State responsibility for violations of the rules on the conduct of hostilities : towards the emergence of individuals' rights?

Abstract

The rules on state responsibility for internationally wrongful acts foresee that states can be responsible towards subjects other than states (including individuals) in case of breaches of international rules having erga omnes character that also protect individuals’ rights. The rules of International Humanitarian Law (IHL) regulating the conduct of hostilities (also referred to as the ‘Hague law’) protect sensitive state interests and thus lie at the heart of state sovereignty. At the time of their adoption, they were conceived as being applicable in the relations between belligerents only, and were not meant to bestow rights on individuals. This conception of the ‘Hague Law’ jars with the ongoing trend towards the progressive humanization of IHL. It is argued that in contemporary international law there are several elements that warrant an interpretation of those rules in light of human rights norms. For instance, one can mention the practice of those human rights supervisory bodies that have dealt with human rights violations arising out of the unlawful conduct of military operations, the practice of UN organs recognizing a right to remedy and reparation for victims of IHL violations, and the emergence of the principle of individual criminal responsibility for breaches of the ‘Hague law’. Moreover, some domestic courts have recognized that individuals injured by IHL violations have a private right of action against the state. The above elements foreshadow the emergence of new trends whereby human rights norms are progressively reshaping the interpretation of the ‘Hague law’. If practice develops coherently with the interpretation suggested above, individuals’ rights could emerge also under the rules at stake. Individuals injured by the unlawful conduct of military operations would thereby acquire legal entitlements vis-à-vis the wrongdoing state, matched by corresponding obligations of remedy and reparation on the part of the latter.