Chapter 4

International Human Rights Law

I.     Introduction

A.   International human rights law (IHRL) focuses on a State’s obligation to protect the “inherent dignity” and “inalienable rights” of individual human beings.^[1]  In contrast to most international law, IHRL recognizes rights based on an individual’s personhood rather than on one’s status as a citizen or subject of a State party to a treaty.  International human rights law seeks to protect the individual when subject to an abuse of power by a State and impose obligations to protect the rights of the individual.

B.    International human rights law exists in two forms: treaty law and customary international law (CIL).^[2]  IHRL treaties vary in the scope of their application.  Whether or not many key IHRL treaties govern signatory States both inside the States’ territory, as well as outside the States’ territory, is unsettled internationally; however, the trend is towards broad extraterritorial application.  Customary IHRL’s scope of application depends on the type of customary IHRL at issue.^[3]

II.   History and Development of Human Rights LAW

A.   As a field of international law, IHRL did not form until after World War II.  Previously, how States treated their own citizens was regarded largely as a purely domestic matter.  Extant international law regulated State conduct vis-à-vis other States and chiefly protected individuals as representatives of their parent States (e.g. diplomatic immunity).  As sovereigns in the international system, States could expect other States not to interfere in their internal affairs.  The systematic abuse and near-extermination of entire populations by States during the first half of the 20^th Century opened the door to regulation of such conduct and aided the acceptance of IHRL.  This new body of law established standards and ‘pierced the veil’ of sovereignty by directly regulating how States treat people within their own borders.^[4]

B.  The Nuremberg War Crimes Trials are an early example of a human rights approach to protection.  The trials in some cases held former government officials legally responsible for the treatment of individual citizens within the borders of their state.  The trials did not rely on domestic law, but (in addition to violations of the laws and customs of war), violations of the customary “laws of humanity.”^[5]

C.  Human rights occupied a central place in the newly formed United Nations.  The Charter of the United Nations contains several provisions dealing directly with human rights.  One of the earliest General Assembly resolutions, the Universal Declaration of Human Rights (UDHR), is considered foundational international human rights law instrument.

D.  In the decades following the establishment of United Nations, IHRL experienced significant growth.  Two of the most significant international human rights treaties, the International Covenant on Civil and Political Rights^[6] (ICCPR) and the International Covenant on Economic Social and Cultural Rights^[7] were adopted and opened for signature in 1966, then came into force in 1976.  Since the 1970s, news media, private activism, public diplomacy, and legal institutions increasingly monitor and report on human rights conditions worldwide.  Human rights promotion remains a core part of both the U.S. National Security Strategy and U.S. public diplomacy.^[8] 

III. HUMAN RIGHTS TREATIES

A.   Major Human Rights Treaties.  Human rights treaties cover a wide range of subjects.  The United States did not ratify major international human rights treaties until 1988.  Table 1 lists ten treaties that the United Nations considers core human rights treaties.^[9]  Each is administered by a separate treaty-monitoring international body.^[10]

Table 1.  Core United Nations Human Rights Treaties[11]
TREATY	SUBJECT	OPEN	MONITOR	U.S. STATUS[12]
CPPCG	Genocide	1948	Various	Ratified 1988
ICERD	Racial Discrimination	1965	CERD	Ratified 1994
ICCPR**	Civil & Political Rights	1966	UNHRC	Ratified 1992
ICESCR*	Economic, Social & Cultural Rights	1966	CECSR	Signed 1977
CEDAW*	Discrimination Against Women	1979	CEDAW	Signed 1980
CAT*	Torture, Inhumane Punishment	1984	CAT	Ratified 1994
CRC**	Rights of the Child	1989	CRC	Signed 1995‡
ICRMW	Migrant Worker & Family Rights	1990	CMW	No action
UNCTOC	UN Conv Against Trans Org Crime	2000	UNTOC	Ratified 2005
CPED	Enforced Disappearances	2006	CED	No action
CPRD*	Persons with Disabilities	2006	CPRD	Signed 2009

Table Notes:  * Treaty has one related Optional Protocol  ** Treaty has two related Optional Protocols
‡ In 2002, the United States ratified CRC Optional Protocols on Child Soldiers and Child Pornography,
but not the CRC.  The United States has not ratified any other Optional Protocols noted in Table 1.

