The Approach of African Human Rights Treaty Bodies to International Humanitarian Law: Normative Basis and Institutional Practice

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Sang YK, B
• Citation: (2017) African Yearbook on International Humanitarian Law 1
• Published date: 16 August 2019
• Pages: 1-36

1

The Approach of African Human

Rights Treaty Bodies to International

Humanitarian Law: Normative

Basis and Institutional Practice

Brian Sang YK*

Abstract

Unlike comparable human rights systems, there is scant literature on how

the African system interacts with international humanitarian law (IHL).

This artic le contributes toward lling this gap by asse ssing how and to what

extent African human rights treaty bodies have been or can be utilised to

induce compliance with IHL. It analyses legal and institutional bases for

engagement with IHL, as reected in the work of the African Commission

on Human and Peoples’ Rights, African Court on Human and Peoples’

Rights, and Afr ican Committee of Experts on t he Rights and Welfare of the

Child, as well as the f uture role of the African Court of Just ice and Human

Rights. It argues that the African human rights system can strengthen the

implementation of IHL because most A frican Union-based legal in struments

integrate human rights law and IH L, thus providing an enabling normat ive

basis for the respective human rights treaty bodies to have regard to IHL.

Yet the practice of African treaty bodies demonstrates that this advantage

is under-utilised by the lack of systematic articulation of the effect of the

IHL/human rights law relation and inconsistent approaches to engaging

with IH L.

Keywords: Africa; international humanitarian law; human rights;

treaty bodies; practice

1 INTRODUCTION

International humanitarian law (IHL) has been applied in the practice

of various human rights treaty bodies to address violations occurring

in the context of armed conict.1 This is attributed, among other

* Lecturer, Faculty of Law, Egerton University.

1 IACtHR Cruz Sánchez et al v Peru HR (ser C) No 292 Judgment of 17 April 2015

para 316; IACmHR Abella v Argentina Report No 55/79 (1997) paras 161, 164-66;

ECtHR Hassan v United Kingdom Application No 29750/09, 16 September 2016

para 104; ACmHPR Democratic Republic of Congo v Burundi, Rwanda and Uganda

Case No 227/99, Decision of 29 May 2003; Larissa van den Herik and Helen

Duffy ‘Human Rights Bodies and International Humanitarian Law: Common

but Differentiated Approaches’ in Carla M Buckley, Alice Donald and Philip

Leach (eds) Towards Convergence in International Human Rights Law: Approaches of

Regional and International Systems (2016) 366.

(2017) African Yearbook on International Humanitarian Law 1

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2 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

reasons, to the inherent weakness of enforcement mechanisms of IHL2

and changes in the nature of contemporary armed conicts, which

tend to be mostly non-international rather than international in

character.3 Present-day conicts are typically fought between a state

and a non-state armed group or amongst two or more such groups,

and all too often result in mass atroc ities. Africa, li ke other continents,

has been the scene of widespread, and in some instances systematic,

violations of human rights law and serious breaches of IHL associated

with armed conict.4 The civil war in Sierra Leone, the genocide in

Rwanda and the conicts in t he Great Lakes region are some pertinent

examples.5 More recently, sanguinary armed conicts in South Sudan,

Mali and the Central African Republic have been the cause of regional

and international concern.6 Needless to say, the guns on the African

continent are yet to fall silent.

Such situations of armed conict and collec tive violence raise critical

questions as to how the human rights organs of the African Union

(AU) have sought to, or can, induce compliance with human rights

law and IHL. However, in comparison with the European and Inter-

American human rights treaty systems,7 there is scant literature on

how the African human rights system interacts with IHL in its work.8

As a result, contributions of African human rights treaty bodies to the

comparative legal discourse on the relevance of human rights law in

armed conict and its general implications for the enforcement of IHL

are neglected or only addressed laconically.9 This creates a signicant

gap in the legal analysis of how and to what extent African human

2 Shana Tabak ‘Ambivalent Enforcement: International Humanitarian Law at

Human Rights Tribunals’ (2016) 37 Michigan Journal of International Law 662.

3 Gerd Oberleitner Human Rights in Armed Conict (2015) 2-3; Brian Sang YK

‘International Humanitarian Law in the Work of Regional Human Rights Courts:

African and Comparative Trends’ (2017) 4:2 Journal of Comparative Law in Africa 1

at 2.

4 Ben Kioko and Lydia Wambugu ‘The African Union and the Protection of

Civilians’ in Haidi Willmot et al (eds) Protection of Civilians (2016) 275.

5Sanji Mmasenono Monageng ‘Africa and the International Criminal Court: Then

and Now’ in Gerhard Werle, Fernandez Lovell and Moritz Vormbaum (eds) Africa

and the International Criminal Court (2014) 13.

6Anyssa Bellal (ed) The War Report: Armed Conict in 2014 (2015) 8.

7Derek Jinks, Jackson N Maogoto and Solon Solomon (eds) Applying International

Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic

Aspects (2014) Chapters 8 and 9.

8Frans Viljoen ‘The Relationship between International Human Rights and

Humanitarian Law in the African Human Rights System: An Institutional

Approach’ in Erica de Wet and Jan Kleffner (eds) Convergence and Conicts of

Human Rights and International Humanitarian Law in Military Operations (2014)

303.

9Recent comparative work is, however, reversing this trend. See Van den Herik

and Duffy op cit note 1 at 400-406; Sang YK op cit note 3; Michaela Hailbronner

‘Laws in Conict: The Relationship between Human Rights and International

Humanitarian Law under the African Charter on Human and Peoples’ Rights’

(2016) 16 African Human Rights Law Journal 339-364.

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AFRICA N HUMAN RIGHTS T REATY BODIES AN D HUMANITARI AN LAW 3

rights monitoring bodies and other AU institutional arrangements

have been or can be utilised to strengthen compliance with IHL.

The need to re-exam ine the ways in which the African human rights

system can contribute to the enforcement of IHL is also amplied by

some recent legal developments. In 2015, States were unable to agree

on a new mechanism proposed by the International Committee of the

Red Cross (ICRC) to strengthen compliance with IHL.10 They elected

instead to engage in an inter-governmental process to explore ways to

enhance the implementation of the law, a process that is expected to

yield results in not less than four years.11 It thus becomes imperative

to revisit and prioritise how best concerted effort can be expended

to bolster the capacity and efcacy of existing IHL implementation

mechanisms, including Af rican human rights treaty bodies.

The object of this article is to contribute to the emerging literature

on the role of human rights organs of the AU and those established

under the African Charter on Human and Peoples’ Rights (African

Charter)12 in strengthening compliance with IHL. It systematically

analyses the work of the African Commission on Human and Peoples’

Rights (African Commission), the African Court on Human and

Peoples’ Rights (African Court), the African Committee of Experts on

the Rights and Welfare of the Child (African Children’s Committee),

as well as the future role of the African Court of Justice and Human

Rights.13 Its central thesis is that the African human rights system has

the institutional capacity to interpret and incidentally enforce IHL,

has invoked IHL in some cases, and has made some useful but under-

examined contributions to IHL.14

This article examines the legal and institutional aspects of the

application of IHL in the practice of African human rights treaty

bodies. Its analysis considers historic and contemporary developments

in African conicts, the regional responses to these conicts in terms

of practice and jurisprudence, and their future implications.15 It rst

10 ICRC ‘No Agreement by States on Mechanism to Strengthen Compliance

with Rules of War’, 10 December 2015, available at

document/no-agreement-states-mechanism-strengthen-compliance-rules-war>

(accessed in January 2018).

11Resolution 2: Strengthening Compliance with International Humanitarian Law,

adopted at the 32nd International Conference of the Red Cross and Red Crescent,

32IC/15/R2, December 2015.

12African (Banjul) Charter on Human and Peoples’ Rights (adopted 27 June 1981,

entered into force 21 October 1986) 21 ILM 58 (ACHPR).

13Protocol on Amendments to the Protocol on the Statute of the African Court of

Justice and Human Rights (signed 27 June 2014, not yet in force).

14 Faustin Zacharie Ntoubandi ‘Comment – Enforcement of International

Humanitarian Law through the Human Rights Organs of the African Union’

in Heike Krieger (ed) Inducing Compliance with International Humanitarian Law:

Lessons from the African Great Lakes Region (2015) 300-312.

15 Rachel Murray Human Rights in Africa: From the OAU to the African Union (2004)

116-133.

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4 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

provides an overview of the debate on the relationship between

human rights and IHL, ba sed on an assessment of the trends, tensions,

contradictions and convergence of thought in the articulation of the

interplay of the two sets of law. It subsequently demonstrates that

the African human rights system has the capacity to implement IHL,

by emphasising how the AU legal instruments and the respective

mandates of the African Commission and Court provide an enabling

normative framework for applying IHL. This argument is further

advanced by analysing the practice of the A frican human rights system

in the context of assessing how the relevant treaty bodies have engaged

with IHL.

2 NORMATIVE AND INSTITUTIONAL ASPECTS OF THE

INTERPLAY BETWEEN HUMAN RIGHTS LAW AND IHL

In spite of their historically divergent tracks of conceptual evolution

and institutional praxis,16 human rights law and IHL are increasingly

regarded as complementary and mutually supportive rather than

mutually exclusive.17 Convincing arguments have been advanced in

this regard. Most of these argu ments are rooted in the close normative

link between human rights law and IHL, which share a ‘common

nucleus of non-derogable rights and a common purpose of protecting

human life and dignity’.18 Thus signicant overlaps exist in their

respective protective scope. Accordingly, this common normative link

ensures that the two regimes complement one another ‘in a manner

that no two other branches of law do’.19 However, while the two bodies

of law share essentially similar concer ns and underlying aims to protect

individuals, they discharge their protective functions in different

ways.20 The dissimilarit y of method has given rise to cautious views on

the special relationship of IHL and human rights law, emphasising the

16 Robert Kolb ‘Human Rights Law and International Humanitarian Law between

1945 and the Aftermath of the Tehran Conference in 1968’ in Robert Kolb and

Gloria Gaggioli (eds) Research Handbook on Human Rights and Humanitarian Law

(2013) 35-52.

17UN Human Rights Council, Fundamental Standards of Humanity, Report of the

Secretary-General, UN Doc A/HRC/8/14 (2008).

18 IACmHR Decision on Precautionary Measures (Detainees at Guantanamo Bay, Cuba)

(2002) 41 ILM 432; Dietrich Schindler ‘The International Committee of the Red

Cross and Human Rights’ (1979) 208 International Review of the Red Cross 9.

19 Medard R Rwelimira ‘Human Rights and International Humanitarian Law: The

Link or Common Ground Revisited’ (1992) 3 Stellenbosch Law Review 246.

20Andrew Clapham ‘The Complex Relationship between the Geneva Conventions

and International Human Rights Law’ in Andrew Clapham, Paola Gaeta and

Marco Sassòli (eds) The 1949 Geneva Conventions: A Commentary, (2016)

701-735; Cordula Droege ‘Elective Afnities? Human Rights and Humanitarian

Law’ (2008) 90 International Review of the Red Cross 501 at 521.

