Iron Man 3: Iron Patriot Goes to Pakistan

We’re just about done with Iron Man 3, which we still recommend seeing if you haven’t already.  Here’s an essentially spoiler-free version of the facts behind this post: at some point in the movie, Iron Patriot (the re-branded War Machine) goes to Pakistan to look for The Mandarin.  But wait a minute.  Iron Patriot is very much an official, publicly acknowledged part of the US military.  So how can he—armed to the teeth, mind you—conduct a potentially violent manhunt in a foreign country?

Obviously this is strongly reminiscent of the killing of Osama bin Laden in Abbottabad, Pakistan in May of 2011, and this post is based on some expert analysis of the law surrounding his killing.  A few more spoilery details inside (about the movie, not bin Laden; don’t get excited).

As far as I can remember the movie doesn’t show Iron Patriot actually killing or arresting/kidnapping anyone.  He does threaten some people with weapons, however, and it is strongly implied that if he had found The Mandarin that he would have killed or captured him.  But since there was no actual killing, we won’t worry about the targeted killing aspect.  Instead, we’ll focus on the military-operation-on-foreign-soil aspect.

I. Consent

The simplest way to address the issue is for Pakistan to have consented to the operation, at least assuming that the Pakistani government has the legal authority to authorize such foreign military operations in its territory.  As Attorney General Eric Holder has said, “the use of force in foreign territory would be consistent with . . . international legal principles if conducted . . . with the consent of the nation involved.” Eric Holder, Att’y Gen. of the United States, Speech at Northwestern University School of Law (Mar. 5, 2012).

The problem is that I don’t recall anyone mentioning getting Pakistan’s go-ahead, nor does the US have a pre-existing arrangement with Pakistan allowing such incursions.  In the bin Laden case, the US neither sought consent nor invoked consent after the fact as a justification.  So what else is there?

II. Self-defense

One view is that state actors (e.g. Iron Patriot) may intervene in the territory of another state (e.g. Pakistan) against a non-state actor (e.g. a terrorist such as The Mandarin) in self-defense.  See, e.g., Thomas M. Franck, Editorial Comment, Terrorism and the Right of Self-Defense, 95 Am. J. Int’l L. 839 (2001).  Another view is that such self-defense is only available against state actors (e.g. if The Mandarin were an agent of Pakistan itself, perhaps).  Ian Brownlie, International Law and the Use of Force by States 278-79 (1963).

The US currently subscribes to the former view.  “[T]he use of force in foreign territory would be [lawful]… after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.”  Holder, Speech at Northwestern University School of Law.  A leaked Department of Justice White Paper is even more specific.  An attack would be justified under preventive self-defense if the “operational leader” “poses an imminent threat of violent attack against the United States.” White Paper, U.S. Dep’t of Justice, Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior Operational Leader of al-Qa’ida or an Associated Force 3.  But an “imminent” threat “does not require the United States to have clear evidence that a specific attack… will take place in the immediate future.” Id. at 7.

That seems to fit The Mandarin pretty well.  He posed an imminent threat of violent attack against the United States, though the United States did not have clear evidence of a specific attack that would take place in the immediate future.  All the government had was a history of prior attacks and a strong threat of another attack in the future.  From its point of view, the United States probably felt legally justified in sending in the Iron Patriot.

III. A More Nuanced View

For a more nuanced view, consider Arnulf Lorca’s article Rules for the “Global War on Terror”: Implying Consent and Presuming Conditions for Intervention, 45 N.Y.U. J. Int’l L. & Pol. 1 (2012).  Lorca argues that the traditional self-defense  okay/not okay view is too simplistic and extreme.  Instead, he divides countries into innocent, cohabitant, and harboring nations.  Innocent nations (e.g. Germany) are effectively controlling terrorism within their borders and have no link to terrorist groups.  Cohabitant nations are either too weak to control terrorism within their borders (e.g. Yemen) or are reluctant to do so (e.g. Pakistan).  Harboring nations (e.g. Taliban-controlled Afghanistan) are those that, while not expressly endorsing or controlling terrorist groups, nonetheless give them sanctuary or have a mutual understanding.

Lorca’s thesis is a complex one, but the overall suggestion seems to be that because Pakistan is a cohabitant state, intervention should be limited to the law enforcement model rather than military operations.  We see Iron Patriot doing more investigative work rather than shooting first and then asking questions, so he may have been complying with this view.  However, since he was unable to find The Mandarin in Pakistan, it’s hard to say for sure.

IV. Conclusion

Like many issues in international law, this is as much about politics and diplomacy as it is about treaties, statutes, or firm legal principles.  But at least we can say that the Iron Patriot’s actions were purportedly justified or at least potentially justifiable.

27 responses to “Iron Man 3: Iron Patriot Goes to Pakistan

  1. “nor does the US have a pre-existing arrangement with Pakistan allowing such incursions. ”

    We don’t? How is nobody being prosecuted for all the drone activity within Pakistan’s borders, then? Either we’ve got consent for that, and by extension for Iron Patriot’s activities, since really he’s an even more fine tuned instrument far less likely to kill civilians as collateral damage, or we’ve got consent for neither but simply don’t care about the legalities in either case so long as Pakistan doesn’t bug us about it.

