Direct Rights of Individuals in the International Law of Armed Conflict

24 Pages Posted: 20 Dec 2019 Last revised: 4 Jan 2020

See all articles by Anne Peters

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Date Written: December 19, 2019

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

Suggested Citation

Peters, Anne, Direct Rights of Individuals in the International Law of Armed Conflict (December 19, 2019). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2019-23. Available at SSRN: https://ssrn.com/abstract=3506742 or http://dx.doi.org/10.2139/ssrn.3506742

Anne Peters (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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