for trial, just as it would for crime on the high seas.

  The same statute, specifically subsection 7, also grants US jurisdiction over “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” This is kind of a catchall clause. If no one else has jurisdiction and a US national is either the defendant or the victim, then the US has jurisdiction. So if a supervillain commits a federal crime against an American superhero on, say, Mars, then assuming the supervillain can be brought back to Earth, he can be charged in federal court.

  Turning back to the Inhumans specifically, Attilan would probably be treated mostly like a foreign country, despite its extraplanetary location. The Inhumans certainly seem to talk as if they should be treated as a foreign country. Black Bolt, the king of the Inhumans, has imposed what amounts to a universal ban on Earthlings hanging around the Moon, which seems to amount to a territorial claim. While the US might not be all that happy about this—the whole Moon? Really?—there doesn’t seem to be all that much that anyone can do about it, nor ultimately all that much incentive to either. The Inhumans don’t exactly have representation at the UN or any other international bodies, don’t seem to spend all that much time on Earth, and the US doesn’t have any ongoing presence on the Moon, even in Earth-616. So really, Inhuman/US relations seem analogous to any other nation with which the US does not have formal relations. The fact that it takes a spacecraft to get there doesn’t change things too much.

  Foreign Dignitaries and Diplomats

  Let’s lower our sights now and consider the legal implications of comic book characters that have some kind of formal status with a foreign government. As part of Marvel’s 2006 Civil War event, the Black Panther, as King T’Challa of Wakanda, marries Ororo Munroe (Storm of the X-Men), in what is described as the wedding of the decade. Which is sweet and all, but winds up having some pretty weird international law implications as the story unfolds. The Civil War story touches pretty heavily on the issue of diplomatic missions and the effect of US laws on foreign citizens.

  As in the real world, the United States in Earth-616 is watched fairly closely by other countries as something of a weather vane for world events. So when the federal government passed the Superhuman Registration Act (SHRA), all eyes were keenly fixed on the US to see how that was going to play out, not only in the superhuman community, but by foreign governments. Things get really interesting where the two overlap, such as with Dr. Doom and T’Challa.

  The writers seem to recognize the fact that the SHRA’s effect outside of the US is pretty limited. When Ben Grimm realizes that he can’t support either side of the conflict in good conscience, he relocates to Paris under the correct assumption that it will be difficult for federal agents to make him do much of anything if he’s in France. A number of other characters discuss fleeing to Canada. But it should be noted that Grimm did register with the government before he moved, whereas a superhuman who did not could theoretically be in violation of the SHRA in the same way that a draft dodger might escape punishment but still be in violation of the law. So Grimm’s registration and subsequent self-imposed exile does not necessarily violate the law (unless participation in The Initiative is mandatory, which some stories suggest may be the case).

  Beyond that, the writers raise the question of whether a superhuman temporary visitor (who wasn’t a head of state or otherwise qualified to diplomatic immunity) would be required to register. This is never resolved in the comics, but it would stand to reason that this would work in much the same way as similar laws interact with immigration status. In general, when the government requires people to register for something, be it for Selective Service or whatever, that duty only attaches when permanent residence (or employment of some kind) is established. So a vacationer or exchange student or a visiting Canadian superhero team like Alpha Flight would probably not be required to register, but someone seeking refugee status, permanent residency (a “green card”) or citizenship (naturalization) would. Requiring temporary visitors to register would not only be an absolute hassle, but would probably piss off other nations by imposing arguably unnecessary and burdensome obligations on their citizens. Even given the anti-super fervor that swept the country, one can imagine Congress taking a measured approach here. You don’t want Alpha Flight’s Sasquatch taking his grievances to Capitol Hill.

  Finally, there is also the issue, as mentioned, that certain characters are both superhuman and highly placed in foreign governments. Victor von Doom is the head of state of Latveria. T’Challa is the king of Wakanda. There’s also the Atlanteans, who in at least one case are diplomatic envoys (though their spies probably don’t count, as spies can be detained). All of these will be entitled to diplomatic immunity, and attempting to abrogate that—as War Machine does in Civil War—would constitute an act of war, which should probably have caused a far bigger international incident than it seems to have. Even more, a foreign head of state actively taking sides with an insurrection, as T’Challa does with the Anti-Registration forces, is just completely out of bounds. This would be on the same level as France assisting the American colonies during the American Revolution, 10 or Britain coming in on the side of the Confederacy in the American Civil War, 11 i.e., it would immediately lead to a state of warfare between the US and the offending foreign power. The fact that T’Challa is a former Avenger is given far more weight to the resolution of this situation than seems appropriate, and why the US and Wakanda aren’t completely at each other’s throats is never adequately explored.