B.    When examining IHRL treaties, it is important to remember that the original focus of IHRL was protecting individuals from the harmful acts of their own governments.^[13]  As noted, this focus of IHRL was groundbreaking when it emerged after World War II.  Previously, such protections were viewed as a function of domestic law.  The remainder of this section briefly describes two of the most consequential treaties for military practitioners and the bodies that monitor the application of the rights they provide.^[14]

1.    International Covenant on Civil and Political Rights (ICCPR) (U.S. ratification in 1992).

a.    Administered by the UN Human Rights Committee (UNHRC).  Parties must submit reports in accordance with Committee guidelines for review by UNHRC.  The UNHRC may question state representatives on the substance of their reports, issue general comments, and report to the UN Secretary General.  As the treaty limits the UNHRC’s role primarily to commentary, the UNHRC has limited ability to either authoritatively interpret or enforce the provisions of the ICCPR.

b.    The ICCPR addresses so-called “first generation rights” which are restrictions on government as opposed to entitlements from government.  These include the most fundamental and basic rights and freedoms (e.g., life, liberty).  Part III of the Covenant lists substantive rights.

c.    The ICCPR appears to be expressly non-extraterritorial.  Article 2, clause 1 limits a Party’s obligations under the Covenant to “all individuals within its territory and subject to its jurisdiction . . .”  The United States interprets this clause narrowly, although this is now the minority view.  Many commentators and human rights bodies argue for a disjunctive reading of “and,” such that the ICCPR would cover any person under the control of a Party.^[15] The International Court of Justice has held aspects of the ICCPR apply extraterritorially in certain circumstances, such as cases of belligerent occupation.^[16]

d.    The First Optional Protocol empowers private parties to file “communications” with the UNHRC, which evolved to operate as a basis for individual causes of action under the ICCPR where domestic remedies have been exhausted.  The Second Optional Protocol seeks to abolish the death penalty.  The United States is not a party to either protocol.

e.    The protections described in the ICCPR are also covered by several regional treaties, such as the European Convention on Human Rights (ECHR).  Described more fully below, these regional treaties cover many of the same rights as the ICCPR but may offer additional or more explicit protections and human rights courts where individuals may bring claims against States for violations of their human rights.

2.    Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment (1984) (CAT).  The United States ratified in 1994.  The Torture Victim Protection Act of 1991 implements.^[17]

a.    The CAT is administered by the UN Committee on Torture, composed of ten elected experts.  The committee is informed by a periodic reporting system and inter-state and individual complaint procedures.

b.    Unlike the ICCPR, the CAT applies to U.S. activities worldwide, including military operations.  Article 2(1) requires each state party “to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”  Article 2(2) expressly applies the CAT to situations of armed conflict, and requires that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

c.    For detainee transfers, Article 3(1) forbids states party from expelling, returning (French: "refouler") or extraditing a person to another State “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  This provision is often called the “non-refoulement” rule.  During the conflicts in Iraq and Afghanistan, the United States did not recognize a transfer of an individual in the territory of Iraq or Afghanistan from U.S. to host-nation control as a refoulement.  However, the United States did on occasion stop transfers in response to reports of abuse as a matter of policy.

d.    Article 3(2) states, “[f]or the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

e.    Article 20 empowers the Committee to conduct independent investigations but it must have cooperation of the State Party that is the subject of the investigation.

C.    The United States Treaty Process

1.    Article II, Section 2, Clause 2 of the United States Constitution enumerates that the President has the power to make treaties.  After receiving the advice and consent of two-thirds of the Senate, the President may ratify a treaty.  In practice, this means some treaties may take years to be fully debated and voted upon.^[18] Article VI of the United States Constitution establishes ratified treaties as “the supreme Law of the Land.”  Consequently, these treaties enjoy the same force as statutes.  Executive Order 13107 describes the policy and practice of the U.S. Government related to the implementation of human rights obligations.^[19]

