We've Talked the Talk, Time to Walk the Walk: Meeting International Human Rights Law Standards for U.S. Military Investigations

• Author: Colin Cusack
• Position: Judge Advocate, U.S. Army
• Pages: 48-90

48 MILITARY LAW REVIEW [Vol. 217

WE’VE TALKED THE TALK, TIME TO WALK THE WALK:

MEETING INTERNATIONAL HUMAN RIGHTS LAW

STANDARDS FOR U.S. MILITARY INVESTIGATIONS

MAJOR COLIN CUSACK

I am not an advocate for frequent changes in laws and constitutions, but

laws and institutions must go hand in hand with the progress of the

human mind. As that becomes more developed, more enlightened, as

new discoveries are made, new truths discovered and manners and

opinions change, with the change of circumstances, institutions must

advance also to keep pace with the times.1

I. Introduction

Syria, 2014: After more than two years of watching the Assad regime

commit horrendous human rights abuses against his people, the North

Atlantic Treaty Organization (NATO) decides it has to act. Despite

lacking United Nations (UN) Security Council authorization, NATO,

along with a small coalition of supporting Arab League countries, enters

Syria in January 2014, with the mission of stopping the violence against

the Syrian people and apprehending President Bashar al-Assad. NATO

expects the mission to be completed within a six-month timeframe.

Although al-Assad is killed in an airstrike, the violence continues

unabated. As a result, NATO commits more troops to ensure Syria’s

eventual stabilization.

* Judge Advocate, U.S. Army. Presently assigned as Administrative Law Attorney,

Administrative Law Division, Office of The Judge Advocate General, Washington, D.C.

LL.M., 2012, The Judge Advocate General’s School, U.S. Army, Charlottesville,

Virginia; J.D., 2003, Ave Maria School of Law; B.A., 1999, University of Dayton.

Previous assignments include Chief of Administrative and Civil Law, Fort Leonard

Wood, Missouri, 2010–2011; Command Judge Advocate, Joint Task Force–Bravo, Soto

Cano Airbase, Honduras, 2009–2010; Trial Counsel and Special Assistant United States.

Attorney, Fort Sam Houston, San Antonio, Texas, 2007–2009; Trial Defense Attorney,

Fort Meade, Maryland, 2006–2007; Administrative Law Attorney, 1st Cavalry Division,

Fort Hood, Texas, 2005–2006; Chief of Legal Assistance and Detention Operations

Attorney, 1st Cavalry Division, Baghdad, Iraq, 2004–2005. Member of the bars of Ohio

and the Supreme Court of the United States. This article was submitted in partial

completion of the Master of Laws requirements of the 60th Judge Advocate Officer

Graduate Course. I would like to thank my wife, Beth, for her support during the writing

of this article, as well as Major Andrew Gillman for his assistance and thoughtful

comments on earlier drafts.

1 THOMAS JEFFERSON, 10 THE WRITINGS OF THOMAS JEFFERSON 42–43 (Paul L. Ford ed.,

10th ed. 1899).

2013] HUMAN RIGHTS & MILITARY INVESTIGATIONS 49

During a combined patrol, American and British troops come under

fire from a rooftop sniper. The NATO troops promptly return fire,

killing the sniper along with an unrelated civilian father eating dinner in

a room just below the sniper’s position. The story receives continuous

coverage on Al Jazeera, featuring the dead father’s picture, and on

various news programs and the Internet.

United States Central Command (USCENTCOM) initiates an Army

Regulation (AR) 15-6 informal investigation, and the British military

initiates its own separate investigation.2 Each country appoints a military

officer to conduct its own investigation. Both investigators gather

statements from every soldier on the patrol. Both conclude the soldiers

intended to shoot the sniper, a lawful target under the law of armed

conflict, and classify the civilian father’s death as collateral damage.

Both appointing authorities approve the respective investigations.