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AFRICA N HUMAN RIGHTS T REATY BODIES AN D HUMANITARI AN LAW 5

existence of competing values or norm conicts wh ich may be difcult

to avoid or resolve.21

A voluminous body of work has emerged on the normative interplay

between human rights law and IH L, with particular focus on how they

have inuenced one another in their application to armed conict

and violence situations. The broad outlines of most of the literature

on the subject are well known and will not be rehearsed here. Sufce

to say that the various ‘strands of doctrine have claimed that these

two legal regimes of law are concurrent, convergent, conuent,

complementary, contradictor y, or even in conict ’.22 Considering their

mutual inuence, cogent arguments have been advanced that ‘rules

belonging to both regimes can indeed be applied and interpreted in

the light of another when they provide rules in area s that are common

to both’.23 This view is supported by the practice of human rights

treaty monitoring bodies that have either directly applied IHL in their

work, or applied it indirectly by interpreting human r ights law in light

of IHL.24 Yet, whereas the view has prevailed that human rights law

and IHL have more similarities than differences and can indeed apply

concurrently,25 the articulation of interactions between these two

bodies of law has been subject to substantial dispute.

In summary, three broad theories, albeit conceptualized in diverse

and overlapping ways,26 can be used to explain the interplay between

IHL and human rights: separation; complementarity a nd integration.27

Separation theory regards IHL and human rights law as distinct and

mutually exclusive disciplines; emphasising their historical and

operational dissimilarities, separationists have invoked lex specialis (the

rule that a specic law has primacy over general laws) to contend that

in situations of armed conict IHL is always the specic rule which

overrules human rights law.28 In contrast, complementarity theory

21 Marco Milanovic´ ‘Norm Conicts, International Humanitarian Law, and

Human Rights Law’ in Orna Ben-Naftali (ed) International Humanitarian Law and

International Human Rights Law (2011) 95-128.

22Gilles Giacca Economic, Social and Cultural Rights in Armed Conict (2014) 165.

23 Ibid.

24 IACtHR Zambrano Vélez v Ecuador (ser C) No 166 Judgment of 4 July 2007 at

para85; ACmHPR DRC v Burundi, Rwanda and Uganda op cit note 1; Van den

Herik and Duffy op cit note 1 at 401-402.

25 IACtHR Santo Domingo Massacre v Colombia (ser C) No 259 30 November 2012 at

para 229; ECtHR Hassan op cit note 1 at para 104.

26Clapham op cit note 20; Milanovic´ op cit note 21.

27Hans-Joachim Heintze ‘Theories on the Relationship between International

Humanitarian Law and Human Rights Law’ in Kolb and Gaggioli op cit note 16

at 54.

28 Naz K Modirzadeh ‘The Dark Side of Convergence: A Pro-Civilian Critique of

the Extraterritorial Application of Human Rights Law in Armed Conict’ (2010)

86 US Naval War College International Law Studies 349 at 353; Michael Dennis

‘Application of Human Rights Treaties Extraterritorially in Times of Armed

Conict and Military Occupation’ (2005) 99 American Journal of International Law

119 at 141.

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6 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

holds that lex specialis is a contextual tool and thus, depending on the

circumstances, either I HL or human rights law may supply the relevant

norm with precision and clarity.29 This view therefore embraces the

co-application of IHL and human rights norms.30 Integration theory

posits that there is now a high degree of convergence of human rights

and IHL norms to support the view that certain norms of these laws

have so amalgamated that their common elements can be ‘identied

and articulated as fundamental standards of humanity that ought to

apply along the entire spectrum of violence’.31

The broad description of these theories obscures the fact of the

conicting understandings of, and sub-theories within, the general

theories. At the core of contention are the lex specialis rule, its theoretic

and functional roles, and what it means for the IHL-human rights

interrelations.32 It is not settled whether lex specialis means that

IHL is always the source of the specialised norms in situations of

armed conict thereby displacing human rights law, or whether the

determination of the most specic ru le must be made on a case-by-case

basis.33 In any event, the methodology of identifying the specialised

rules or norms is itself debateable,34 while the role (conict-solving or

treaty interpretation) and effect of lex specialis is disputable.35 A review

of the work of regional and international adjudicatory bodies discloses

two issues that have been at the heart of the legal disagreement:

29Droege op cit note 20 at 524; Heieke Krieger ‘A Conict of Norms: The Relationship

between Humanitarian Law and Human Rights Law in the ICRC Customary Law

Study’ (2006) 11 Journal of Conict and Security Law 265, 269.

30 ICTY Prosecutor v Anto Furundzija, Trial Judgment 10 December 1998 para 183;

ICTR Prosecutor v Mikaeli Muhimana, Trial Judgment 28 April 2005 para 539.

31 Brian Sang YK ‘Contemporary Conicts and Protection Gaps in International

Humanitarian Law: The Necessity and Practical Utility of Fundamental Standards

of Humanity’ (2015) African Yearbook on International Humanitarian Law 24;

Marco Odello, ‘Fundamental Standards of Humanity: A Common Language of

International Humanitarian Law and Human Rights Law’ in Roberta Arnold and

Noëlle Quénivet (eds) International Humanitarian Law and Human Rights Law:

Towards a New Merger in International Law (2008) 15 at 34.

32Marti Koskenniemi Study on the Function and Scope of the Lex Specialis Rule and the

Question of ‘Self-Contained Regimes’ 2004 ILC(LVI)/SG/FIL/CRD1 and Add 1 at 4.

33 Koldo Casla ‘Interactions between International Humanitarian Law and

International Human Rights Law for the Protection of Economic, Social and

Cultural Rights’ (2012) 23 Revista Electrónica de Estudios Internacionales 1 at 11 and

12; Droege op cit note 20 at 523.

34 Hellen Duffy ‘Harmony or Conict? The Interplay between Human Rights and

Humanitarian Law’ in Larissa van den Herik and Nico Schrivjer (eds) Counter-

Terrorism Strategies in a Fragmented International Legal Order (2013) 482 at 507-508;

International Law Commission Report of the Study Group on Fragmentation of

International Law: Difculties Arising from the Fragmentation and Expansion of

International Law 28 July 2004 A/CN4/L663/Rev 1 at para 13.

35 Jean D’Aspremont ‘Articulating International Human Rights and International

Humanitarian Law: Conciliatory Interpretation Under the Guise of Conict

of Norms Resolution’ in Malgosia Fitzmaurice and Panos Merkouris (eds) The

Interpretation and Application of the European Convention on Human Rights: Legal

and Practical Implications (2013) 1-31.

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AFRICA N HUMAN RIGHTS T REATY BODIES AN D HUMANITARI AN LAW 7

(a) an institutional question, whereby the competence of the relevant

adjudicatory body, particularly human rights courts, to apply IHL is

challenged; and (b) a normative question, whereby disputes arise as

to which of the conicting norms of IHL or human rights law should

prevail when both apply to a common situation.36

States that have raised institutional arguments against applying

human rights law to regulate conduct in armed conict are driven by,

among other things: (a) the strategic advantage of being able to justify

controversial operations, including targeted killings and unprocedural

detention, under the more permissive regime of IHL; and ( b) avoidance

of the scrutiny of human rights treaty mechanisms which may expose

them and implicate their state responsibility, particularly in relation

to conduct on foreign territory.37 The thrust of the institutional

objectors’ argument is that the constitutive instruments of human

rights monitoring bodies restrict their jurisdictional competence to

human rights law.38 This is, however, a minority and isolated view, as

conrmed by the consistent practice of human rights treaty bodies39

and some of the more recent state practice of persistent objectors.40

The relevant doctrine also reafrms the competence of human rights

treaty bodies to apply IHL in relation to armed conicts.41 Still, even

where it is undoubted that human rights law applies in times of armed

conict or human rights treaty mechanisms are competent to apply

IHL in their respective work, some normative disagreements have

arisen.42 In particular, divergent views exist on how conicts between

norms derived from human rights law and IHL and which govern the

same subject-matter are to be resolved.43

The normative and institutional aspects of the interaction between

IHL and human rights law are relevant to the present study of the

36Sang YK op cit note 3 at 4.

37Sang YK op cit note 3 at 4; Philip Alston, Jason Morgan-Foster and William Abresch

‘The Competence of the UN Human Rights Council and Its Special Procedures in

Relation to Armed Conict’ (2008) 19 European Journal of International Law 183 at

185.

38 Sang op cit note 3 at 4; Alejandro Lorite Escorihuela ‘Humanitarian Law and

Human Rights Law: The Politics of Distinction’ (2011) 19 Michigan State Journal of

International Law 300 at 303.

39Françoise J Hampson ‘The Relationship between International Humanitarian Law

and Human Rights Law from the Perspective of a Human Rights Treaty Body’

(2008) 90 International Review of the Red Cross 549-572.

40 Ilia Maria Siatitsa and Maia Titberidze ‘Ten Years of Afrmative State Practice

within United Nations Resolutions’ (2012) 3 Journal of International Humanitarian

Legal Studies 233-262.

41Andrew Clapham ‘Protection of Civilians under International Human Rights’ in

Willmot et al op cit note 4 at 143-144.

42Sang YK op cit note 3 at 5.

43Sang YK op cit note 3 at 5; Sarah McCosker ‘The “Interoperability” of International

Humanitarian Law and Human Rights Law: Evaluating the Legal Tools Available

to Negotiate their Relationship’ in Andrew Byrnes, Mika Hayashi and Christopher

Michaelson (eds) International Law in the New Age of Globalization (2013) 145-177.

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8 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

approach of African human rights treaty bodies to IHL. As is shown

in subsequent sections,44 challenges to the competence of the African

Commission or Court to apply IHL have not been explicitly raised,

but the manner in which these bodies have addressed IHL in their

respective work suggests the presence of institutional rest raint. In such

cases, even where scope exists to make use of IHL, the Commission

or Court exhibited reticence as opposed to initiative.45 Normative

aspects of the IHL/human rights law relations are also useful to the

present study because they offer the key to a principled approach to

how African human rights treaty bodies can meaningfully apply IHL

in their work, and more so in relation to the future role of the African

Court of Justice and Human Rights.

What is perhaps the most useful outcome of the interaction

between IHL and human rights law, and which is a function of both

the institutional and normative aspects of their relationship, is the

capacity for complementary enforcement.46 The IHL treaty regime

does not establish a dedicated accountability mechanism to promote

respect for, and ensure the implementation and enforcement of, IHL

obligations.47 In contrast, international and regional human rights

treaties establish a several superv isory and accountability mechanisms,

as well as adjudicatory bodies.48 Thus, it has been argued that some

IHL obligations can and should be enforced by human rights treaty

bodies.49 A substantial amount of practice has since consolidated to

demonstrate that most human rights treaty bodies, international or

regional, have either directly applied or incidentally implemented IHL

in their work.50

As for regional human rights treaty bodies, the practice of the

European and Inter-American human rights systems conrm, albeit

in different terms, the possibility of IHL norms being implemented

by human rights treaty bodies.51 This supports the view that a useful

outcome of the interrelationship of IHL and human rights law is the

44See below ss 5.1, 5.2 and 5.3.

45 See ACtHPR African Commission on Human and Peoples’ Rights v Great Socialist

Libyan Arab Jamarihiya 4/11 Provisional Measures 25 March 2011; [2011] AHRLR

175; ACmHPR Commission Nationale des Droits de l’Homme et des Liberté/Chad,

Decision of 11 October 1995 para 21.

46Sang YK op cit note 3 at 5.

47Giacca op cit note 22 at 167.

48Philip Alston and Ryan Goodman International Human Rights (2013) 685-1045.

