The idea of ‘rights’ under the law of war historically referred to state or belligerent rights – that is, rights to engage in actions not permitted under the law of peace. The different sense of rights of individuals was absent from those traditional accounts of the law, and whether individuals are granted rights (for example, of prisoners of war to be humanely treated, of civilians not to be targeted) under contemporary international humanitarian law (IHL) remains contested. This article explores how this debate has developed in recent history. It argues that clear support for the notion of individual rights during the drafting of the 1907 Hague Convention IV and subsequent treaties seemed to be overtaken by state practice in the area of war reparations, only to re-emerge in more recent practice that, in part, is shown to be a result of a more legalized approach to the invocation of responsibility for IHL violations. This growing support for the individual rights perspective of IHL is then juxtaposed with the re-emergence of state rights. The article concludes that these two different notions of ‘rights’ under IHL present two fundamentally opposing visions for the law’s role in regulating armed conflict.
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