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 rig hts systems, there is scant literat ure on how

the African s ystem interacts with i nternational humanita rian law (IHL).

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

extent Africa n human rights treat y bodies have been or can b e utilised to

induce compliance with IHL . It analyses legal a nd institutional bases for

engagement with IHL, as r eected in the work of the Af rican Commission

on Human and Peoples’ Rights, A frican Cour t 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 Af rican Court of Just ice and Human

Rights. It argues t hat the Africa n human rights system ca n strengthen t he

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 hu man rights treaty b odies to have regard to IHL .

Yet the practice of Africa n treaty bodies demonst rates that this advantage

is under-utilised by the lac k of systematic artic ulation of the effect of t he

IHL/human r ights law relation and inconsistent approaches to engagi ng

with IH L.

Keywor ds: Af rica; international humanitar ian law; human rights;

treaty bodies; practice

1 INT RODUCTION

International humanitaria n law (IHL) has been applied in the practice

of various human rights treat y bodies to address violations occur ring

in the context of armed conict.1 This is att ributed, 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 mechani sms of IHL2

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

tend to be mostly non-international rather than international in

char acte r.3 Present-day conic ts are typical ly 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 insta nces systematic,

violations of human rights law and serious breaches of IHL assoc iated

with armed conict.4 The c ivil war in Sierra L eone, the genocide in

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

examples .5 More recently, sanguinary a rmed conicts in South Suda n,

Mali and the Central A frican 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 Afr ican Union

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

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

American human rig hts treaty systems,7 there is scant literature on

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

As a result, contributions of African hu man rights treaty bod ies to the

comparative legal discourse on the relevance of human rig hts 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ca nt

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

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.

5 Sanji 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.

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

7 Derek 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.

8 Frans 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.

9 Recent 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 a rrangements

have been or can be utilised to streng then 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e d by

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

on a new mechanism proposed by the International Comm ittee of the

Red Cross (ICRC) to strengthen compliance with IH L.10 They elec ted

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 ca n be expended

to bolster the capacity and efcacy of ex isting IHL implementation

mechanisms, including Af rican human rights treaty bodies.

The object of this art icle is to contribute to the emerging literature

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

under the African C harter on Human and Peoples’ Rights (Afr ican

Cha rte r)12 in strengthening compliance w ith IHL. It systematically

analyses the work of the Africa n Commission on Human and Peoples’

Rights (African C ommission), the African Court on Huma n and

Peoples’ Rights (African Cour t), the African Committee of Ex perts on

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

as well as the future role of the Af rican Court of Justice a nd Human

Right s.13 Its central thesis is that the Af rican human rights system ha s

the institutional capacity to interpret a nd incidentally enforce IHL,

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

examined contributions to IH L.14

This article ex amines the legal and institut ional aspects of the

application of IHL in the practice of Afr ican 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 f uture 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).

11 Resolution 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.

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

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

13 Protocol 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 huma n rights system has the capacity to implement IHL,

by emphasising how the AU legal instruments and the respect ive

mandates of the African Com mission and Court provide an enabling

normative framework for applying IHL. This a rgument is fur ther

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 AN D INSTITUTIONAL ASPECTS OF THE

INTERPLAY BETWEEN HUM AN RIGHTS LAW AND IHL

In spite of their historically divergent tracks of conceptua l evolution

and institutional praxis,16 human rights law and IHL are i ncreasingly

regarded as complementary and mutually support ive rather than

mutually exclu sive.17 Convincing arguments have been adva nced in

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

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

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

human life and dignit y’.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 huma n 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.

17 UN 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.

20 Andrew 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 w ill not be rehearsed here. Sufce

to say that the various ‘strands of doctri ne 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 t hat ‘rules

belonging to both regimes can i ndeed be applied and interpreted in

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

to bo t h’. 23 This view is suppor ted by the practice of human rights

treaty monitoring bodies that have either dire ctly 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 prevai led that human rights law

and IHL have more similarities tha n differences and can i ndeed apply

concurrent ly,25 the articulation of interactions between these t wo

bodies of law has been subject to substantial d ispute.

In summary, three broad theories, albe it conceptualized in divers e

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

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

Separation theory regards IH L and human rights law as distinct a nd

mutually exclusive disciplines; emphasising their histor ical and

operational dissimilarities, separationists have invoked lex specialis (the

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

in situations of armed conict IH L is always the specic ru le 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.

