In November 2015, the African Commission on Human and Peoples’ Rights (African Commission) adopted General Comment (GC) no. 3 on the right to life. The GC deals with a variety of issues surrounding the right to life, inter alia the death penalty, use of force in law enforcement and armed conflict, investigations and accountability, and extraterritoriality. The GC also considers the relationship between the African Charter on Human and Peoples’ Rights (ACHPR) and international humanitarian law (IHL):
“32. In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law. This law does not prohibit the use of force in hostilities against lawful targets (for example combatants or civilians directly participating in hostilities) if necessary from a military perspective, provided that, in all circumstances, the rules of distinction, proportionality and precaution in attack are observed. Any violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life.”
This statement is interesting in respect of three elements: the concept of ‘arbitrariness’ with regard to acts of deprivation of life in armed conflict; the interpretive principle employed to connect the ACHPR and IHL; and the legal consequences arising from IHL violations when human rights law also applies. Before taking a closer look at all these points, it should be clarified that the conclusions drawn concern the IHL and human rights obligations of States, and do not necessarily extend to those of non-State actors.
Arbitrary Deprivations of Life in Armed Conflict
In the first place, the African Commission asserted that to determine whether a deprivation of life is arbitrary in armed conflict – and therefore in violation of Article 4 ACHPR – it is necessary to make reference to IHL. Such a stance echoes the International Court of Justice’s (ICJ) dictum in the Nuclear Weapons advisory opinion (para 25). The relevant rules the African Commission identified are those concerning the use of force against individuals and the principles of distinction, proportionality and precautions in attack, which apply in both international and non-international armed conflicts (Articles 48, 51, 57 AP I; 13 AP II; CIHL Study). That the protection of the right to life in connection to hostilities requires taking IHL rules into account has long been affirmed by human rights treaty bodies, particularly the Inter-American Commission and Court (inter alia IAComHR Abella, para 161; IACtHR Santo Domingo Massacre, paras 211‒236; also HRCtee Draft GC 36, para 63). Thus, the African Commission’s GC 3 consolidated an established interpretive trend, according to which IHL provides the yardstick to evaluate when use of force in the conduct of hostilities amounts to arbitrary deprivation of life in violation of relevant human rights norms.
The Principle of Systemic Integration
The second point worthy of note is that the African Commission refrained from invoking lex specialis to read the interplay between IHL and human rights law. Lex specialis, both an interpretive principle and a conflict-solution technique, indicates that:
“if a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former” (ILC Fragmentation Report, para 56).
The ICJ employed it to contend that either an IHL specific norm (Nuclear Weapons, para 25) or IHL as a legal regime (Wall, para 106) is lex specialis with regard to human rights law. The lex specialis principle has been at times employed by the Inter-American Commission (inter alia Coard, para 42; Gregoria Herminia, para 20), whereas none of the other international bodies have resorted to it. Notably, the ICJ did not invoke it in a successive case where it dealt with the interplay between the two bodies of law (Armed Activities, para 216).
Commentators have extensively analysed, debated and criticised the use of lex specialis in relation to the interaction between IHL and human rights law (inter alia Prud’homme; Hampson, 558‒562; Milanović, Ch 5). Interestingly, some scholars highlighted that in Nuclear Weapons the ICJ did not actually employ lex specialis, but rather another principle of interpretation: systemic integration (d’Aspremont and Tranchez, 238‒241; similarly Gowlland-Debbas, 361). This principle, which is found in Article 31(3)(c) VCLT, provides that in the interpretation of a treaty:
“[t]here shall be taken into account […] any relevant rules of international law applicable in the relations between the parties”.
I find this viewpoint particularly convincing. When the ICJ stated that:
“[t]he test of what is an arbitrary deprivation of life […] falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict” (Nuclear Weapons, para 25),
it actually made use of systemic integration under the guise of lex specialis (d’Aspremont and Tranchez, 238). Indeed, it interpreted a human rights provision taking into account IHL rules, which is an application of the principle of systemic integration.
