Smoke and Mirrors: Reconciling the Right to Health and the Right to Tobacco in Times of Armed Conflict

Abstract

Imagine a situation where one internee or prisoner of war demands his right to tobacco – presumably in the form of smoking a cigarette – under the 1949 Geneva Conventions while a neighbor simultaneously demands his right to health, which here takes the form of a right to be free from the harmful effects of tobacco. As individuals within these groups tend to live in close proximity to one another for the duration of the hostilities, this problem presumably is not merely hypothetical, even though an actual case that pits these two rights against one another has not yet grabbed the public spotlight. Given the growing number of pirates, their apparent predilection for cigarettes, and the possibility of them enjoying prisoner-of-war status after their capture until a competent tribunal has determined their status, the stage might be set for just such a case. Regardless, which neighbor’s right prevails? Putting aside the somewhat obvious solution of creating smoking and non-smoking zones, similar to those that exist in some airports, this article explores how to resolve this apparent conflict between rights and whether they actually conflict in the first place.