Direct Rights of Individuals in the International Law of Armed Conflict

Abstract

This contribution examines whether, under which conditions the international law of armed conflict (international humanitarian law, IHL) generates individual rights, and against whom. These primary rights are distinct from secondary rights which may accrue from a relationship of responsibility between violator and victim in the event of a breach of a primary norm of IHL, and from procedural rights to a remedy in the sense of access to institutions deciding on individual claims to reparation.

Various provisions of IHL speak of “rights” of individuals on the primary level. Although some observers favour duties as the appropriate regulatory technique for achieving effective protection of humans, a reading of IHL which encompasses direct rights can be well explained and justified. The acknowledgment of rights has symbolic and practical consequences, notably for remedies, reparation, and waiver. A follow-up question is then against whom the IHL-based rights are opposable, who are the duty bearers. Overall, the recognition of IHL-based rights is helpful for steering IHL between the two evils of an overreach of human rights on the one side and a paternalist fixation on states on the other side.

Keywords: Humanisation; duty; Geneva Conventions (1949); right to reparation; waiver; armed group; human rights overreach; human rightism