What can the world’s mightiest superheroes teach us about international law?

A look at the Syrian conflict through an Avengers lens

From Watchmen to Mircaleman, the question of checks and balances regarding the actions of super-humans has been central to the comic medium.
Even the seminal Dark Knight Returns premised its now infamous fight between Batman and Superman on whether or not superheroes should be under the auspices of the government.

Captain America: Civil War, the latest film in the Marvel Cinematic Universe, seeks to tackle this issue head on by presenting its character with a choice; to subject themself to United Nations oversight or be branded criminals. This leads to the fragmentation of the Avengers as Captain America and Iron Man come to blows, with the former advocating for their continued independence and the latter concerned with the unintended consequences of their actions.

On an instinctual level, I suspect many would side with the armoured avenger, but the sentinel of liberty raises some interesting questions concerning the effectivity of collective action. What can Earth’s mightiest heroes teach us about international law?

For starters, it’s important to recognise that groups like the Avengers, as altruistic as they may be, are essentially a private military/security organisation. Even if they are acting in a humanitarian manner or as a peacekeeping force, their actions on the international plain often infringe on the sovereignty of nations. Engaging in self-defence against an alien invasion or existential threats to the Earth may be morally excusable, but the continued disregard for the territorial integrity of countries like Lagos and Sokovia poses a risk to international peace and security. Stability is hard to maintain where the prospect of an Avengers-led intervention is always a possibility.

Regarding the Sokovia Accords themselves, we get surprisingly little detail as to their strict application in the film. The promotional title-page provided in the Marvel Phase Two box-set reads:

In accordance with the document at hand, I hereby certify that the below mentioned participants, peoples and individuals, shall no longer operate freely or unregulated, but instead operate under the rules, ordinances and governances of the aforementioned UN panel, acting only when and if the panel deems it appropriate and/or necessary.

For the purposes of this article, we will assume that this panel would operate in the same manner as the UN Security Council in that it is composed of 15 members, with ten of those seats being held on a rotational basis. The remaining five states — the United States, United Kingdom, China, Russia and France — would hold permanent seats and possess a veto power on any proposed action. Sadly, little information is available on whether or not Wakanda may have had an enhanced role or permanent membership on this panel.

It’s understandable why people would be drawn to ‘Team Iron-Man’ on an intuitive level. We demand accountability from our leaders, from those in power. In a world where Norse Gods and irradiated Hulks walk the Earth, it’s reassuring to know they act on our behalf.

Yet the cynic in us all understands that their acts are both a blessing and a curse. The considerable talents of the Avengers could easily be turned against us, as evidenced by the events of Age of Ultron. If force is to be used against others, we want to know that it will occur on a collective level, with official backing from those we trust to keep us safe.

The legal framework surrounding international peace and security policy operates on a similar understanding. According to Article 2(4) of the UN Charter, outside of the self defence context, the use or threat of force against another state is unlawful. In general terms, states may only engage in force with the explicit approval of the Security Council through the use of its Chapter VII powers. In the past, this has led to the sanctioning of the use of force in the gulf during the Iraq-Kuwait conflict of the 90s, the expansion of the Korean War and calling for military intervention in Libya among others. Indeed, the NATO bombing campaign during the Yugoslav Wars did not receive such approval and was widely condemned for it. It was only in later years that the actions of NATO in that conflict were somewhat vindicated on a political level, if not a legal one, and recognised as a necessary derogation.

One of Captain America’s key concerns is that this panel would prevent the Avengers from going into places where they were needed and history, unfortunately, would appear to be on his side. The Security Council has been characterised as a body of gross inaction. The Yalta formula, in presenting its five permanent members with veto powers, allows states to block intervention when it does not serve its interests or that of its allies. The repeated failure of the Security Council to adequately respond to the Syrian crisis, particularly the events in Aleppo, reveals a politicisation and self-interest unbecoming of such a vital institution. Russia is unwilling to pass a resolution that would damage the interests of the Assad regime and the other four permanent members will reject any motion that is perceived as bolstering the Syrian government.

If the Security Council, or a similar body, were to be put in charge of the Avengers, then it would be unlikely they’d see widespread usage. The Masters of Evil could very well be attacking Ukraine, but Russian interests in the region would prevent the assembling of an Avengers team. Instead, the threat of the Avengers would become another tool in the utility belt of the international legal order, used mainly to service the ends of elites. Syria is just the latest instance of the inability of the international community to fail to respond to atrocities, one need only cast their minds back to the Rwandan genocide and the Srebrenica massacre to understand that. Considering this, and the in-universe corruption of S.H.I.E.L.D., it is understandable that the good Captain would be slow to relinquish power.

Some commentators have compared the philosophical clash between Captain America and Iron-Man as that of libertarianism and liberalism respectively. This is too simplistic an approach to take. It is often assumed that libertarianism is problematic, based on an assertion that over-reliance on individualism leads to the development of conservative social policy.

This is not strictly the case, indeed, the case for the egalitarian libertarian movement is quite strong in certain circles. In essence, libertarianism simply places trust in the individual over that of the government, holding that the latter should not unduly dictate how we should live.

Such a stance may lend itself to socially progressive on the basis that the government shouldn’t privilege a particular view of morality over another. While it is true that Rodgers is sceptical towards government in this film, it would be inaccurate to brand him purely as a libertarian. The stance taken by Cap and his Secret Avengers lies closer to that of neo-conservativism which sees to promote “universal values” such as democracy, human rights and the protection of minority. Those who subscribe to this belief take an aggressive stance on issues they deem morally worthy and are willing to use unilateral force to that end.

Naturally, discussions of this sort are incredibly complex from a policy perspective, more complex than an article such as this can hope to tackle. What is worth remembering is that attempts to address matters of international peace and security often suffer from Security Council inaction. The various member states of the UN, while assembling to combat situations no single country could resolve, get bogged down in politics and bureaucracy, preventing them from acting where they are needed. As a result, innocents continue to suffer.

It would be nice if we could believe in the idealism that Steve Rodgers presents. If we could believe in the inherent altruism of those states that intervene unilaterally. History has shown we should be wary of those crusaders. International law isn’t perfect, but it is the best instrument we have to hold our so-called protectors to account. Were we to be presented with the Sokovia Accords, we should accept them, but not without a healthy dose of scepticism. As NATO’s campaign during the Yugoslav Wars demonstrate, sometimes the actions of the Avengers can be illegal, but legitimate.

Gary Moloney is an LLM (International Human Rights Law and Public Policy) student from University College Cork.