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The Government seems to want to wipe away Mr. Padilla with a brush of a pen--as the President did in whisking him away to a military brig. But if we are to pay any respect, which we have not to date, to International Law and our Treaty obligations, in this case the Geneva Conventions, then the Courts should at a minimum take the possibility of granting Mr. Padilla the remedy he seeks seriously. There is no question that when the President declared Mr. Padilla an enemy combatant or an unlawful belligerent he intended that no rights or at least no judicial right of redress apply to the accused. The problem is that at a minimum the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (“GC IV”) applied to Mr. Padilla as it would to any other person who finds themselves in a detained in the “case of conflict or occupation.” CG IV Article 4(1). There is no question as to this and changing the term to describe Mr. Padilla to “enemy combatant” rather than the terms of Humanitarian law “unlawful belligerent,” makes no difference as the Geneva Conventions were intended to cover every person involved in whatever manner in a state of conflict. Mr. Padilla has to be afforded some protection in the state of war—if not under GCIII, then obviously under GCIV. In this way, as viewed by almost every scholar on this subject, unlawful combatants are protected under the GCIV. The acts visited upon and the actions taken against Mr. Padilla, then, not only violate the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, but they also violate the jus cogens prohibition against torture— Jus cogens norms are part of international customary law and constitute peremptory norms of international law that are non-derogable in times of war as well as peace. The acts of torture, as chronicled in the defense Motion to Dismiss, would undoubtedly constitute violations of a duty of jus cogens prohibiting torture which is not an optional or derogable obligation. Consequently, if there have been violations of law by the Government, as there have been as to the Geneva Conventions and International Law and Treaties, then there must be a sanction or in this case an appropriate remedy.
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