As we previously discussed, Lex Luthor is arrested and put on trial for his actions which result in the death of Superman. In the first issue of All-Star Superman, the arresting officer says that the warrant is for “attempted murder and crimes against humanity.” In issue 5, we see the conclusion of the actual trial, and it seems that at some point the attempted murder charge was seemingly dropped, as when the judge hands down the verdict, he says “Guilty on all counts, of crimes against humanity.”
This is interesting, because there isn’t actually indication of what court we’re in, and “crimes against humanity” aren’t actually crimes in most jurisdictions, in part because the term is at least as much a political term as it is an actual offense. Be that as it may, you will not find “crimes against humanity” listed in any criminal code in the US, state or federal (Well, technically it’s a crime in Puerto Rico (a first degree felony!), so maybe Luthor got busted while returning to his vacation home in San Juan, but we doubt it.). So right off the bat, there’s something we need to talk about. More than that, there’s also the question of what court, if any, would have jurisdiction over such charges. Lastly, we’ll look more generally at the issue of prosecuting supervillains, which as we’ll see is far from simple.
I. “Crimes against humanity”
What exactly are “crimes against humanity”? There are a variety of competing definitions, and the Wikipedia article does a pretty good job of covering them. Article Seven of the Rome Statute of the International Criminal Court defines it as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Since Luthor’s actions were not widespread or systematic, this wouldn’t seem to apply, although if Superman is defined as a civilian population of 1 (i.e. the Kryptonian population of Earth; we’ll talk about Kandor in a minute), then perhaps a single planned murder is sufficient.
Notably, the ICC does not apply only to government officials and members of the military. Article 27 of the Rome Statute explicitly states that “This Statute shall apply equally to all persons without any distinction based on official capacity.” So in theory Luthor could be held to account by the ICC, if he were in a country under its jurisdiction.
II. Jurisdiction over “crimes against humanity”
The problem is that the US hasn’t ratified the Rome Statute. Democratic administrations are generally friendlier to this sort of international law than Republican administrations, but no administration has ever been able to convince the Senate to ratify it, generally on the grounds that it would diminish American sovereignty. So the US does not officially recognize the jurisdiction of the ICC, also known as “The Hague”, where the court sits, any more than it recognizes the authority of any international body to dictate terms to the US. And the US has no functional legal definition of “crimes against humanity” (again, not counting Puerto Rico).
So not only would it be impossible to put Luthor on trial for crimes against humanity in a US court, it’s vanishingly unlikely that the US would permit an international court to try him. For example, if he had been captured, Osama Bin Laden would not have gone to the ICC, he would have been tried in a US court—either civilian or military—and probably executed, but not for crimes against humanity. So that’s just a non-starter.
What the US does have, however, is the crime of genocide, defined by 18 U.S.C. § 1091. Notably, the definition of genocide here basically tracks the definition of genocide used by the ICC. There’s a good argument that what Luthor did would fit the bill, too:
Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group; …
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; …
shall be punished as provided in subsection (b).
Since Superman is one of very few Kryptonians on Earth, Luthor’s efforts to kill him could be painted as genocidal. (While Kandor exists in this continuity, it’s still miniaturized at this point in the story and is eventually moved to Mars anyway.) So while Luthor might not be literally guilty of “crimes against humanity,” he could be guilty of genocide.
III. Prosecuting Supervillains
But let’s leave the “crimes against humanity” issue aside and assume that the court in question is a US court (we’ll say federal to keep it simple) for a plausible crime like, say, felony murder or even genocide. We’ve got another problem: how is the prosecution going to prove its case?
In this particular instance, it shouldn’t be that hard, because we’ve got multiple admissions both in and out of court. Way to make it easy on the DA there, Lex. But what if he hadn’t? What if he had said something along the lines of “I am so thrilled that Superman is dead, but good luck proving I had anything to do with it!” The DA would be left with a situation where he had to prove that the human bomb on the spaceship was modified by Luthor, put on the ship by Luthor, and activated by Luthor. Or one of his agents, but whatever. So the DA is going to have to sort through some very complex and sophisticated technology to be able to understand it well enough that he can prove to the jury’s satisfaction that this is actually what happened.
