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Geneva Conventions and the War on Terror

Posted by Asp on Sunday, April 26, 2009 8:46:23 PM
Opinion on the applicability of the Geneva Conventions in the war on terror.

When it comes to discussions of terrorists and GITMO detainees, there are considerable references to violations of the Geneva Conventions. Those who hold these opinions have, in my opinion, not bothered to read and understand the conventions for had they done so, they would understand that the conventions do not apply. That does not mean that we can’t, or shouldn't, follow them unilaterally, it only means that as a matter of law, in my opinion, we are required to follow them. So lets take a look at a few of the articles of the Convention IV so that I can explain why I have come to my opinion.

Art. 2. The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.

The key word here is ‘powers,’ and means ‘countries.’ Contracting powers are countries who have signed the Conventions (contracts). Since Al Qaida is not a country, it is not a power, it cannot be a contracting or non-signatory power and thus cannot, legally, be protected by the conventions. The next word of great significance is the word ‘between.’ It means that there are two ‘powers,’ both of whom are ‘contracting.’ The third word of importance is the word ‘belligerents,’ which is defined in Chapter I, Article 1 and 2. (see below).
Art. 6. Non-Signatory Powers may adhere to the present Convention.

The Power which desires to adhere notifies in writing its intention to the Netherlands Government, forwarding to it the act of adhesion, which shall be deposited in the archives of the said Government.

CHAPTER I
The qualifications of belligerents

Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."
It could be argued that the ‘insurgents’ are ‘commanded by a person responsible for his subordinates,’ but they do not have ‘fixed distinctive emblem recognizable at a distance,’ they do not ‘carry arms openly,’ and they do not ‘conduct their operations in accordance with the laws and customs of war.’ Thus, they are not covered by this article.

Art. 2. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

Since the overthrow of the Hussein government and it can be argued that Iraq has been occupied; in the years since the occupation, the insurgents have had time to organize themselves in accordance with Article 1; they do not carry arms openly and they do not respect the laws and customs of war. Thus they need not be regarded as belligerents with the scope of this article.
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Can the judiciary order the Legislature to change a law?

Posted by Asp on Friday, April 24, 2009 10:29:59 PM
What the Supreme Court really concluded in

In re MARRIAGE CASES

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand. Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

GEORGE, C. J.

As I read the four corners of this holding, utilizing plain English meanings of the words, what I understand is that The California State Supreme Court has ordered the Court of Appeals to order the Legislature to rewrite section 300. Why didn’t The Court just change the law itself? Perhaps it can’t. Perhaps there is an issue of Separation of Powers. 

CALIFORNIA CONSTITUTION
ARTICLE 4 LEGISLATIVE
 SEC. 8. 
(b) The Legislature may make no law except by statute and may enact no statute except by bill. 
(c) (1) Except as provided in paragraphs (2) and (3) of this subdivision, a statute enacted at a regular session shall go into effect on January 1 next following a 90-day period from the date of enactment of the statute
SEC. 9. A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended.
SEC. 10. (a) Each bill passed by the Legislature shall be presented to the Governor. It becomes a statute if it is signed by the Governor. The Governor may veto it by returning it with any objections to the house of origin, which shall enter the objections in the journal and proceed to reconsider it. If each house then passes the bill by rollcall vote entered in the journal, two-thirds of the membership concurring, it becomes a statute.

Now, were I a wise-guy undergraduate, I might entertain the “what if” scenario: What is the state of the law between the Supreme Court holding and when the Legislature actually changes the law? What happens if the Legislature refuses to act? Can the Executive order the law be enforced as if it had been changed?

This is why lawyers make the big bucks. Just because the code says a law reads one way doesn’t mean that it is so. Lawyers next need to look at case law to see if the law has been changed and the law books haven’t. Then they need to find the most current case to see if prior rulings have been modified or overturned. And what of all the other references in the Code and the California Code of Regulations?

In the Code, I have found 133 references to wife, 129 to husband, and 107 to domestic partner.

In the California Code of Regulations, I have found 85 references to wife, 76 to husband, and 31 to domestic partner.

A global find and replace will not do the job. Each section needs to be read and evaluated to determine the appropriate modification. This should not take more than a month.  Then the changes need to be written up in a bill, the bill enacted by the legislature and presented to the Governor or approval.

No one I know of ever said it would be easy.

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