22 Gilles 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.

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

27 Hans-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 clarit y.29 This view therefore embraces the

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

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

and IHL norms to support the view that cer tain norms of these laws

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

and articulated as f undamental standards of huma nity that ought to

apply along the entire spectrum of v iolence’.31

The broad description of these theories obscu res the fact of the

conicting understa ndings of, and sub-theories with in, 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-huma n rights

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

IHL is always the source of the specia lised norms in situations of

armed conict thereby d isplacing 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 identify ing the speciali sed

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 disag reement:

29 Droege 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.

32 Marti 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 IH L or human rights law should

prevail when both apply to a common situation.36

States that have raised institutional argu ments 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 kil lings and unprocedural

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

of the scrutiny of human rights t reaty mechanisms which may expo se

them and implicate their state responsibility, particularly in re lation

to conduct on foreign ter ritory.37 The thr ust of the institutional

objectors’ argument is that the constitutive inst ruments of human

rights monitoring bodies restrict t heir jurisdictiona l competence to

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

conrmed by the consistent practice of human rights t reaty bodies39

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

The relevant doctrine als o reafrms t he competence of human rights

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

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

conict or human rights treat y mechanisms are competent to apply

IHL in their respec tive work, some normative disagreements have

arisen.42 In partic ular, divergent views exist on how conicts bet ween

norms derived from human rights law and IH L and which govern the

same subject-matter are to be resolved.43

The normative and institutional aspec ts of the interaction between

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

36 Sang YK op cit note 3 at 4.

37 Sang 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.

39 Françoise 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.

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

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

42 Sang YK op cit note 3 at 5.

43 Sang 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 r ights treaty bodies to IHL . As is shown

in subsequent sect ions,44 challenges to the competence of the African

Commission or Court to apply IHL have not been explicitly ra ised,

but the manner in which these bodies have addresse d 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 in itiative.45 Normative

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

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

how African human rig hts treaty bodies can mean ingfully apply IHL

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

Court of Justice and Human Rig hts.

What is perhaps the most useful outcome of the interaction

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

the institutional and normative aspec ts 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

obligati ons.47 In contrast, international and regional huma n rights

treaties establish a several superv isory and accountability mechanisms,

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

IHL obligations can and should be enforced by human r ights treaty

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

demonstrate that most human rights treaty bodies, inter national or

regional, have either directly applied or incidentally i mplemented IHL

in their work.50

As for regional human rights treaty b odies, the practice of the

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

in different terms, the possibil ity of IHL norms being implemented

by human rights treaty bod ies.51 This supports t he view that a useful

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

44 See 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.

46 Sang YK op cit note 3 at 5.

47 Giacca op cit note 22 at 167.

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

49 Sandesh 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 Cour t of Human Rights (Europea n

Cou rt),52 t he Inter-American Court of Human R ights (Inter-American

Court) and the Inter-American Commission on Human R ights (Inter-

Americ an Comm ission)53 conrm t his. However, the current or future

capacity of the Africa n Commission, the Africa n Court, and the

African Cou rt 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 tur ns.

3 NORMATIVE AN D INSTITUTIONAL CAPACITY OF THE

AFRICAN HU MAN RIGHTS SYSTEM TO IMPLEMENT

IHL

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

American and Europea n 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 r ights monitoring mechanisms, regional

human rights adjudicatory tribunals a nd courts are increasing ly being

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

Like its regional counterparts, t he African human r ights system has

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

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

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

52 Kjetil 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.

53 Emiliano 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.

55 McCosker 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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10 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

examine the instit utional and normative basis for the application of

IHL before proceeding to ana lyse the practice.

3.1 AU Legal Instruments as an Enabling Normative Basis

for Applying IHL

Legal instru ments adopted under the auspices of the AU (previously

Organisation of Africa n Unity) have sought, in various ways, to

integrate human rights law and IHL.58 Th is 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 t reaties 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 t hat the AU treaty instruments

provide an enabling legal framework for using IHL in ass essing

compliance with treaty obligations. Specic i nstruments dealing w ith

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

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

violence are discussed below.

3.1.1 Internally Di splaced Persons

The AU Convention for the Protection and Assistance of Internally

Displaced Persons in Afr ica (IDP Convention)60 offers a clear

framework for the application of IHL standards in preventing cases

of internal displacement and protecting and assisti ng those who

have been displaced. Recognising that interna l displacement and its

attendant privations and abuses frequently occur i n armed conict

and violenc e situatio ns,61 the IDP Convention extensively uses IHL

treaty language to ar ticulate individual rights and matching state party

obligati ons.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 a ll too evident.64 Some

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

human rights convention as well as a humanitaria n law instrument’.65

58 Djacoba L Tehindrazanarivelo ‘The African Union and International Humanitarian

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

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

60 23 October 2009 (entered into force 6 December 2012).

