Tywin Lannister: War Criminal (Part 2)

Previously we looked at my accusations that Tywin Lannister, Lord of Casterly Rock, Lord Paramount of the Westerlands, Warden of the West, father of the Queen and (after Joffrey’s accession to the Throne) Hand of the King (again) is a war criminal.

The TL;DR for that one is…

  1. While I think that the elimination of Houses Reyne and Tarbeck in the infamous “Rains of Castamere” assault is a truly revolting mass murder, I am not convinced that it is a war crime as I do not believe the rebellion of the Reynes and Tarbecks, and Tywin’s forces riding out to quash it, adequately meets the criteria for a non-internaitonal armed conflict. If it’s not a war, it’s not a war crime – it’s just a CRIME.
  2. However the murders of Elia Martell and her children, Rhaenys and Aegon Targaryen, are most definitely a war crime, because Tywin ordered his men to eliminate the children – who were not a military target.

game-thrones-garden-of-bones-tywin-lannister

What I didn’t go into much in the second example was the issue of command responsibility, which I will raise more in this blog, because it comes up again. What makes Tywin Lannister a war criminal is not that he actually literally dirties his hands with the blood of his victims: he simply orders men under his command to do it. But he is responsible for it as their commander.

The raiding and pillaging of the Bloody Mummers is another grey area: is it a non-international armed conflict, or is it an act of aggression in peacetime?

What I propose to question in this blog is raiding of the Riverlands by Gregor “The Mountain” Clegane and the band of distasteful mercenaries called properly the Brave Companions, but known more by their sobriquet “The Bloody Mummers” – Vargo Hoat, Biter, Shagwell the Fool, Septon Utt, Qyburn the disgraced and ‘defrocked’ maester, and Urswyck the Faithful. They pillage, reave and rape their way across the Riverlands, ending up squatting in Harrenhal, holding that ancient castle for the Lannister armies. We encounter them in Arya and Jaime’s misadventures in the Riverlands through the first act of ASOAIF (AGOT-ASOS).

  1. Tywin ordering the Bloody Mummers to pillage the Riverlands was an act of aggression – but was it the start of the War of the Five Kings, or did Catelyn Tully Stark do that when she seized Tyrion Lannister?
  2. Tywin ordered his men to ravage the Riverlands, to provoke a response from the then Hand of the King – Ned Stark. Why was this not dealt with within the Westeros justice system as an act of treason or breach of the peace?
  3. Is Tywin responsible for all of the acts of the Bloody Mummers?

the_brave_companions___sellsword_company_by_wadewilson79-d64vav1

Logo by WadeWilson79

As I briefly referred to in Part 1, the law of armed conflict only applies when there is a recognised armed conflict. That term has a recognised legal meaning – higher than a bit of a dust up between paramilitary groups or militias.

I explained this a bit more in response to a comment on the last blog:

My view is that the Tarbeck-Reyne uprising was not at the level of a non-international armed conflict, because it basically amounted to chest-puffed out shouty bad tactical diplomacy with their liege lord’s son. It’s similar to the recent Oregon terrorist takeover of a national park: it didn’t amount to a civil war, but it was definitely civil unrest. The Oregon Free Men of the Law RWNJs were acting in an aggressive, militaristic fashion but the dispute was not a non-international armed conflict. There’s still a functioning law and order system around to adequately deal with bringing them to heel, and that’s how I see the Tarbeck-Reyne rebellion. They were, basically, refusing to pay taxes/repay debts, and kind of doing a similar kind of chest-thumping “we’re so tough and independent” routine as the Oregon idiots. Tywin and Kevan’s armies riding out to deal with them is the medieval/Westerosi equivalent of a dozen SWAT teams going in to arrest them, y’know? That isn’t a non-international armed conflict: that’s policing in an unusual situation. The problem for our analysis of the situation is that Westeros doesn’t have a police force – it relies upon the armies of the Lords Paramount to police the King’s peace. So just because an army is riding in, doesn’t make it an armed conflict. That’s my view. We need to look at the use of armed soldiers in a context of policing the King’s peace, rather than engaging with an enemy militia. It’s an almost arbitrary line of distinction that I’ve drawn, and I admit that.

There is a difference between civil unrest and civil war. The law of armed conflict doesn’t apply to civil unrest – ordinary criminal law does.

Why?

