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international humanitarian law, individual rights, individualization of IHL, customary law, direct rights
Abstract:
When ascribing individual rights, there is a difference between legal rules which embody ‘objective’ standards of protection that impose obligations or duties on obligors, and rules which additionally confer ‘subjective’ rights on those persons whom the rules seek to protect. In this chapter, Anne Peters examines whether, and under what conditions, international humanitarian law (IHL) generates such individual rights, and against whom. Since case law has yet to settle which rules in IHL actually generate individual rights, this must be determined in each case by interpreting the provisions or by clarifying the content of the underlying norm of customary law. Therefore, further study must identify how to recognize an individual IHL-based right and which types of rights exist. In doing so, Peters concludes that the acknowledgement of IHL-based rights endorses the individual human being as the normative reference point of IHL. Thus, Peters asserts that the individualization of IHL has not reached its limits. The principal modern purpose of IHL—to protect humans from the calamities of war—is best pursued by acknowledging direct IHL-based, special individual rights, rather than falling in the two extremes: either applying human rights across the board or denying individual rights altogether.
