The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life

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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).

Outlook

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.

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    Aurel Sari says

    June 7, 2016

    Great post, Vito. One difficulty, however, is that the right to life has substantive and procedural aspects. As far as the substantive prohibition of the arbitrary deprivation of life is concerned (but bear in mind the different standard in Art 2 ECHR...), the point to take away from the case-law may well be that IHRL recedes into the background as long as lethal targeting is compliant with IHL (although would you put any money on IHRL bodies readily accepting the incidental loss of civilian life, otherwise compliant with IHL?) and comes to the fore again when such targeting breaches IHL. However, what about the procedural aspects of the right to life? Do they ever recede into the background? To the extent that IHL imposes procedural obligations to investigate the use of lethal force, would we not expect these obligations to come to the fore during armed conflict with the more stringent IHRL obligations receding into the background? This would seem not only logical, but also make sense from a practical perspective. Otherwise, we end up in a situation where IHRL defers to the more liberal use of lethal force under IHL on substantive grounds, but still imposes procedural obligations which, frankly, are not suited to warfighting. I am not sure the case-law on the procedural dimension of the right to life (think Jaloud or more recently developments in Al Saadoon) points in the same direction as the cases on the substantive aspects.

    Vito Todeschini says

    June 7, 2016

    Thanks for your comment, Aurel. It actually touches upon the core of my PhD project. For reasons of space, I kept the issues concerning the procedural aspect of the right to life out of the picture. But here is the point I reached so far (and I’d like to hear comments on that). I agree with you that the prevalence of IHL targeting norms in principle entails the prevalence of the IHL standards of investigation as well. In particular, this would mean that an investigation should be opened according to the higher IHL thresholds. However, one problem is that IHL rules do not offer much guidance on the standards that define the effectiveness of an investigation (only Arts 121 GC III and 131 GC IV). ICTY case law on command responsibility (e.g. Strugar; Boškoski and Tarčulovski) indicates that an investigation into IHL violations, especially war crimes, needs to be ‘adequate’ or ‘effective’. To my knowledge, no further specification is given. As pointed out by the Turkel Commission’s second report, here is where IHRL plays a role, namely to provide the standards of effectiveness (thoroughness, promptness, independence, impartiality, transparency and victims’ involvement). Of course, such standards need to be applied realistically, taking into account the factual and normative context of an armed conflict. The ECtHR and African Commission affirmed that a State has an obligation to take “all reasonable steps” (inter alia Al-Skeini) or “all feasible measures” (GC 3) to conduct an investigation as effectively as possible. I believe these tests offer enough flexibility to apply IHRL investigative standards to war crimes investigation. In my opinion, when the right to life is allegedly violated as a consequence of a breach of IHL targeting rules, the IHRL standards apply de jure, although duly contextualized, as a consequence of the re-emergence of IHRL. This of course presupposes that IHRL is applicable. If it is not, e.g. for lack of extraterritorial jurisdiction, the standards may still apply as a matter of interpretation. The Turkel Commission adopted this stance. In my view, the principle of systemic integration is relevant: in order to give substance to the requirement of effectiveness under IHL, a State is required to take the IHRL standards of effectiveness into account. These may then be contextualized according to the abovementioned tests of take “all reasonable steps” (ECtHR) or “all feasible measures” (African Commission).

    Adil Haque says

    June 7, 2016

    Dear Vito,

    Thanks very much for your post. Naturally, I have a small quibble. You write that

    "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."

    In fact, the GC says that IHL "*does not prohibit* the use of force in hostilities against lawful targets ... if necessary from a military perspective, provided that, in all circumstances, the rules of distinction, proportionality and precaution in attack are observed."

    Importantly, the GC does not claim that IHL permits (authorizes, justifies) those uses of force that it does not prohibit. Accordingly, there is no norm competition between an IHRL prohibition and an IHL permission. Instead, there are simply partially overlapping prohibitions (on arbitrary killing, intentional killing of civilians not DPH, careless killing of civilians not DPH, disproportionate killing of civilians not DPH, etc).

    What is the relationship between these partially overlapping prohibitions? According to the GC, "Any violation of international humanitarian law resulting in death ... will be an arbitrary deprivation of life." On this view, all killings that violate IHL also violate IHRL. However, not all killings that violate IHRL also violate IHL. In this context, violation of IHL is sufficient, but not necessary, for violation of IHRL.

