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

AuthorSang YK, B.
DOIhttps://doi.org/10.47348/AYIH/2021/a4
Published date15 December 2022
Date15 December 2022
Citation(2021) African Yearbook on International Humanitarian Law 93
Pages93-133
93
https://doi.org/10.47348/AYIH/2021/a4
International humanitarian law in
the African Commissions 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
© Juta and Company (Pty) Ltd
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).
© Juta and Company (Pty) Ltd
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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