Law of War Handbook 2005

2. Slavery or slave trade,


3. Murder of causing the disappearance of individuals,


4. Torture or other cruel, inhuman, or degrading treatment or punishment,


5. All violence to life or limb,


6. Taking of hostages,


7. Punishment without fair and regular trial,


8. Prolonged arbitrary detention,


9. Failure to care for and collect the wounded and sick,12

10.Systematic racial discrimination, or

1 1 .A consistent pattern of gross violations of internationally recognized human

rights.

D. A judge advocate must also recognize that "state practice" is a key component to

a human rights violation. What amounts to state practice is not clearly defined

by the law. However, it is relatively clear that acts which directly harm

individuals, when committed by state agents, fall within this definition.'' This

results in what may best be understood as a "negative" human rights

obligation-to take no action that directly harms individuals. The proposition

that U.S. forces must comply with this "negative" obligation is not inconsistent

with the training and practice of U.S. forces. For example, few would assert that

U.S. forces should be able to implement plans and policies which result in cruel

or inhumane treatment of civilians. However, the proposition that the concept of

"practicing, encouraging, or condoning" human rights violations results in an

affirmative obligation-to take affirmative measures to prevent such violations

by host nation forces or allies-is more controversial. How aggressively, if at

all, must U.S. forces endeavor to prevent violations of human rights law by third

parties in areas where such forces are operating?

l2 This provision must be understood within the context from which it derives. This is not a component of the
Restatement list, but instead comes from Article 3 of the Geneva Conventions. As such, it is a "right"
intended to apply to a "conflict" scenario. As such, the JA should recognize that the "essence" of this right is
not to care for every sick and wounded person encountered during every military operation, but relates to
wounded and sick in the context of some type of conflict. As such, it is legtimate to consider this obligation
limited to those individuals whose wound or sickness is directly attributable to U.S. operations. While
extending this protection further may be a legitimate policy decision, it should not be regarded as obligatory.

"See supra note 1, Reporters' Notes.