49Sandesh Sivakumaran The Law of Non-International Armed Conict (2012) 500-503.

50 Human Rights Committee General Comment No 31, Nature of the General Legal

Obligation on States Parties to the Covenant CCPR/C/21/Rev1Add13 (26 May 2004)

para 11; Committee on the Rights of the Child General Comment No 6, Treatment of

Unaccompanied and Separated Children Outside their Country of Origin (1 September

2005) para 74; Committee on Economic, Social and Cultural Rights Concluding

Observations to Sri Lanka E/C12LKACO/2-4 (9 December 2010) para 28.

51 IACtHR Cruz Sánchez op cit note 1 at para 316; ECtHR Hassan op cit note 1 at

para104.

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AFRICA N HUMAN RIGHTS T REATY BODIES AN D HUMANITARI AN LAW 9

capacity of human rights judicial and quasi-judicia l bodies to promote

and secure the enforcement of IHL. Relevant scholarly commentary

on the practice of the European Court of Human Rights (European

Court),52 the Inter-American Court of Human Rights (Inter-American

Court) and the Inter-American Commission on Human Rights (Inter-

American Commission)53 conrm this. However, the current or future

capacity of the African Commission, the African Court, and the

African Court of Justice and Human Rights to apply IHL has not been

the subject of as much or as detailed legal analysis. It is to th is task that

the following section turns.

3 NORMATIVE AND INSTITUTIONAL CAPACITY OF THE

AFRICAN HUMAN RIGHTS SYSTEM TO IMPLEMENT

IHL

There is signicant evidence from the practice of both the Inter-

American and European human rights systems to show that human

rights treaty bodies have the capacity to i nterpret as well as implement

international humanitarian norms.54 Prompted, among other factors,

by the inherent enforcement limitations of IHL and the progressive

expanding scope of human rights monitoring mechanisms, regional

human rights adjudicatory tribunals and courts are increasingly being

seized of matters where the applicability of IHL comes into play.55

Like its regional counterparts, the African human rights system has

been called upon to consider IHL in its work; but unlike its regional

equivalents,56 the case law of the Afr ican human rights system relati ng

to application of IHL is rather limited.57 It thus becomes necessary to

52Kjetil Mujezinovic´ Larsen ‘A “Principle of Humanity” or a “Principle of Human-

Rightism”?’ in Kjetil Mujezinovic´ Larsen, Camilla Guldahl Cooper and Gro

Nystuen (eds) Searching for a ‘Principle of Humanity’ in International Humanitarian

Law (2015) 124-148.

53Emiliano J Buis ‘The Implementation of International Humanitarian Law by

Human Rights Courts: The Example of the Inter-American Human Rights System’

in Roberta Arnold and Noëlle Quénivet (eds) International Humanitarian Law and

Human Rights Law: Towards a New Merger in International Law (2008) 269-294.

54 See case law in note 1; Dominik Steiger ‘Enforcing International Humanitarian

Law through Human Rights Bodies’ in Krieger op cit note 14 at 263-299.

55McCosker op cit note 43 at 146: ‘In the absence of international bodies dedicated

to IHL and accessible to civil society, it has largely been in human rights forums

that these questions [about the relationship between IHL and human rights law,

and precisely how to determine their respective scope of application in armed

conicts] have been instigated so far.’

56 For analysis of the IHL-related case law of the Inter-American and European

systems, see Kolb and Gaggioli op cit note 16 at 466-479 and 480-502.

57 Viljoen op cit note 8 at 305. It is noteworthy that African human rights treaty

bodies have been called upon to consider IHL with far less frequency than its

Inter-American and European counterparts. A detailed analysis of the reasons for

this is, however, beyond the scope of the present discussion.

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10AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

examine the institutional and normative basis for the application of

IHL before proceeding to analyse the practice.

3.1 AU Legal Instruments as an Enabling Normative Basis

for Applying IHL

Legal instruments adopted under the auspices of the AU (previously

Organisation of African Unity) have sought, in various ways, to

integrate human rights law and IHL.58 This is consonant with the

objectives and principles of the AU.59 Consequently, some of the key

human rights treaties that apply in the context of armed con ict make

explicit references to IHL. Some treaties even go further to incorporate

in express form and langu age the standards of IHL as t he basis for legal

obligations as well as the interpretation of the content of the respective

instrument. It may thus be observed that the AU treaty instruments

provide an enabling legal framework for using IHL in assessing

compliance with treaty obligations. Specic instruments dealing with

the protection of: (a)internally displaced persons; (b) women caught

up in armed conict; and (c) children involved in or affec ted by armed

violence are discussed below.

3.1.1Internally Displaced Persons

The AU Convention for the Protection and Assistance of Internally

Displaced Persons in Africa (IDP Convention)60 offers a clear

framework for the application of IHL standards in preventing cases

of internal displacement and protecting and assisting those who

have been displaced. Recognising that internal displacement and its

attendant privations and abuses frequently occur in armed conict

and violence situations,61 the IDP Convention extensively uses IHL

treaty language to ar ticulate individual rights and matching state party

obligations.62 The Convention also makes pointed reference to the

language of human rights law in some provisions;63 yet, in others the

dual inuence of human rights law and IHL is all too evident.64 Some

commentators have taken the view that the IDP Convention is ‘both a

human rights convention as well as a humanitarian law instrument’.65

58Djacoba L Tehindrazanarivelo ‘The African Union and International Humanitarian

Law’ in Kolb and Gaggioli op cit note 16 at 503-530.

59Constitutive Act of the African Union, 11 July, 2000 2158 UNTS 3.

6023 October 2009 (entered into force 6 December 2012).

61Ibid at Preamble para 5: ‘We, the Heads of State and Government of the Member

States of the African Union; determined to adopt measures aimed at preventing

and putting an end to the phenomenon of internal displacement by eradicating

the root causes, especially persistent and recurrent conicts …’

62IDP Convention op cit note 60 at arts 6, 7, and 9.

63IDP Convention at arts 11-13.

64IDP Convention at arts 2-4.

65Kioko and Wambugu op cit note 4 at 283.

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This view is well founded because t he Preamble of the IDP Convention

explicitly recognises ‘the inherent rights of internally displaced per sons

as provided for and protected in international human rights and

humanitarian law and as set out in the 1998 United Nations Guiding

Principles on Internal Displacement’.66

Examining t he obligations to which the parties to the IDP Convention

have agreed also demonstrates the key inuence that IHL has had on

the content of the Convention. The general obligations undertaken by

the States Parties to the Convention shows clearly that provisions of

IHL have been incorporated to a large extent. States parties a re obliged,

among other things, to:

c. Respect and ensure respect for the principles of humanity and human

dignity of internally displaced persons; … e. Respect and ensure respect

for international humanitarian law regarding the protection of internally

displaced persons; f. Respect and ensure respect for the humanitarian and civilian

character of the protection of and assistance to interna lly displaced persons,

including ensur ing that such persons do not engage in subversive activ ities;

g. Ensure individual responsibility for acts of arbitrary displacement, in

accordance with applicable domestic and international criminal law;

h. Ensure the accountability of non-State actors concerned, including

multinational companies and private military or security companies, for

acts of arbitrar y displacement or complicity in such acts.67

The explicit reference to IHL as one of the sources of law and the

incorporation of IHL standards in t he protection of internally displaced

persons offers an enabling legal basis for African human rights treaty

bodies to give effect to IHL provisions in their work.68

Specic provisions on protection against internal displacement

establish an obligatory duty on States Parties to ‘respect and ensure

respect for their obligations under international law, so as to prevent

and avoid conditions that might lead to the arbitrary displacement

of persons’.69 This is reminiscent of the quasi-constitutional duty

established in art 1 common to the 1949 Geneva Conventions,

requiring all parties to respect and ensure respect for IHL.70 What

this means is that, States parties bear the primary legal duty to ensure

that the provisions of the IDP Convention are respected, including by

non-state armed groups. This is conr med by art 7 which prohibits, on

pain of individual criminal responsibility, members of armed groups

from violating the rights of internally d isplaced persons under domestic

and international law.71 Article 7 also species that the obligations of

66Preamble at para 10 (emphasis added).

67Article 3.

68Van den Herik and Duffy op cit note 1 at 398.

69Article 4(1).

70 ICRC Commentary on the First Geneva Convention: Volume 1: Convention (I) for the

Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field

(2016).

71Article 7(4).

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12AFRICAN Y EARBOOK ON INTE RNATIONAL HUMAN ITARIAN LAW

protection and assistance under its provisions ‘shall be governed by

international law and in particular [IHL]’.72 Furthermore, States parties

must take measures aimed at ensuri ng that armed groups comply with

the obligations outlined in art 7.73

Certain negative obligations imposed by the IDP Convention on

States parties also show how pervasive the language and norms of IHL

are in the Convention. Article 4(4) of the IDP Convention is pertinent

to demonstrate this. It establishes a right of protection against arbitrar y

displacement, and its corresponding negative duties set out a non-

exhaustive list of prohibited arbitrary displacement in which clear

reference is made to IHL:

b. Individual or mass di splacement of civilians i n situations of armed con ict,

unless the security of the civilians involved or imperative military rea sons so

demand, in accordance with [IHL]; c. Displacement intentionally used as a

method of warfare or due to other violations of [IHL] in situations of armed

conict; … g. Displacement used a s a collective punishment ; h. Displacement

caused by any act, event, factor, or phenomenon of comparable gravity to

all of the above and which is not justi ed under international law, including

human rights and [IHL].74

As well as the legal obligations which are couched in the language

of IHL, States parties to the IDP Convention are further required

to criminalise and ‘declare as punishable by law acts of arbitrary

displacement that amount to genocide, war crimes or crimes against

humanity’.75 This is signicant from the perspective of IHL because

criminal sanction plays an instrumental, if not the most important,

role in the effective enforcement of that law.76

The explicit integration of IHL provisions into the IDP Convention

has crucial implications for the way that law can be applied by Af rican

human rights treaty bodies. First, it codies the relevant normative

standards of IHL and thus offers a principled basis for a nding by

the African Commission or Court of Justice and Human Rights that

IHL has been violated.77 Second, for provisions such as art 7 of the IDP

Convention which makes clear that IHL is the more specic body of

international law that governs the matter, the relevant human rights

monitoring body may nd specic violations of IHL. Third, even with

regard to those provisions for which IHL is not the more specic law,

the human rights treaty bod ies may nd it useful to consider and refer

to IHL, or interpret human rights norms in light of IHL.

72Article 7(3).

73Article 5(11); Articles 9(1) and (2).

74Article 4(4).

75Article 4(6).

76Robert Cryer ‘The Role of International Criminal Prosecution in Increasing

Compliance with International Humanitarian Law in Contemporary African

Conicts’ in Krieger op cit note 14 at 188-216.

77Viljoen op cit note 8 at 322.

