World War Hulk is a five-issue limited series from 2007 telling the story of the Hulk’s return to Earth after the events of Planet Hulk in 2006. The basic story is that in Planet Hulk, a majority of the Illuminati, consisting of Iron Man, Mr. Fantastic, Black Bolt, and Dr. Strange, decide to deal with the “Hulk problem” by sending him into space. The Hulk is tricked onto a starship set for another planet, but the Hulk winds up on the planet Sakaar instead of the peaceful world he was intended for. He winds up fighting a bunch of people, getting married to the local princess, only to have the better part of the city—and princess—blown up when the starship he arrived on explodes.
Hulk is pissed. About the trickery, about the exile, and now about the death of his wife. He plots revenge and returns to Earth. World War Hulk picks up there.
World War Hulk: Frontline is a parallel story about Ben Urich and Sally Floyd, as they continue reporting for Front Line, the newspaper they started back in the Marvel Civil War.. Like in the Civil War, the writers use the Front Line story to talk about the effects of the super-powered conflict on everyday people. So, for instance, we see the effects of the evacuation of Manhattan on the poor and indigent. As the more mundane side of the story, this is where some of the more interesting legal questions arise, and we’ll take a look at those here.
Early in the Front Line arc, Doc Samson tracks down Jen Walters, currently unable to transform into She-Hulk for reasons too complicated to get into here. But Walters, as an attorney, has some interesting things to say about the Illuminati’s treatment of the Hulk. She suggests three main things: (1) that the Illuminati have violated the Hulk’s civil rights, (2) that the Illuminati have committed at least one tort, and (3) that the Hulk’s treatment at their hands constitutes casus belli. We’ll look at each of these briefly.
I. Civil Rights
Turns out Walters may be wrong about this. With a few very limited exceptions, only the government—or a state actor—can violate someone’s civil rights, simply because those rights act to restrain the government, not private individuals. Unless the Illuminati are state actors, there’s simply no way for them to violate the Hulk’s due process rights. This is a fairly common misconception. If some punk steals your car, that’s theft, but it’s not a taking pursuant to the Fifth Amendment, because the thief isn’t a state actor. But if the cops take your car it may not be theft—there are a variety of ways they can get authorization to do this—but unless they pay for it, it might be a Fifth Amendment taking, because they are state actors.
So, generally speaking, it’s harder to sue the government than private individuals for tort claims, and it’s impossible to sue private individuals for most civil rights claims. The main exception is discrimination, which Congress, under the Fourteenth Amendment, has extended to everyone. But due process? Vague concepts of “human rights”? Going to be hard to sue the Illuminati for this unless they’re state actors.
Which raises the question: Well, are they? Hard to say. They aren’t claiming to act on behalf of the state, or any state for that matter, and though they are tending towards activities which are traditional state functions, they haven’t been authorized to do so. Indeed, the government would probably rather they left well enough alone. Still, they’re acting to effectively mete out punishment, as such, so one can see a judge deciding to categorize them as state actors just to stick it to them. This could go either way. But the default is that they would not be liable for any civil rights violations, as they’re only arguably, not obviously, state actors.
II. Tort Claims
Walters says that the Illuminati are on the hook for “illegal restraint”. This isn’t actually a thing. The much more common term is “false imprisonment,” but in any case the Illuminati are probably liable here. False imprisonment involves the “restraint of a person in a bounded area without justification or consent.” The spaceship is certainly a bounded area, and while the Hulk initially consented, he was deceived into doing so, which invalidates his consent.
The Illuminati are probably also on the hook for kidnapping. That just involves transporting someone somewhere else against their will. Sending the Hulk away certainly counts. Kidnapping is a crime, so the Illuminati could be liable both criminally and civilly.
There’s also the issue of the explosion of the shuttle on Sakaar. Is there a products liability or maybe a negligence claim here? Something the Illuminati built exploded and killed people. A lot of people. That would normally be grounds for civil liability, yes? Here it really depends on the state in which the claim is brought, as products liability is significantly governed by statute, and statutes vary widely in the degree to which they are business-friendly. But most states do involve at least some sort of product misuse defense, i.e., it’s not the company’s fault if you do something drastically stupid for which the product was never intended. There’s an argument to be made here. The Illuminati never intended the shuttle to be repurposed as some kind of monument, and it was that activity which caused the shuttle to explode. It was doing just fine sitting there, but the Sakaarians messed with it, and boom.
III. Casus belli
Last, Walters suggests that the Illuminati’s actions constitute casus belli, i.e., an act which justifies war. This one’s hard to see, particularly as Walters would need to use her fourth-wall-bending powers to know that the Hulk was anything but dead, let alone the ruler of an alien civilization. But casus belli really only applies to sovereign states. “War” isn’t something private individuals can engage in, except in the most metaphorical way. We talked about this in one of our posts about the Avengers. There, we concluded that Loki’s invasion of New York at the head of the Chitauri probably was war, because the Chitauri seem to have what looks a lot like a functioning state. Then, as now, we’re assuming that there’s no particular reason an alien civilization and a human one can’t go to war, and that technological differences are of no importance whatsoever. As there, this probably is a war. The Hulk is the head of an alien government and invades and occupies Manhattan. Front Line actually has some fairly detailed interactions with law enforcement officers on both sides of the conflict, suggesting that both sides do consider this to be a war, legally speaking.
The question here is whether the Hulk’s exile would constitute casus belli. The answer is probably not. He’s certainly got a cause of action for at least one tort, and possibly one for the civil rights issues. But being the victim of a tort or having one’s civil rights violated does not give one permission to raise a foreign army and go to war, particularly because the Hulk wasn’t a foreign head of state at the time. Personal affronts are no justification for large-scale political action. Really, the Hulk winds up displacing several million people and killing who knows how many simply because… four guys tweaked him off. Sure, he was really tweaked, but seriously. The injury and the response aren’t even in the same category, legally speaking. Further, the Hulk was a private individual when he was kidnapped. Actions against private individuals are never casus belli for the individual, because individuals can’t declare war.
So while Front Line does raise some interesting legal questions, they aren’t necessarily handled particularly well. The writers correctly realize that there are a bunch of potential tort claims, but don’t really get into those very much. But their intuition about the civil rights and casus belli issues, while understandable, is incorrect. Private individuals, like the Illuminati presumably are, can’t violate civil rights in most circumstances, and injuries to private individuals don’t constitute grounds for declaring war.
There are more issues here that we’ll take up in a later post. Stay tuned!