Legal Obligation of U. S. Armed Forces to Intervene in Acts of Bacha Bazi in Afghanistan

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CRS Reports & Analysis

 Legal Sidebar

Legal Obligation of U.S. Armed Forces to Intervene in

 Acts of Bacha Bazi in Afghanistan

10/22/2015

A recent New York Times 

article

 and 

editorial

 alleged rampant sexual abuse of young boys (bacha bazi) in Afghanistan

 by armed commanders in the Afghan militias.  The reports raise concerns about the role of the U.S. military in

 reporting and combating the abuse that is alleged to have occurred on shared military bases.  Servicemembers quoted in

 the article state that they were ordered to “look the other way because it’s their culture” and therefore were unable to

 stop the alleged abuse.  The question has been raised, “what if any, are the legal obligations of the U.S. military to

 intervene?”  

It has been 

asserted

 by some commentators that the Geneva Conventions and federal law would impose a legal

 obligation on U.S. forces to investigate and prosecute the alleged abuse under the laws of war.  However, it appears that

 this statement may be overbroad. 

The Law of Armed Conflict is a body of international law comprised of legal principles addressing rules of hostilities

 and conflict management.  The Hague and Geneva Conventions, along with customary law, are components of the rules

 of hostilities.  The 

Hague Conventions

 concern regulating the means and methods of war and the 

Geneva Conventions

 concern respecting and protecting victims of conflict.

The current Geneva Conventions consist of four treaties, each protecting a specific group of individuals: Geneva

 Convention (GC) I – wounded and sick in the field; GC II – wounded, sick, and shipwrecked at sea; GC III – prisoners

 of war; and GC IV – civilians.  The Geneva Conventions are applicable during international armed conflict (declared

 war or any other armed conflict which may arise between two or more parties to the treaty) and non-international armed

 conflict (armed conflict not of an international character occurring in the territory of one of the parties to the treaty). 

 However, the U.S. 

policy

 is to comply with the Law of Armed Conflict during all operations, whether classified as

 international armed conflict, non-international armed conflict, or situations short of armed conflict.

Assuming arguendo that the Geneva Conventions are applicable to the ongoing conflict within Afghanistan, the

 question becomes what legal obligations, if any, are created by the treaties that would require U.S. servicemembers to

 intervene with respect to instances of bacha bazi?  In order for a legal obligation to exist, the young boys would need to

 be a protected class under one of the four Conventions.  The two Conventions that arguably could apply are GC III –

 prisoners of war and GC IV – civilians.  Prisoners of war are a recognized class of individuals in international armed

 conflicts (but not in non-international armed conflicts); however, even if such a class were to be recognized in

 Afghanistan, the young boys in question would not qualify as a prisoner of war since the GC III definition requires

 prisoners of war to be members of the regular armed forces or of militias or resistance fighters belonging to a party to

 the conflict.  Addressing civilians, GC IV is a highly complex document, which provides different protections for the

 “whole of the population” and “protected persons.”  Protected persons are afforded the most protections including, but

 not limited to, respect for their persons, respect for their honor, and respect for family rights (GC IV, art. 27).

  However, an important caveat is that the concept of protected persons under GC IV respects a State’s relations with its

 own nationals.  It appears unlikely that the young boys in question would be protected under GC IV if they are Afghan

 nationals and, therefore, domestic Afghan laws would remain applicable.

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Absent legal obligations to intervene under the Geneva Conventions, the discussion turns to whether an obligation exists

 under international humanitarian law.  The U.S. is party to many human rights treaties (e.g., 

International Covenant on

 Civil and Political Rights

 (ICCPR) (1966); 

Convention Against Torture and Other Cruel, Inhuman, and Degrading

 Treatment

 (CAT) (1984); 

Convention on the Elimination of All Forms of Racial Discrimination

 (CEFRD) (1985))  as

 well as follows customary international law as reflected in the 

Universal Declaration of Human Rights

 (UDHR). 

 Generally, the U.S. applies the legal obligations undertaken with respect to a treaty to persons living in the territory of

 the United States and not persons outside the jurisdiction of the U.S.  As such, it appears unlikely that servicemembers

 would have a legal obligation under human rights treaties to intervene in acts of bacha bazi outside the territorial

 jurisdiction of the United States.

With respect to domestic law, it could be argued that the “Leahy laws” found in the Foreign Assistance Act of 1961 and

 adopted as a recurring provision in annual defense appropriations could impact the military’s ability to interact with and

 provide assistance to Afghan units involved in bacha bazi.  The Leahy language prohibits furnishing assistance

 authorized by the Foreign Assistance Act and the Arms Export Control Act, as well as training programs by the

 Department of Defense, where there is credible information that the unit has committed gross violations of human

 rights. While the prohibition exists, it is less clear as to the legal obligations of servicemembers to report, investigate, or

 punish the violations of human rights. For a detailed discussion on the Leahy laws, please see the CRS Report 

“Leahy

 Law” Human Rights Provisions and Security Assistance: Issue Overview.

While a definitive legal obligation under international and domestic law may not exist, U.S. servicemembers received

 

guidance

 from General John Campbell, Commander, Resolute Support and United States Forces – Afghanistan on their

 responsibilities with respect to allegations of incidents of bacha bazi:

Consistent with clear U.S. Department of Defense policy on the issue of sexual assault, trafficking of persons, and

 similar matters, I expect all personnel to treat others with respect and dignity.  I further expect that any suspicion

 of sexual abuse will be immediately reported to the chain of command, regardless of who the alleged

 perpetrators or victims are.

Additionally, 

U.S. Southern Command

 developed a 

program

 with a focus on human rights.  The program focuses on

 “five R’s” of human rights: 

recognize, refrain, react, record, and report

.  Under the U.S. Southern Command policy

 servicemembers have an obligation to “recognize what a human rights violation is, refrain from committing a violation,

 react if they see one being committed by someone else, and if they can’t prevent it, immediately record it and report it

 up their chain of command.”

Posted at 10/22/2015 12:31 PM