The question of whether individuals can hold rights under international law has hovered at the edges of international jurisprudence for a century. From the Permanent Court of International Justice’s 1928 Opinion on Jurisdiction of the Courts of Danzig, through the International Court of Justice’s (ICJ) 2001 LaGrand decision and the 2012 Jurisdictional Immunities of the State case, the Court has confronted, in various contexts, the issue of whether individuals may possess rights directly—rather than being mere incidental beneficiaries of State obligations—in multiple arenas of international law.
On various occasions, the Court has either strengthened or mitigated individual claims, not least because all areas of international law operate on different planes. Some predominantly concern a horizontal (State-to-State) relationship, whereas others are inherently vertical in nature (State-to-individual). For instance, while in human rights law the notion of and need for individual claims is self-evident, other fields of international law—such as the law of the sea—arguably provide less obvious frictional surface in connection with individuals. Concerning the horizontal category, the Court has been more cautious in asserting individual standing. This reticence extends to the law of armed conflict (LOAC). Even in its politically bolder pronouncements—such as the 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory—the Court has carefully referred to obligations of States, rather than affirming that individuals may bear normative claims under LOAC itself.
In its forthcoming Advisory Opinion on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in relation to the Occupied Palestinian Territory, the Court faces another opportunity to engage this question. Among material tensions concerning siege, occupation, obligations toward third States and international organizations, the request may move the Court toward a deeper theoretical inquiry such as how and when does the law of war require humanitarian assistance? And may it confer a right to assistance on individuals in situations of occupation or siege?
This post sets out the context of the request and considers how the Court might approach the law governing humanitarian relief in addressing the question put before it. Its aim is not to predict outcomes suggested by the ongoing proceedings but rather to explore possible paths the judges may take in interpreting the relevant law. To that end, it examines competing conceptual approaches and considers what finding a right to humanitarian assistance might entail, should the Court adopt a rights-oriented interpretation to LOAC on October 22.
A Primer on the Requested Opinion
To readers unfamiliar with the requested opinion, it may appear slightly repetitive, given the Court has only recently addressed issues at the heart of the Israeli-Palestinian conflict in its 2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem(hereinafter: Legal Consequences). Moreover, in the contentious case on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the Court has already issued three orders on provisional measures, urging Israel to allow and facilitate humanitarian relief into the Gaza Strip (see here, here, and here). It may seem as though the issues of humanitarian law connected with the war have been addressed thoroughly already.
The present proceedings are not redundant, however. They arise from UN General Assembly Resolution 79/232, which invited the Court to clarify Israel’s concrete international obligations to “ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population,” as well as its obligations in relation to the United Nations, other relief organizations, and third States. The requested Advisory Opinion therefore covers a broad, rather theoretical scope of potential queries the Court may turn to, compared with the occasions preceding it.
Between April 28 and May 2, 2025, the Court held public hearings during which various States and the United Nations presented arguments. The UN legal counsel and the Palestinian representative each advanced emphases on the facilitation of humanitarian relief and the requirement to allow United Nations entities to assist. Numerous States (e.g., Mexico, Pakistan, the United Kingdom, and France) likewise insisted on Israel’s obligations to facilitate such consignments. Conversely, Israel’s written statement and remarks made by the United States stress States’ rights to inspection, minimize diversion risk, and military necessity as grounds for restricting them.
As one of many contested issues that have surfaced over the past two years of war (see here, here, here, and here), the Court may deliver its view on how LOAC governs humanitarian relief and binds an occupying or besieging armed force. Crucially, it may also consider the extent of discretion an occupying or besieging power may claim in restricting aid for security reasons. Already an uneasy task, this advisory opinion may require the Court to bridge the gap between operational realities and normative protection. Above that, however, it may also mark a turning point for how the Court conceives of the individual in LOAC.
Rights under LOAC and Why Does it Matter?