    We can see this dynamic played out in para 34:

    "Where military necessity does not require parties to an armed
    conflict to use lethal force in achieving a legitimate military
    objective against otherwise lawful targets, but allows the target
    for example to be captured rather than killed, the respect for the
    right to life can be best ensured by pursuing this option. "

    Importantly, the GC does not claim that IHL prohibits killing when capture is feasible. Yet, the GC suggests that such killings may violate IHRL. On this view, IHRL may prohibit killings in armed conflict that are not prohibited by IHL.

    As I read the GC, IHL does not conflict with (let alone displace) IHRL in armed conflict, nor does IHL exhaust the content of IHRL in armed conflict. A killing not prohibited by IHL may nevertheless be arbitrary as a matter of IHRL. This seems to me the correct view.

    Best wishes,

    Adil

    Vito Todeschini says

    June 7, 2016

    Dear Adil,
    Thanks for you observations. I must admit that I might have used the terms ‘permissive’ and ‘prohibitive’ in too a cursory way, without considering the whole range of normative meanings and implications they may have. I rather used them for sake of argument, to contrast norms which point in different directions. I agree with the fact that the GC does not state that IHL permits to use force; however, I do not agree with the fact that no competition of norms arises between IHL and IHRL norms. In armed conflict, IHL does not prohibit (allows?) to target the commander of an organized armed group, in accordance with the targeting principles. This individual can be shot and killed for his/her direct participation in hostilities. In peacetime, the boss of a drug cartel or mafia group cannot be shot and killed simply for engaging in criminal activity. According to IHRL, this could happen only in accordance with the strict conditions of necessity and proportionality, e.g. for saving another person’s life. If both norms apply, I see a competition between the non-prohibitive (permissive?) IHL rule and the prohibitive IHRL rule. If IHL is given prevalence (and complied with), what happens is that a killing does not amount to an arbitrary deprivation of life.
    You also rightly point out that at para 34 the GC favours capturing an individual even when it would not be prohibited to kill him/her. The ‘capture/kill’ question is open, and there exist contrasting views on that. I must say I do not have a precise stance whether this would be a human rights infusion into IHL or whether the internal logic of IHL supports this point. Certainly, the GC favours that an individual be captured rather than killed in order to better respect her/his right to life. But I do not read it as a statement that killing in such circumstances would amount to arbitrary deprivation of life, exactly because of what it is stated previously, i.e. that force used in accordance with IHL in principle does not violate the right to life under IHRL. This is how I read the GC.

    Aurel Sari says

    June 7, 2016

    Adil, but as a matter of logic, does this not lead to the following conclusion:

    1. killing in armed conflit is not arbitrary provided it complies with IHL
    2. IHL does not permit killing over and beyond what is permissible under IHRL
    3. therefore killing in armed conflict is not arbitrary provided it complies with IHRL.

    If there really was no norm competetition between IHRL and IHL on the basis that both sets of rules are merely prohibitive in nature (one more, the other less so), then States would simply have to follow the greater prohibition and the bulk of IHL becomes redundant (save for rules like making soap available to POWs on par with local market prices, though even this is hardly going to play a significant role if all your POWs are busy challenging their grounds of detention).

    Aside from the fact that this does not reflect State practice, I am not convinced that this is the correct reading of the General Comment either, as it can hardly be reconciled with para 34. There, the Commission accepts that the use of lethal force in armed conflict is permissible in 'achieving a legitimate military objective against otherwise lawful targets'. Accordingly, achieving a military objective constitutes a legitimate ground for the use of lethal force under IHRL too, since the Commission's point is that IHRL demands the use of less harmful means only if the use of lethal forces is not required by miliary necessity.

