Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights

1 Introduction

International humanitarian law has long lacked adequate means of sanctioning violations. Military mechanisms for punishing wrongdoers have often proved weak for lack of political willingness, and domestic courts have displayed a similar reluctance or grappled with other difficulties.1 As a result, it has increasingly fallen to international courts or quasi-judicial bodies to address violations of international humanitarian law - be it within the realm of international criminal responsibility or human rights. Regional human rights bodies have dealt with this challenge in different ways. Some, such as the European Court of Human Rights (European Court), have approached international humanitarian law with caution and focused primarily on their human rights mandate (at least until recently),2 whereas others, such as the Inter-American Commission on Human Rights (Inter-American Commission), have been more willing to engage with international humanitarian law and sometimes even applied it directly. 3

The African human rights system and its capacity to deal with violations of international humanitarian law have thus far received little scholarly attention.4 This is perhaps not surprising, considering the comparative dearth of legal scholarship on African issues. Yet, Africa is the region where most contemporary armed conflicts arise, and African states are also at the forefront of contemporary peacekeeping operations, frequently under the common roof of African regional organisations, such as the Economic Community of West African States (ECOWAS) and the African Union (AU).5 As many domestic African courts still have to establish their independence and public authority,6 here, more than elsewhere, regional bodies can play an important role in sanctioning violations of international humanitarian law.

The article focuses on the most important pan-African institutions charged with the protection of human rights7 and their capacity to address violations of humanitarian law. These are the African Commission on Human and Peoples’ Rights (African Commission) and the African Court on Human and Peoples’ Rights (African Court), both of which are mandated to apply, first and foremost, the African Charter on Human and Peoples’ Rights (African Charter). I begin by setting out the position of these two bodies on international humanitarian law against the broader comparative background of the current debate on this topic. As will be seen, both the African Commission and the African Court are only just beginning to address questions of the application of humanitarian law, and even when they do so, it is often in vague and unclear terms, leaving more questions and problems open than answered. This raises the question, which is addressed in the second part of the article, namely, what a good approach to the relationship between international humanitarian law and African Charter rights may look like in the African context. Given that the African Charter, unlike other regional human rights instruments, such as the European Convention on Human Rights (European Convention), often formulates rights very broadly, it is argued that an interpretive approach that reads international humanitarian law into human rights provisions is here, perhaps unlike elsewhere, both feasible and convincing. Limitation clauses and a proportionality analysis can help minimise conflicts between human rights and humanitarian law within this framework - making this overall a sound approach to the relationship between international humanitarian law and human rights in the African context.

2 Obstacles and approaches to the application of humanitarian law by human rights bodies: State of the debate and African responses

Today, a number of earlier obstacles to the application of international humanitarian law by human rights bodies have fallen away. In particular, it is now broadly established that human rights do not generally cease to be applicable in armed conflicts. The International Court of Justice (ICJ) has confirmed this with respect to the International Covenant on Civil and Political Rights (ICCPR),8 as have other bodies in Europe with regard to the European Convention9 and in Latin-America10 with regard to the American Convention on Human Rights (American Convention).11

Similarly, it has become largely accepted that international human rights apply extra-territorially in situations where states have jurisdiction over foreign territory or persons by exercising effective control over them.12 While there still is much debate over what exactly constitutes effective control, the general principle, at least, is widely recognised today, even though some states, such as the United States, still partly resist the extra-territorial application of human rights.13 Without much ado, the African Commission has assumed the extra-territorial applicability of the African Charter in its DRC decision in a situation where the respondents had occupied the territory of another member state.14 Moreover, even some domestic African courts, such as the South African Constitutional Court, have applied domestic human rights provisions extra-territorially even though they are likely to be more deferent in reviewing foreign policy decisions.15

What remains contested, however, is the precise relationship between human rights and international humanitarian law in particular cases, even if both regimes generally apply. This question has arisen particularly in human rights courts and quasi-judicial bodies, which have addressed this question in different ways. Most often, they have sought to avoid finding conflicts between the two bodies of law, sometimes with problematic results that have been widely criticised by the academic community (more below). How to deal with conflicts between international humanitarian law and human rights, therefore, remains contested among governments, scholars and courts, and the available case law is often less than consistent. Following Hathaway et al, it is useful to distinguish between three different approaches: one in which international humanitarian law prevails in cases of conflicts between the two bodies of law; another in which human rights prevail; and, finally, one in which the more specific law in the particular context and question at hand applies.16