Approximately eight months later, the deceased’s next-of-kin files a

lawsuit against the United Kingdom, claiming the lack of an effective

investigation into the death of the father, as required by Article Two of

the European Convention on Human Rights (ECHR). Ultimately, the

European Court of Human Rights (ECtHR) agrees that the British troops

failed to conduct an effective investigation and awards substantial

monetary damages to the deceased’s next-of-kin. Additionally, the UN

Human Rights Committee expresses concerns regarding the inadequacy

of the U.S. investigation in its concluding observations in response to the

United States’ periodic report.3 Several non-governmental organizations

2 Telephone Interview with Lieutenant Colonel (Retired) Kurt Mieth, then-Chief,

Administrative Law, Headquarters, U.S. Central Command (USCENTCOM) (Jan. 4,

2012) [hereinafter USCENTCOM Attorney Interview] (explaining that USCENTCOM

invites other countries to participate in investigations that involve both countries;

however, the investigations remain USCENTCOM investigations in which the

USCENTCOM Commander retains exclusive appointing and final approval authority).

Army Regulation (AR) 15-6 provides for two separate administrative fact-finding

procedures: an “investigation” or a “board of officers.” The vast majority of AR 15-6

fact-finding procedures utilized involve a single investigating officer using informal

procedures and are designated “investigations.” Id. Therefore, this article will focus

exclusively on AR 15-6 investigations, as opposed to AR 15-6 boards of officers, which

are “proceedings that involve more than one investigating officer or a single investigating

officer using formal procedures.” U.S. DEP’T OF ARMY, REG. 15-6, PROCEDURES FOR

INVESTIGATING OFFICERS AND BOARDS OF OFFICERS para. 1-5 (2 Oct. 2006) [hereinafter

AR 15-6]. Additionally, it is possible USCENTCOM could direct an investigation and

reference the Navy JAGMAN or Air Force Instruction instead of AR 15-6; however, the

scope of this article’s review will be limited to AR 15-6 investigations.

3 Universal Periodic Review, UN PERIODIC REV., http://www.ohchr.org/en/hrbodies/upr/

50 MILITARY LAW REVIEW [Vol. 217

also publicly criticize the United Kingdom and United States for their

investigations into the incident.

While the above scenario may seem far-fetched to some, recent legal

events suggest otherwise. International Human Rights norms are

increasingly applied on the battlefield.4 The United States should

therefore consider international human rights law standards in situations

involving armed conflict, particularly because a central goal of U.S.

foreign policy is the promotion of human rights.5 The conduct of

investigations into alleged law of war violations is one area the United

States is deficient in under certain international human rights norms,

particularly the ECtHR’s standard. Although ECtHR decisions are not

binding on the United States, they bind many of our closest allies. As a

leader in human rights, the United States should strive to meet

international human rights law standards for investigations, such as the

standards provided by the ECtHR, particularly for investigations

involving alleged unlawful killings.

This article is divided into six parts. Part II details how international

human rights law norms are applied increasingly on the battlefield, as

occurred in a recent ECtHR case, Al-Skeini. It also explains why the

United States should endeavor to meet these norms. Part III shows there

are consequences for failing to follow international human rights law as

demonstrated in the Al-Skeini decision. Part IV will discuss current U.S.

regulations and their dual approach to investigating alleged law of war

violations. Part V explains how U.S. Army Criminal Investigation

Command (CID) investigations meet the ECtHR’s investigatory

standards, but informal AR 15-6 investigations do not. This is a

problem, as often only an AR 15-6 investigation is conducted into

upr/pages/uprmain.aspx (last visited Mar. 6, 2012). The Universal Periodic Review “is a

unique process which involves a review of the human rights of all 192 UN Member

States every four years. . . . [It] provides the opportunity for each State to declare what

actions they have taken to improve the human rights situations in their countries and to

fulfill their human rights obligations.” Id.

4 Cordula Droege, The Interplay Between International Humanitarian Law and

International Human Rights Law in Situations of Armed Conflict, 40 ISR. L. REV. 320,

310–48 (2007).

5 Human Rights, U.S. DEP’T OF STATE, http://www.state.gov/j/drl/hr/index.htm

[hereinafter Human Rights] (last visited Mar. 6, 2012). The U.S. Department of State’s

website proclaims: “The protection of fundamental human rights was a foundation stone

in the establishment of the United States over 200 years ago. Since then, a central goal of

U.S. foreign policy has been the promotion of respect for human rights as embodied in

the Universal Declaration of Human Rights.” Id.