Human Rights: Time for Greater Judge Advocate Understanding by ProQuest

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									                             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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