61 Ibid 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 …’

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

63 IDP Convention at arts 11-13.

64 IDP Convention at arts 2-4.

65 Kioko 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 inhe rent rights of internally displaced per sons

as provided for and protected in international human rights and

humanitarian law and as set out in t he 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 ensur e respect for the princ iples of humanity and human

dignity of intern ally displaced pers ons; … e. Respect and ensure respect

for international humanitarian law regarding the protect ion 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 individua l responsibility for act s of arbitrary di splacement, in

accordance with applicable domestic and i nternational crim inal law;

h. Ensure the accountabi lity of non-State actors concerne d, including

multinational companies a nd private military or se curity compan ies, 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 ba sis for African human r ights treaty

bodies to give effect to IHL prov isions in their work.68

Specic provisions on protection against internal d isplacement

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 remini scent of the quasi-constitutional duty

established in art 1 common to the 1949 Geneva Conventions,

requiring all pa rties to respect and ensu re respect for IHL.70 W hat

this means is that, States part ies bear the primar y 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 cr iminal responsibilit y, 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 t he obligations of

66 Preamble at para 10 (emphasis added).

67 Article 3.

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

69 Article 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).

71 Article 7(4).

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12 AFRICAN Y EARBOOK ON INTE RNATIONAL HUMAN ITARIAN LAW

protection and assistance under its provisions ‘shall be governed by

international law and in particu lar [IHL]’.72 Furthermore, St ates part ies

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 lang uage 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 di splacement 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 secu rity of the civi lians 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 violat ions 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 grav ity 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 lang uage

of IHL, States parties to the IDP C onvention are further require d

to criminali se and ‘declare as punishable by law acts of arbitrar y

displacement that amount to genocide, war crimes or crimes agai nst

hu ma n it y ’.75 This is signic ant from the perspective of IH L because

criminal sa nction plays an instru mental, 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 bod ies. First, it codies the relevant normative

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

the African Com mission or Court of Justice and Human Rig hts 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 bo dy 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 rig hts norms in light of IHL.

72 Article 7(3).

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

74 Article 4(4).

75 Article 4(6).

76 Robert 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.

77 Viljoen op cit note 8 at 322.

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3.1.2 Women Caught Up in Armed Conict

Adopted in 2003, the Protocol to the Afr ican Charter on Human

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

Wome n’s R ights)78 was intended to give effec t to women’s rights in the

African Cha rter, and also to eliminate discr imination against them.79

Understanding the partic ular disadvantages that face Af rican 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 discrim ination against women to include adverse

restrictions on, or differentia l treatment of, women on the basis of sex

in a manner that cur tails their fu ndamental 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 simila rly progressive,

including in its scope:

all acts per petrated against women which cau se or could cause them

physical, sexual, psychologica l, and economic harm, includ ing the threat

to take such acts; or to undert ake the imposition of arbitrar y 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 v iolence

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

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

conict, the utility of th is 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 childr en, who too often bear

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

79 Article 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.’.

80 African Protocol on Women’s Rights, Preamble.

81 Article 1(f).

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

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

83 Article 1(j).

84 Viljoen op cit note 8 at 322.

85 Fareda 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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14 AFR ICAN YEARBOOK ON I NTERNATIONAL HU MANITARIAN L AW

the disproportionate brunt of wartime privations,86 are adequately

protected as refugees or internally di splaced 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 ru les of international humanitarian law

applicable in armed conict situations, which af fect the population,

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

protect women eeing from armed conict a nd violence situations

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

States are thus required to ensure t hat such acts of violence against

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

humanity and that their pe rpetrators are brought to justice before a

competent criminal jurisdiction’.89

Another obligation explicitly derived from IHL i s the duty of States

parties ‘to protect civil ians, including women, irrespect ive of the

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

Moreover, children, especially gi rls aged below 18 years, are also

specically protected from t he 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 pa rt in hostilities or is recr uited as a child

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

women and children is that they form the basis for correspondi ng

periodic state reporting obligations; States are requir ed to specify the

measures adopted at the national level to eliminate sexual v iolence

against women and the use of children in a rmed conict.91 The effec t

of the incorporation of IHL into the Africa n Protocol on Women’s

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

the jurisdiction of the Af rican Charter’s monitoring mechan isms.92

3.1.3 Children Involved in or Affected by Armed Conict

Children are among those most profoundly affe cted 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.

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

88 Article 11(1).

89 Article 11(3).

90 Article 11(4).

91 Tehindrazanarivelo op cit note 58 at 504.

92 Viljoen 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 specia l protection for children, dened as pers ons

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

Charter on the Rights and Welfare of the Ch ild (African Child ren’s

Cha rte r).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 Af rican Children’s Charter imposes spe cic

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

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

includes the obligation to take preventive steps against conscription

or recruitment of children as s oldiers. In line with obligations under

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

necessary measures to ensu re that no child shall take a dire ct part in

hostilities and refrain i n particula r, from recruiting any chi ld’.96

The obligation to prevent the involvement of children in armed

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

inter alia, members of armed groups f rom recruiting chi ldren or

requiring or perm itting them to take part i n hostilities under any

circu mstances .97 Likewise to the Afr ican Children’s Charter,98 the IDP

Convention makes it incumbent on the state party to ensure t hat

neither of the parties to an armed con ict recruit chi ldren 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 t he civilian population and requ ires

States to afford them protection and assistance both in situations of

internal armed conic t and lower threshold internal violence:

[States Parties] shall, in accord ance with their obli gations under [IHL],

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

measures to ensure t he protection and care of chi ldren who are affec ted

by armed conict s. Such rules shal l also apply to children i n 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.