The law of armed conflict exists to provide an extraordinary legal framework to an extraordinary situation. In civil unrest, there is some disturbance but it is not an extraordinary situation – the ordinary law still applies. There’s no need for the LOAC to come in as a giant band aid to a dysfunctional situation.

We have the LOAC because under ordinary law, soldiers would not be able to carry out legitimate acts of war. Think about it: if you intentionally kill someone in a normal situation, it’s murder. In war, it’s just military action. The LOAC gives a framework to allow for extraordinary actions in extraordinary situations to make lawful what would otherwise be unlawful.

But when does the LOAC kick in? And when do the ordinary laws of the land stay in place? These questions are directly relevant to the third situation that makes Tywin Lannister a war criminal: sending the Brave Companions to raid the Riverlands in response to Catelyn Tully Stark seizing Tyrion Lannister.

What act started the WOTFK?

The properly apply the LOAC to the War of the Five Kings, we need to figure out when it started – when do the normal laws of Westeros take a back seat to the LOAC?

What led up to the War of the Five Kings? How do we work out who started it? Let’s look at all of the key incidents that led to the breakout of civil war:

  • Jon Arryn was murdered by Lysa Tully Arryn, on the orders/suggestion of Petyr “Littlefinger” Baelish, and he also directed her to send a note to Lysa suggesting that the Lannisters did it;
  • Bran was pushed out a window (by Jaime Lannister);
  • A catspaw sent by Joffrey attempts to ‘mercy kill’ Bran Stark after his fall leads to paraplegia and a long coma;
  • Catelyn Tully Stark travels to King’s Landing with the dagger the catspaw used in the attack on Bran, to find out who was behind the attempt on her son’s life;
  • Littlefinger wings it with some bullshit to link Tyrion Lannister to the dagger;
  • Catelyn seizes Tyrion with the help of Riverland men at the Inn of the Crossroads on her way back to the North, and takes him to the Eyrie;
  • in response to a Lannister being seized, Tywin Lannister sends the Brave Companions to raid the Riverlands, to draw Ned Stark out of King’s Landing to enforce the King’s peace;
  • At the same time, Jaime Lannister has a fight with Ned in King’s Landing, which results in Ned’s leg break – meaning he can’t leave King’s Landing. Ned send Beric Dondarrion and his men out to battle the Brave Companions;
  • Robert dies, Joffrey ascends to the Iron Throne and Ned is arrested by Cersei’s gold cloaks. Stannis declares himself King of Westeros as Joffrey and Tommen are illegitimate bastards. Renly also declares himself King of Westeros, because he thinks he’d look better in a crown than dour Stannis;
  • Tyrion has his trial by combat and denies the accusations Catelyn makes about sending a catspaw after Bran. He wins his trial (thanks to Bronn) and leaves the Vale;
  • Robb and his armies come south to fight the Lannister/Westerlands armies as a result of Ned’s arrest. The Northmen declare independence and name Robb DAKINGINDANORF;
  • Theon Greyjoy goes to the Iron Islands as an envoy of Robb, King in the North, discovers his father Balon Greyjoy has declared himself King of the Iron Islands and plans to raid the North while Robb Stark and Co are in the south;
  • War of the Five Kings is definitely in business…

So at which point did the war actually start?

I’ve highlighted in pink the political aspects of WOTFK, green is the acts of aggression that could be the start of the war, and the maroon is enforcing of the King’s peace. At which point does the civil war start, and when do the ordinary laws of Westeros take a back seat to the LOAC?

The Third Hague Convention of 1907 governs the law around declarations of war for international armed conflict. But what about non-international armed conflict? Customary international law says that similar criteria are applied, but it’s more a case of looking at the facts rather than looking at any statements or declarations of war.

IHL requires that two criteria be met for there to be a non-international armed conflict: the armed groups involved must show a minimum degree of organization and the armed confrontations must reach a minimum level of intensity. The fulfilment of these criteria is determined on a case-by-case basis, by weighing up a number of factual indicators.

International Committee of the Red Cross

Based on this assessment, I would challenge the all too common misogynistic view amongst fans who want to blame Catelyn for the War of the Five Kings. Nor can we say “it was all Littlefinger” – he might have manipulated the parties into declaring civil war, but on his own he is not an armed group with a minimum degree of organisation and a minimum level of intensity to armed confrontation.

