Minnesota Law Review

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

Which law governs during armed conflict—human rights law or humanitarian law? This Article aims to answer that question. It draws on jurisprudence, state practice, and recent scholarship to describe three possible approaches to applying the two bodies of law: 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.

 

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News & Events

  • Volume 97 Lead Piece Profiled in New York Times

    The Volume 97 Lead Piece, a study of how the Supreme Court treats business interests by distinguished legal scholars Lee Epstein, William M. Landes, and Richard A. Posner, was profiled in the May 5, 2013 edition of the New York Times. The story, titled Corporations Find a Friend in the Supreme Court, [...]

  • Volume 98 Spring Submissions Closed

    The Minnesota Law Review has closed the spring submissions period for Volume 98. Submissions for Volume 98 will reopen on Thursday, August 1. Please see the submissions page for more details.

  • Volume 98 Submissions Will Open Feb. 15

    The Minnesota Law Review will begin accepting submissions for Volume 98 on Friday, February 15, 2013. Please see this page for more details.

  • Minnesota Law Review Announces Volume 98 Editorial Board

    The Minnesota Law Review is pleased to announce its Volume 98 editorial board, headed by Editor in Chief Jake Vandelist.

  • Minnesota Law Review Announces 2013 Symposium Topic

    The Minnesota Law Review is pleased to announce that its 2013 symposium will address the legal and political issues facing organized labor in the United States. The symposium will be held at the University of Minnesota Law School on October 25, 2013.

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