2.    Reservations, Understandings and Declarations (RUDs).  The United States policy regarding international human rights treaties relies heavily on RUDs to specifically delineate U.S. concerns, interpretations, and policies at the time of treaty ratification.  RUDs are essential to mustering political support for ratification.  When the Senate includes a reservation or understanding in its advice and consent, the President may only ratify the treaty to the extent of the ratification or understanding.  When conducting treaty research, judge advocates should always check whether RUDs accompany a particular treaty. 

a.    Reservations modify treaty obligations with respect to relevant provisions between parties that accept the reservation.  Reservations do not modify provisions for other parties; if a State refuses a reservation but does not oppose entry into force between the reserving State and itself, the provision proposed for reservation does not operate between the two States.^[20]  An example of a reservation would be the United States’ reservation to the ICCPR whereby it “reserves the right, subject to its Constitutional constraints,” to impose capital punishment.”^[21]

b.    Understandings are statements intended to clarify or explain matters incidental to the operation of the treaty.  For instance, a State might elaborate on or define a term applicable to the treaty.  Understandings frequently clarify the scope of application.  An example of an understanding would be the United States’ understanding to the ICCPR whereby it stated “[t]hat the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments.”^[22]

c.    Declarations give notice of certain matters of policy or principle.  For instance, a State might declare that it regards a treaty to be non-self-executing under its domestic law.^[23]

D.   Application of Human Rights Treaties.  Understanding how the United States applies human rights treaties requires an appreciation of two concepts: non-extraterritoriality and non-self-execution.

1.    Non-extraterritoriality:  The United States interprets the scope of application of its IHRL treaty obligations based on the language in the various treaties.  Perhaps most significantly, the United States interprets its obligations under the preeminent human rights treaty, the ICCPR, as applying  to persons who are both within the territory of the United States and within its jurisdiction, consistent with the treaty’s language.^[24]  The United States reaffirmed its position regarding the non-extraterritorial nature of the ICCPR in March 2014.^[25]  This theory of treaty interpretation is referred to as “non-extraterritoriality.”^[26]  As noted above regarding the CAT, not all human rights treaties contain non-extraterritorial scope language.  The UN Human Rights Committee does not share the U.S. non-extraterritoriality view with regard to the ICCPR.^[27]  They interpret the IHRL obligations within the ICCPR as applying to state actions toward individuals over whom the State has jurisdiction, both within their territory and beyond their territories.  In practice, such an expansive view could mean that the U.S. military would have to provide due process and law enforcement style protections to detainees on the battlefield.  Judge advocates working with other nations should recognize that their interpretation of the application of IHRL treaties such as the ICCPR or one of its regional analogues may differ from the United States’ view.  This may restrict their operations which can in turn affect U.S. operations.^[28]

2.    Non-self-execution:  While the non-extraterritorial interpretation of human rights treaties is the primary basis for the conclusion that these treaties do not bind U.S. forces outside the territory of the United States, judge advocates should also be familiar with the concept of treaty execution. 

a.  According to treaty interpretation doctrine, although treaties entered into by the United States become part of the “supreme law of the land,” ^[29] some are not enforceable in U.S. courts absent subsequent legislation or executive order to “execute” the obligations created by such treaties.  This relates primarily to the ability of a litigant to secure enforcement of a treaty provision in U.S. courts.^[30] 

b.  The U.S. position regarding the human rights treaties discussed above is that “the intention of the United States determines whether an agreement is to be self-executing or should await implementing legislation.”^[31]  The U.S. position is that its unilateral statement of intent, made through the vehicle of a declaration during the ratification process, is determinative of the intent of the parties.  Thus, if the U.S. adds such a declaration to a treaty, the declaration determines the interpretation the U.S. will apply when determining the nature of the obligation.^[32]

3.    Derogations – Many of the major human rights treaties to which the United States is a party include a derogation clause.  Derogation refers to the legal right to suspend certain human rights treaty provisions in time of war or in cases of national emergencies.

a.    Certain rights may not be derogated from, including: right to life, prohibition on torture, prohibition on slavery, and prohibition on ex post punishment.^[33]  States are also prohibited from adopting measures inconsistent with their obligations under international law.^[34]

b.    There is a very high threshold for derogation.^[35]  With very few exceptions (e.g., GC IV, Article 5, derogations), the LOAC does not permit derogation.  Its provisions already contemplate a balance between military necessity and humanity.