LOAC is traditionally framed within a State-centric paradigm. States are the principal subjects of its treaties, the makers of its rules, and the bearers of its responsibilities. Individuals—be they civilians, detainees, or prisoners of war—are conceived as affected groups, recipients of protections, rather than independent claimants. On a plain reading, the Geneva Conventions reflect this architecture: obligations are addressed to States and parties to conflicts rather than termed “rights” for individuals.
On this conventional interpretation, if a civilian is denied relief, the resulting legal question is whether a State has breached a treaty or customary duty. The corresponding remedy lies in State responsibility and inter-State claims, not in any form of direct individual standing. In Jurisdictional Immunities of the State (2012), the ICJ, too, leaned towards this traditional, State-centric architecture. The Court held that even serious LOAC violations (e.g., war crimes committed by German forces in Italy during World War II) did not strip Germany of its immunity from foreign civil jurisdiction (paras. 107-8). The ICJ reasoned that the rules of State immunity and the rules of humanitarian law operate absent the individual, in that the former regulates inter-State relations, and the latter governs conduct in war (paras. 94-95). In doing so, the Court implicitly rejected the argument that grave breaches could create a right to reparation for individuals in domestic courts.
The decision illustrates the practical relevance of the underlying theoretical question: if LOAC does not itself confer an individual right, then individuals cannot use it to pierce the veil of State immunity, compel remedies, or assert claims in their own name. Protection is mediated solely through States, international organizations, or criminal tribunals, deciding on their behalf. In his dissenting opinion, Judge Cançado Trindade disagreed with the Court’s reasoning, rebutting, “The rights of victims of grave violations of human rights and of international humanitarian law subsist, their vindication cannot be waived by their States, or by States inter se, on their behalf“ (para. 71).
Recent analyses of LOAC also question the impermeability between the horizontal and the vertical planes. Scholars such as Theodor Meron, Lawrence Hill-Cawthorne, and Anne Peters have each argued that the concept of “rights” in LOAC has evolved towards individuals. And not just that. Lawrence Hill-Cawthorne even traces how the notion of individual rights intermittently appears in treaty drafting and State practice (p. 1196-1200). While he agrees that the drafters prioritized belligerent rights, he submits that “what is sometimes still presented as the orthodox legal position, that is, that IHL was not intended to confer rights on individuals (whether speaking of substantive rights of treatment or rights of reparation for violations), is in fact a more contentious claim” (p. 1200). Each of these scholars outlines that more recent practice also reveals a growing recognition that LOAC norms may confer rights on individuals, for instance, the right to humane treatment, medical care, or, possibly, relief.
For the Court to conceptualize LOAC in this sense would be progressive, but not entirely “out of the box.” In its 2001 LaGrand case, the ICJ had taken a significant step in recognizing that individuals—foreign nationals facing the death penalty—hold individual rights under Article 36 of the Vienna Convention on Consular Relations. Despite the inter-State nature of the underlying provision (emphasized in the proceedings by the United States, para. 97), the Court’s reasoning was explicit. It explained that certain horizontal treaty provisions create individual rights, which, by virtue of the treaty, States must respect (in the words of the Court), “The clarity of these provisions, viewed in their context, admits of no doubt” (para. 77).
The ICJ has never applied that same reasoning to LOAC. If it did, this could transform the conceptual map of accountability. Individuals could be understood as right-holders, with conceivable claims to, inter alia, humane treatment, or due process. Such recognition would also undoubtedly shape the interpretation of obligations under occupation, siege, and relief operations, precisely the question before the Court now.
In short, if LOAC confers individual rights, the breach of those rights would not only engage State responsibility inter se but also open a door to potential procedural claims of individuals themselves. The latter step would bring it closer to international human rights law in structure and ethos. The distinction determines whether the individual is to be seen as a genuine legal actor within LOAC or simply as the object of States’ legal duties.
