[...] the U.S. position on the application of human rights law extraterritorially and during war is the result of careful policy analysis. [...] discussing the problems with the law is not as important as following the portions of the law with which we all agree.
Human Rights: Time for Greater Judge Advocate Understanding Captain Brian J. Bill, U.S. Navy Professor International and Operational Law Department The Judge Advocate General’s Legal Center and School Charlottesville, Virginia I. Introduction the pursuit of Happiness.”1 Here was a ringing expression of human rights, applicable to all persons merely as a result of For any Army judge advocate, and for judge advocates their being human. The Declaration goes on to present a of other services as well, the instruction provided by the view of government as the guarantor of those rights: “That International and Operational Law Department at The Judge to secure these rights, Governments are instituted among Advocate General’s Legal Center and School follows a Men, deriving their just powers from the consent of the familiar pattern, whether provided in the Judge Advocate governed.”2 While the final clause expresses the preference Officer Basic Course, the Judge Advocate Officer Graduate for a democratic form of government, the preceding clause Course, or short courses, such as the Operational Law of expresses the Lockean view that a legitimate government War seminar. After a refresher on general public has responsibilities to secure human rights to its own people. international law topics and the history of the law of war, a presentation outlines the legal bases for the use of force, or The subsequent Constitution was concerned mostly with jus ad bellum. Turning to jus in bello, blocks of instruction constructing the governmental apparatus of a representative are devoted to treatment of non-combatants as set forth by democracy; the amendments comprising the Bill of Rights the various Geneva Conventions, followed by a longer were designed to ensure that the Federal Government did not individual block on means and methods of warfare, which transgress any of the rights expressed therein. Compared to discusses all aspects of the law related to weapons and the Declaration’s “life, liberty, and the pursuit of happiness,” targeting. The law of war instruction ends with a class the enumerated rights in the Bill of Rights were necessarily devoted to war crimes. Depending on the course, the more circumscribed by being specifically defined (though instruction then shifts to various operational law topics, such still in very general language); the guarantees inherent in as rules of engagement, rule of law, and information those rights were also limited, both for being applicable only operations. to the Federal Government and being exercised only by citizens. Nevertheless, our constitutional guarantees were Sandwiched somewhere in there will be a short block of great innovations of their day, and as they have been applied instruction on human rights law. It contains all the and expanded though additional amendments and court information a judge advocate needs to know to understand interpretations, have become a domestic human rights the U.S. position on human rights. As discussed below, the regime without peer. We should be justifiably proud of our class boils down to a few simple points, the overarching one human rights guarantees. being that human rights law has little to no applicability to operations on the ground, and, therefore, is not a topic about In the immediate aftermath of World War II, the image which the average judge advocate need be concerned. of government as the benevolent guarantor of the rights of its people—to the extent that this image was ever widely However, the time is coming, if it has not already shared—was seriously reconsidered. One need only recall arrived, when judge advocates will require a more the horrors of Nazi Germany to realize that governments had sophisticated knowledge of human rights law, not merely in often become the prime violator of rights. The jus ad bellum an academic sense, but also as a practical aspect of and jus in bello, both of which pre-dated World War II, were operations. This article is offered in the hope of spurring appreciably strengthened by the U.N. Charter and 1949 greater interest in this important area of the law. Geneva Conventions, respectively, as a result of the experience. Still, neither of these legal regimes specifically protected citizens from actions of their own government. II. The United States and Human Rights International human rights law was born for just that purpose. The United States, secure in its domestic Human rights is fundamental to the fabric of the United guarantees against these abuses, was a leading proponent of States, and has been since its inception. The Declaration of the human rights movement. Our satisfaction with the U.S. Independence begins with the well-known words, “We hold Constitution led, paradoxically, to the United States these truths to be self-evident, that all men are created equal, becoming party to few of the human rights treaties which it that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and 1 The Declaration of Independence para. 1 (U.S. 1776). 2 Id. 54 JUNE 2010 • THE ARMY LAWYER • DA PAM 27-50-445 helped to negotiate: Why become bound to an international human rights “offensive” will require an effort as much convention with unknown consequences when the political as legal.7 Constitution is perfectly adequate (with known consequences) to protect those same rights? III. Explaining the U.S. Legal Position The United States has also made the observance of human rights a matter of foreign policy significance.3 The A. General History of Human Rights Treaties U.S. State Department has long studied and commented on the human rights reco
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