IV.  customary international Human Rights law

A.     Customary international law (CIL) results from consistent state practice done out of a sense of legal obligation (opinio juris).^[36]  There are no specific rules on how long a custom must exist before it becomes CIL.  Determinations as to what constitutes CIL are fact-specific.  CIL is considered part of U.S. law,^[37] however there exists no definitive list of those human rights the United States considers to be CIL.  Therefore, judge advocates rely on a variety of sources in order to determine what constitutes customary IHRL.  These sources may include, but are not limited to, the Restatement of The Foreign Relations Law of the United States, Common Article III of the Geneva Conventions, and authoritative pronouncements^[38] of U.S. policy by ranking government officials.   Customary IHRL and treaty law are often interrelated.  IHRL treaties can codify existing customary IHRL.  Conversely, practices established in treaties can ripen into customary IHRL.  Under one widely held view, customary international law and treaty law are equal in stature, with the later in time controlling.^[39]

B.    Customary IHRL is not all created equal; its scope of application depends on the type of customary IHRL at issue.  Customary IHRL can be divided into two general types:  Customary IHRL that is considered jus cogens (“fundamental human rights”) and customary IHRL that is not considered to be jus cogens (“non-fundamental human rights”).^[40]

1.    Fundamental Human Rights.  Customary IHRL determined to be jus cogens consists of peremptory norms so fundamental and universally accepted that they do not permit any derogation, even by treaty.  The prohibition against genocide; slavery; murder; causing disappearance of individuals; torture/cruel, inhuman degrading treatment; prolonged arbitrary detention; and systematic racial discrimination are considered to be jus cogens.^[41]  Many of these basic protections are also found in Common Article 3 of the Geneva Conventions. 

2.    Non-Fundamental Human Rights.  Non-fundamental IHRL encompasses all customary IHRL that is not considered to be jus cogens.  In contrast to fundamental human rights, these non-fundamental human rights do not necessarily bind States during all operations inside and outside a State’s territory.  Judge advocates trying to determine whether a non-fundamental customary IHRL provision applies to a given situation must look at state practice and opinio juris in order to determine if and how that provision is customarily applied under the circumstances at issue.  Non-fundamental human rights law binds States to the extent and under the particular circumstances those IHRL tenets are customarily practiced by States out of a sense of legal obligation.

V.  IHRL and the LOAC

A.   If judge advocates determine that IHRL treaty law and/or customary IHRL could apply to a particular armed conflict, they must then determine how the applicable IHRL interacts with LOAC in that situation.  Scholars and States disagree over the interaction between IHRL and the LOAC.^[42]  Positions range from arguments that they are entirely separate systems, to a view that makes LOAC a completely integrated component of IHRL.^[43]  In the late 1960s, the United Nations General Assembly considered the application of human rights during armed conflict in two different resolutions.^[44]  Ultimately, however, the resolutions produced few useful pronouncements and many ambiguous references to humanitarian principles.  There are two primary views regarding how IHRL and LOAC interact with each other when arguments can be made that both apply to armed conflict.

1.    The Displacement View.  The displacement view is an all-or-nothing approach that results in either IHRL or LOAC setting the rules that govern the armed conflict at issue.  Under this view,  IHRL and the LOAC are viewed as separate systems of protection, where one wholly displaces the other when applied to distinct situations and relationships.  Specifically, LOAC governs during armed conflict, displacing peacetime laws such as IHRL.  This view also notes that the LOAC largely predates IHRL and therefore was never intended to comprise a sub-category of IHRL.

a.    The Law of Armed Conflict, under the displacement view, regulates relations between belligerents and protected persons such as civilians, usually not a state’s own citizens or nationals during armed conflict.  For example, the 1949 Geneva Conventions largely do not apply to a state’s own nationals, the very group IHRL was designed to protect.  Much of the Fourth Convention applies to “protected persons,” a group characterized as civilians in the hands of their nation's enemy.^[45]

b.    Additionally, under the displacement view, IHRL regulates the relationship between States and individuals within their territory and under their jurisdiction during peace.  This reflects the original focus of IHRL—to protect individuals from the harmful acts of their own governments.