94 Amanda 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.

95 Article 22(1).

96 Article 22(2).

97 Article 7(5)(e).

98 Article 22(2).

99 Article 9(1)(d).

100 Article 22(3).

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Further protection is afforded ref ugee and unaccompanied minor

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

conict, tension and st rife.101 Article 23 of t he African Chi ldren’s

Charter obliges States parties to take appropriate measures to ensu re

that children seeki ng refugee status or those considered as ref ugees

in terms of the applicable international or domestic law ‘receive

appropriate protection and humanitarian assista nce in the enjoyment

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

rights and humanitarian instruments to which the States are Par ties’.

The legal protection for refugee and unaccompanied chi ldren affected

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

been internally displaced ‘whether th rough natural disaster, internal

armed conicts, civ il strife, breakdown of economic and socia l order

or howsoever caused’.10 2 This is an innovative provision that shows a

holistic and realistic approach to addressing in a mean ingful way the

problem of African childr en affected by situations of armed con ict

and internal strife.103

3.2 African Committee of Exper ts on the Rights and

Welfare of the Child

An innovative and useful asp ect of the Africa n Children’s Charter

that can play a crucial role in enha ncing the utility of IH L to better

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

establishment of the Committee of Exper ts on the Rights and Welfare

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

dedicated mechanism to protect and promote the African C hildren’s

Charter rights, the Af rican 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) recogni sed 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.10 7 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 themat ic discussions of selected Charter

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

promoting t heir implement ation.110 Article 45 of the Char ter further

vests broad investigative powers on the Committee and authorises it

to adopt any methodology that it deems necessary; this p oints 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 Cha rter may offer critical indicators of its long term

efcacy. The Committee may access the Afr ican 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 ‘necessar y

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

Committee has unfettere d access to the Court in order to ensure

effective protection of the rights and welfa re of children’.113

The African Ch ildren’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 Ce ntral African

Republic to assess the situation of children involved in or affected

by armed conict. The resp ective reports of these missions ind irectly

refer to IHL in the context of grave child rights v iolations in armed

conict, including ki lling, sexual v iolence, and recruitment and

use of children by the bell igerents.114 More recently, the Committee

released a comprehensive study which assesses the impact of conic ts

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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18 AFRICA N YEARBOOK ON IN TERNATIONAL HUM ANITARIAN LAW

and crises on childre n in Africa.115 Focusi ng on the conicts in the

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

challenges for the protection of children’s rights with the resu lt that

‘accountability for violations in conict situations remains a ser ious

pr ob le m’. 116 The Committee has a lso observed that recr uitment and

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

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

customary international law.117 It further notes that under both IH L

and human rights law ‘the minimum age for recr uitment of children

in armed conicts’ is 18 years.118

3.3 African C ommission on Human and Peoples’ Rights

3.3.1 Mandate of the Af rican Commission

Established in terms of art 30 of t he African Char ter,119 the African

Commission was initially t he only quasi-judicial organ empowered to

enforce the rights and freedoms in t he 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 Comm ission of its adjudicative

function; this pri marily deals w ith determining inter-state and

individual petitions alleg ing human rights violations by Member

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

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

occurred. The protect ive mandate also requires the Commi ssion to

exercise an oversight function involving monitoring t he compliance

by States with their legal obligations under the Afr ican Charter.123

Pursuant to its promotional mandate, the Africa n Commission is

required to make the Afr ican Charter’s provisions as widely known as

possible in order to foster better recognition of and enhance respec t

for the rights and freedoms in the Char ter.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 organi sing workshops and

symposia; policy-making in itiatives to elaborate human and peoples’

rights; and institutional cooperation with like-minded regional and

international organisations.126 Under its promotional mandate, the

African Comm ission 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 Humanita rian Law

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

Considering that huma n rights and international hu manitarian l aw [IHL]

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

and their funda mental rights, Noting t he 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 humanita rian law and human a nd peoples’ rights: 1. Invites

all Afric an States … to adopt appropriate measures at the national leve l to

ensure the promotion of the provisions of [I HL] 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 star ted to adopt General

Comments, which are authoritative interpretations of specic

provisions of a legal instrument by the body mandated to super vise

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 inter pretation and application of the

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

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.

127 ACmHPR 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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20 AFRICAN YEA RBOOK ON INTERNAT IONAL HUMANITAR IAN LAW