The first armed confrontation that goes over and above an attempt by a Lord or Lady Paramount to enforce the King’s Peace is Tywin sending out the Brave Companions.

Feudalism and policing the King’s Peace

What we have to remember is that within the context of a feudal kingdom such as Westeros, the armies of the Lords Paramount are effectively the police force. And those armies aren’t standing armies – there are some men at arms in each lord’s’ employ, but the armies raised by warring parties in the WOTFK are volunteer forces that only come into being when their lords rally the armies, put out a call to arms.

So really, the Lords Paramount are responsible for policing the laws of Westeros, such as they are, and that is what Catelyn is doing in seizing Tyrion. She is acting as Lady of Winterfell and the daughter and envoy of the Lord of Riverrun, and arresting Tyrion on suspicion of having arranged the assassination of Bran. That is not an act of war.

Nor is Ned sending out Beric Dondarrion and his men to police the violence in the Riverlands an act of war. He expressly charges Beric and the men who will go on to become the Brotherhood Without Banners with the mission to protect the smallfolk, stop the violence and bring the Riverlands to order. This is simply policing the King’s Peace once it has been broken.

So who broke it…

Breach of the peace

Public order offences are some of the oldest criminal laws in common law Anglophone law. It draws from medieval and feudal times, which is why it’s relevant to Westeros.

Breach of the peace is one of the oldest offences in common law. As Frederick Pollock has detailed in his essay on the King’s Peace, it can be traced back to the regard in Anglo-Saxon law for the sanctity of the homestead: “every man was entitled to peace in his own house” (Pollock, 70). If his peace were disturbed—by brawling, fighting, or even name-calling and other incivilities—the offender would owe him special amends. If the peace of the King’s home was breached, this was of course more serious than for the common man, and the offender risked being slain. The King’s peace was eventually extended from his home and highways to the whole kingdom. Whosoever breached the peace breached the King’s peace and risked doom.

Critical Legal Thinking

Tywin Lannister deliberately breaches the king’s peace to draw out Ned Stark and pressure him through military force into releasing Tyrion. Tywin assumes that Catelyn acts on Ned’s orders (because of course no woman in Westeros could have an idea of her own…) and Ned gives this lie to Jaime in their confrontation to protect Catelyn (and her father, in whose name she also acted) from further repercussions if Lannister words get into King Robert’s ears. But the method Tywin uses is far over and above the reasonable options open to him. He could have sued for Tyrion’s return in front the King, embarrassing Ned and undermining his authority as Hand, while forcing Robert to choose between his friend and the law.

He didn’t. He went for the chest-thumping military option. He decided, again, that Tywin Lannister was above the law and could do as he pleased. So he did. News trickles into King’s Landing as representatives of attacked areas come to tell the King – or his Hand, as the King is off hunting and drinking – what is happening:

Now, I had a big write up with chunks of Eddard XI AGOT, but then I had formatting chaos, and then I came across a thread on /r/asoiaf discussing scenes that the TV show made more lively than the books. And this scene better conveys the problems facing Ned – how to retaliate against Tywin Lannister without looking like it’s a Stark/Tully v Lannister fight. We miss out on Ned’s thoughts, but Sean Bean does show that Lord Eddard Stark is very uncomfortable with the evidence put before him and the implications that Littlefinger and Pycelle are making. So quickly watch this

While Ned wants to be the one wielding the sword, as is his way (the man who passes the sentence should wield the sword) he can’t because of his shattered leg. So he sends out Beric and his men.

This is the act that starts the War of the Five Kings. The Lannisters are the ones who started a civil war. Not the Starks, not Littlefinger, not the Baratheon brothers’ duelling claims for kingship. It was the order of Tywin Lannister to send out the Brave Companions.

But, how do we know Tywin sent them?

Fair question. Tywin only bears command responsibility if he ordered the Brave Companions and Gregor Clegane out to raid the Riverlands.

So how do we know that he did?

Firstly, the Brave Companions that we meet in ACOK are taking their orders from Gregor Clegane. We know that the Clegane brothers are Westerlands men, and we know that Gregor has done awful things on the order of Tywin Lannister before (like the rape and murder of Elia Martell and her children.) What do you know, his mate Amory Lorch is running around with him too. Gee. How convenient.