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3.1.2Women Caught Up in Armed Conict

Adopted in 2003, the Protocol to the African Charter on Human

and Peoples’ Rights on the Rights of Women (African Protocol on

Women’s R ights)78 was intended to give effect to women’s rights in the

African Charter, and also to eliminate discrimination against them.79

Understanding the particular disadvantages that face African women

and the need to effectively protect those women who ‘continue to be

the victims of discrimination and harmful practices’,80 the Protocol

broadly denes discrimination against women to include adverse

restrictions on, or differential treatment of, women on the basis of sex

in a manner that curtails their fundamental rights, whether in the

public or private sphere.81 This is remarkable because it responds to the

pervasiveness of potential women’s rights violations in all spheres of

life.82 Its denition of violence against women is similarly progressive,

including in its scope:

all acts perpetrated against women which cause or could cause them

physical, sexual, psychological, and economic harm, including the threat

to take such acts; or to undertake the imposition of arbitrary restrictions

on or deprivation of fundamenta l freedoms in private of public life in peace

time and during situat ions of armed conicts or of war [emphasis added].83

This denition is progressive for, at least, two reasons. Not only is it

comprehensive, but it also offers a clear basis for concurrent application

of IHL and human rights law in monitoring and adjudicating violence

against women in armed conict.84 By expressly recognising that

violence against women features in peace time as well a s during armed

conict, the utility of this denition is found in how easily it breaks

‘down the human rights/humanitaria n law dichotomy that sometimes

pervades the issue’.85 This inclusive and comprehensive approach to

the protection of women’s rights is also reected in the obligation on

States parties to ensure that women and children, who too often bear

78AU Doc CAB/LEG/66.6 (entered into force 25 November 2005).

79Article 18(3) of the African Charter provides: ‘The state shall ensure the elimination

of every discrimination against women and also ensure the protection of the

rights of the woman and the child as stipulated in international declarations and

conventions.’.

80African Protocol on Women’s Rights, Preamble.

81Article 1(f).

82In-depth Study on all Forms of Violence against Women: Report of the Secretary-

General, 6 July 2006, UNGA A/61/122/Add 1.

83Article 1(j).

84Viljoen op cit note 8 at 322.

85Fareda Banda ‘Protocol to the African Charter on the Rights of Women in Africa’

in Malcolm Evans and Rachel Murray (eds) The African Charter on Human and

Peoples’ Rights: The System in Practice 1986-2006 (2006) 455.

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14AFR ICAN YEARBOOK ON I NTERNATIONAL HU MANITARIAN L AW

the disproportionate brunt of wartime privations,86 are adequately

protected as refugees or internally displaced persons.87

Article 11 of the African P rotocol on Women’s Rights provides a more

explicit basis for applying IHL by incorporati ng provisions of that law. In

language redolent of art 1 common to the Geneva Conventions of 1949,

it establishes an obligation on States parties to the Protocol ‘to respect

and to ensure respect for the rules of international humanitarian law

applicable in armed conict situations, which affect the population,

particularly women’.88 The Protocol also requires States parties to

protect women eeing from armed conict and violence situations

against all forms of sexua l and gender-based violence and persecution.

States are thus required to ensure that such acts of violence against

women ‘are considered war crimes, genocide and/or crimes against

humanity and that their perpetrators are brought to justice before a

competent criminal jurisdiction’.89

Another obligation explicitly derived from IHL is the duty of States

parties ‘to protect civilians, including women, irrespective of the

population to which they belong, in the event of armed conict’.

Moreover, children, especially girls aged below 18 years, are also

specically protected from the adverse effects of armed conicts.

States parties are thus requi red to take all necessary measures to ensure

that no child takes a direct part in hostilities or is recruited as a child

soldier.90 What is most signicant about the dual protect ion for civilian

women and children is that they form the basis for corresponding

periodic state reporting obligations; States are required to specify the

measures adopted at the national level to eliminate sexual violence

against women and the use of children in armed conict.91 The effect

of the incorporation of IHL into the African Protocol on Women’s

Rights via art 11 is that it brings the incorp orated IHL provisions under

the jurisdiction of the African Charter’s monitoring mechanisms.92

3.1.3Children Involved in or Affected by Armed Conict

Children are among those most profoundly affected by armed conict

and this has been recog nised in international instruments, which seek

86 Christine Chinkin ‘Gender and Armed Conict’ in Andrew Clapham and Paola

Gaeta (eds) The Oxford Handbook of International Law in Armed Conict (2014)

675-699.

87Articles 10(2)(d) and 4(k).

88Article 11(1).

89Article 11(3).

90Article 11(4).

91Tehindrazanarivelo op cit note 58 at 504.

92Viljoen op cit note 8 at 322.

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to ameliorate their condition.93 The AU treaty framework has responded

to this by providing special protection for children, dened as persons

below the age of 18 years, caught up in armed conict in the African

Charter on the Rights and Welfare of the Child (African Children’s

Charter).94 The provisions relating to the protection of child ren involved

in or affected by armed con ict in the African Children’s Charter draw

heavily from the language of IHL a nd establish a protective regime that

is similar to that in the 1949 Geneva Conventions.

Article 22 of the African Children’s Charter imposes specic

obligations on States parties to ‘respect and ensure respect for rules

of [IHL] applicable in armed conicts affecting the child’.95 This

includes the obligation to take preventive steps against conscription

or recruitment of children as soldiers. In line with obligations under

IHL, States parties to the A frican Children’s Charter commit to ‘take all

necessary measures to ensure that no child shall take a direct part in

hostilities and refrain in particular, from recruiting any child’.96

The obligation to prevent the involvement of children in armed

conict is reinforced by art 7 of the IDP Convention which prohibits,

inter alia, members of armed groups from recruiting children or

requiring or permitting them to take part in hostilities under any

circumstances.97 Likewise to the African Children’s Charter,98 the IDP

Convention makes it incumbent on the state party to ensure that

neither of the parties to an armed conict recruit children as soldiers

or abuse them in ways that violate the protections due to them by

virtue of thei r civilian status.99 The African Chi ldren’s C harter protects

children more broadly as part of the civilian population and requires

States to afford them protection and assistance both in situations of

internal armed conict and lower threshold internal violence:

[States Parties] shall, in accordance with their obligations under [IHL],

protect the civil ian population in armed conicts a nd shall take all feasible

measures to ensure the protection and care of children who are affected

by armed conicts. Such rules shall also apply to children in situations of

internal armed con icts, tension and strife.100

93 Katarina Månson ‘The Principle of Humanity in the Development of “Special

Protection” for Children in Armed Conict: 60 Years beyond the Geneva

Conventions and 20 Years beyond the Convention on the Rights of the Child’ in

Larsen, Cooper and Nystuen op cit note 52 at 149.

94Amanda Lloyd ‘A Theoretical Analysis of the Reality of Children’s Rights in

Africa: An Introduction to the African Charter on the Rights and Welfare of the

Child’ (2002) 2 African Human Rights Law Journal 11-32.

95Article 22(1).

96Article 22(2).

97Article 7(5)(e).

98Article 22(2).

99Article 9(1)(d).

100 Article 22(3).

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Further protection is afforded refugee and unaccompanied minor

children caught up in armed conic ts and situations of internal armed

conict, tension and strife.101 Article 23 of the African Children’s

Charter obliges States parties to take appropriate measures to ensure

that children seeking refugee status or those considered as refugees

in terms of the applicable international or domestic law ‘receive

appropriate protection and humanitarian assistance in the enjoyment

of the rights set out in [the] Charter and other international human

rights and humanitarian instruments to which the States are Parties’.

The legal protection for refugee and unaccompanied children affected

by armed conict is als o extended in like manner to children who have

been internally displaced ‘whether through natural disaster, internal

armed conicts, civil strife, breakdown of economic and social order

or howsoever caused’.102 This is an innovative provision that shows a

holistic and realistic approach to addressing in a meaningful way the

problem of African children affected by situations of armed conict

and internal strife.103

3.2 African Committee of Experts on the Rights and

Welfare of the Child

An innovative and useful aspect of the African Children’s Charter

that can play a crucial role in enhancing the utility of IHL to better

protect children involved in or affected by armed conict is its

establishment of the Committee of Experts on the Rights and Welfare

of the Child (the African Children’s Committee).104 Established as a

dedicated mechanism to protect and promote the African Children’s

Charter rights, the African Children’s Committee is mandated to

monitor compliance with and interpret provisions of the Charter.105

The Committee is empowered to evaluate States parties’ report s setting

out the specic measures adopted at the national level to give effect to

the Charter’s provisions and the progress made towards implementing

it.106 In terms of access, provision is made for any person, group, non-

governmental organisation (NGO) recognised by the AU, a Member

State, or the United Nations to submit a communication to the

Committee on issues relating to violations of the Char ter.107 Needless to

101 ACERWC Concept Note for the Commemoration of the Day of the African Child (2016)

at para 27.

102 Ibid at para 52.

103 Lloyd op cit note 94 at 21.

104 Article 32; Lloyd op cit note 94 at 12.

105 Article 42; Gino J Naldi ‘The African Union and the Regional Human Rights

System’ in Evans and Murray op cit note 85 at 45.

106 Article 43.

107 Rules of Procedure of the Committee of Experts on the Rights and Welfare of the

Child, Doc Cmtee/ACRWC/II.Rev.2 rule 74.

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say, the mandate of this Committee is broad and holds much promise

for implementation of children’s rights in Africa.108

Upon receipt and consideration of States parties’ reports or other

information received in accordance with its mandate,109 the Comm ittee

may make general recommendations to the States parties or adopt

general comments on Charter provisions to promote compliance with

the obligations imposed by the Africa n Children’s Charter. In addition,

the Committee holds regular thematic discussions of selected Charter

provisions in order to elaborate their content and legal effect, thus

promoting their implementation.110 Article 45 of the Charter further

vests broad investigative powers on the Committee and authorises it

to adopt any methodology that it deems necessary; this points to the

independence of the Committee whose work is exclusively subject to

its own procedural rules.111

Modalities of the relationship of the Africa n Children’s Committee to

other organs of the AU involved in the implementation and monitoring

of the African Charter may offer critical indicators of its long term

efcacy. The Committee may access the African Commission in the

course of its protective function. However, its access to the African

Court is restricted to adv isory opinions thus excluding the Committee

from lodging substantive matters.112 Perhaps aware that thi s constrains

the Committee’s work, the Court has recommended that ‘necessary

action be taken by competent organs of the AU to ensure that the

Committee has unfettered access to the Court in order to ensure

effective protection of the rights and welfare of children’.113

The African Children’s Committee has had occasion to consider the

application of IHL in its work, particularly related to armed conict.

It has undertaken missions to South Sudan and Central African

Republic to assess the situation of children involved in or affected

by armed conict. The respective reports of these missions indirectly

refer to IHL in the context of grave child rights violations in armed

conict, including killing, sexual violence, and recruitment and

use of children by the belligerents.114 More recently, the Committee

released a comprehensive study which assesses the impact of conicts

108 Amanda Lloyd ‘Evolution of the African Charter on the Rights and Welfare of

the Child and the African Committee of Experts: Raising the Gauntlet’ (2002) 10

International Journal of Children’s Rights 179-98.

109 Article 42.

110 Article 42 at rule 76.

111 Lloyd op cit note 94 at 12.

112 Kioko and Wambugu op cit note 4 at 285.

113 Kioko and Wambugu op cit note 4 at 285.

114 ACERWC Report on the Advocacy Mission to Assess the Situation of Children in South

Sudan (2014) at 5-8 and 10-13; ACERWC Mission Report of the ACERWC to Assess

the Situation of Children Affected by the Conict in Central African Republic (2014) at

15-18.

