War Crimes

Something that has always bothered me, as a lawyer, was the authority or law that allowed one nation or group of nations to charge war crimes against the combatants of another? I mean, where is it written down that it is a crime to mistreat your POW’s, or that civilians should not be killed? prisioner of war

It turns out in many places. The Geneva Convention Relative to the Treatment of Prisoners of War, adopted July 27th, 1927, for an example.

But enforcement depends on politics. Take the Japanese treatment of our POW’s during WWII for example. Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were tried and convicted of several breaches of international law.

How did the Russians treat their captured Germans in the same war? Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were NOT tried and convicted of several breaches of international law.

Why? Well perhaps it was the 24 million soldiers and citizens that died during the conflict that somehow shifted the moral weight in their favor. More probably it was because the Russians were on the winning side. war crimes

Curtis Lemay, commander of our strategic bomber air forces over Japan late in the war famously said that if America had lost the war he would be tried for war crimes. This is probable. curtis lemay

In 1907 a general protocol referred to as the Hague Convention of the Laws and Customs of War on Land was adopted. Among its provisions bombardment of civilian areas or undefended ports was prohibited by naval forces. Following World War I in an arbitration between Greece and Germany held in 1927, this provision was held to extend to aerial bombardment.

Ten years later the Germans elected to ignore international law for a town called Guernica Spain. guernica

By World War II the bombing of civilian targets was common. To end the war against Japan, we the Americans, dropped two atomic bombs on Hiroshima and Nagasaki, but not before we firebombed the other wooden cities for months, creating firestorms only occasionally seen in the European Theater. Curtis Lemay was the ground officer in charge of the mission.

There were no trials about bombardment of civilian populations following World War II. How could that hypocrisy be heard anywhere?

As a human I know right from wrong. It is wrong to round up a class of persons, say the Jews, and attempt to exterminate them. That is just murder and everyone knows that. You don’t have to go to law school to know this. The War Crimes Tribunals, where they may have lacked authority, asserted this as a crime against humanity, and they were right to do so. nuremberg 2

But there was actually a precedent placing everyone on notice the killing of civilians would be called a crime. The Ottoman Empire had practiced a genocide against the Armenians during the First World War. Several nations later declared this to be a “Crime Against Humanity”.

And this satisfies the lawyer part of me that needs some law, some decision or other authority to point to in order to prosecute and punish these acts. For lawyers anything less is just victors justice.

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The Estate of Elvis

Well of course there had to be a lawsuit when Elvis passed.

elvis

His will referenced “lawful” children being beneficiaries of his testamentary trust. Now who would that be? Children born during his marriage, certainly. Those adopted, OK, but there were none.

elvis and lisa marie

What about those Elvis may have sired on tour and never claimed? What if Elvis dies before a paternity action can be brought?

elvis in concert

Well as it turned out The King of Rock and Roll successfully defended a paternity suit in California, only to have the claimant return to haunt him post mortem, like in a horror picture. One wonders what forgettable music would be produced for that film, something from “The Trouble with Girls” perhaps?

Elvis the trouble with girls

If that Elvis love child was sired in Washington State it means that poor child should have you get nothing. Same in Tennessee apparently. Text from his Will:

..the Trustee is authorized to accumulate the net income or to pay or apply so much of the net income and such portion of the principal at any time and from time to time for the health, education, support, comfortable maintenance and welfare of: (1) my daughter, Lisa Marie Presley, and any other lawful issue I might have, ….

There is no Equal Protection argument either, it’s the parent that failed the child, not the state. Yes, New Age reader, “Lawful Issue” still means something.

Indeed, every word of a will means something, and how carefully chosen each word may be will not be examined post mortem, as this unfortunate appellant tried to claim. It is presumed every word means what it says.
elvis easy come easy go
It should be noted there are about 40% of children born in America to unwed parents at the present time. Even among the highly educated, it seems an acceptable practice. It’s remarkable people who clearly love their children simply chose to ignore great bodies of law that will have an impact upon them should they perish without taking care of matters.

What do you say to this child? Return to Sender?

elvis stamp
So, for those that presume the law has caught up with your Brave New World of family, take care to ensure terms are not thrown around in your will like “lawful” when you mean “all”.

Regardless of new concepts of family, people who have had children without benefit of clergy also want their offspring to say kind things about their parents when they pass, perhaps the way Elvis would end a concert:

Thank ya, Thank ya vury much.

elvis grave

The Existentialist Parent Names Her Child

child with tatoosI have decided the spate of new and inventive names which process through my practice must be the desire to ensure ones child is a unique individual, not part of the faceless masses living an existentialist challenge, otherwise lost in an vast and uncaring world, but taking solace in the reality his mother gave him a name that no one will forget, and at the same time cannot spell but phonetically.

I see divorces, custody cases and wills where I have to speak with a straight face about children named “Breeze”, “Shady” or the worst: “Swastika”.

Then I have to spell the names too, which are also cast forever in the new and inventive spelling the parents come up with shortly after the birth. Jane becomes “Jeayne”, Richard becomes “Reshard”, and Sally becomes “Saily”.

Whatever happened to names that evoked love and caring like those of my grandparents generation: Clara, Martha, and Lenore or strength and morality like Stephan, Ralph or James?

Some names seem to be drawn from the Presidents; Madison, Jefferson, and one client whose last named happened to be Lincoln, well, you know.