    • I believe that said drone attacks are a source of real contention: I know that Pakistan recently shut down a NATO supply route following airstrikes that killed 28 people.

      I suspect that there’s some other things at play: military packages that are sent off to Pakistan (who is a US ally), or the inability for Pakistan to really do anything about it.

    • Daniel Taylor

      Pretty much the latter, Scott. The government of Pakistan has repeatedly denied consenting to the strikes, has protested the civilian death toll, and says the US is hampering it’s own anti-terrorism operations. The US government position is essentially “you’re not gonna declare war over it and we want to shoot these people, so we don’t care”.

      Nobody’s been prosecuted because who can they prosecute? The drone operators aren’t in Pakistan and the US isn’t going to hand them over.

      The US has conducted targeted drone murders in several nations that we don’t have consent from and aren’t at war with.

  2. Absolutely, although with Pakistan one suspects that part of that is them really consenting to it but wanting to maintain plausible deniability about that consent with certain factions among their own people. But either way, the same considerations could easily apply with sending Iron Patriot into Pakistan to get the Mandarin, and like I said, since Rhodey is not likely to kill any innocent women or children, it’s arguably going to be even less of a real problem for the US.

  3. Given that Pakistan’s intelligence agency (ISI) has been active in sponsoring terrorism for several decades, I would lean towards tagging that country as harboring, instead of cohabitant.

  4. Honestly, I’ve always found the concept of “laws of war” to be ludicrous on the face of them. War between nations who recognize laws governing international behavior are utterly stupid, since they should be resorting to those laws, much as we resort to the court system in the US rather than just dishing out vigilante justice to any who wrong us or our kinfolk.

    When war breaks out, it is precisely because at least one side is disregarding the sovereignty of the other. If you have gone to war, you either do not care about the rights of the target nation under any law, or you are fighting somebody who has shown they only care about such laws insofar as they can abuse them for advantage over you, and will disregard them otherwise anyway.

    War is nasty, brutish, violent, lawless business. We should have laws governing our behavior in war only insofar as they determine when we feel we are right to declare it, and in governing our internal behavior towards our own during it. War should be fought as effectively and with as much eye towards total and utter victory against the enemy as possible. Anything less is a farce, dishonoring the very concept of law by pretending to adhere to it while magnifying the suffering by prolonging the violence rather than putting a painful but mercifully swift end to it.

    • Such international treaties and laws regarding war have stopped the use of chemical and biological weapons, established standards for the treatment of P.O.W.s and civilians, and banned deliberately targeting civilians among other things. I would think that the benefits of such rules vastly outweigh any potential problems.

      Also often sovereignty is very poorly established, such as territory disputes or it involves cases where nations have been fighting proxy wars for some time and one side argues that some act in a proxy war was a casus belli.

      Lastly, to date there is no global police to uphold legal standards and so appealing to states to be on their best behavior is fruitless. The best that states have been able to do is to cobble together interstate agreements on what should and should not be done. Without that, there is nothing but chaos.

      • Except that these laws haven’t stopped such behavior. Those who view such behavior as something which is acceptable do it anyway, while those who do not wouldn’t do it barring extremes.

        If the United States honestly thought a nuke was the difference between saving or losing the country, do you honestly think we wouldn’t use one?

        Has “law of war” stopped Syria from using chemical weapons?

        The notion that we will allow war up to a certain point, then the US – under direction of the UN – will come in and stop you, is utterly preposterous. We do it, but in so doing, we perpetuate evil rather than stopping it. Either war is bad or it isn’t.

        We can have gentlemens’ agreements about acceptable targets all we want, but it doesn’t make war prettier. It just makes it fester longer.

      • I sort of see the guy’s point. It is sort of the point of the Star Trek episode (“A Taste of Armageddon”) in which planets agreed to kill their own people in order to avoid mass slaughter and the destruction of their cultures. Kirk’s point was that people would do more to avoid war if they knew it was going to be messy.

        Of course, that’s not the point here: the concept of “war crimes” does not prevent war crimes any more than the concept of crime preventing crime but if we didn’t have a means to seek retribution for crimes against humanity then countries would have no choice but to go to war again to right previous wrongs. It is important to hold individuals accountable for the crimes they commit and not entire peoples and their descendents.

      • Not necessarily. Besides speculation that parts of the Pakistani government give the U.S. secret permission (or did in the past), there’s also the fact that Pakistan really isn’t capable of actually stopping the U.S. from simply sending drones and soldiers into the country if the U.S. wants*.
        So depending on your views of the legal arguments the U.S. might have had legal justification for sending Iron Patriot in, but his presence doesn’t confirm that any portion of the Pakistani government (let alone one that has the legal authority to give permission) gave the go ahead.

        *Remember that the raid that killed Osama bin Laden was in the same town as a top Pakistani military school. If they couldn’t stop the U.S. from going there, the U.S. could probably go into Islamabad itself without much trouble.

    • I think it’s clear that I strongly disagree for several reasons, but this is well beyond the scope of this site.

      • Fair enough.

        I suppose my biggest gripe is with the concept of laws that have no governing authority to enforce them.

