Conflict and Convergence in the Application of International Humanitarian Law and Human Rights Law in Guantanamo Bay Naval Base
Author Henry K. Murigi
Affiliations: PhD Student, United States International University-Africa, Advocate of the High Court of Kenya. Senior Prosecution Counsel.
Source: Africa Nazarene University Law Journal, 2019, Volume 7, Issue 2, p. 1 – 20
The conduct of war is not prohibited under international law. Often, serious violations of the rights of the individual occur. The consequences of war raise questions as to what the appropriate regime should be to resolve any concern that may arise as the effects of war. On the one hand, violation of human rights is evident during the conduct of war and, therefore, human rights regimes should apply to solve the problem. On the other hand, the essence of humanitarian war is to govern the conduct of war and should be the dominant regime to tackle such issues. The relationship between these two regimes is very controversial and equally topical. It goes to the heart of the war on terror after the events of 11 September 2001. One view is that everything that happens in Guantanamo Bay is a matter of humanitarian law and has nothing to do with human rights law. Another view holds that it is a purely human rights and law enforcement issue, dealing in domestic matters and nothing more. These two perspectives have grown separately and are often seen as conflictual. This article seeks to show that the two areas of law can coexist and that each should benefit from the other and not compete for supremacy.