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Families often have particular vulnerabilities following armed conflict. As international humanitarian law focuses primarily on regulating the conduct of hostilities, its scope for addressing the vulnerability of families and other victims of armed conflict is, at present, conceptually and practically limited. A human security approach invites consideration of the shortcomings of existing legal frameworks in addressing vulnerability, and the development of such frameworks, in a manner that helps to build resilience and address threats. For families harmed during armed conflict, this means identifying features of the existing legal regime that operate in a manner that entrenches or fails to address their vulnerabilities, as well as structural challenges that hinder access to legal opportunities such as reparations. The article identifies several structural issues and features of the legal framework that overlook or entrench the vulnerability of families. Drawing on a human security approach, it suggests that supplementing the existing legal regime with a victim assistance framework could help to address the vulnerability of families and others harmed by armed conflict.

Although the humanitarian effects of armed conflict are vast and transcend national boundaries, international law does not yet provide an adequate or comprehensive response to the suffering of victims of war. This article argues considerations of State sovereignty have shaped the development of international law on post-war redress, hindering the emergence of individual rights to reparations under international humanitarian law. Meanwhile, alternative models such as victim assistance, which largely preserve sovereignty, are emerging in pockets of international humanitarian law, such as weapons treaties. This article suggests that victim assistance offers a potential model for addressing the harm to victims of armed conflict more broadly.

Recent years have borne witness to growing demands for international law to address the suffering of victims of mass violence, reflecting a broader shift in the focus of international law from primarily state-centred to increasingly individual-centred.1 In disarmament law,2 this humanising trend has manifested in, and been driven by, humanitarian considerations being placed at the forefront of disarmament movements.3 This has shaped disarmament law through, among other things, the insertion of victim assistance provisions in treaties, including the Convention on Cluster Munitions4 (‘CCM’) and the Treaty on the Prohibition 103of Nuclear Weapons (‘TPNW’).5 Efforts to humanise international law also frequently involve moves to confer or recognise individual rights to reparations, including compensation, with some suggestions that considerations of humanity demand such rights.6 In the disarmament context, individuals have sought compensation from states and other actors for injuries arising out of the use of or failure to clear certain weapons.7 These claims have generally been brought on the basis of national legislation or human rights agreements, leaving unresolved the narrower question of whether disarmament treaties themselves give rise to individual rights to compensation.

The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.