        Back on topic: I figure Pakistan must at least have given tacit agreement, because otherwise, there’d have been fighter jets flying to stop Iron Patriot.

  5. Martin Phipps

    If the Mandarin actually were a citizen of Pakistan and he was, say, fishing in waters belonging to the United States and War Machine shot at his boat and killed him would Pakistan be in its rights to ask for a sincere apology from te United States or would that just be way over the top? Note that this is a completely random question that has absolutely nothing to do with any recent events having taken place anywhere. :/

  6. Terry Washington

    The question is: what PRECISELY is Iron Patriot’s status in law? Is he a soldier, a policeman or a”spook”( intelligence operative)? What are the rights and status of superheroes operating outside their own country(by ironic coincidence I am writing a novel addressing such an issue, esp when someone is injured- albeit inadvertently)?

    • I don’t think we were informed of Rhody being transferred to anything other than the branch of the military for which he worked when we first met him. His assignment changed from “liaison with Stark Industries” to “War Machine” to “Iron Patriot,” but I think he’s still military, and in the same branch. (I wasn’t clear if he was Air Force or Army, but that’s probably just because I didn’t pay close enough attention.)

      • It’s the Air Force. He was in command of the two jets Stark broke in the first movie.

      • Ah, thanks. In that case, I don’t think we’re informed of him being moved out of the Air Force, so I would assume that he (still) counts as a soldier. Not a “spook” or any such. Especially given the highly public face Iron Patriot has.

      • Terry Washington

        The plot thickens- a soldier (or airman in Iron Patriot’s case although in the comics he is a US Marine) has different rights and duties than a law enforcement( civilian as opposed to the military police) officer. As the late Ernest Borgnine’s character General Worden observed the 1967 film version of E.M. Nathanson’s “The Dirty Dozen” -” a soldier’s job is to wear his uniform and kill the enemy”(whereas a policeman’s is to uphold the law and apprehend criminals- and the question of what rights a superhero has whilst operating outside his/her native land remains unaddressed( as my novel makes clear).

  7. Terry Washington

    I just thought of the Posse Comitatus Act (1878) which precludes the US military from assuming law enforcement functions domestically unless in the case of civil disturbance( 1957 Little Rock desegregation crisis in Arkansas and James Meredith’s enrolment in the University Of Mississippi in 1962, and the LA riots of 1965 and 1992 respectively(. I am NOT certain if the Act applies to the US military overseas( probably not except in cases of countries such as Germany and Japan after WWII- they were under military occupation by the four victorious Allied powers- the US, UK, France and the USSR), but given the strong anti-US sentiment in Pakistan due to the “drone war” in the FATA, I would advice the Iron Patriot to watch his step there; other countries are not as enamored of peripatetic American superheroes as are Americans themselves_ at least outside of New York!

  8. Okay, here’s a serious question about the Iron Man movie. In the end what crime was the Mandarin arrested for? Did he really kill that Roxxon executive or was that “movie magic” as he claimed? After all he was only an (SPOILER) actor and not an actual terrorist: he claimed he had never even been to Pakistan! My best guess is that he could be tried under either conspiracy or obstruction of justice charges: he knew that he was not responsible for the explosions and yet he took credit for them and this hampered the investigation into the explosions.

    • Besides those two, racketeering would presumably work.

    • We got an email about that, too, and the answer is kind of long and fact-dependent, so I’ll probably turn it into a post on Wednesday.

    • Melanie Koleini

      The Mandarin might also be charged with providing material aid to a terrorist organization.

      • Terry Washington

        Does Iron Patriot even have the AUTHORITY in legal terms to arrest the Mandarin( see my previous post about the “Posse Comitatus Act” of 1878 which bans the US military from exercising law enforcement functions-except for serving servicemembers, their dependents and places under martial law or miitary occupation such as the Watts Riots of 1965 and 1992, or Germany and Japan after WWII)?

      • As I recall it looked like the people who ultimately arrested The Mandarin were ordinary law enforcement (the people shown leading him away in handcuffs while various adoring fans looked on). Iron Patriot (really just James Rhodes, since he was no longer in the suit) did interrogate him a bit with Tony Stark, but recall that he had been kidnapped by A.I.M. in Pakistan and taken to A.I.M.’s Florida HQ involuntarily. I think the PCA would not apply to that kind of informal situation, in which Rhodes was acting out of self-defense and then simply relaying information to his superiors. I don’t think he arrested anybody in the US, certainly not in his capacity as an Air Force Colonel.

      • Terry Washington

        Just wanted that whole issue of jurisdiction cleared up- I’m currently reading “Falcon Seven” by James W. Huston, a former US naval aviator turned lawyer in which a pair of Navy pilots accidentally bomb a refugee center , are shot down and charged with war crimes at the International Criminal Court at the Hague. As you might notice, a big chunk of Jack Caskey( a former Navy SEAL turned defence lawyer)’s defence is that the ICC has no jurisdiction over US military personnel as the US has neither signed or ratified the ICC Convention so jurisdiction is a BIGGIE in my book!

Leave a Reply

Your email address will not be published. Required fields are marked *