But before we see inside the camp of the Brave Companions via Arya’s POV chapters in ACOK, Gregor is identified as the leader of these men by the victims of the raiding, although their identification is questioned by Lannister toady, Pycelle: (again – the TV version is good)

Grand Maester Pycelle rose ponderously from the council table, his chain of office clinking. “Ser Marq, with respect, you cannot know that this outlaw was Ser Gregor. There are many large men in the realm.”

We have previously been treated to descriptions of Gregor Clegane as the Tourney Robert held in honour of Ned’s appointment as Hand. He is freakishly huge, the largest man in Westeros bar none. Much like his younger and smaller brother Sandor is known and feared by his Hounds-helm, the Mountain That Rides is known by his size.

It’s not a slam dunk of identification evidence, but it is pretty compelling.

But it still doesn’t address the idea that Gregor has gone rogue. How do we know that he’s taking orders from Tywin? The short version is: because the story tells us later on!

In the beginnings, the Brave Companions led by Gregor Clegane were not raiding under Westerland or Lannister banners. They were, ostensibly, rogue brigands bringing misery. As outlined above, this was a tactic of Tywin’s – and a dirty one. One of the core aspects of the LOAC is that soldiers must be in identifiable uniforms so that their enemies know who to target – this is a core part of the principle of distinction. To enforce this, the LOAC holds that persons engaged in war acts while not wearing an identifiable uniform or emblem that marks them as a member of an armed force in the armed conflict is not entitled to protected status as a member of an armed force.

Wazzat mean?

Simple: guerilla tactics mean that you void your right to claim that your act of killing or property damage, done as an act of war, was an act of war. It’s just an act of violence and thus criminal under the ordinary rules of the state. Remember at the start of this blog I talked about the role of the LOAC being to give a legal framework that permits actions which would otherwise be unlawful?

This is the flipside: if you don’t “play by the rules” then you don’t get to ask for the rules to be applied to you. [And just as a side note: anyone doing a law course on the law of armed conflict and needing some inspiration for an essay topic – looking at whether espionage is a bona fide military tactic is a very interesting area. It’s not illegal under the law of armed conflict, but spies are not protected as civilians or prisoners of war/military personnel. It’s a very grey area with lots of potential for critical analysis!]

Tywin was throwing Gregor and his men under the bus, banking on his connection to the Crown (via his daughter, the Queen, his son, the Kingsguard, and his grandson, the heir apparent) to protect him from scrutiny. He was also hoping that Edmure Tully would retaliate without permission from the Crown – because Edmure would have been targeting areas of the Westerlands, not just Gregor directly. Then Tywin could act innocent and claim the protection of the Crown against Riverland incursions in the Westerlands. That didn’t work out, and Tywin’s role was suspected early on.

It’s confirmed in ACOK, when the Brave Companions set up shop in Harrenhal and are joined by Lannister men. When Arya is expected to wait upon Ser Harys Swyft and his men as the cupbearer Nan, she notes with relief that she isn’t expected to also wait on the Brave Companions, who scare her. The Lannister men are also quite dismissive of the sellsword company, who by this point seem to have become distinct from Gregor and developed their own plans. (I mean, they finalise that process by chucking Amory Lorch into the bear pit and ditching the Lannisters for the Boltons, but for now let’s ignore that.) But Lord Tywin himself is seen liaising with Vargo Hoat, Amory Lorch and Gregor Clegane by our watchful Arya in her ACOK POV chapters. As I said – we know that Tywin ordered them out because the story tells us this fact, so we don’t need to overanalyse this point further!

Conclusion

As the person who commanded Gregor Clegane to hire the Brave Companions, and probably funded the gold coin for their employment from Lannister coffers, Tywin Lannister bears command responsibility for the atrocities carried out by them. Much like Anto Furundžija in the Bosnia-Herzegovina conflict, Tywin’s responsibility here is independent of his presence in the theatre of war. He doesn’t need to actually be there ordering the atrocities to bear responsibility for them. What his soldiers do of their own initiative is his responsibility as he ordered them out there to pillage and disrupt the Riverlands.

In doing this, Tywin Lannister also provided the first act of aggression to the internal armed conflict that becomes the War of the Five Kings. Whatever strategic or tactical criticism you want to make of Catelyn’s hasty decision to arrest Tyrion Lannister when she had the chance, it wasn’t an act of war. Tywin’s response to her action was an act of war.

Next and final instalment in this series to come later will cover the Red Wedding…. much like GRRM, I’m putting it off because TRAGEDY 😦

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