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
• Citation: (2021) African Yearbook on International Humanitarian Law 93
• 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 African Commission on Human and Peoples’ Rights, which is the

treaty body established to monitor the States Parties’ compliance with

the African Charter on Human and Peoples’ Rights, adopted General

Comment No 3 on the Right to Life in 2015. The African Commission’s

General Comment No 3 provides authoritative normative guidance for

interpreting and implementing the right to life under Article 4 of the

African Charter in armed conict situations. Speci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 clarifying the protections for individuals

and the concomitant obligations of states. This article systematically

discusses how and to what extent international humanitarian law (IHL)

norms are integrated into the African Commission’s General Comment

No 3, and what the likely effects of such integration are. Using a critical

and comparative approach, this article analyses General Comment

No 3’s interpretive approach to arbitrary deprivation of life in armed

conict; the constraints on lethal force during the conduct of hostilities;

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

although it is a creditable advance in elaborating the right to life during

armed conict and other situations of violence, General Comment No 3

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

addressed or ineffectually articulated. Those aspects will have to be

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

Keywords: Africa, international humanitarian law, African Com-

mission, general comment, right to life

1 INTRODUCTION

A growing practice within the African 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 bodies,

*LLB LLM PhD MCIArb, Lecturer, Faculty of Law, Egerton University. Email:

brian.sang@egerton.ac.ke

(2021) African Yearbook on International Humanitarian Law 93

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94AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

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

including the African Commission on Human and Peoples’ Rights

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

monitoring bodies publish authoritative normative interpretations

of the rights or obligations outlined in their constitutive 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 (African Charter),3 the African

Commission has adopted a variety of thematic instruments, including

general comments, to elaborate upon the normative content of African

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

compliance.4 Thus far the African Commission has promulgated six

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

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

movement and residence;8 and women’s matrimonial property rights.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 Murray ‘The Role and Use of Soft Law Instruments in

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

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

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

2 Manisuli Ssenyonjo ‘Responding to Human Rights Violations in Africa:

Assessing the Role of the African Commission and Court on Human and

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

at 22.

3 Article 45 of the African (Banjul) Charter on Human 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 Comment No 1 on Article 14.1(d) and (e) of the Protocol

to the African Charter on Human and Peoples’ Rights on the Rights

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

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

African Charter on Human and Peoples’ Rights on the Rights of Women in

Africa (28 Novembe r 2014).

6 ACmHPR General Comment No 3 on the African Charter on Human and

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

7 ACmHPR General Comment No 4 on the African Charter on Human and

Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel,

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

8 ACmHPR General Comment No 5 on the African Charter on Human

and Peoples’ Rights: The Right to Freedom of Movement and Residence

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

9 ACmHPR General Comment No 6 on the Protocol to the African Charter

on Human and Peoples’ Rights on the Rights of Women in Africa (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 circumstances, thereby promoting their coherent application

to ‘a range of practical situations’.10

A detailed review of all the general comments emanating from

the African Commission 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 IHL. This article 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, and what the likely effects will be.

This normative interaction between IHL and human rights law will be

considered in relation to the African Commission’s previous practice

and in the context of comparative international legal standards. The

United Nations (UN) Human Rights Committee’s General Comment

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

on Civil and Political Rights is of special comparative relevance to

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

structure and content with General Comment No 3, the analytical

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

references to the jurisprudence of human rights treaty bodies, offers

an instructive 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 the approach in General Comment No 3

to reconciling the right to life under Article 4 of the African Charter

with the IHL norms on permissible killing. Section 4 reviews the

legal standards for the permissible use of lethal force in the conduct

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

elaboration of the core principles of IHL. The frequent tendency of

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

in section 5, to explore states’ extraterritorial legal obligations arising

from military operations abroad. Section 6 concludes with brief

observations on IHL in General Comment No 3 and on the continued

use of IHL by the African Commission.

10Long and Murray op cit note 1 at 90.

11HRC 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).

12Sarah Joseph ‘Extending the Right to Life Under the International Covenant

on Civil and Political Rights: General Comment 36’ (2019) 19 Human Rights

Law Review 347 at 348.

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