  Then we come to Storm, aka Ororo Munroe, aka T’Challa’s wife and the reigning Queen of Wakanda, who happens to be a US citizen—in theory, anyway. It seems unlikely that she would be permitted to retain her citizenship after taking up her office in the Wakandan government, even though her official status is never worked out in any great detail. But as the Wakandan monarchy appears hereditary, it would seem that marrying T’Challa would invest her with at least some official political authority. So when federal troops attempt to arrest her when she returns to the US as part of their honeymoon political tour…it’s not entirely clear that (1) she is still subject to the SHRA given her questionable citizenship, or (2) why her status in the Wakandan government does not grant her diplomatic immunity. T’Challa certainly seems to take a dim view of the attempt.

  Why the US should care about this is significantly less a question of law than Realpolitik. If the US is seen to be flouting international law by attempting to arrest foreign dignitaries, the State Department is going to have one hell of a time trying to explain to other countries why the government decided that any domestic political issue trumped long-established international law, and why it isn’t going to happen again.

  Embassies

  The climactic battle of the Civil War event takes place in New York City, and in the carnage, the Wakandan embassy is essentially leveled, to the point that Black Panther and Storm need to find another place to stay in the US. Embassies are generally subject to a limited form of extraterritoriality under the Vienna Convention on Diplomatic Relations, of which the US is a member. Essentially, while still technically the sovereign territory of the host nation, embassies remain under the jurisdiction of the represented nation, and the host nation may not enter without permission. This is why so many intelligence operations are centered around embassies: The host nation cannot come and go as it pleases.

  So if simply setting foot in an embassy without permission is a big deal—and it is—how much more is completely leveling one? Wakanda seems to basically shrug this off, and T’Challa decides not to make a big deal out of it. But this is far from the end of the matter. It’s actually quite re
markable that no other countries said anything about the incident. We’re talking about the destruction of a foreign embassy on US soil, which the government does not seem to have been able to prevent. That’s not going to give the international community warm and fuzzy feelings, and it’s entirely possible that other governments could use this incident as a pretense to beef up security at their own embassies in the US without the State Department being able to object as much as they otherwise might.

  And they would certainly want to object. Embassies, being essentially enclaves of sovereign power on foreign soil, are incredible assets in intelligence gathering and espionage. This is one of those areas in which official practice and actual practice differ pretty significantly. Officially, it is against international law to use embassies for espionage or intelligence purposes. Unofficially, every country in the world does this. Everybody knows this, but the countries of the world have collectively decided, without officially saying so, that the risk posed by other countries engaging in espionage via their embassies is at least balanced out by the value of being able to do that right back. But part of this game is that the intelligence gathering activities need to be discreet. The gentlemen’s agreement is basically “Look, we all know we’re doing this, but we can’t turn a blind eye if you make too much noise, so keep it on the down low.”

  So when the US “permits” the destruction of a foreign embassy on its soil, other countries would be able to put additional assets in play, bolstering their own security—and intelligence!—activities, and the US would lack any plausible way of objecting. As such, the US government would probably have wanted to take additional steps towards preventing the destruction of the embassy and certainly would have thrown the book at anyone involved in its destruction.

  International Organizations

  Lastly, comic books frequently include organizations that operate across national borders. We’re going to focus on S.H.I.E.L.D. here, as it’s the most prominent, superhero-related international organization out there that has some kind of official government status. 12 The exact nature of the organization is somewhat in doubt, as various writers have inconsistently depicted it as being either a US or a UN entity, but the current consensus appears to be that it is an agency of the latter. 13 Actually, the confusion is somewhat justified by the nature of international organizations in the real world. For example, the International Monetary Fund and the World Bank, while technically international organizations, are widely perceived to be subservient to American and European interests, as both organizations are headquartered in Washington, DC, and no non-American, non-European has ever been the head of either agency. So the fact that the head of S.H.I.E.L.D. has always been an American would tend to blur this line somewhat. 14

  But assuming that S.H.I.E.L.D. is a truly international organization under the UN, this poses some interesting problems, because the UN does not actually possess any jurisdiction of its own. Rather than existing on its own or as the expression of the political will of its citizenry, the UN exists at the behest and pleasure of its member states and cannot take any action without their authorization. The UN does not have an army of its own and is not capable of raising one. UN peacekeepers are, in fact, soldiers on loan from member nations. They operate under the flag of the UN but remain part of their own nation’s chain of command. The ability of UN peacekeepers to act on their own initiative, outside the generally narrow rules of engagement with which they are authorized, is severely limited. For example, UNAMIR, the peacekeeping force in Rwanda, largely stood aside during the Rwandan genocide of 1994. The force is thought to have been capable of putting a stop to the violence, but it lacked the legal authority to do so, leading to the deaths of an estimated 850,000 people.

