Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law

Abstract

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.