2.    Complementarity view.  An expanding group, that includes States and human rights courts, views the application of IHRL and the LOAC as complementary and overlapping.  Under the complementarity view, LOAC does not displace IHRL during armed conflict.  According to complementarity, IHRL can regulate a sovereign’s conduct towards individuals on distant battlefields during armed conflict if its rules are a better fit than LOAC’s for a given situation.  The International Court of Justice (ICJ) adopted this view in several Advisory Opinions.^[46]  The ICJ determined that although the ICCPR prohibition on arbitrary deprivation of life still applies during armed conflict, in order to define arbitrary, one must refer to the LOAC as the lex specialis. or the more specific rule applies over the more general rule.^[47]  Most international scholars accept that the LOAC constitutes a lex specialis for situations of armed conflict, particularly international armed conflict.  In non-international armed conflict, where there are fewer codified LOAC protections, courts are also increasingly applying IHRL rules and protections.^[48]  Accordingly, U.S. partners in multilateral operations, particularly in non-international armed conflicts, may be subject to significant operational restrictions.

3.    The U.S. View. 

a.  The State Department, in the United States Fourth Periodic Report to the UNHRC, stated that “a time of war does not suspend the operation of the [ICCPR] to matters within its scope of application.”^[49]  The Report also noted that:

“Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in [LOAC] . . . [IHRL] and [LOAC] are in many respects complementary and mutually reinforcing [and] contain many similar protections.  .  . Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts . . .”^[50]

b.  The Department of Defense (DoD), in the Law of War Manual, similarly states that apparent conflicts between human rights treaties and LOAC may be resolved by “the principle that the law of war is the lex specialis during situations of armed conflict, and, as such, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.”^[51]  The DoD further explains that a human rights treaty “would clearly be controlling” with respect to matters that are not addressed by the law of war and are within the scope of the treaty.^[52] 

c.  These statements suggest that the United States will consider rule-by-rule whether the LOAC displaces applicable provisions of IHRL when IHRL has been determined to apply geographically.  In situations of armed conflict, where the LOAC provides specific guidance, LOAC, not IHRL, will likely set the rules and provide authoritative guidance for military action.  However, where LOAC is silent or its guidance inadequate, specific provisions of applicable human rights law may supplement, or possibly even displace, at least to a limited degree, the LOAC in a particular situation.  For the practicing judge advocate, to date there have been no significant pronouncements by U.S. officials declaring that a specific IHRL norm overrides a rule found in the LOAC.

d.  The importance of determining the controlling body of law is evident when analyzing how each regime governs a State’s use of force.  In armed conflict, LOAC permits lethal force against combatants as a first resort, based solely on the combatant’s status.  In contrast, IHRL permits lethal force only as a last resort and in response to conduct, never status.  This is only one example of the many differences between IHRL and LOAC.

e. Consider this table as a potential short-hand guide to the distinctions between IHRL and LOAC:

 

Body of law	Temporal applicability	Territorial applicability	Regulates relationship between…	Source	Applied through	exceptions	Relationship between IHRL and IHL
IHRL	Default setting: normal peacetime conditions and in internal NIACs (unless a derogation is permitted by that particular treaty) and in time of war (but only if relating to rights not addressed by LOAC/IHL)	Depends on terms of the treaty, BUT… …Default (if not stated by its terms) is only within the territory of the Party that signed the treaty (increasingly common view: in own territory and that subject to its control) (Per ICJ – territory under belligerent occupation)	Nation and individual citizen/subject of that nation	“Natural law” (e.g., “the inherent dignity and of the equal and inalienable rights of all members of the human family” per the ICCPR); CIL	Treaties; CIL	Derogation from IHRL obligations may be permitted in exigent circumstances, but never to extent it discriminates based on race, color, language, religion, or social origin	U.S. view: If specific provision of IHRL conflicts with specific provision of IHL/LOAC during armed conflict, IHL/LOAC governs as lex specialis AND If in armed conflict and IHL/LOAC is silent on a specific matter, IHRL is default Note 1: this is known as the “Displacement theory” Note 2: to-date there has been no official US policy statement saying that a particular IHRL overrides a particular LOAC rule Note 3: in NIACs, many States and courts are increasingly applying IHRL, not LOAC
IHL LOAC LOW	During armed conflict (IACs and NIACs) [abnormal conditions] with respect to conduct of hostilities and protection of victims	In the relevant area where the conduct of hostilities in an armed conflict occurs or might occur	Nation (and its agents in arms) and adversary individuals, property, places and protected persons and property	“Just War Tradition”, “natural law,” Customary International Law; Treaties	Treaties; CIL; national policies; national statutes; military regulations; ROE	No derogations (military necessity is not a defense to war crimes)