The advantage of the first approach that resolves conflicts between the two regimes in favour of international humanitarian law is first and foremost its clarity: Whenever there is an armed conflict and human rights and international humanitarian law conflict, international humanitarian law is supreme.17 The ICJ’s Nuclear Weapons decision has been read by some this way, even though the wording is ambiguous:18

In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict, which is designed to regulate the conduct of hostilities. Thus, whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

In its later DRC decision, however, the ICJ took a different, even less clear, position by avoiding addressing the possibility of conflict between the two bodies of law at all.19

Not surprisingly, it is mostly human rights bodies that have taken the second pro-human rights approach, based on the argument that their primary mandate, after all, is the protection of the respective human rights instruments and that they have to observe the limits of their own jurisdiction.20 To what degree they may take international humanitarian law into account depends on whether the respective treaties refer to other sources of international law and whether they include particular derogation clauses allowing for the suspension of human rights in favour of international humanitarian law. If there are no such references to other international law, article 31(3)(c) of the Vienna Convention on the Law of Treaties (Vienna Convention) at least sets out that other international rules binding on the parties are part of the relevant context to be taken into account when interpreting a treaty. This suggests that international humanitarian law can play some role in the interpretation of human rights even if there are no more specific references in the respective treaty, and the European Court’s recent decision in Hassan confirms this (more on this below).

Derogation clauses are relevant in this context to determine the exact relationship of human rights and international humanitarian law under a particular human rights treaty. Article 15 of the European Convention, for example, provides:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

The American Convention adopts a similar approach in article 27. Once such derogation clauses are in place, it typically becomes harder for the respective bodies to apply human rights and, through human rights, international humanitarian law. This is because the relevant treaty is then typically understood to settle the question as to what happens in times of armed conflict: If governments decide to derogate under such circumstances, courts are deprived of their jurisdiction. If, in turn, governments do not explicitly derogate and, therefore, choose to suspend human rights standards (in favour of the then applicable international humanitarian law), then, so the standard argument goes, they have to live with the consequences, in other words they have to apply human rights instead. This seems problematic, given that both conventions restrict the possibility to derogate to specific rights; most importantly, they do not allow states to derogate from the right to life where many of the conflicts between international humanitarian law and human rights arise in practice.21 Nevertheless, the derogation argument has been prominent, particularly in the jurisprudence of the European Court, until its recent decision in Hassan, which is worth a closer look.22

Addressing the legality of the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention in Iraq during the hostilities in 2003, the European Court first pointed out that the right to liberty and security in article 5 of the European Convention did not square with the requirements for detention under the Third and Fourth Geneva Conventions, which had been invoked by the British government, even though it had not formally derogated from the Convention. Unlike in its previous jurisprudence, however, the European Court argued that the British government had explicitly asked the Court to disapply or modify Convention rights in favour of international humanitarian law. Drawing on article 31(3) of the Vienna Convention, the Court further reasoned that it was state practice not to derogate from human rights instruments during international armed conflicts and that it may, moreover, take other rules of international law, such as international humanitarian law, into account in interpreting the Convention. It proceeded to read article 5 of the European Convention in light of the Geneva Conventions, even though this ultimately entailed disapplying some of its procedural safeguards. In doing so, it did, however, interpret the Geneva requirements to provide for a ‘competent body’ to review the security detention of civilians (articles 43 and 78 GC IV), again in light of article 5 of the European Convention, requiring that such a body, while not a court, at least ‘provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness’.

This more recent approach of the European Court aligns it more closely with the Inter-American Commission,23 and many legal scholars who have taken the position that the relationship between human rights and humanitarian law can only be decided with regard to the specific concrete case and context.24 In order to determine the more specific legal regime for the question at hand, a number of different factors are considered relevant, among them how much the situation resembles a classic battlefield scenario; how much effective control the government exercises over the area in question; previous declarations of intent; existing state practice; and so on.25 Although this approach leaves much to an assessment of the concrete situation at hand, certain questions, such as the treatment of captured combatants, typically are understood to be better covered by international humanitarian law,26 at least in the case of international armed conflicts.

The advantages and downsides of the different approaches have been explored elsewhere in the literature.27 However, here the question is a narrower one: How have the African Commission and the African Court so far approached this question and what approach to international humanitarian law fits best with the African system?

