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

Abstract

Although international human rights and humanitarian law share common roots in their respective efforts to protect human dignity, the two bodies of law appear to have incompatible requirements in armed conflicts. This article draws on jurisprudence, state practice, and scholarship to describe three approaches to evaluating what is lawful in armed conflicts, explores the consequences of the various applications, and recommends that the United States employ interpretive strategies to minimize discrepancies. In situations where states’ obligations remain irreconcilable, the article endorses a “specificity decision rule” to determine the applicable legal regime.

Keywords: international humanitarian law, law of armed conflict, human rights law, jursiprudence, conflict of law