VI.  International Human Rights Bodies and Systems

       International human rights are developed and implemented through a layered structure of complementary and coextensive systems.  As the United States participates in combined operations, judge advocates will find that allies may have very different conceptions of and obligations under IHRL.  In addition to the global system of the United Nations, regional human rights systems, specifically the European, Inter-American, and African systems, have developed and progressed in complexity and scope.  Judge advocates will benefit from an appreciation of the basic features of these systems as they relate to allies’ willingness to participate in and desire to shape operations.^[53] Moreover, in an occupation setting, judge advocates must understand the human rights obligations, both international and domestic, that may bind the host nation as well as how that host nation interprets those obligations. 

A.   Human Rights Bodies. There are both UN Charter based bodies and bodies created under international human rights treaties.^[54]  The following are examples of each:

1.  The UN Human Rights Committee (UNHRC).  The ICCPR established the UNHRC as a committee of independent human rights experts who oversee implementation of the treaty.  In this role, the HRC reviews the periodic reports submitted by states party to the ICCPR.  The UNHRC may also hear “communications” from individuals in states party to the (First) Optional Protocol to the ICCPR.  As mentioned earlier, the United States is not a party to the First Protocol to the ICCPR.

2.  The UN Human Rights Council.  The Human Rights Council is an inter-governmental body within the UN system made up of forty-seven States responsible for strengthening the promotion and protection of human rights around the globe.  The UN General Assembly created the Council in March of 2006 with the main purpose of addressing situations of human rights violations and making recommendations on them.  The Council replaced the UN Commission on Human Rights, another General Assembly-created body, after that body was discredited for allowing states with poor human rights records to serve as members.^[55]  The United States submitted its first report to the Council as part of the Universal Periodic Review process in 2010.  After withdrawing in 2018, the U.S. reengaged with the Human Rights Council as an observer in 2021.^[56]

B.    Regional Human Rights Systems

1.  The European Human Rights System.  The European Human Rights System was the first regional human rights system and is the most robust.  The European System is based on the 1950 European Convention of Human Rights (ECHR), a seminal document that created one of the most powerful human rights bodies in the world, the European Court of Human Rights (ECtHR).  Presently, all members of the Council of Europe are party to the ECHR.  In recent years, the ECtHR has taken an expansive interpretation of the Convention’s obligations.  The United States is not a party to the ECHR, however, judge advocates working with European allies should become familiar with the treaty’s basic terms^[57] and recent case law^[58] that may impact allied operations.

2.  The Inter-American Human Rights System.  The Inter-American System is based on the Organization of the American States (OAS) Charter and the American Convention on Human Rights.  The OAS Charter created the Inter-American Commission on Human Rights.  The American Convention on Human Rights, to which the United States is not a party, created the Inter-American Court of Human Rights.  The United States is not a party to this Convention and is not subject to that court’s jurisdiction.  However, the United States does respond to the comments and criticisms of the Inter-American Commission on Human Rights.^[59]

3.  The African Human Rights System.  The African System falls under the African Union, which was established in 2001.  It is the most recently established regional human rights system.  The African system is based primarily on the African Charter on Human and Peoples’ Rights which entered into force in 1986.  The Charter created the African Commission on Human and People’s Rights.  A later protocol created an African Court of Human and People’s Rights, designed to complement the work of the Commission.  The court came into being as a treaty body in 2004 and published its first judgment on 15 December 2009.^[60]

4.  Emerging System.  In Asia, the Association of Southeast Asian Nations is slowly developing and may be the fourth system in the near future.