This means hiring an expert, because most lawyers, while smart, aren’t engineers or scientists, and most jurors certainly aren’t. In this particular case we’re talking about technology which is merely on the bleeding edge of available mundane tech, but we’d still probably need to get in touch with one of the one or two top scientists in the field. Only… most of them work for P.R.O.J.E.C.T., and thus have a conflict of interest in providing testimony on this case. The situation would be even worse if it were someone like Dr. Doom on trial, or anyone using technology they had developed themselves or which is significantly more advanced than that generally known, as the only people likely to be able to understand the tech and explain it to a jury are superheroes like Reed Richards, and thus also subject to a conflict of interest. This doesn’t mean they couldn’t testify, only that the conflict of interest could be raised during cross-examination, which would hurt their credibility.
The problem is not limited solely to technology as such. A supervillain who commits his crimes telepathically will be very difficult to convict without the testimony of another telepath, and such persons are not exactly a dime a dozen. In the absence of such testimony, all the DA can prove is that people inexplicably started committing crimes in the presence of the allegedly telepathic defendant. That’s not the same as proving that the supervillain had anything to do with it. Same goes for things like releasing dangerous animals/aliens/robots into the public. There needs to be some evidence connecting the supervillain with the creature or construct, and that evidence is likely to require expert testimony.
Such testimony is also problematic for legal reasons. The Daubert standard, announced in Daubert v. Merrell Dow Pharmaceuticals, is the standard to which expert testimony must comply before it is admissible. Opinion testimony is generally disfavored, but since the eighteenth century, courts have recognized that the subject matter of litigation sometimes involves technical discussions which are beyond the normal knowledge of jurors, judges, and attorneys, so in order to come up with a result the input of an expert in the field is necessary. But just because someone calls themselves an expert doesn’t mean that they are one, and there are countless scientists, doctors, and engineers who are also quacks or cranks. So the Daubert standard exists to give judges some guidance in deciding who counts as an expert and the sorts of things about which they are permitted to testify.
Here we run into some problems. There a number of factors judges weigh in considering whether to admit expert testimony. The first is whether the principle at issue is subject to empirical testing and falsification. A lot of supervillain/superhero expert testimony falls into this category, but a lot of it wouldn’t, particularly where magic is involved. Then there’s the question of whether it’s subject to peer review. Most superhuman expert testimony would not be, as they don’t tend to publish articles in scholarly journals—wouldn’t want their tech to call into the wrong hands, etc.—and they don’t really have peers. Also, it helps a lot of the error rate is known. Scholarly science spends quite a bit of time focusing on the error rate of measurements, counting as insignificant those results which fall inside the margin of error. If we don’t even know what it is, and in many superhuman cases we don’t, it’s hard to give reliable testimony on a subject. Then there’s the question of standards and controls. Supervillains almost by definition don’t operate with any, but a lot of superhuman experts don’t really either, or if they do, they’re not really comprehensible to mundanes. But the most important is frequently whether the principle is generally accepted by the scientific community. In most superhuman cases, the answer is “Almost certainly not,” as they’re dealing with science and technology which is by definition way beyond anything the scientific community even recognizes as possible.
All that said, these are only factors to be used, and we wouldn’t be surprised if courts took some liberties with those factors in extraordinary cases like this. There might be some cautionary statements made to the jury in order to underscore the fact that the expert testimony is on somewhat shaky ground, and no doubt the defense would have a field day on cross-examination. In sum, the standards for expert witnesses would make prosecuting technology-wielding supervillains somewhere between difficult and impossible.
As a final note: even if Luthor were convicted and sentenced to death, it wouldn’t be by the electric chair. The federal government only uses lethal injection, and the ICC doesn’t employ the death penalty at all. For those of you still rooting for Puerto Rico, first degree felonies like crimes against humanity are punishable by 99 years in prison but not by death.
This section gave us an excuse to talk about some of the larger issues in prosecuting supervillains. But really, Luthor’s fate is not critical to the plot of the overall story, so the fact that the legal implications here don’t really pan out is not as important as it might otherwise be. If Luthor failed to appear for the rest of the series, the plot would be largely intact. This isn’t a story about Superman overcoming villainy, it’s a story about Superman preparing for death.