Media plays a huge role. After Star Wars was released in 1977 all kinds of “Leah’s” and “Luke’s” were named. No “Darth’s” I am aware of, nor “Chewbacca”, but a few “Hans” have crossed my desk, but then that is a strong European name in any case. Besides, I think Harrison Ford played a man with the shortened version “Han”. His mother was an existentialist too.

Then there is gender shifting. My grandfathers first name was Leslie, which was popular in 1905 for men, yet when when my cousin was born in the 1960’s she was given that name as it was popular for girls. “Taylor” is a name I see often and have to ask the client, “girl or boy?”

Finally no one uses a last name anymore. “Hi, I am Jim” is the introduction, rather than “Hi, I am James Smith, it is a pleasure to meet you”. Formal greetings are apparently as out of style as anything traditional.

Fortunately the law allows for the existentialist child to change his name in a District Court action after turning 18. This is so common I believe there are forms available at the courts themselves. Perhaps Swastika will change his name to something less political, like Adolf.

Licensed Legal Technician: Not Quite A Lawyer

Our state seems to be a testbed for the rest of the country for everything; gay marriage, legalized marajiuana and now legal advice with a stamp of approval that really ought to have a lot of warning labels.

What appears to be an effort to manage the free market of legal advice, not all of which is licensed, the Supreme Court of Washington has developed a rule to annoint persons who have not gone to law school with the approval to discharge limited legal tasks. This can be of great help to persons who cannot afford or do not need a full service firm. Or it can be a disaster because there are tripwires in the legal landscape no one but a lawyer with some experienc is going to know about.

The standards are tough however, so who knows- this might work out. The Bar has yet to accept any applications as they are still working out the operational details but first thing applicant must show is “good moral character”. I think that means you have no felonies as a start, but in my time on the Character and Fitness Board it meant generally a disregard for the Rule of Law.

Next there needs to be some education, either an associates degree in law or postgraduate work in legal studies.

Finally, and most appropriately, one has to work for a lawyer for at least two or three years so the applicant has some idea how this all really fits together.

Then the applicant sits for an exam, not quite the Bar Exam. Perhaps we should call it Bar Exam Lite.

This all sounds vigorous, and yet I cannot help but be worried about unintended consequences, like people relying on legal techs when they really need a legal engineer called a lawyer.

The Doctrine of Virtual Representation Can’t Save The Farm

Sorry, but this does not mean they have passed a law which allows the client to log on to an interactive website and have a virtual lawyer who does whatever you tell him. Instead the concept predates the internet by centuries and means you are stuck with the decisions of those who came before you were born.

The Doctrine of Virtual Representation is a common law concept which means what we do today about our property can bind our heirs; both those that have been born or are yet to be born.

Imagine the chaos if we lacked this rule. Generations who come after decide they were not adequately represented in the deeds Grandpa did, and sue the estate for a larger share.

I had a great-grandfather who lost the ranch in a poker game. There was a divorce. How would it be if I now decided Great-grandma didn’t get enough out of her husband for that folly when the decree entered? So I look up his descendants and sue them?

Nope. Better to just get in your old truck and head on down the highway to the future, and forget about the past. What is done is done.

The E Will; It’s Not that Easy Being Green

The term “Green” has come to mean a consciousness about our impacts on the environment. When applied to law I am afraid “Green” also means naive.

A “Green” person looks for of opportunities to save trees. The latest is to not printing wills on paper, instead create and verify them somehow on-screen.

At least one state, Nevada, has legislated a means to sign a will without ever picking up a pen. Instead electronic signature is allowed. They have something called the Nevada Lockbox for wills and other documents that are not in original form anywhere else.

This is also “Green” in terms of lack of experience with fraud. Forgive my conservative nature but I see this development as a means to encourage self-help inheritance.

Back when the term “software” was new and “hardware” was something you bought on Saturday for home repairs, our firm had a case where a document damaging to our client surfaced during litigation. It was drafted on a computer and an ostensible cursive signature of our client endorsed the same.

Our client swore that was not her handwriting. It wasnt. Instead it belonged to an early version of the Word program but we were too inexperienced to know the difference. We had to call an expert witness to disprove the document.

I wonder if we would have to call that expert now? Probably not, as we are not that “Green”.

Men, Women and Executrix

Because equality is fashionable now, the law has drained the gender out of everything, even death. No longer is a woman making a will called a Testatrix. Sorry ladies, we are all Testators now. No longer is her husband the Executor of the will. Or if the roles are reversed and he dies appointing his wife the Executrix in his will that name is buried with him.

Instead after we die we appoint a “personal representative”, an androgynous person who is not allowed to cry or be remotely human. We are all faceless government functionaries now carrying out the acts of administration and winding up the estate.

This is what our legislature does with it’s time; rooting out every possible reference to a bit of remaining individuality that is gender. Once doing research I found a statue had been amended, and clicked the hyper link to see what had changed. I stumbled upon a document listing the effort someone in our budget strapped state to take the “he” and “she” out of every statute in the state in favor of androgyny.

It’s almost Stalinist, rewriting history to fit the current power structure. The amendments went on for several pages, single spaced, line after line listing code section after code section so revised. Right, this is an important task someone carried out?

My clients still use gender terms like Executrix, and I allow it in the privacy of my office. Our conversations are confidential and privileged so there is little chance any of them will be denounced as sexist.

Image by Thurber, used apparently with permission.