VII.  “Leahy vetting”

1. General.  The Leahy Amendment, 10 U.S.C. § 362 (previously § 2249e), prohibits the Department of

Defense from providing, “any training, equipment, or other assistance” to a foreign security force if the Secretary of Defense has credible information that the unit committed a “gross violation of human rights” (GVHR).^[61]  Thus, foreign security forces must be vetted for human rights violations before they can receive U.S. assistance. There is also a similar prohibition applicable to State Department funding found in the Foreign Assistance Act.^[62]  Unlike the IHRL treaties discussed above, the Leahy Amendment is not an international treaty, but is a federal law designed to ensure U.S. forces do not support foreign forces that commit serious human rights abuses.

2. Defining Terms

1.    “Foreign Security Forces.”  Foreign security forces include both military and law enforcement personnel.  Further, since the restriction only applies to specific units, even if one foreign unit has committed GVHR, the U.S. may still train or fund other units within that country. Further, the vetting requirement only applies to funds specifically benefitting foreign forces. Thus, programs such as CERP (Commander’s Emergency Response Program) did not require Leahy Vetting because the beneficiary of the funds were the civilian population, and not the foreign military force.

2.    “Gross Violations of Human Rights.”  Leahy Vetting is only designed to address major human rights violations such as torture or cruel, inhuman, or degrading treatment, prolonged detention without charges and trial, forced disappearances, and other flagrant denials of the right to life, liberty, or the security of person such as extra-judicial killings.  Thus, there are human rights violations that don’t rise to the level of GVHR.

C.    Vetting Process

1.    To determine whether there is derogatory information on a unit or individual, the DoD relies on the Department of State’s INVEST-C database. Derogatory information can come from any source, whether media reports, non-governmental organizations, U.S. intelligence gathering, or even anonymous reports. Whether the allegation is “credible” is not defined by law.^[63]  In general, the burden is lower than “beyond a reasonable doubt,” but a simple allegation with no corroboration is unlikely to be credible.  Also, once the initial vetting of a foreign unit is completed, there is still an ongoing requirement to monitor for new GVHR. Although the Department of State is involved and conducts the vetting, the decision on whether the derogatory information is credible belongs to the Secretary of Defense.  In practice, when there is disagreement over whether an allegation is credible, DoS and DoD work together to try to resolve the issue.

2.    Remediation and Exceptions.  Once GVHR are identified, the Secretary of Defense may still provide assistance if he or she determines that the host-nation government has taken all necessary corrective steps, which is known as remediation. Although previously unused, remediation has been applied in Afghanistan and elsewhere once the government has effectively investigated and adjudicated the incident. Specific guidance on how to initiate the remediation process can be found in a 2015 Memorandum published by the Secretary of Defense.^[64]  There are also two exceptions to the Leahy Vetting requirement.  First, assistance may be provided if necessary to assist in disaster relief operations or other humanitarian or national security emergencies.  Second, the Secretary of Defense may waive the prohibition if such waiver is required by extraordinary circumstances. These are rarely used.  Additionally, certain funds may have specific exceptions, whereby assistance may be provided if the Secretary of Defense certifies the presence of several factors: an example of this type of fund was the Afghanistan Security Forces Fund (ASFF).^[65]

D.    Leahy Vetting Resources for Judge Advocates. Leahy Vetting Resources for Judge Advocates.  There are two distinct scenarios where a judge advocate may be required to work on Leahy Vetting issues.  First, in a mature theater or on a large national-level mission.  In these situations, judge advocates should search for established unit SOPs or look for published guidance, such as the implementing guidance published by the Secretary of Defense.^[66]  The other common scenario where judge advocates may encounter Leahy Vetting requirements are Regionally Aligned Forces, or RAF, missions.  In these situations, there is likely little guidance, and the judge advocate should reach out as early as possible to the Office of Defense Cooperation or Office of Security Cooperation, typically headed by a military officer, at the U.S. embassy in the nation where the training will take place to identify the requirements and initiate the potentially lengthy vetting process.  Since training cannot be provided until vetting is complete, it is important to initiate this process as soon as possible.  For further discussion of these operational funding issues, refer to Chapter 18, Fiscal Law.