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ic t, what constitutes an arbitra ry deprivation of life dur ing

the conduct of hostilities is to be dete rmined by reference to [IH L]. This

law does not prohibit the use of force in hostilities aga inst lawful t argets

(for example combatants or civilia ns directly p articipating in host ilities) if

necessary from a m ilitary per spective, provided that, i n all circu mstances,

the rules of disti nction, proportional ity and precaution in attac k are

observed.131

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

is not militarily necessar y to achieve a ‘legitimate militar y objective

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

captured rather than k illed, the respect for the right to life c an be best

ensured by pursui ng this option’.132

The African C ommission 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 coope ration further extends to the reg ular exchange

of information between the Comm ission, the ICRC and other non-

governmental organisations, as well as reciproca l participation in

workshops, seminars and technical con ferences on matters of mutual

interest and relating to strengtheni ng compliance with IHL.134

3.3.2 Subject-Matter Jurisdiction

Compared with other regional human r ights instruments, the

African Cha rter is unique because it specica lly requires the Af rican

Commission to have recourse to sources of international law other

than those of African provenance.135 Article 60 of the African Char ter

provides that the ‘Commission shall draw inspiration from i nternational

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

the provisions of pertinent Afr ican human rights instr uments, the

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

instruments adopted by the UN a nd African States. Ar ticle 60 also

requires the Afr ican Commission to refer to ‘provisions of various

instruments adopted by Special ised Agencies of the United Nations of

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

African Cha rter further e mpowers 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 internationa l law, including IHL, as

subsidiary legal guidance:

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

to determine the princ iples of law, other general or special internationa l

conventions, laying down rule s expressly recognis ed by Member States

of the Organisation of Af rican Unity, Africa n practices consistent with

international norms on Huma n and Peoples’ Rights, customs gener ally

accepted as law, general principles of law recogni sed by Africa n 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 Cha rter provide the African C ommission with an enabling

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

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

3.4 African Cour t on Human and Peoples’ Rights

The African Cou rt on Human and Peoples’ Rights was established to

complement the work of the African Commission.137 In particu lar, the

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

rights under the Afr ican Charter, a point that had been raised in l ight

of the weakness in the enforcement capacity of the Com mission.138

The jurisdiction of the Af rican Court is s et out in art 5 of the Protocol

to the African Cha rter 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 a nd relevant non-governmental

organisations (NGOs) with observer st atus 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 Cou rt’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 C ommission, the African C ourt has had little

opportunity to consider and contribute meani ngfully to the discussion

of the interplay of human rights law and IHL. T his 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 furt her rule in art 34(6) stating t hat the Court may

only adjudicate complaints which are instituted against States that

136 Ntoubandi op cit note 14 at 309.

137 Protocol 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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have made an afrmative declarat ion accepting the competence of

the contentious jurisdiction of the Court.140 Nonetheless , the Cour t’s

limited practice does not exclude its future engagement with IH L;

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 a malgamation of the Africa n Court and

the ‘not-yet-existent’ African Court of Justice,141 the A frican Cour t of

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

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

Protocol on the Statute of the African Cour t 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 Art icle 2 of

the 2008 Protocol makes clear t hat the Court will u ltimately be the

principal judicial organ of the AU. In terms of operational str ucture,

the Court wil l be comprised of two divisions with dist inct roles.144

First, there wi ll be a General Af fairs Section which w ill exercise

jurisdiction over all legal di sputes submitted under art 28 of the 20 08

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 subsidiar y 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 R ights Section.147 Art icle 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 jurisdict ion of the General Section, it becomes clear

that the Human Rights Sect ion 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 shal l have jurisdiction over al l cases and all lega l disputes

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

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

the Charter on the R ights and Welfare of the Child, t he Protocol to the

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

Africa, or any other lega l instrument relat ing 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 C ourt 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 particula r, 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 special ised 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 200 8 Protocol

authorises the Court to exercise adv isory competence. It provides

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

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

the Peace and Security C ouncil, the Economic, Social a nd Cultural

Council (ECOSOC C), 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 Securit y Council which includes

respect for IHL, it becomes clear t hat the African Cou rt of Justice and

Human Rights has an enabli ng legal basis for invoking and making

effective use of IHL in its adv isory opinions.149

4 IHL IN THE INSTITUT IONAL PRACTICE OF AFRICAN

HUMA N RIGH TS TR EATY BODIES

Coupled with the growing number and us e of human rights

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

collective violence situations have seen regional human rights t reaty

bodies being increasing ly petitioned to consider alleged violations and

other abuses that occur in such situ ations.15 0 Not infrequently, regional

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

of both human rights and IHL , particula rly in cases of internal armed

conict.151 In such cases, it is inevitable that the respect ive 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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24 AFRICAN YEA RBOOK ON INTERN ATIONAL HUMANITAR IAN LAW

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

inuence the interpretation of its constitutive instr ument, and certain

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

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

the case with other regional bod ies, these questions have arisen in

the practice of Africa n human rights treaty bod ies, and the following

section explores how they have been addressed.