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18AFRICA N YEARBOOK ON IN TERNATIONAL HUM ANITARIAN LAW

and crises on children in Africa.115 Focusing on the conicts in the

last ten years, the study notes that contemporary conicts pose new

challenges for the protection of children’s rights with the result that

‘accountability for violations in conict situations remains a serious

problem’.116 The Committee has also observed that recruitment and

use of children under the age of 15 years is proscribed under IHL

and human rights law, and may also amount to a war crime under

customary international law.117 It further notes that under both IHL

and human rights law ‘the minimum age for recruitment of children

in armed conicts’ is 18 years.118

3.3 African Commission on Human and Peoples’ Rights

3.3.1Mandate of the African Commission

Established in terms of art 30 of the African Charter,119 the African

Commission was initially the only quasi-judicial organ empowered to

enforce the rights and freedoms in the Charter.120 In the execution

of this role, the Commission is mandated to promote and protect

human rights, as well as to interpret its own mandate.121 The protective

mandate entails the exercise by the Commission of its adjudicative

function; this primarily deals with determining inter-state and

individual petitions alleging human rights violations by Member

States.122 This protective mandate may also involve making on-site

visits or fact-nding missions to the place where an alleged violation

occurred. The protective mandate also requires the Commission to

exercise an oversight function involving monitoring the compliance

by States with their legal obligations under the African Charter.123

Pursuant to its promotional mandate, the African Commission is

required to make the African Charter’s provisions as widely known as

possible in order to foster better recognition of and enhance respect

for the rights and freedoms in the Charter.124 Article 45(1) of the

115 ACERWC Comprehensive Study on the Impact of Conicts and Crisis on Children in

Africa (2016).

116 Ibid.

117 ACERWC Concept Note op cit note 101 at para 29.

118 ACERWC Concept Note op cit note 101 at para 29.

119 Article 30 of the ACHPR provides that: ‘The African Commission on Human and

Peoples’ Rights, hereinafter called the ‘Commission’, shall be established within

the Organization of African Unity [now AU] to promote human and peoples’

rights and ensure their protection in Africa.’.

120 Frans Viljoen International Human Rights Law in Africa (2007) 420-422.

121 Articles 45(1), (2) and (3) of the ACHPR.

122 Chidi Anselm Odinkalu ‘The Individual Complaints Procedures of the African

Commission on Human and Peoples’ Rights: A Preliminary Assessment’ (1998) 8

Transnational Law and Contemporary Problems 359.

123 Articles 54 and 55 of the ACHPR.

124 Rachel Murray African Commission on Human and Peoples’ Rights and International

Law (2000) 15-16.

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Charter outlines how the Commission may implement its obligation

to disseminate the Charter.125 This includes organising workshops and

symposia; policy-making initiatives to elaborate human and peoples’

rights; and institutional cooperation with like-minded regional and

international organisations.126 Under its promotional mandate, the

African Commission has adopted thematic resolutions making the case

for the dissemination and implementation of IHL in Afr ica on the basis of

its close link with human r ights law.127 A notable example is its Resolution

on the Promotion and the Respect of International Humanitarian Law

and Human and Peoples’ Rights which provides, inter alia, that:

Considering that human rights and international humanitarian law [IHL]

have always, even in differe nt situations, aimed at protecting human bei ngs

and their fundamental rights, Noting the competence of the International

Committee of the Red Cross (ICRC) to promote the respect for [IHL], …

Recognising the need for a c lose cooperation in the eld of dissemination of

international humanitarian law and human and peoples’ rights: 1. Invites

all African States … to adopt appropriate measures at the national level to

ensure the promotion of the provisions of [IHL] and human and peoples’

rights; 2. Stresses t he need for specic instruction of m ilitary personnel and

the training of t he forces of law and order in [IHL] and human and peoples’

rights respec tively; …128

More recently, the African Commission has started to adopt General

Comments, which are authoritative interpretations of specic

provisions of a legal instrument by the body mandated to supervise

the implementation of that instrument.129 The Commission’s practice

in this regard has been to outli ne its position on the scope and content

of the relevant right so as to promote its uniform interpretation and

coherent application in diverse contexts, including its implementation

at the national level. Of present relevance is General Comment No 3

which offers guidance on the interpretation and application of the

right to life under art 4 of the African Charter.130 Here, the African

125 Article 45(1) ACHPR provides that: ‘The functions of the Commission shall

be: 1. To promote human and peoples’ rights and in particular: (a) to collect

documents, undertake studies and researches on African problems in the eld

of human and peoples’ rights and, should the case arise, give its views or make

recommendations to Governments. (b) to formulate and lay down principles

and rules aimed at solving legal problems relating to human and peoples’ rights

and fundamental freedoms upon which African Governments may base their

legislation. (c) cooperate with other African and international institutions

concerned with the promotion and protection of human and peoples’ rights.’

126 Ntoubandi op cit note 14 at 302.

127ACmHPR Resolution on the Promotion and Respect of International Humanitarian

Law and Human and Peoples’ Rights, 14th Ordinary Session, 1-10 December

1993.

128 Ibid.

129 Rachael Murray and Deborah Long The Implementation of Findings of the African

Commission on Human and Peoples’ Rights (2015) 67.

130 ACmHPR General Comment No 3 on the African Charter of Human and Peoples’

Rights: The Right to Life (art 4), 57th Ordinary Session, November 2015.

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Commission recognises the co-extensive application of IHL and

human rights law in determini ng the arbitrariness of conduct resulting

in death during armed conict:

In armed conict, what constitutes an arbitrary deprivation of life during

the conduct of hostilities is to be determined by reference to [IHL]. This

law does not prohibit the use of force in hostilities against lawful targets

(for example combatants or civilians directly participating in hostilities) if

necessary from a military perspective, provided that, in all circumstances,

the rules of distinction, proportionality and precaution in attack are

observed.131

General Comment No 3 also notes that where the use of lethal force

is not militarily necessary to achieve a ‘legitimate military objective

against otherwise lawf ul targets, but allows the target for example to be

captured rather than killed, the respect for the right to life can be best

ensured by pursuing this option’.132

The African Commission has also cooperated with the ICRC, which

has observer status before it, to spread the knowledge of IHL by way

of joint publication of material to disseminate the law.133 The scope of

this institutional cooperation further extends to the regular exchange

of information between the Commission, the ICRC and other non-

governmental organisations, as well as reciprocal participation in

workshops, seminars and technical conferences on matters of mutual

interest and relating to strengthening compliance with IHL.134

3.3.2Subject-Matter Jurisdiction

Compared with other regional human rights instruments, the

African Charter is unique because it specically requires the African

Commission to have recourse to sources of international law other

than those of African provenance.135 Article 60 of the African Charter

provides that the ‘Commission shall draw inspiration from i nternational

law on human and peoples’ rights’, particularly those contained in

the provisions of pertinent African human rights instruments, the

UN Charter, the Charter of the OAU, the UDHR, and other relevant

instruments adopted by the UN and African States. Article 60 also

requires the African Commission to refer to ‘provisions of various

instruments adopted by Specialised Agencies of the United Nations of

which the parties to the present Char ter are members’. Article 61 of the

African Charter further empowers the Commission to consider and

131 Ibid at para 32.

132 Ibid at para 34.

133 Murray op cit note 124 at 145.

134 Churchill Ewumbue-Monono and Carolo Von Flüe ‘Promotion of International

Humanitarian Law through Cooperation between the ICRC and the African

Union’ (2003) 85 International Review of the Red Cross 764.

135 Hailbronner op cit note 9 at 346.

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rely on other external sources of international law, including IHL, as

subsidiary legal guidance:

The Commission shall a lso take into consideration, as subsidiary measures

to determine the principles of law, other general or special international

conventions, laying down rules expressly recognised by Member States

of the Organisation of African Unity, African practices consistent with

international norms on Human and Peoples’ Rights, customs generally

accepted as law, general principles of law recognised by African States as

well as legal precedents and do ctrine.

This shows that the Commission may have regard to IHL in its work.

Read together with art 45(4), the content of arts 60 and 61 of the

African Charter provide the African Commission with an enabling

legal basis ‘to have recourse to [IHL] in cases of human rights v iolations

committed in the context of internal conicts in Africa.’136

3.4 African Court on Human and Peoples’ Rights

The African Court on Human and Peoples’ Rights was established to

complement the work of the African Commission.137 In particular, the

Court was intended as a means to secu re better compliance with human

rights under the African Charter, a point that had been raised in light

of the weakness in the enforcement capacity of the Commission.138

The jurisdiction of the African Court is set out in art 5 of the Protocol

to the African Charter on Human and Peoples Rights. It entitles the

Court to receive and adjudicate complaints of alleged violations of the

Charter submitted to it by individuals and relevant non-governmental

organisations (NGOs) with observer status before the Commission,

in accordance with art 34(6) of the Protocol.139 Article 34(6) of the

Protocol claries the reach of the Court’s contentious jurisdiction; it

provides that the Court may only adjudicate those complaints that

are instituted against States that have made an afrmative declaration

accepting the competence of the contentious jurisdiction of the Cour t.

Unlike the African Commission, the African Court has had little

opportunity to consider and contribute meani ngfully to the discussion

of the interplay of human rights law and IHL. This may be attributed,

among other reasons, to its restrictive jurisd ictional mandate set out in

art 5 of the Protocol to the Africa n Convention on Human and Peoples

Rights, and to the further rule in art 34(6) stating that the Court may

only adjudicate complaints which are instituted against States that

136 Ntoubandi op cit note 14 at 309.

137Protocol to the African Charter on Human and Peoples’ Rights on the

Establishment of an African Court OAU/LEG/EXP/AFCHPR/PROT (III) (1997).

138 Frans Viljoen and Lirette Louw ‘State Compliance with the Recommendations of

the African Commission on Human and Peoples’ Rights, 1994-2004’ (2007) 101

American Journal of International Law 1-2.

139 ACtHPR Michelot Yogogombaye v the Republic of Senegal Application 001/2008,

Judgment (2010) 49 ILM 850 (Majority Judgement) paras 31-35.

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22AFRICAN YE ARBOOK ON INTER NATIONAL HUMANI TARIAN LAW

have made an afrmative declaration accepting the competence of

the contentious jurisdiction of the Court.140 Nonetheless, the Court’s

limited practice does not exclude its future engagement with IHL;

aswill be shown below the Court ca n apply that law in its future work.

3.5 African Court of Justice and Human Rights

A creature of the institutional amalgamation of the African Court and

the ‘not-yet-existent’ African Court of Justice,141 the African Court of

Justice and Human Rights wil l in the near future become the principal

judicial organ of the AU.142 This Court was established by the 2008

Protocol on the Statute of the African Court of Justice and Human

Rights (2008 Protocol), but it is not yet functional because t he requisite

number of Member State ratications has not been met.143 Article 2 of

the 2008 Protocol makes clear that the Court will ultimately be the

principal judicial organ of the AU. In terms of operational structure,

the Court will be comprised of two divisions with distinct roles.144

First,there will be a General Affairs Section which will exercise

jurisdiction over all legal disputes submitted under art 28 of the 2008

Protocol ‘save those concerning human and/or peoples’ rights issues’.145

The competence of this Section includes: interpretation and application

of the Constitutive Act of the AU; the interpretation, application and

validity of other AU treaties and subsidiary instruments; any question

of international law; and the content of agreements concluded between

States parties themselves, or with the AU conferr ing jurisdiction on the

Court.146

The second section of the Afr ican Court of Justice and Human Rights

will be a Human Rights Section.147 Article 17(2) of the 2008 Protocol

provides that the Human Rights Sect ion ‘sha ll be competent to hear all

cases relating to human and/or peoples’ rights’. In light of the negative

denition of the jurisdiction of the General Section, it becomes clear

that the Human Rights Section is competent to hear all contentious

cases relating to human and peoples’ rights as outl ined in art 28 of the

Protocol:

140 Brian Sang YK ‘Improving the Protection of Human and Peoples’ Rights in Africa:

Reections from the Yogogombaye Case’ (2012) 20:3 African Journal of International

and Comparative Law 344 at 348-352.

141 Kioko and Wambugu op cit note 4 at 283.

142 Gino J Naldi and Konstantinos D Magliveras ‘The African Court of Justice and

Human Rights: A Judicial Curate’s Egg’ (2012) 9 International Organizations Law

Review 394.

143 Articles 1 and 7 (2009) 48 ILM 334; At the time of writing, only six States (namely

Benin, Burkina Faso, Congo, Libya, Liberia and Mali) had deposited their

instruments of ratication.

144 Ibid at art 16; Ntoubandi op cit note 14 at 302.

145 Article 17(1).

146 Article 28.

147 Article 16.

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The Court shall have jurisdiction over all cases and all legal disputes

submitted to it in accordance with the present Statute which relate [inter

alia] to: … c) the interpretation and the application of the African Cha rter,

the Charter on the Rights and Welfare of the Child, the Protocol to the

African Cha rter on Human and Peoples’ Rights on the Rights of Women in

Africa, or any other legal instrument relating to human rights, ratied by

the States Parties concer ned; [and] d) any question of internationa l law …

As regards the applicable law that the African Court of Justice and

Human Rights must take into account, art 31 of the Protocol states

that the Court shall have regard, inter al ia, to: (a) international treaties,

general or particular, ratied by the contesting States; (b) international

custom; (c) general principles of law recognised univer sally or by African

States; and (d) any other law relevant to the determination of the case.

IHL is therefore potentially applicable whether as a specialised treaty-

law, to the extent that its provisions constitute customary norms, or as

general principles of law.

Besides its contentious jurisdiction, art 53 of the 2008 Protocol

authorises the Court to exercise advisory competence. It provides

that the Court ‘may give an advisory opinion on any legal question

at the request of the Assembly, the Parliament, the Executive Council,

the Peace and Security Council, the Economic, Social and Cultural

Council (ECOSOCC), the Financial Institutions, or any other organ of

the Union as may be authorised by the Assembly’.148 Read together with

the Principles of the AU Peace and Security Council which includes

respect for IHL, it becomes clear that the African Court of Justice and

Human Rights has an enabling legal basis for invoking and making

effective use of IHL in its advisory opinions.149

4 IHL IN THE INSTITUTIONAL PRACTICE OF AFRICAN

HUMAN RIGHTS TREATY BODIES

Coupled with the growing number and use of human rights

accountability mechanisms, the h igh frequency of armed conicts and

collective violence situations have seen regional human rights treaty

bodies being increasing ly petitioned to consider alleged violations and

other abuses that occur in such situ ations.150 Not infrequently, regional

human rights treaty bod ies are called upon to address alleged violations

of both human rights and IHL, particularly in cases of internal armed

conict.151 In such cases, it is inevitable that the respective regional

body must consider, at least, four important things. First, whether it has

jurisdiction to apply IHL; second, whether it is competent to directly

apply IHL, or only to make reference to it so as to aid its interpretation

148 Article 53(1).

149 Article 4.

150 Van den Herik and Duffy op cit note 1 at 366.

151 Hailbronner op cit note 9 at 340.

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of human rights law; third, the extent to which IHL can or should

inuence the interpretation of its constitutive instrument, and certain

specic norms; and lastly, the body of law or, in the alternative, the

specic rule that ought to prevail in case of a conict of norms. Like

the case with other regional bodies, these questions have arisen in

the practice of African human rights treaty bodies, and the following

section explores how they have been addressed.

4.1 Legal basis for applying IHL

The plain text of the African Charter does not provide an explicit

basis for applying IHL. However, as shown above, arts 60 and 61 of

the Charter empower the Commission to refer to, draw inspiration

from, or take into consideration sources of international law other

than those adopted within the framework of the OAU/AU.152 Article

7 of the Protocol to the African Charter also offers a legal basis for

applying external sources of law, which may arguably include IHL.

But since there is no express provision which states that IHL may be

applied, the critical legal question is how the judicial and quasi-judicial

organs of the African human rights system have claried the basis on

which they invoke IHL. This entails an analysis of how IHL has been

shown to constitute: (a) international law on human and peoples’

rights; (b) general or special international conventions laying down

rules expressly recognised by African States; or (c) customs generally

accepted as law; or (d) general principles of law.

In their respective work, African human rights treaty bodies

approach the applicability of IHL in three main ways, which can be

explained in terms of institutional and doctrinal evolution. First, in

its earlier practice, the African Commission did not rely on IHL, but

only drew implicit inspiration from its provisions. This encapsulates

the conservative approach to IHL that marked the Commission’s early

adjudicative work. In Commission Nationale des Droits de l’Homme et des

Liberté/Chad, the Commission addressed the international responsibility

of Chad for the killing of certain individuals in the context of a civil

war.153 It sought to answer the question of the extent to which Chad

was obliged to actively protect the right to life guaranteed by art 4 of

the African Charter.154

The Commission found that Chad had failed to discharge its treaty

obligation to provide the security, stability and liberty of its citizens

in the country, thereby allowing serious and massive violations of

152 Ntoubandi op cit note 14 at 309.

153 ACmHPR Chad op cit note 45 at para 21.

154 Article 4 of the African Charter provides that: ‘Human beings are inviolable.

Every human being shall be entitled to respect for his life and the integrity of his

person. No one may be arbitrarily deprived of this right.’

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human rights law.155 Hence, it held that ‘[t]he national armed forces

are participants in the civil war and there have been several instances

in which the Government has failed to intervene to prevent the

assassination and killing of specic individuals’.156 Despite noting the

existence of a civil war in Chad, which arguably made it necessary to

have regard to IHL, nowhere in the Chad decision does the Commission

refer to IHL provisions or language.

A number of early decisions of the Commission also reect its

reticence to engage with IHL in circumstances where that could have

been viable and useful. An example is its decision in Organisation

Mondiale Contre La Torture, Association Internationale des Juristes

Democrates, Commission Internationale des Juristes (C.I.J), and Union

Interafricaine des Droits de l’Homme v Rwanda.157 The communications

that formed the subject of the Commission’s consideration included

alleged widespread massacres, extrajudicial executions and arbitrary

arrests of Tutsis by Rwandan security agents.158 In its decision, the

Commission concluded that the massacre of Tutsi villagers by members

of the Rwandan armed forces was a violation of the right to life under

art 4 of the Afr ican Charter. However, the Commission did not explore

the contextual nature of the conict in Rwanda, nor did it have regard

to IHL. This is puzzling because the Commission had already issued

a resolution explicitly urging all the parties to the armed conict in

Rwanda to respect the principles of IHL a nd condemning ‘the massacre

of innocent civilians by the different armed factions’.159

One notable instance in which the African Commission directly

applied and enforced provisions of IHL in its practice was in Democ ratic

Republic of Congo v Republics of Burundi, Rwanda and Uganda.160 The

Commission considered the violation by the respondents of a number of

rights in the Afr ican Charter during their occupation of cert ain parts of

Congolese territory. Specic conduct for which the legal responsibility

of the respondent States was implicated included systematic rape and

forced ev iction.161 In addition to violations of the African Char ter, DRC

alleged that the unlawfu l conduct of the armed forces of the respondent

States also violated provisions of the 1949 Geneva Conventions and

155 ACmHPR Chad op cit note 45 at para 22.

156 ACmHPR Chad op cit note 45 at para 22.

157 ACmHPR Communications Nos 27/89, 46/91, 49/91 and 99/93, Decision of

October 1996.

158 ACmHPR Communication 49/91.

159 ACmHPR Resolution on the Situation in Rwanda, Seventh Annual Activity Report,

1993-94, ACHPR/APT/7th, Annex XII; Nigel S Rodley ‘Can Armed Opposition

Groups Violate Human Rights’ in Kathleen E Mahoney and Paul Mahoney (eds)

Human Rights in the Twenty-First Century: A Global Challenge (1992) 298.

160 ACmHPR Case No 227/99, Decision of 29 May 2003, Twentieth Activity Report,

January-June 2006.

161 Ibid at para 9.

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Additional Protocol I.162 Most signicantly for the present discussion

the African Commission identied ‘the outward-looking provisions’

of the Charter as its legal basis for applying IHL.163 The Commission

held that:

By virtue of A rticles 60 and 61 the Commission holds that the Four Geneva

Conventions and the two Additional Protocols covering armed conicts

constitute part of the genera l principles of law recognised by Afr ican States,

and take them into consideration in t he determination of this case.164

In a move unprecedented in its practice, the Commission fur ther relied

on IHL to nd a violation of that law as well as the African Charter.165

As regards the specic case of sexual violence, the Commission found

that it was a violation of art 75 of Additional Protocol I which protects

women against rape, forced prostitution and any other forms of

indecent assault.166

As shown above, the African Court also has an enabling treaty-law

basis on which it can have regard to IHL in its work.167 But the Court

has been rather reluctant to engage with IHL, and has not advanced

any specic reasons for avoiding that law. A case that illustrates this

is African Commission for Human and Peoples’ Rights v Great Socialist

Peoples’ Libyan Arab Jamarihiya, where the Court issued provisional

measures during the armed conict in Libya.168 The Court expressly

observed that there was a situation of ‘ongoing conict’ in Libya in

which the AU Peace and Security Council noted violations of the

African Charter provisions and IHL had been perpetrated by agents

of the Libyan state.169 While this arguably offered a basis to assess the

alleged violations of Charter rights alongside IHL, the Court made no

reference to IHL. Instead, it ‘steered clear of any IHL-related language

and focused on and framed the violations within the language of

human rights’ law.170 This was a missed opportunity for the Court to

have regard to and clarify its legal basis for applying IHL.

4.2 Continued Application of Human Rights Law in

Armed Conict

The continued applicability of human rights law in armed conict

situations has frequently been challenged on legal grounds, including

that IHL, as lex specialis in such situations, excludes its application.

However, African States against which violations of the Afr ican Charter

162 Ibid at para 79.

163 Van den Herik and Duffy op cit note 1 at 399.

164 ACmHPR DRC v Burundi, Rwanda and Uganda op cit note 144 at para 70.

165 Ibid at paras 79-87.

166 Ibid at para 86.

167 See the discussion in 3.3 above.

168 ACtHPR Libya Provisional Measures op cit note 45.

169 Ibid at paras 13 and 21.

170 Viljoen op cit note 8 at 325.

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have been found rarely contest the applicability of human rights law in

armed conict. It is only in Art icle 19 v Eritrea that an attempt was made

to justify the curtailment of fair trial guarantees because the unlawful

detention occurred ‘against the backdrop of war’, which necessitated

the suspension of some rights.171 The consistent opinion of African

human rights treaty bodies has been that the Charter provisions

apply in armed conict. This has been attributed to the absence of a

derogation clause in the African Charter.172 The African Commission

has repeatedly claried that:

unlike other human rights instruments, [the African Charter] does not

allow for States Parties to derogate from their treaty obligations during

emergency situations. Thus, eve n a situation of … war … cannot be cited as

justication by the State violating or permitting violations of the African

Charter.173

It has also been said to be the result of the inclusion in the Charter of

the right of all peoples to national peace and security,174 leading the

African human rights organs to stress a causal relationship between

violations of human rights law and internal strife.175

In its practice, the Commission has consistently held that the Afr ican

Charter applies in situations of internal violence including armed

conict, and has also recog nised the co-extensive application of human

rights law and IHL.176 In the Chad case, the Af rican Commission found

Chad internationally responsible for the killings and disappearances

of specic individuals, contrary to art 4 of the Charter, in the context

of a civil war.177 It also directly applied the human rights standard

which requires an investigation after the fact into the circumstances

surrounding the loss of human life; it stated that even where it cannot

be proved that killings were commit ted by state agents, ‘the government

had a responsibility to … conduct investigations into murders’.178 This

case is a clear example of the application of human rights law standard s

in a situation of internal armed conict.