Theodor Meron—one of the leading proponents of the “humanization” of international humanitarian law (IHL)—has also argued that the evolution of LOAC and human rights law reveals a movement from inter-State obligation to individual protection. For Professor Meron, recognizing individual rights in IHL is not merely semantic, either; it transforms the moral and legal character of the law, anchoring humanitarian norms in human dignity rather than reciprocity or comitas gentium. It also opens conceptual space for mechanisms of accountability and redress, even if the procedural channels remain limited. The recognition of individual rights would recast IHL as a law for persons, not merely a law about State behavior.
In the present proceedings, the contours of humanitarian relief will be highly difficult to establish. More and less recent private commentary on the Geneva Conventions and of the Additional Protocols of 1977 interpret certain provisions and customary rules (like the prohibition on starvation) as imposing positive obligations, especially in occupation, extending beyond mere non-injury. These supposedly extend to the facilitation of relief. In this sense, the UN General Assembly and Security Council Resolutions have also urged parties to armed conflicts to honor relief obligations in numerous armed conflicts (for example here and here). Custom may also reinforce such a view. For instance, the International Committee of the Red Cross (ICRC)’s 2005 Study of Customary IHL claims that consent to relief consignments may not be refused on arbitrary grounds (see Rule 55; in the present proceedings, however, only a few States have picked up on the threshold of arbitrariness, see for instance the written statement by Qatar, para. 81). These strands may yet suggest that the gap between protective norms and individual entitlements is narrower than once thought.
The forthcoming advisory opinion provides the Court an opportunity to clarify. Are individuals incidental beneficiaries of LOAC, or does the law recognize them as direct rights holders, in theory capable of invoking obligations and claims? Or might it (in a less dramatic, but no less significant posture) expand on how State obligations towards civilians need to be interpreted? And, at the bottom line, is the obligation to provide humanitarian assistance one of effort, or result?
These are a few conceivable outcomes.
Option I — States Have Obligations, Individuals Do Not Have Rights
One interpretive path is for the Court to reaffirm a traditional “objective” view that only States possess rights or standing under LOAC, while individuals remain its indirect beneficiaries. On this reading, the Court could confirm and sharpen Israel’s obligations to facilitate relief while rejecting the existence of an individual right (to humanitarian assistance).
This reasoning might echo positions of scholars such as Professor René Provost (see International Human Rights and Humanitarian Law, 2009, p.16-56) and Kate Parlett. Kate Parlett has advanced three arguments against a rights-based, or “subjectivist,” view. First, an objective interpretation of IHL coheres with non-renunciation clauses and the prohibition of special agreements found in the Geneva Conventions, since these provisions make clear that the humanitarian guarantees established by the Conventions are non-waivable and non-negotiable (p. 184-88). These bar both States and individuals from abandoning the minimum protections of the law of war, reflecting the idea that such norms constitute fixed, community-wide (i.e., horizontal) obligations (p. 187). Second, in Parlett’s view, such a reading would be compatible with a framework in which individuals lack any legal or practical means of enforcement. Third, an “objective” construction is not necessarily less effective for individual protection, given States’ national jurisdictions are obliged to provide legal remedies for grave breaches (p. 224–28). Above that, Professor Provost has noted that a lack of derivative rights to enforcement of a would-be-right refute the very existence of said right (p. 42-54).
Under this posture, the Court would confine itself to elucidating State obligations. It could, for instance, confirm the prohibition of arbitrary impediments to relief (advanced particularly by the Oxford Guidance on the Law Relating to Relief Operations in Situations of Armed Conflict, 2016; but contested here), or require coordination with UN organs, and demand adequate justification for any interference, without recognizing civilians as direct rights-holders. Such restraint would preserve an “objective,” inter-State character of LOAC and relieve the Court from engaging with questions of individual standing or remedies. Crucially, this outcome would sanction a State’s ultimate authority in the facilitation of humanitarian relief, for it would imply that the decision to permit or deny assistance ultimately lies with the discretion of the State concerned.
