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June 30 2012

Were Nick Fury's actions in The Avengers legally justified? The 'Law and the Multiverse' blog gets advice on the matter from military lawyers.

The blog was featured on the front page back in February with their Buffyverse Vampires and Criminal Liability article.

Interesting, and I actually did somewhat think that was why one would uphold Fury's decision. It becomes a matter of opinion, but the second the Avengers solve the problem, the only argument left would have been "well he disobeyed orders" when the other hand would be "and preserved millions of lives AND solved the problem."
Of course, this is all dependent on the fact that whatever system of law would try Nick Fury was a typical one--in the Marvel Universe, who knows what he'd be dealing with? Still, it's cool to see them debating this.
The "E" in SHIELD stands for Espionage. (At least in the comics.) Legality is always going to be a grey area. (Spying between nations is illegal, but everyone does it.)
Well there's no international law against espionage; there would either have to be a multilateral treaty prohibiting it (ha!) or long established this-just-isn't-to-be-done custom (double ha!). Of course every country in the world outlaws espionage against it, usually punishable by death, but party A never has a problem with its folks spying on party B unless they start getting embarrassing. #EndInternationalLawNerdTransmission

Anyway the question is one of jurisdiction; if SHIELD is an American body, it's purely a domestic matter. Clearly the council thought they'd be able to justify nine million casualties as necessary collateral damage; clearly Fury thought he could justify risking 7 billion casualties to avoid such collateral damage. Classic ethics question (do you allow the runaway train to squash five people or switch it to squash just one who, absent your action, would've been fine?). In this case, since any trial is happening after the event, the fact that Fury was ultimately proven right would pretty much preclude any prosecution for disobeying orders that only *might* have been lawful.

If SHIELD is an international body, well, that's uncharted territory, since no trans-national entity controls a military force, let alone nukes. If it's governed in a UN-esque way it would require the US government's permission to take any action on our turf, so the above would apply anyway.
It's kind of intriguing that the same apparent reason for the Pentagon pulling its direct support for the film itself - the vague nature of who controls SHIELD - is the same basic question that is the heart of this question.

I mean, from what we get to see, SHIELD appears be North American-only in its staff and troops (barring the Black Widow, but she didn't seem to identify too much with Mother Russia and its interests), the Helicarrier looks like some next-gen US Navy aircraft carrier, and the actual nuke seemed to be American ordinance fired from an American-manufactured aircraft. Which certainly makes it look like the American govt. just ordered the decimation of one of the oldest (if not THE oldest) cities in the US...or abrogated the decision. The comics seem to have SHIELD be a permanent OPFOR (Operations Force) for a UN analogue (the World Security Council), and I presume the four "council" members Fury talks to during the film are supposed to be senior World Security Council reps...but it's not clear.

Then again, until the Russell T. Davies and Stephan Moffat eras of Doctor Who, UNIT nominally was a United Nations entity but that mainly appeared to be an offshoot of Great Britain's Territorial Army (barring the 80s serial Battlefield with the King Arthur storyline, when a Polish UNIT trooper was shown) because all the troops, NCOs like Sgt. Benton and officers like Brigadier-Generals Alistair Lethbridge-Stewart and Winnifred Bambera were Brits.

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