4.1 Legal basis for applying IHL

The plain text of the Afr ican Charter does not provide an expl icit

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 f ramework of the OAU/AU.152 Article

7 of the Protocol to the African Cha rter 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 hum an rights system have claried t he basis on

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

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

right s; (b) general or special international conventions laying down

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

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

In their respective work, Af rican human rights treat y bodies

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

explained in terms of inst itutional and doctri nal evolution. First, in

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

only drew implicit inspiration from its provisions. This encapsu lates

the conservative approach to IHL that marked the Commi ssion’s early

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

Liberté/Chad, the Commission addressed the international responsibility

of Chad for the killing of certa in individuals in t he 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 gua ranteed by art 4 of

the African Charter.15 4

The Commission found that Chad had failed to discha rge its treaty

obligation to provide the security, stability and libert y of its citizens

in the country, thereby allowing serious and massive v iolations 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 t he civil war and there have been severa l instances

in which the Government has failed to intervene to prevent the

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

existence of a civil war in C had, 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ec t its

reticence to engage with IHL in circ umstances where that could have

been viable and useful. A n 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 com municat ions

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 deci sion, the

Commission concluded that the massacre of Tutsi villagers by members

of the Rwandan armed forces was a violation of the right to life u nder

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 pu zzling because t he Commission had already issued

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

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

of innocent civilians by t he different armed fact ions’.159

One notable instance in which the Afr ican Commission direct ly

applied and enforced provisions of IHL in its practice was in D emoc ratic

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

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 Com mission identied ‘the outward-looking provisions’

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

held that :

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

Conventions and the two Additional P rotocols 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 Africa n Charter.165

As regards the specic ca se 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 Cou rt also has an enabling t reaty-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 ar med conict in Libya.168 T he Court expressly

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

which the AU Peace and Security Cou ncil noted violations of the

African Char ter provisions and IHL had been per petrated by agents

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

alleged violations of Charter rights alongside IHL, t he Court made no

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

and focused on and framed t he violations within the language of

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

have regard to and clarify its legal basis for applying I HL.

4.2 Continued Application of Human Rights Law in

Armed Conict

The continued applicability of human rights law in ar med conict

situations has frequently been challenged on legal g rounds, 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 cur tailment of fair tr ial guarantees bec ause 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 bod ies has been that the Charter provi sions

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

derogation clause in the African Cha rter.172 The African Com mission

has repeatedly claried t hat:

unlike other human r ights instru ments, [the African Ch arter] does not

allow for States Parties to derogate from t heir treaty obligations du ring

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

justication by the State violatin g or permitting v iolations of the Africa n

Char ter.173

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

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

African human r ights organs to stress a causal relationship bet ween

violations of human rights law and internal stri fe.175

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

Charter applies in situations of internal v iolence 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 a nd disappearances

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

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

which requires an investigation after t he fact into the circumsta nces

surrounding the loss of human li fe; 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 Intern ational et al, relating

to alleged violations of the Charter in the context of the civi l 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 IH L

in its decision. In nding Sudan in v iolation of the African Char ter’s

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

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

and the State must take all possible measures to ensure that they a re

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. Thi s 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 respec t for IHL by all

parties to armed con ict.181 It thus established the rule that States may

be held internationally responsible under the Africa n Charter for not

taking reasonable steps to ensure respe ct for IHL in situations armed

conict.

In the course of the widespread and systematic attack s related to the

genocide in Rwanda, the Commission issued a Resolution calling on

‘all parties to respect the A frican Char ter …, the principles of [IHL] as

well as the activities of the human itarian organisations operati ng in

th e  e ld ’.182 Sim ilarly, in a statement issued on the situation of armed

conict in Mali following t he 2013 coup, the Commission called

upon all parties to the con ict to respect human rights at all t imes,

and ‘to fully respect [IHL] a nd protect civilian populations a nd their

pr op e rt y ’.18 3 More recently, the African Commission has been e xplicit

in afrm ing the continued application of the right to life, as set out

in art 4 of the Afr ican Charter, in armed con ict situations. In its

General Comment No 3, the Commission elaborates that: ‘The r ight

to life continues to apply during armed conict. D uring the conduct

of hostilities, the right to life needs to be interpreted w ith reference to

the rules of international humanita rian law.’184

The African C ourt also reiterated the continuing application of human

rights law during an ar med conict in Libya Provisional Measures.185 In

its order for provisional measures against the Libyan state, the Cour t

expressly observed that there was a situat ion of ‘ongoing conict’ in

which alleged violations of the African C harter provisions and IHL

were perpetrated by agents of the Libyan state.186 Conseque ntly, the

Court ordered Libya to ‘refrai n 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 a ny other human rights instru ment 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 Africa n 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 occu r 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 t he 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, rape s,

mutilations and other grave human rights abuses’ committed by t he

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 i n

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 Cha rter and the Convention on the Elimination of Al l

Forms of Disc rimination A gainst Women;191 and (c) the indiscriminate

dumping of bodies and the mass buria l of victims of massacre s and

killings contravened art 34 of Additiona l 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 t he respective parties’

submissions thus leading the Commission to have regard to them.193

The Commission has likewise adverted to t he concurrent violations

of IHL and human rights law in its thematic and standa rd-setting

work. In its report on the armed conict i n 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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30 AFRICAN YEA RBOOK ON INTER NATIONAL HUMANITA RIAN LAW

continuing grave violations of huma n rights and [IHL] in Darfu r committed

by the parties to the con ict, in part icular the continued de population of

vast areas in the reg ion of their indigenous owners, t hreats of violence,

intimidation and assau lt against UN agencies and huma nitarian

organisations, the ta rgeting and kil ling of [AU] troops in Darf ur, and the

killing a nd abduction of staff member s 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, wil l be an arbitrary depr ivation of life’.195 This view also

comports with the Commission’s nding in Institute for Human Rights

and Development in Africa Others v De mocratic Republic of Congo relating

to the Kilwa massacre where DRC militar y personnel, facilitated by an

Australian-based m ining 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 civi lians resulting in