  What, then, are we to make of S.H.I.E.L.D.? The basic idea is that the organization was chartered to deal with the threat posed by either the terrorist group HYDRA or superhuman/supernatural threats more generally. This is plausible enough, except for the fact that the UN really hasn’t proved all that effective a means for dealing with purely human threats. The Korean War is the last and only time when the UN has unambiguously authorized full-scale military action of any sort, and that only because the USSR stormed out in protest (which, in retrospect, was a really silly mistake that they never repeated). The current “wars” in which the US is engaged are not precisely authorized by the UN, despite a more or less broad spectrum of support from a variety of US allies. The idea that a technologically advanced, militarily powerful, standing international strike force could be authorized by the UN beggars belief. Such an agency could, in fact, exist, but every single deployment would require the authorization of the member states, so the potential scope of authority in each engagement is likely to be very limited.

  No, S.H.I.E.L.D. seems to represent what the UN might or even arguably should be, but it doesn’t really represent the way the UN actually is today.

  But what about the possibility that S.H.I.E.L.D. is actually just a top-secret US military force? That clears up a lot of problems, like the question of why it can exist in the first place, and it doesn’t necessarily introduce any new problems that aren’t already in play in the real world. A top-secret military agency running missions of high-level importance that never make it to the public eye and to which other governments don’t object? There are, what, half a dozen of those? More? We don’t even know. Sometimes other governments don’t object because the State Department throws its weight around. Sometimes it’s because they’ve formally or informally invited the US in to do the job. Other times they don’t even know about it. Is any of this legal? Not technically. Running military operations inside the borders of another country is generally considered to be casus belli. 15

  But if one side decides not to make an issue out of it, which as discussed they might not for a variety of reasons, that’s more or less the end of it. There isn’t really anything like an international court to which nations can bring their disputes (outside of narrow areas like trade disputes brought before the WTO). No one and nothing has jurisdiction over sovereign states as such, and forcing a national government to do something involves either diplomacy or war. If one of the nations is positioned like the US, which, for good or ill, holds most of the cards in many situations, there isn’t much the other state can do about actions they don’t like other than complain: good economic relations with the US are too important, and few countries could even begin to mount a military response. Now that wouldn’t be true for countries like China, Russia, or even some of our more prominent allies like the UK. But pretty much anywhere in South America or Africa and a good chunk of Asia is more or less fair game, as evidenced by the fact that the US has conducted military operations throughout those regions with relative impunity for most of the past sixty years.

  So positing a S.H.I.E.L.D., which is really just a branch of the Pentagon responsible for intervening in supernatural/paranormal situations all over the world, would involve the US violating international law in quite significant ways. But the US does this kind of thing all the time. So while it isn’t the optimal way of setting up something like S.H.I.E.L.D., it’s certainly a plausible one.

  Extradition

  Extradition is an area of law that comes up surprisingly infrequently in comics, given that supervillains often commit crimes all across the world before retreating to a base of operations in another country. In fact, one of the best examples of comic book extradition comes not from the trial of a supervillain but rather the trial of a superhero: Bucky Barnes, sidekick (and sometimes replacement) for Captain America.

  Barnes was put on trial in the United States after it was revealed that he had been brainwashed by the Soviets and employed as an assassin, a job that included killing Americans. Although Barnes had a solid defense, he ultimately changed his plea to guilty, but the judge sentenced him to time served. Any relief is short-lived, however, as the Russian ambassador to the United States announces that he has extradition orders to bring Bucky to Russia,
where he has already been convicted in absentia of crimes against the state. And sure enough, he is hauled away to Russian prison, although he later escapes.

  Russia is not at the top of the list of places to which it’s fun to be extradited. Ed Brubaker et al., The Trial of Captain America, Part 5, in CAPTAIN AMERICA (VOL. 1) 615 (Marvel Comics April 2011).

  There’s just one little problem here: The United States doesn’t have an extradition treaty with Russia. 16 Extradition is not a judicial function but rather a function of the President’s power to conduct foreign policy. 17 As such, without an extradition treaty, Bucky can’t be extradited. Of course, that’s here in the real world. It’s entirely possible that Russia and the United States have an extradition treaty on Earth-616. Let’s assume there is one; is that enough?

  One might think that being convicted in absentia is a problem. What about due process, after all? Unfortunately for Bucky, it is not clear that trying someone in absentia is even prohibited by the United States Constitution, and there is case law supporting the extradition of defendants convicted in absentia in a foreign country. 18

  In fact, because extradition is an executive function, the role of the courts in an extradition proceeding is a minimal gatekeeping function. Basically the only question for the court is “are the terms of the extradition treaty being complied with?” This is called the doctrine of non-inquiry, which “precludes extradition magistrates from assessing the investigative, judicial, and penal systems of foreign nations when reviewing an extradition request.” 19 As the Supreme Court explained: