International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

• Author: Sang YK, B.
• DOI: https://doi.org/10.47348/AYIH/2021/a4
• Published date: 15 December 2022
• Date: 15 December 2022
• Pages: 93-133

93

https://doi.org/10.47348/AYIH/2021/a4

International humanitarian law in

the African Commission’s General

Comment No 3 on the Right to Life:

A critical and comparative analysis

Brian Sang YK*

Abstract

The Africa n Commission on Human and Pe oples’ Rights, which is the

treaty body establ ished to monitor the States Parties’ compliance w ith

the African C harter on Human a nd Peoples’ Rights, adopted General

Comment No 3 on the Right to Life i n 2015. The African Com mission’s

General Comment No 3 provides aut horitative normative guida nce for

interpreting and i mplementing the right to life under A rticle 4 of the

African Cha rter in armed con ict situations. Spe cically, it outlines the

African C ommission’s perspective on the right to life by elaborati ng on its

scope and content, and also by clar ifying t he protections for individua ls

and the concomitant obligations of states. Th is article system atically

discusses how and to what exte nt international humanita rian law (IHL)

norms are integrated into the A frican Comm ission’s General Comment

No 3, and what the likely effec ts of such integration are. Using a cr itical

and comparative approach, this article analyses General Comment

No 3’s interpretive approach to arbitrar y deprivation of life in ar med

conict; the constra ints on lethal force dur ing the conduct of hostilities;

and states’ extraterritorial legal obligations. The article demonstrates that,

although it is a creditable advance i n elaborating the rig ht to life during

armed conict a nd other situations of violence, Gener al Comment No 3

leaves key aspects of the IHL –human rights law interface either l aconically

addressed or ineffec tually ar ticulated. Those a spects wil l have to be

claried in t he African Commission’s future juri sprudence.

Keywords: Afr ica, international humanitaria n law, African Com-

mission, general comment, right to life

1 INTRODUCTION

A growing practice with in the Africa n human rights system and

one that may have a wide-ranging impact is the adoption of general

comments by its regional human rights treaty monitoring b odies,

* LLB LLM PhD MCI Arb, Lectu rer, Faculty of Law, Egerton Univers ity. Email:

brian.sang@egerton.ac.ke

(2021) African Yearbook on International Humanitarian Law 93

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94 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a4

including the Afr ican Commission on Human and Peoples’ Rights

(Afric an Comm ission).1 In these general comments, the respective treat y

monitoring bod ies publish authoritat ive normative interp retations

of the rights or obligations outlined in their constitut ive treaties.2

As the main regional tre aty monitoring body that is broadly mandated

to monitor the implementation of and compliance with the African

Charter on Human and Peoples’ Rights (Af rican Charter),3 the African

Commission has adopted a variety of thematic in struments, including

general comments, to elaborate upon the normative content of African

Charter rights and to provide guida nce on how best to strengthen state

complianc e.4 Thus far the Afr ican Commission has promulgated six

general comments on the following thematic subjects: HIV/AIDS;5 the

right to life; 6 the right to redress for victim s of torture;7 freedom of

movement and residence;8 and women’s matrimonial property rig hts.9

The utility of these general comments lies in t he way they offer much-

needed normative guidance in the application of legal standard s under

1 Debra Long and Rachel Mu rray ‘The Role and Use of Sof t Law Instru ments in

the Africa n Human Rights System’ in Stéphan ie Lagoutte, Thomas Gammeltoft-

Hansen and John Cerone (eds) Tracing the Roles of Soft La w in Human Rights

(2016) 89; Frans Viljoen Internatio nal Human Rights in Africa (2012) 213 .

2 Manisuli Ss enyonjo ‘Responding to Human R ights Violations in Af rica:

Assessing the Role of the A frican Com mission and Court on Hu man and

Peoples’ Rights (1987–2018)’ (2018) 7 International Human Rights Law Revie w 1

at 22.

3 Article 45 of the A frican (Ba njul) Charter on Huma n and Peoples’ Rights

(adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (ACHPR).

The Africa n Charter is recognis ed as the principal regiona l human rights treaty

for Africa and t he basis for the African regional hum an rights system.