‘loss of lives and the wanton destruction of buildi ngs and property in

violation of the African Char ter and other relevant judicial, regional,

international human rights instruments and humanitarian law’.197

The African C ourt 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 R ights Law Guarantees

Since many armed conicts a re 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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abroad.200 However, a unique feature of the African C harter is the fact

that it does not explicitly set out a jurisdictional clause outl ining the

reach of the human rights obligations of States parties. Unli ke other

human rights instru ments, 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 Af rican Unity, parties to

the present Charter shall recogn ise the rights, duties and freedoms

enshrined in the Char ter and shall underta ke to adopt legislative or

other measures to give effect to them.’ The text of ar t 1 of the Charter

makes no use of restrictive langu age and appears to establish a broad

and universal scope of application for the Africa n Charter. This view

seems to be sound in light of the generous construct ion that has been

accorded the American Decla ration on the Rights and Duties of Man,202

which likewise has no express jur isdictional clause, in the pract ice of

the Inter-American human rights system.2 03 A review of the text of

other African Cha rter provisions lends support to the view that its

drafters envisaged some ext raterritorial effect. 204 This position is also

supported by the Africa n Commission’s own jurisprudence.205

One instance where the Africa n Commission dealt with

extraterritorial violations of human r ights under the African C harter

was in DRC v Burundi, Rwanda and Uganda.206 The catalogue of

violations of the African Char ter and IHL considered in the insta nt

complaint resulted from the invasion and subsequent occupation of

DRC by the respondent States.207 DRC submitted that as a result of

their aggressive militar y action on its territory, the respondent States

violated many fundamental legal gua rantees of its citizens. A critica l

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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32 AFRICAN 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 re sponsibility was implicated.

Hence, the Commission had little difc ulty in nding the respondent

States responsible for unlawful actions executed outside their national

territorie s.

The African Cha rter’s extraterritorial ef fect was also considered by

the African Com mission 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 t heir

displeasure by deliberately restrict ing the inow of imported goods

and services into Buru ndi. The effective embargo by the resp ondent

States was subsequently approved both regionally and internationally

as a lawful use of force.209 Buru ndi’s military leadership, however,

lodged a complaint with the Commission, claiming t hat the embargo

violated the right to life of Burundian s.210 The Commission thus

inquired into the responsibility of the respondent States in relation to

actions occurr ing outside their national territories, but it did not nd

responsibility attaching to any of the respondent States. Nonetheless,

the Commission outlined guidel ines 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 Af rican

Commission has since clarie d the parameters for the extraterr itorial

effect of the Afr ican Charter.212 With reference to A frican 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 r ight to life of such

individuals. … In any event, customar y international law prohibits,

without territorial limitation, arbitrar y deprivation of life.’213 As well as

afrmi ng that certain Char ter rights apply extraterritorially, General

Comment No 3 supplies the criteria for determining t he 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 jurisdict ion or otherwise exerc ises effective author ity, power or

control over either the perpet rator or the victim (or the vict im’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 t he 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 St ates to hold to

account private individuals and corporations, including private

military or sec urity companies, which are responsible for causing or

contributing to extraterritorial v iolations 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 ju risdict ion.’216

5 A CRITICAL A SSESSMENT OF THE APPROACH OF

AFRICAN HU MAN RIGHTS TREATY BODIES TO IHL

The case law of African huma n rights treaty bodies concer ning how

IHL interacts with human r ights law is not as voluminous as that of

the Inter-American or European human r ights systems. Consequently,

the view may be advanced that only a prelimi nary conclusion can be

drawn from the practice thus fa r about the place of IHL in the work of

African human r ights treaty bodies. Conversely, it can be argued t hat

despite its modest IHL-related case law, it is sufcient to analyse the

approach of African human r ights treaty bodies to IHL . Specically,

trends can be mapped from the ex isting 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 Africa n human rights treaty bod ies 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 Char ter’s provisions continue to

apply during armed conict, t hereby making it possible for IHL rules

to apply alongside the relevant human rights provisions.217 By contrast

there is little consistency regarding t he clarication of the legal basis

for having regard to IHL, the normative interaction of IHL a nd African

Charter norms and their i mplications, and the general status of IHL in

the African huma n rights system. While IHL i s becoming ever more

relevant as applicable law in the respective work of African huma n

rights treaty bodies, the deg ree of engagement varies. The Commission

has been more willing to refe r 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.2 18 The African C hildren’s

Committee has sometimes referre d 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 pract ice shows reluctance

to do so while its latter practice reveals variation bet ween engagement

and avoidanc e.