Option II — Individuals Hold Rights, Including to Humanitarian Assistance
While such reasoning would likely appeal to certain States, the first option may risk attracting criticism from others for being inadequate in contexts of acute humanitarian crisis, arguably exemplified by Israel’s conduct of the war in Gaza. A horizontal LOAC may be perceived as insufficient to shield its victims in the vertical. Scholars advancing a “subjectivist” view, notably Anne Peters, have also challenged the orthodoxy, moving the law of war further towards individual protection. Peters argues that the non-renunciation clauses (invoked by Parlett, see above) instead imply the withdrawal of certain guarantees from State control (p. 194-232). E contrario, if States are not the obligees of duties of protection, individuals must be. The absence of procedural mechanisms for individuals to enforce these rights, Professor Peters notes, does also not diminish their substantive legal existence (p. 200). In this sense, she quotes the Permanent Court of International Justice, which had also held it “scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself” (Judgment, Peter Pàzmàny University Case, Ser. A/B, No. 61 (1935), p. 231).
As a groundbreaking second option, therefore, the Court could find that individuals are indeed rights holders under LOAC, encompassing a right to humanitarian assistance. The Court would thus declare that civilians in occupied or besieged territories hold a right to receive relief consignments, possibly subject only to justified limitations. This view may align with an arguably growing convergence between LOAC and human rights, advanced in soft-law fora (notably within the UN system, including OHCHR and the UN General Assembly).
Under this approach, LOAC could cease to be understood as a purely State-centric legal regime. The Court need not anchor such a right in LOAC exclusively; instead, it may turn to human rights law, further removing itself from a prior lex specialis interpretation (see the Legality of the Threat or Use of Nuclear Weapons, para. 25). Pursuant to the European Court of Human Rights’ recent decision in Ukraine and the Netherlands v. Russia, the Court, too, could emphasize the intersection of international human rights and LOAC, and find
a positive obligation … to protect civilian lives and well-being … in order to alleviate the suffering of the civilian population. This [includes] an obligation to ensure adequate supplies of water, food and heat for settlements under siege as well as access to medical assistance and humanitarian corridors for the safe evacuation of the civilian population (para. 764).
Textually, such an approach may also be anchored in the Fourth Geneva Convention’s unconditional obligation to permit relief in conditions of belligerent occupation (see art. 59, holding that “the Occupying Power shall agree to relief schemes on behalf of [an inadequately supplied civilian population], and shall facilitate them by all the means at its disposal”). By contrast, however, both the Fourth Geneva Convention (art. 23) and the Additional Protocols (AP I and AP II) (AP I, art. 70 and AP II, art. 18) subject relief action to the agreement of the parties concerned. In siege, at least, a (human) right to humanitarian assistance appears doubtful.
Option III — Relief Organizations as Rights Holders
A middle ground might be to recognize humanitarian relief organizations as the holders of relevant entitlements under LOAC, rather than individuals themselves. Under this model, a legal claim would lie with the relief actor seeking access to civilians.
The Geneva Conventions and Additional Protocols provide reasons to support an interpretation that impartial humanitarian bodies have a right to offer their services. And while the Fourth Geneva Convention of 1949 contemplates facilitation of relief consignments as subject to conditions under certain circumstances (art. 23), the protective, singular role of impartial humanitarian bodies is recognized beyond a doubt (GCs I-IV, arts. 9/9/9/10; AP I, art. 81; AP II, art. 18). The ICRC’s updated Commentaries also interpret these provisions as affording a right to offer services, protection to relief entities, subject only to requirements of legitimacy, non-diversion, and control. In that sense, Additional Protocol I, Article 70 (1) clarifies that offers of relief (meeting the requirements of the provision) are not to be regarded as interference in the armed conflict or unfriendly acts.
