- A consistent pattern of gross violations of internationally recognized human
rights6
C. Although international agreements, declarations, and scholarly works suggest
that the list of human rights binding under international law is far more
expansive than this list, the Restatement's persuasiveness is reflected by the
authority relied upon by the drafters of the Restatement to support their list.
Through the Reporters' Notes, the Restatement details these sources, focusing
primarily on U.S. court decisions enunciating the binding nature of certain
human rights, and federal statutes linking international aid to respect by
recipient nations for these human rights.' These two sources are especially
relevant for the military practitioner, who must be more concerned with the
official position of the United States than with the suggested conclusions of
legal scholars. This list is reinforced when it is combined with the core
provisions of the Universal Declaration of Human Rightsvone of the most
significant statements of human rights law, some portions of which are
regarded as customary international law9), and article 3 common to the four
Geneva Conventions of 1949 (which although a component of the law of war, is
used as a matter of Department of Defense Policy as both a yardstick against
which to assess human rights compliance by forces we support,'O and as the
guiding source of soldier conduct across the spectrum of conflictll). By "cross-
leveling" these sources, it is possible to construct an "amalgamated" list of those
human rights judge advocates should consider customary international law.
These include the prohibition against any state policy that results in the
conclusion that the state practices, encourages, or condones:- Genocide,
Supra note 1, at $702.'Supra note 1, at $702, Reporters' Notes.
G.A. Res. 217A (III), UN Doc. Al810, at 71 (1948).
RICHARD B. LILLICH &FRANK NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAWAND
POLICY 65-67 (1979); RICHARDB. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMSOF LAW, POLICY,
AND PRACTICE,117-127 (2d. ed. 1991); Filartiga v. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980). Other
commentators assert that only the primary protections announced within the Declaration represent customary
law. These protections include the prohibition of torture, violence to life or limb, arbitrary arrest and
detention, and the right to a fair and just trial (fair and public hearing by an impartial tribunal), and right to
equal treatment before the law. GERHARD VON GLAHN,LAWAMONG NATIONS 238 (1992) [hereinafter VON
GLAHN].
lo See DEP'TOF THE ARMY REG. 12-15, JOINT SECUMTY ASSISTANCE TRAINING, para. 13-3.
I' See DoD DIR. 5100.77; see also CJCS INSTR. 5810.01B.
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