5.2 Non-systematic Engagement with IHL and the Need for

Clarication

Despite their increased engagement with IHL a nd an emerging

recognition of its utility for promoting respect for fu ndamental

rights in armed conic t, African human r ights treaty bodies have not

systematically analysed the normative and institutional aspects of

the interplay of IHL and human rights law. The practice surveyed i n

this article shows an absence of method ical analysis of the nature of

the co-extensive application of the two sets of law; the appropriate

methodology for resolving conicts if t heir respective norms diverge;

and the institutional implications for Afr ican human rights treaty

organs of applying IHL in their resp ective work. These are critical

issues that the Africa n Commission, the Court and the Chi ldren’s

Committee would do well to clarif y in their work.

Another observation regarding t he approach of African human

rights treaty bodies to IH L is the pervasive contradictions in the

doctrine and practice w ithin and across AU organs. While t he African

Children’s Committee adopted resolutions promoting co-extensive and

complementary application of IHL and the Africa n Charter, there are

instances where it neglected to make recourse to IHL in c ircumstances

that certainly ca lled for it. Also, while the African C ommission

explicitly referred to violations of both IH L 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

indiscrimi nate bombing violated both IHL and human rights law, the

African Cou rt excluded IHL from its analysis of t he 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 Inter national 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 Afr ican Charter. It is less clear,

however, what the overall effect of IHL has been in terms of c larify ing

the interpretation of the Charter provisions in ar med conict-related

cases. This is because l ittle methodical inquir y has been conducted

by AU organs regarding the practical and t heoretical tools that may

be used to better art iculate and negotiate the working relationship

between IHL and human r ights norms. Consequently, IHL norms have

not had decisive effect in inuencing t he interpretive approach of

African Cha rter provisions in particu lar contexts of armed conict.

5.3 A Future Role for IHL in the African Human Rights System

The seeming reluctance of A frican human rig hts treaty bodies to

engage with IHL in a detailed a nd methodical way may be explained

by the fact that IHL applies in armed con ict, which is a politically

sensitive issue, particularly if t he conict is not of international

character. The early practice of the Af rican Commission and the more

recent approach of the Court to IHL in Libya Provisional Measures may

support t his.220 A nother reason for cursory engagement with IHL may

stem from the absence of clear reference to the applicability of IH L in

the constitutive instruments of the A frican Commi ssion and Court.

Whereas the Afr ican Court’s Protocol lends support to this a rgument,

the clear position in DRC where the Commission located the legal basis

for taking IHL into account dimi nishes it.

A third and argu ably more plausible reason may be the modest

expertise in I HL matters of individual judges of the respect ive African

human rights treaty organs coupled with t he failure on the part of

many applicants to refer to IHL in their respec tive 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 Cour t 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 fra mework.

6 CONCLU DING OBSERVATIONS

This article has a nalysed the treaty-law framework and practice of

African human r ights treaty bodies to establish t he approach of the

220 ACtHPR Libya Provisional Measures op cit note 45.

221 Ntoubandi op cit note 14 at 310.

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36 AFRICAN YE ARBOOK ON INTER NATIONAL HUMANI TARIAN LAW

African human r ights system to IHL. It has shown that most AU legal

instruments integrate human rights law and IH L, thus providing an

enabling legal basis for the application of IHL by the respective tr eaty

monitoring bodies. As with comparable treaty b odies, the Africa n

Commission and Court have had regard to IHL in a ssessing human

rights violations, albeit to varying deg rees.222 Yet t he practice surveyed

in this art icle makes clear that the interplay of IHL and human r ights

law has not been systematically artic ulated by the Commission and the

Court. Nor have these human rights tre aty bodies been consistent in

the manner that they engage with IHL . As shown in this ar ticle, 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 cas e law of African human rig hts

treaty bodies makes it dif cult to conclusively pronounce on their

approach to IHL. Nonetheless the emerging pract ice of the African

Commission and Court indicates that there a re viable normative and

institutional frameworks that can b e utilised to strengthen compliance

with IHL in Af rica. Moreover, the innovative work of the African

Committee of Exper ts on the Rights and Welfare of the Child holds

much promise for enhancing the legal protection of child ren involved

in or affected by ar med conict. The Afr ican Children’s Committee

is a unique treaty monitoring body in A frica whose full potentia l

to induce respect for IHL needs to be studied f urther. Likewise, it is

important to continuously develop the capacity of the Africa n Court

of Justice and Human Rights to implement IHL and also to increa se

the knowledge of IHL in Africa. Some commentators have observed

that the reluctance of the Afr ican Commission and Court to engage

meaningful ly with IHL in their re spective 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 cha llenge and opportunity for t he

ICRC to partner with AU human rights organs to widely d isseminate

knowledge of IHL.

222 Hailbronner op cit note 9 at 347-353.

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