    Aurel Sari says

    June 8, 2016

    Vito, thanks for setting out your position on the procedural aspects. What you say sounds perfectly reasonable! Just two quick thoughts. It is helpful to distinguish between the conditions triggering the duty to investigate and the standards of the investigation. In Al Saadoon [2016], Mr Justice Leggatt held that the duty to investigate is triggered whenever State agents kill a civilian in times of armed conflict. I don't think this is practicable either normatively or factually. Good luck with applying this rule in a NIAC where the very notion of combatant status (in a normative, not functional, sense) is uncertain. Also, good luck with applying it in the context of an air campaign, with no boots on the ground. These difficulties are one of the reasons why I agree that IHL procedural standards should come to the fore. In other words, the mere possibility that a civilian was killed is not sufficient to trigger a full-blown duty to investigate: what is required are reasonable grounds for suspecting that the use of lethal force was in violation of IHL. Then we get to the standard of the investigation. Taking inspiration from IHRL in determining what amounts to an effective war crimes investigation is entirely sensible and a good example complementarity. However, as you say, the IHRL standards would have to be applied with some care and contextually, rather than just being transplanted mechanically. For instance, there might be limits to complying with the requirement of transparency or the involvement of the victim's next of kin. I am not convinced that IHRL bodies are best placed to draw this balance, as the record so far suggests that they do not always appreciate IHL and operational considerations.

    Adil Haque says

    June 8, 2016

    Dear Vito,

    Thanks for your thoughtful reply. We agree that the IHRL prohibition on arbitrary killing applies both in peacetime and in armed conflict. We also agree that killings that would be arbitrary in peacetime may not be arbitrary in armed conflict, eg targeting based on status or function rather than immediate threat. Finally, we agree that *typically* killings in armed conflict that are not prohibited by IHL should not be considered arbitrary under IHRL. Suitably interpreted, IHL prohibits much arbitrary killing in war, although, on my view, this is a contingent fact and not a necessary or a priori truth.

    However, there may be exceptional cases in which a wartime killing, though not prohibited by IHL, should be considered arbitrary. Killing an opposing combatant when capture is feasible may be such an exceptional case. Paragraph 34 says that “the respect for the right to life can be best ensured” by capturing rather than killing when feasible. This suggests that killing in such circumstances may fail to respect the right to life. Certainly, the paragraph suggests that, in armed conflict, the right to life has an existence independent from IHL. Otherwise, it would make no sense to say that some actions not prohibited by IHL would better ensure respect for the right to life than others.

    Hope that helps,

    Adil

    Adil Haque says

    June 8, 2016

    Dear Aurel,

    Thanks for your typically sharp comment.

    You write that “If there really was no norm competition between IHRL and IHL on the basis that both sets of rules are merely prohibitive in nature (one more, the other less so), then States would simply have to follow the greater prohibition and the bulk of IHL becomes redundant.” Not so.

    First, the extra-territorial scope of IHRL is limited, so in many circumstances only IHL will limit killing in IACs as well as in transnational NIACs.

    Second, where they co-apply, IHRL provides a general prohibition on arbitrary killing while IHL provides a number of specific prohibitions. The specific prohibitions of IHL are *extremely* useful in helping combatants avoid violating the general prohibition. Yet it is possible to violate the general prohibition without violating any of the specific prohibitions.

    By way of comparison, there is a general prohibition on “reckless driving” as well as a number of specific prohibitions on driving over some speed limit, changing lanes without signaling, and so forth. Obviously, the specific rules are very important. Yet it is possible to drive recklessly without violating any of the specific rules.

    As I read it, paragraph 34 states a prohibition, not a permission or authorization. Para 34 says that killing a lawful target, when militarily *unnecessary* to achieve a legitimate military objective, may fail to respect the right to life. That is so even though there is no specific rule of IHL prohibiting such killings. Accordingly, the IHRL prohibition on arbitrary killing is broader than the specific prohibitions of IHL.

    Now, does killing a lawful target, when militarily *necessary* to achieve a legitimate military objective, fully respect the right to life? Does military necessity entirely negate arbitrariness? This is by no means obvious. For example, it seems perfectly sensible to say that a use of force that violates the jus ad bellum but conforms to the jus in bello may nevertheless violate the right to life of those that it kills (at least to the extent that IHRL applies extra-territorially). Presumably, similar examples could be constructed involving internal armed conflict. Accordingly, I consider this an open question, and the authors of the GC were wise to leave it for another day.

    Very best,

    Adil

    P.S. With respect to your syllogism, I reject premise 1 and am a bit unclear about premise 2.