However, having the right to offer services is entirely abstract from a right to demand a population be given access to one’s services. A right to impose assistance without the consent of the parties concerned would clearly exceed the wording of the treaties referenced above (i.e., that humanitarian activities remain “subject to the consent of the Parties to the conflict concerned;” see also GC I-IV, arts. 9/9/9/10). That is why scholars such as Heike Spieker have also concluded that an organization’s “right to access” has not crystallized as a matter of customary international law (p. 31–36).
On this outcome, the Court could affirm that relief actors have a right to offer services. In a bolder stance, the Court may even ascertain a legal entitlement to unimpeded access to civilians (possibly when certain criteria, like impartiality, are met), such that interference would constitute a violation of their rights rather than the recipients’ rights directly.
Option IV — The Court Dodges the Question
Finally, the Court may give no unequivocal determination as to whether individuals hold direct rights under IHL, and it may deliver no clear view of how the law governing humanitarian assistance attaches to the international legal personalities of actors involved. Such judicial restraint would be consistent with the ICJ’s cautious practice in politically charged or legally unsettled areas. Historically, the Court has at times articulated State duties without taking a hard line.
By choosing this course, the Court might confirm Israel’s general obligation to facilitate humanitarian assistance under the Fourth Geneva Convention, customary law, and human rights, while restricting its findings to the very particular circumstances of this conflict. It may leave the specifics of its reasoning open to interpretation.
On the one hand, this approach would be cautious enough to preserve institutional legitimacy, avoiding fracturing consensus on the Court’s advisory mandate, while also providing some additional guidance on how LOAC applies in the Israeli-Palestinian context. On the other, this outcome would be most likely to perpetuate the existing legal and factual uncertainties of humanitarian imperatives and the individual in LOAC itself.
Outlook: What Else Might the Advisory Opinion Entail?
Unquestionably, all options could foster follow-up issues. If the Court endorses the radical second option sketched above—finding an individual right to humanitarian assistance in LOAC—it would hopefully also delineate its contours. If the Court relies on the first option, it could clarify how an obligation to allow civilians access to relief is shaped. In that case, it may also have to opine on whether Israel bears a burden to prove it was justified in restricting relief in cooperating with relief organizations, third States, or even the public. Conversely, there is little reason to assume a general LOAC obligation to transparency exists if security imperatives or military necessities are implicated, even when apparent violations occur.
Many of the Court’s substantive legal findings of the Court may hinge on its assessment of the commensurate obligations from the law of occupation that Israel has retained due to the degree of its effective control over the Gaza Strip (Legal Consequences, para. 94). As outlined above, the provisions governing relief under occupation exclusively are worded with less discretion to deny access than those applying only to siege situations. Under this pretext, viewing the present case as one of siege or encirclement where civilians coexist with combatants could prove particularly thorny. Here, the Court would hopefully also address whether evacuation offers may lower (or even extinguish) relief obligations, and whether civilians who cannot evacuate for physical or coercive reasons must still be provided with it. Adjunctly, the Court may have to indicate whether foreseeable deprivation leading to starvation should, in any case, engage the prohibition to starve civilians as a method of warfare (and, possibly, the required threshold of intent).
Conclusion
No matter the concrete outcome, this advisory opinion should prove engaging in many respects. It may recognize a right to humanitarian assistance, thus transforming relief into a legal entitlement, and thus more or less announcing civilians’ normative subjectivity under the law of war. Even if no such right is identified, clarity on State obligations will undoubtedly bring some invaluable guidance for all actors involved. If the Court adheres to a path of sharpening State obligations without recognizing individual entitlements, it will serve a “traditional” architecture, potentially perpetuating dependence on State discretion. The Court’s reasoning on October 22 will thus be closely scrutinized, not only for its doctrinal resonance, but for its practical meaning in conflicts where access to aid may decide the boundary between survival and catastrophe.
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Rosa-Lena Lauterbach is a PhD Candidate at the University of Cologne and a former Visiting Researcher at the Lieber Institute and Columbia Law School and a thematic editor for Articles of War.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published.
Photo credit: U.S. Air Force, Staff Sgt. Christian Sullivan