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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.

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