Good time for a change : recognizing individuals' rights under the rules of international humanitarian law on the conduct of hostilities
Realizing utopia : the future of international law
Oxford : Oxford University Press, 2012
Given the current state of international law and international relations, in the near future it would be impossible, though highly desirable, to improve the situation of all civilians adversely affected by the outbreak of an armed conflict. It is, however, both necessary and realistic to address the condition of at least those individuals who suffer damage as a result of violations of the rules of jus in bello on the conduct of hostilities (the so-called "Hague law"). A belligerent violating international humanitairan law (IHL) bears the responsibility for the breach of such rules and is liable to make reparation for the consequences thereof. Arguably, the time is ripe for recognizing that the rules of the Hague law also protect individuals' rights, and that injured individuals are therefore entitled to remedy and reparation for the wrong suffered. The shift from the traditional paradigm of inter-state responsability to responsibility of the state vis-à-vis individuals could be achieved through the creation of ad hoc international mechanisms (such as claims commissions) for the processing of individual complaints. In addition, the task of making a major breakthrough would fall to domestic courts and human rights supervisory bodies, which have ample potential for affirming the existence of individuals' rights under the rules of IHL regulating means and methods of warfare.