The Commission also upheld the continued applicability of human

rights law during armed conict in Amnesty International et al, relating

to alleged violations of the Charter in the context of the civil war in

171 (2007) AHRLR 73 at para 87. The government of Eritrea’s claim that the detention

was undertaken in the context of armed conict suggests that it may have sought

to exclude the application of human rights law in favour of IHL.

172 Roland Otto Targeted Killings and International Law (2011) 143.

173 ACmHPR Centre on Human Rights and Evictions v Sudan, Communication No 296/05

at para 165; ACmHPR Constitutional Rights Project, Civil Liberties Organisation and

Media Rights Agenda v Nigeria, Communication Nos 140/94, 141/94, 145/95 at

para 41.

174 Article 23.

175 Murray op cit note 109 at 133.

176 Oberleitner op cit note 3 at 312.

177 ACmHPR Chad op cit note 45 at paras 21-22.

178 Ibid at para 22.

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Sudan.179 However, unlike in Chad, the Commission referred to IHL

in its decision. In nding Sudan in violation of the African Charter’s

provisions, the Commission also observed that even ‘if Sudan is going

through a civil war, civilians in areas of str ife are especially vulnerable

and the State must take all possible measures to ensure that they are

treated in accordance with [IHL]’.180 It also noted that besides the

individuals specically named in the communications, there were

numerous other executions in Sudan. This is highly likely the basis

on which the Commission found it necessary to invoke IHL to remind

States of their obligation to respect and ensure respect for IHL by all

parties to armed conict.181 It thus established the rule that States may

be held internationally responsible under the African Charter for not

taking reasonable steps to ensure respect for IHL in situations armed

conict.

In the course of the widespread and systematic attacks related to the

genocide in Rwanda, the Commission issued a Resolution calling on

‘all parties to respect the African Charter …, the principles of [IHL] as

well as the activities of the humanitarian organisations operating in

the eld’.182 Similarly, in a statement issued on the situation of armed

conict in Mali following the 2013 coup, the Commission called

upon all parties to the conict to respect human rights at all times,

and ‘to fully respect [IHL] and protect civilian populations and their

property’.183 More recently, the African Commission has been explicit

in afrming the continued application of the right to life, as set out

in art 4 of the African Charter, in armed conict situations. In its

General Comment No 3, the Commission elaborates that: ‘The right

to life continues to apply during armed conict. During the conduct

of hostilities, the right to life needs to be interpreted with reference to

the rules of international humanitarian law.’184

The African C ourt also reiterated the continuing application of human

rights law during an armed conict in Libya Provisional Measures.185 In

its order for provisional measures against the Libyan state, the Court

expressly observed that there was a situation of ‘ongoing conict’ in

which alleged violations of the African Charter provisions and IHL

were perpetrated by agents of the Libyan state.186 Consequently, the

Court ordered Libya to ‘refrain from any action that would result in

179 ACmHPR Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for

Human Rights, and Association of Members of the Episcopal Conference of East Africa

v Sudan, Case No 48/90-50/91-52/91-89/93, Decision of 15 November 1999,

Thirteenth Activity Report 1999-2000.

180 Ibid at para 50.

181 Tehindrazanarivelo op cit note 58 at 511.

182 ACmHPR Resolution on Rwanda, Seventh Annual Activity Report, 1993-1994.

183 Statement by the African Commission on the situation in Mali, 18 January 2013.

184 ACmHPR General Comment No 3 op cit note 130 at para 13.

185 ACtHPR Libya Provisional Measures op cit note 45.

186 Ibid at paras 13 and 21.

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loss of life or violation of physical integrity of persons, which could

be a breach of this Charter or any other human rights instrument to

which it is a party’.187 However, the Court did not refer to IHL; nor did

it advert to the obligation on the state forces to observe IHL.

4.3 Concurrent Violations of Human Rights Law and IHL

In some cases where IHL is invoked, the African Commission has not

excluded the nding of concurrent violations of human r ights law and

IHL. The Comm ission has ‘stated that violations of the two sets of laws

actually occur simultaneously and what is a state of war and what is

peace is not always clearly dened. As a result, situations of war and

conict violate the Charter’.188 The Commission’s decision in DRC also

illustrates this well. In DRC the Commission explicitly specied the

IHL provisions that were violated by the conduct of the respondent

States’ armed forces. It stated that the ‘the killings, massacres, rapes,

mutilations and other grave human rights abuses’ committed by the

respondent States’ armed forces while occupying the eastern prov inces

of DRC were ‘inconsistent with their obligations under Part III of the

Geneva Convention relative to the Protection of Civilian Persons in

Time of War of 1949 and Protocol I of the Geneva Convention’.189

The Commission also held that: (a) the besiege of the hydroelectric

dam in Lower Congo province was contrar y to art 56 of the Additional

Protocol I and art 23 of the Hague Convention (II) w ith Respect to the

Laws and Customs of War on Land;190 (b) the raping of women and

girls was inconsistent with art 76 of Additional Protocol I as well as

the African Charter and the Convention on the Elimination of All

Forms of Discrimination A gainst Women;191 and (c) the indiscriminate

dumping of bodies and the mass burial of victims of massacres and

killings contravened art 34 of Additional Protocol I which demands

respect for the remains of the dead and t heir gravesites.192 The extensive

application of IHL in DRC may be attributed, among other factors, to

the fact that IHL provisions were relied on in the respective parties’

submissions thus leading the Commission to have regard to them.193

The Commission has likewise adverted to the concurrent violations

of IHL and human rights law in its thematic and standard-setting

work. In its report on the armed conict in Darfur, the Commission

observed the—

187 Ibid at para 25.

188 Murray op cit note 109 at 133.

189 ACmHPR DRC v Burundi, Rwanda and Uganda op cit note 144 at para 79.

190 Ibid at paras 83-84.

191 Ibid at para 86.

192 Ibid at para 87.

193 Ibid at paras 9 and 23.

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continuing grave violations of huma n rights and [IHL] in Darfu r committed

by the parties to the conict, in particular the continued depopulation of

vast areas in the region of their indigenous owners, threats of violence,

intimidation and assault against UN agencies and humanitarian

organisations, the targeting and killing of [AU] troops in Darfur, and the

killing and abduction of staff members of national and international

humanitarian organisations.194

This position is consistent with the interpretation adopted by the

Commission in its General Comment No 3 on the right to life where,

with regard to the use of force in armed conict, the Commission

observes that ‘[a]ny violation of [IHL] resulting in death, including

war crimes, will be an arbitrary deprivation of life’.195 This view also

comports with the Commission’s nding in Institute for Human Rights

and Development in Africa Others v Democratic Republic of Congo relating

to the Kilwa massacre where DRC militar y personnel, facilitated by an

Australian-based mining company, used excessive and abusive force

against civilians.196

Similarly, in its resolution on the human rights situation in Libya, the

Commission expressed concern over the violent suppression by Libyan

government armed forces of peaceful protests by civilians resulting in

‘loss of lives and the wanton destruction of buildings and property in

violation of the African Charter and other relevant judicial, regional,

international human rights instruments and humanitarian law’.197

The African Court was, however, reluctant to nd specic violations

of IHL in Libya Precautionary Measures when the Com mission sought to

protect the Libyan peoples’ human rights.198

4.4 Extraterritorial Effect of Human Rights Law Guarantees

Since many armed conicts are fought in whole or in part outside the

territory of the State party involved, a recu rrent issue in the enforcement

of international human rights law is whether state obligations are

territorial ly bound.199 This issue becomes problematic in the context of

armed conict or other situations of violence where the sec urity agents

of a state operate outside its national territory and subsequently violate

human rights law. In such cases, the government of such a state may

contest the extraterritorial application of its human rights obligations

194 ACmHPR 19th Activity Report, Annex III, 33.

195 ACmHPR General Comment No 3 op cit note 130 at para 32.

196 ACmHPR Communication 393/10, Judgment of 17 June 2017.

197 ACmHPR Resolution on the Human Rights Situation in Libya, ACHPR/Res.181

(EXT.OS/IX) 2011, 1 March 2011.

198 ACtHPR Libya Provisional Measures op cit note 45.

199 ECtHR Al-Skeini v United Kingdom Application No 55721/07, Judgment of 7 July

2011 at paras 131-142; HRC Kindler v Canada UN Doc CCPR/C/48/D/470/1991

(1993) para 6.2; Wouter Vandenhole ‘Extraterritorial Human Rights Obligations:

Taking Stock, Looking Forward’ (2013) 5 European Journal of Human Rights

804-835.

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AFRICA N HUMAN RIGHTS T REATY BODIES AN D HUMANITARI AN LAW 31

abroad.200 However, a unique feature of the African Charter is the fact

that it does not explicitly set out a jurisdictional clause outlining the

reach of the human rights obligations of States parties. Unlike other

human rights instruments, the Charter does not delimit the scope of

legal obligations in geographical terms.201

Rather, the African Char ter’s spatial applicability is determined by its

general obligations clause, art 1 of the Afr ican Charter, which provides:

‘The Member States of the Organisation of African Unity, parties to

the present Charter shall recognise the rights, duties and freedoms

enshrined in the Charter and shall undertake to adopt legislative or

other measures to give effect to them.’ The text of art 1 of the Charter

makes no use of restrictive language and appears to establish a broad

and universal scope of application for the African Charter. This view

seems to be sound in light of the generous construction that has been

accorded the American Decla ration on the Rights and Duties of Man,202

which likewise has no express jurisdictional clause, in the practice of

the Inter-American human rights system.203 A review of the text of

other African Charter provisions lends support to the view that its

drafters envisaged some extraterritorial effect.204 This position is also

supported by the African Commission’s own jurisprudence.205

One instance where the African Commission dealt with

extraterritorial violations of human rights under the African Charter

was in DRC v Burundi, Rwanda and Uganda.206 The catalogue of

violations of the African Charter and IHL considered in the instant

complaint resulted from the invasion and subsequent occupation of

DRC by the respondent States.207 DRC submitted that as a result of

their aggressive military action on its territory, the respondent States

violated many fundamental legal guarantees of its citizens. A critical

point to note is that the said violations allegedly occurred outside the

200 Clapham op cit note 30 at 148.

201 Fatsah Ouguergouz The African Charter on Human and Peoples’ Rights: A

Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa

(2003) 553.

202 Theodor Meron ‘Extraterritoriality of Human Rights Treaties’ (1995) 89 American

Journal of International Law 81.