International bodies have constantly employed this principle to connect IHL and human rights law rules. They have done so implicitly (HRCtee GC 31, para 11), or by expressly invoking Article 31(3)(c) VCLT (IAComHR Molina, para 121; ECtHR Hassan, para 102), or on the basis of equivalent provisions included in their constitutive instruments, such as Article 29 ACHR (IACtHR Ituango Massacres, para 179) or Articles 60‒61 ACHPR (AComHPR DRC v Burundi et al, para 70). In GC 3, the African Commission followed the same path:
“During the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law.” (para 13).
It thereby confirmed that systemic integration, not lex specialis, is the appropriate interpretive principle to operationalise the relationship between norms of IHL and human rights law.
Concurrent Violations of IHL and Human Rights Law
The last point concerns the closing sentence of the above-quoted passage, in which the African Commission affirmed that an attack causing death in violation of IHL rules amounts to an arbitrary deprivation of life. This is a remarkable statement. For the first time, a human rights treaty body made it explicit that, when human rights law norms are placed in the background to favour the application of IHL norms, a breach of the latter entails a violation of the former. A similar reasoning may be found in the Human Rights Committee’s Draft GC 36 (para 63), not yet adopted, whereas it could only be inferred from previous case law (IACtHR Santo Domingo Massacre, paras 230, 237; ECtHR Hassan, para 105, with reference to the right to personal liberty). This constitutes the logical conclusion of the interpretive choice according to which the arbitrariness of a deprivation of life in armed conflict is to be determined with reference to IHL. Of course, the presupposition is that an act is simultaneously in breach of IHL and human rights law. The use of dum-dum bullets, for example, violates IHL but not necessarily human rights law.
In my opinion, it is possible to extract a more general principle concerning the relationship between rules of IHL and human rights law. In instances of norms competition, when a prohibitive human rights law norm is placed in the background in favour of a permissive IHL norm, a violation of the prevailing IHL norm entails a corresponding violation of the background human rights law norm. The result is that the latter re-emerges, bringing along relevant normative consequences. I will just consider here the implications this has for the right to a remedy.
Remedies in Armed Conflict
Individual reparations claims for alleged IHL violations often fail when directly brought in a State’s domestic courts (e.g. Varvarin case). This owes to the uncertainty surrounding the right to reparation under IHL. Articles 3 HC IV, 91 AP I, and corresponding customary rules provide that a State must pay compensation for the breaches of IHL it is responsible for. Several scholars contend that these norms grant victims a right to reparation directly enforceable at domestic level (Kalshoven, 835‒836; Zegveld, 512). State practice and case law is inconsistent in that regard, yet most domestic courts tend to deny such an entitlement to individuals (for an account, CIHL Study, 544‒545; Henn, 617‒623). However, when a breach of IHL also results in a violation of human rights law, victims may seek redress on the basis of the latter.
All major human rights treaties include a provision concerning the right to an effective remedy (e.g. Articles 7(1)(a) ACHPR; 2(3) ICCPR), which translates to a State obligation to provide individuals with both procedural and substantive domestic remedies (AComHPR GC 3, para. 7). Victims may seek redress for human rights violations first in domestic courts and, if that fails and where possible, with the relevant human rights treaty body. The acknowledgment that a breach of the IHL targeting rules resulting in death amounts to an arbitrary deprivation of life opens the way to individuals for obtaining redress for IHL violations via the right to a remedy under human rights law. This may expand even further. The Inter-American Court indeed held that an attack which fails to comply with IHL rules and endangers the civilian population may amount to a breach of the rights to life and personal integrity (Article 4‒5 ACHR), even if nobody is killed or injured (Santo Domingo Massacre, paras 236‒237; similarly HRCtee Draft GC 36, para 63).
The impact of the African Commission’s GC is possibly manifold. On the international plane, it may encourage other treaty bodies to make similarly general statements, so to consolidate the interpretation that, in the conduct of hostilities, the right to life is not violated as long as relevant IHL rules are complied with. A similar construal may extend to the right to liberty and security detention of civilians in armed conflict (in this vein ECtHR Hassan, paras 105‒106). At the national level, this perspective may persuade judges to consider whether alleged IHL breaches also amount to human rights violations, which would allow victims to bring claims directly in domestic courts. Overall, the African Commission’s GC may constitute a significant contribution to strengthen the enforcement of victims’ right to reparation for both IHL and human rights violations in armed conflict.