Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law (with Rebecca Crootof, Philip Levitz, et al.), 96 Minnesota Law Review 1883 (2012)
On May 31, 2010, in the early hours of the morning, Israeli
Defense Forces boarded and occupied a flotilla of six vessels
seventy-two nautical miles from the coast of Gaza. The flotilla
carried food and other supplies to Gaza, which was under a naval
blockade. During the incident, nine passengers were killed
and several others wounded. In the aftermath, a key question
that emerged was what body of law applied to the incident?
Was it subject to human rights law, international humanitarian
law, or some mix of the two?
This same question has been at the heart of ongoing debates
over the counter-terrorism operations of the United
States in the wake of September 11, 2001. There was relatively
little discussion of the relationship between human rights law
and humanitarian law in the U.S. government before the terrorist
attacks on September 11, 2001, because the issue did not
often arise. On those few occasions that it did arise, the government's
position was far from consistent. In 1970, the U.S.
government supported U.N. General Assembly resolutions calling
for compliance with human rights obligations during armed
conflicts. In 1984, however, the United States made clear its
view that the Convention Against Torture-a core human
rights treaty-was inapplicable during armed conflict. The
United States appeared to switch positions yet again when it
adopted the International Covenant on Civil and Political
Rights in 1992 without adding a similar disclaimer.
Date of Authorship for this Version
Hathaway, Oona; Crootof, Rebecca; Levitz, Philip; Nix, Haley; Perdue, Williams; Purvis, Chelsea; and Spiegel, Julia, "Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law" (2012). Faculty Scholarship Series. Paper 4724.