203 IACmHR Victor Saldano v United States (Decision of 13 March 2000) Case 12.254

Report No 38/99 at para 22.

204 Takele S Bulto ‘Towards Rights-Duties Congruence: Extraterritorial Application

of the Human Right to Water in the African Human Rights System’ (2011) 29

Netherlands Quarterly of Human Rights 505.

205 ACmHPR Communication No 292/2004, 23 Annual Activity Report (2008) at

para 80.

206 Communication No 227/1999, 20th Annual Activity Report (2006).

207 The alleged violations of human rights under the African Charter included: the

right to life; the right to dignity; the right to freedom of movement; the right to

property; the right to physical and mental health; the right to culture; the right

to unity of a family; the peoples’ right to self-determination; the peoples’ right

to dispose of their wealth and natural resources; the peoples’ right to economic,

social and cultural development.

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32AFRICAN Y EARBOOK ON INTE RNATIONAL HUMAN ITARIAN LAW

national territory of the respondent States. Noteworthy also is the fact

that none of the respondent States disputed the legal argument, as

stated by DRC, that their extraterritorial responsibility was implicated.

Hence, the Commission had little difculty in nding the respondent

States responsible for unlawful actions executed outside their national

territories.

The African Charter’s extraterritorial effect was also considered by

the African Commission in Association Pour la Sauvegarde de la Paix

au Burundi v Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia.208 In

the wake of a military coup in 1996 that toppled the democratically

elected government of Burundi, the respondent States expressed their

displeasure by deliberately restricting the inow of imported goods

and services into Burundi. The effective embargo by the respondent

States was subsequently approved both regionally and internationally

as a lawful use of force.209 Burundi’s military leadership, however,

lodged a complaint with the Commission, claiming that the embargo

violated the right to life of Burundians.210 The Commission thus

inquired into the responsibility of the respondent States in relation to

actions occurring outside their national territories, but it did not nd

responsibility attaching to any of the respondent States. Nonetheless,

the Commission outlined guidelines for permissible conduct in

the context of an embargo. This indicates implicit recognition of

extraterritorial obligations.211

In its General Comment No 3 on the right to life, the African

Commission has since claried the parameters for the extraterritorial

effect of the African Charter.212 With reference to African States’

obligations under art 4 of the Charter, the Commi ssion maintains that:

‘A State shall respect the right to life of individuals outside its territory.

A State also has certain obligations to protect the right to life of such

individuals. … In any event, customary international law prohibits,

without territorial limitation, arbitrar y deprivation of life.’213 As well as

afrming that certain Charter rights apply extraterritorially, General

Comment No 3 supplies the criteria for determining the extent to

which such rights may apply beyond territorial limits:

The nature of these obligat ions depends for instance on the extent that the

State has jurisdiction or otherwise exercises effective authority, power or

control over either the perpetrator or the victim (or the victim’s rights), or

exercises effec tive control over the territory on which the vict im’s rights are

208 ACmHPR Communication No 157/96.

209 Ibid at para 52.

210 Ibid at para 52.

211 Otto op cit note 172 at 397.

212 ACmHPR op cit note 115 at paras 14 and 18.

213 Ibid at para 14.

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affected, or whether the State engages in conduct which could reasonably

be foreseen to result in an u nlawful deprivation of life.214

General Comment No 3 additionally requires States to hold to

account private individuals and corporations, including private

military or security companies, which are responsible for causing or

contributing to extraterritorial violations of the right to life.215 This

obligation extends to those arbitrary deprivations of life ‘committed

or contributed to by their nationals or by businesses domiciled in thei r

territory or jurisdiction.’216

5 A CRITICAL ASSESSMENT OF THE APPROACH OF

AFRICAN HUMAN RIGHTS TREATY BODIES TO IHL

The case law of African human rights treaty bodies concerning how

IHL interacts with human rights law is not as voluminous as that of

the Inter-American or European human rights systems. Consequently,

the view may be advanced that only a preliminary conclusion can be

drawn from the practice thus far about the place of IHL in the work of

African human rights treaty bodies. Conversely, it can be argued that

despite its modest IHL-related case law, it is sufcient to analyse the

approach of African human rights treaty bodies to IHL. Specically,

trends can be mapped from the existing practice in order to point out

certain general obser vations and make proposals for reform. These and

other matters are considered below.

5.1 Between Engagement and Avoidance

The practice of the African human rights treaty bodies analysed

above indicates beyond doubt that the respective bodies increasingly

encounter IHL in their work. The Afr ican Commission and Court have

consistently held that the African Charter’s provisions continue to

apply during armed conict, thereby making it possible for IHL rules

to apply alongside the relevant human rights provisions.217 By contrast

there is little consistency regarding the clarication of the legal basis

for having regard to IHL, the normative interaction of IHL a nd African

Charter norms and their implications, and the general status of IHL in

the African human rights system. While IHL is becoming ever more

relevant as applicable law in the respective work of African human

rights treaty bodies, the deg ree of engagement varies. The Commission

has been more willing to refer to and in some cases directly apply IHL

214 Ibid.

215 Ibid at para 18.

216 Ibid.

217 Ibid at 143.

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in its adjudicatory and standard-setting roles.218 The African C hildren’s

Committee has sometimes referred to IHL in relation to the situation

of children involved in or affected by ar med conict, while the African

Court has avoided IHL. Alt hough the Commission is comparatively the

most open to having regard to IHL, its early practice shows reluctance

to do so while its latter practice reveals variation between engagement

and avoidance.

5.2 Non-systematic Engagement with IHL and the Need for

Clarication

Despite their increased engagement with IHL and an emerging

recognition of its utility for promoting respect for fundamental

rights in armed conict, African human rights treaty bodies have not

systematically analysed the normative and institutional aspects of

the interplay of IHL and human rights law. The practice surveyed in

this article shows an absence of methodical analysis of the nature of

the co-extensive application of the two sets of law; the appropriate

methodology for resolving conicts if their respective norms diverge;

and the institutional implications for African human rights treaty

organs of applying IHL in their respective work. These are critical

issues that the African Commission, the Court and the Children’s

Committee would do well to clarify in their work.

Another observation regarding the approach of African human

rights treaty bodies to IHL is the pervasive contradictions in the

doctrine and practice within and across AU organs. While the African

Children’s Committee adopted resolutions promoting co-extensive and

complementary application of IHL and the African Charter, there are

instances where it neglected to make recourse to IHL in circumstances

that certainly called for it. Also, while the African Commission

explicitly referred to violations of both IHL and the African Cha rter in

its human rights report on DRC, its ndings i n the DRC inter-state case

are couched to a signicant extent in human r ights language. There has

also been inconsistency in the qual itative engagement with IHL across

AU organs; for instance, while the AU Peace and Security Counci l noted

that the violent repression of civilian protestors in Libya by way of

indiscriminate bombing violated both IHL and human rights law, the

African Court excluded IHL from its analysis of the same incidents.219

In general terms, AU human rights treaty b odies recognise the mutual

complementarity of IHL and human rights law, whether expressly or

implicitly. Where IHL is invoked in the work of the respective bodies,

it is frequently considered alongside an analogous Charter provision.

The DRC and Amnesty International et al decisions illustrate the point

218 ACmHPR DRC v Burundi, Rwanda and Uganda op cit note 144 at paras 79-87.

219 Viljoen op cit note 8 at 325.

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that even where expressly admitted as applicable, IHL has been

considered a subsidiary, as opposed to co-extensive, source of law that

may guide the interpretation of the African Charter. It is less clear,

however, what the overall effect of IHL has been in terms of clarifying

the interpretation of the Charter provisions in armed conict-related

cases. This is because little methodical inquiry has been conducted

by AU organs regarding the practical and theoretical tools that may

be used to better articulate and negotiate the working relationship

between IHL and human r ights norms. Consequently, IHL norms have

not had decisive effect in inuencing the interpretive approach of

African Charter provisions in particular contexts of armed conict.

5.3 A Future Role for IHL in the African Human Rights System

The seeming reluctance of African human rights treaty bodies to

engage with IHL in a detailed and methodical way may be explained

by the fact that IHL applies in armed conict, which is a politically

sensitive issue, particularly if the conict is not of international

character. The early practice of the African Commission and the more

recent approach of the Court to IHL in Libya Provisional Measures may

support this.220 Another reason for cursory engagement with IHL may

stem from the absence of clear reference to the applicability of IHL in

the constitutive instruments of the African Commission and Court.

Whereas the African Court’s Protocol lends support to this argument,

the clear position in DRC where the Commission located the legal basis

for taking IHL into account diminishes it.

A third and arguably more plausible reason may be the modest

expertise in IHL matters of individual judges of the respective African

human rights treaty organs coupled with the failure on the part of

many applicants to refer to IHL in their respective submissions.221

Thismay point to a broader problem of lack of knowledge of IHL,

which is a matter of serious concern for a continent that has known

too well the atrocities of war. Perhaps recognising th is, those seeking to

be judges of the African Court of Justice and Human Rights must now

be knowledgeable about IHL matters. This is a positive development.

Nonetheless, in order to increase the systematic engagement of African

human rights treaty bod ies, it is essential to explore other institutional

arrangements provided by the AU treaty framework.

6 CONCLUDING OBSERVATIONS

This article has analysed the treaty-law framework and practice of

African human rights treaty bodies to establish the approach of the

220 ACtHPR Libya Provisional Measures op cit note 45.

221 Ntoubandi op cit note 14 at 310.

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African human rights system to IHL. It has shown that most AU legal

instruments integrate human rights law and IHL, thus providing an

enabling legal basis for the application of IHL by the respective treaty

monitoring bodies. As with comparable treaty bodies, the African

Commission and Court have had regard to IHL in assessing human

rights violations, albeit to varying deg rees.222 Yet t he practice surveyed

in this article makes clear that the interplay of IHL and human rights

law has not been systematically artic ulated by the Commission and the

Court. Nor have these human rights treaty bodies been consistent in

the manner that they engage with IHL. As shown in this article, there

are instances in which recour se is made to IHL to aid the interpretation

of the African Char ter’s provisions; some where IHL applies beside the

Charter provisions as a basis to establish violations of both the Cha rter

and conventional or customary IHL; and yet other inst ances where IHL

may conceivably have been applied but is supercially referred to, or

not mentioned at all.

The relatively limited IHL-related case law of African human rights

treaty bodies makes it difcult to conclusively pronounce on their

approach to IHL. Nonetheless the emerging practice of the African

Commission and Court indicates that there are viable normative and

institutional frameworks that can b e utilised to strengthen compliance

with IHL in Africa. Moreover, the innovative work of the African

Committee of Experts on the Rights and Welfare of the Child holds

much promise for enhancing the legal protection of children involved

in or affected by armed conict. The African Children’s Committee

is a unique treaty monitoring body in Africa whose full potential

to induce respect for IHL needs to be studied further. Likewise, it is

important to continuously develop the capacity of the African Court

of Justice and Human Rights to implement IHL and also to increase

the knowledge of IHL in Africa. Some commentators have observed

that the reluctance of the African Commission and Court to engage

meaningfully with IHL in their respective work may be the result of

judges’ modest acquaintance with or qualication in IHL . To the extent

that this is true, it presents both a challenge and opportunity for the

ICRC to partner with AU human rights organs to widely disseminate

knowledge of IHL.

222 Hailbronner op cit note 9 at 347-353.

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