Which law governs during armed conflict ? : the relationship between international humanitarian law and a human rights law
Oona A. Hathaway... [et al.]
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Minnesota law review, Vol. 96, no. 6, June 2012, p. 1883-1943
This Article draws on jurisprudence, state practice, and recent scholarship to describe three possible approaches to applying human rights or humanitarian law to armed conflict: The Displacement Model, the Complementarity Model, and the Conflict Resolution Model. Of the three, the Conflict Resolution Model offers the best approach. Under that Model, human rights law and humanitarian law are both applied together when possible. If the two bodies of law are in direct conflict, however, the Model offers three possible decision rules for resolving that conflict. Of these three, the Article endorses the specificity decision rule, under which the law more specific to the operation, situation, or encounter governs. This approach recognizes that both bodies of law can productively inform each other when they do not squarely conflict, yet it allows for highly nuanced determinations as to when conduct is governed best by each body of law when conflict between the two is irreconcilable. To illuminate the stakes of the debate, the Article examines situations of armed conflict in which human rights law comes into direct conflict with humanitarian law—including those that raise issues of the right to life; detention and the right to trial; women’s rights; and the rights to freedom of expression, association, and movement—and shows how the specificity variation of the Conflict Resolution Model effectively resolves the conflict. This approach to deciding which law governs during armed conflict accomplishes the fundamental goal common to both human rights law and humanitarian law: to effectively protect human dignity.