4 Rachael Murray and D ebra Long The Implementati on of the Findings of the African

Commission on Human and Peoples’ Rights ( 201 5) 67.

5 ACmHPR General C omment No 1 on Article 14.1(d) and (e) of the Protocol

to the Africa n Charter on Human a nd Peoples’ Rights on the R ights

of Women in Africa (6 November 2012); Genera l Comment No 2 on

Article 14.1(a), (b), (c) and (f) and Artic le 14.2(a) and (c) of the Protocol to the

African Ch arter on Human a nd Peoples’ Rights on the Ri ghts of Women in

Africa (28 Novembe r 2014).

6 ACmHPR General C omment No 3 on the Afric an Charter on Huma n and

Peoples’ Rights: The Ri ght to Life (Article 4) (12 December 2015).

7 ACmHPR General C omment No 4 on the Afric an Charter on Huma n and

Peoples’ Rights: The Ri ght to Redress for Victim s of Torture and Other Cr uel,

Inhuman or Deg rading Punishment or Treatment (Article 5) (4 Marc h 2017).

8 ACmHPR General C omment No 5 on the Afric an Charter on Huma n

and Peoples’ Rights: The R ight to Freedom of Movement and Residence

(Article 12(1)) (10 November 2019).

9 ACmHPR General C omment No 6 on the Protocol to the Af rican Char ter

on Human and Peoples’ Rig hts on the Rights of Women in Af rica (Maputo

Protocol): The Right to Prope rty during Separat ion, Divorce and Annulment of

Marriage (Ar ticle 7(d)) (4 March 2020).

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GENERAL COMMENT NO 3 ON THE RIGHT TO LIFE 95

https://doi.org/10.47348/AYIH/2021/a4

diverse circumst ances, thereby promoting their coherent application

to ‘a range of practical situations’.10

A detailed review of all t he general comments emanating from

the African Com mission is beyond the scope of this article. Instead,

its attention is focused on General Comment No 3 on the Right to

Life and the way in which it interacts with IH L. This ar ticle analyses

the content of General Comment No 3 and constructively critiques

it in the light of international and comparative jurisprudence. Thus,

the core line of inquiry is to assess how and to what extent General

Comment No 3 interacts with IHL, a nd what the likely effects wil l be.

This normative interaction between I HL and human rights law wil l be

considered in relation to the African C ommission’s previous practice

and in the context of comparative international legal standards. The

United Nations (UN) Human Rig hts Committee’s General Comment

No 36 on the right to life in Article 6 of the I nternational Covenant

on Civil and Political Rights is of spec ial comparative relevance to

this analysis.11 This is because, as well as sharing key sim ilarities in

structure a nd content with General Comment No 3, the analytica l

rigour of General Comment No 36, which is evident in its extensive

references to the jurisprudence of human r ights treaty bodies, offers

an instruct ive basis for appraising General Comment No 3.12

This article presents its critical and comparative legal analysis in

ve parts. Section 2 offer s a brief overview of the African Commis sion’s

competence to apply IHL and the legal status of General Comment

No 3. Section 3 examines t he approach in General Comment No 3

to reconciling the right to life under A rticle 4 of the Afr ican Charter

with the IHL norms on per missible killing. Sect ion 4 reviews the

legal standards for the permis sible use of lethal force in the conduct

of hostilities, with a key emphasis on the Afr ican Commission’s

elaboration of the core principles of IHL. The fre quent tendency of

armed conicts to spill over across nat ional borders makes it necessary,

in section 5, to explore states’ extraterritorial legal obligations ar ising

from military ope rations abroad. Section 6 concludes with brief

observations on IHL in Genera l Comment No 3 and on the continued

use of IHL by the Afr ican Commission.

10 Long and Murray op cit note 1 at 90.

11 HRC General Com ment No 36 (2018) on Article 6 of t he ICCPR on the Right to

Life UN Doc CCP R/C/GC/36 (30 October 2018).

12 Sarah Joseph ‘Ex tending the Rig ht to Life Under the Internationa l Covenant

on Civil and Politica l Rights: Genera l Comment 36’ (2019) 19 Human Rights

Law Review 347 at 348.

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