Before going into the details of existing case law, it is important to set out the basic textual parameters for the application of international humanitarian law under the African Charter. To begin with, unlike the European and American Conventions, the African Charter contains no explicit derogation clause for situations of emergency or war. This absence of a derogation clause suggests that Charter rights apply both in times of peace and armed conflict28 - and this is a point frequently made by the African Commission, as will be seen. Importantly, articles 60 and 61 of the African Charter explicitly allow the African Commission to have regard to other sources of international law. Indeed, they instruct it to ‘draw inspiration from international law on human and peoples’ rights’ (article 60) and to (article 61)

take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by member states of the Organisation of African Unity, African practices consistent with international norms on human and peoples’ rights, customs generally accepted as law, general principles of law recognised by African states as well as legal precedents and doctrine.

Since international humanitarian law does not, at least in the traditional sense, represent ‘international law on human [...] rights’,29 we must assume that article 61 rather than article 60 must guide the African Commission’s approach to international humanitarian law, and this corresponds to its reasoning in the DRC case.30 Most African states are parties to the Geneva Conventions and Additional Protocols,31 much of the content of which has in any case by now become part of customary international law.32

3 Recommendations

The current approaches to humanitarian law of both the African Commission and Court leave room for improvement. First of all, the Commission should develop a more coherent and consistent approach to international humanitarian law. While other international bodies also struggle with this task, a more consistent approach would be especially useful in the African context and in light of the Commission’s collaborative role with the Peace and Security Council of the AU (PSC), which has recently taken on a broad peace-keeping mandate.59 Since the PSC has so far not developed a consistent doctrine of its own with regard to the relationship between international humanitarian law and human rights in peacekeeping missions,60 the African Commission is institutionally well-suited to provide guidance in this regard. The same may be true for the African Court, particularly if its merger with the African Court of Justice proceeds, which seems to be unclear at the moment as states seem reluctant to proceed with ratification. 61

The next question must be what approach to international humanitarian law is most appropriate under the African Charter. Insofar as current decisions either ignore international humanitarian law entirely or apply it more or less directly through article 61, they are hard to square with the text of the Charter. Ignoring international humanitarian law disregards the clear instruction in article 61 (‘shall’) to take international law, such as humanitarian law, into consideration. This also presents an important counter-argument to those who are skeptical of any application of international humanitarian law by human rights bodies for reciprocity reasons, given that such bodies can only hold states, but not non-state actors, accountable.62 However, the rather free-wheeling, direct application of international humanitarian law observed in parts of the DRC decision is similarly problematic with regard to the text of the African Charter. To take international law into consideration ‘as subsidiary measures to determine the principles of law’ (article 61) implies that an interpretive process is already ongoing. According to article 61, humanitarian law can, therefore, play only a subsidiary role; it can help to fill gaps and give content to what are otherwise often vague Charter provisions and thus assist with their application in concrete cases.63 Article 61 mirrors the similarly-phrased article 31(3)(c) of the Vienna Convention. Although the exact meaning and scope of article 31(3)(c) are contested, it is not usually understood to provide a means to apply other treaties directly or indeed to replace provisions of one treaty by the rules and principles of another treaty.64

Yet, text and doctrine are not everything in legal interpretation. The interpretive approach suggested by the language of the African Charter has in the European system created problems when the two bodies of law conflict, with the European Court not infrequently applying human rights in the context of armed conflict where international humanitarian law may be more appropriate. In doing so, it risks overstretching the limits of what states can and are in practice willing to do in a situation of armed conflict. Some commentators have, therefore, called on the European Court to apply the lex specialis rule in favour of international humanitarian law during armed conflicts, even if this may mean that the Court cannot exercise its jurisdiction in every case.65 The recent Hassan decision has now found a way around this dilemma with its reliance on the government’s explicit pleading to modify or disapply Convention rights in light of international humanitarian law, but it remains to be seen how the Court will deal with situations where such explicit pleading is absent.66

In light of these experiences, it is worth enquiring whether the African Commission’s more direct application of international humanitarian law in the DRC case may not in the long run be better suited as a realistic and international humanitarian law-friendly approach. Such an approach may allow the Commission to recognise conflicts between the two bodies of law where they arise, rather than muddling through them only ultimately to favour African Charter rights, which may not fit the particular situation at hand. This indeed is a risk of the interpretive approach: By staying within the human rights framework, humanitarian law can only be taken into consideration as long as it does not clearly conflict with the language of Charter rights. If it does, Charter rights must necessarily prevail, and it is then that human rights bodies risk adopting unrealistic perspectives on what states are allowed during armed conflict. A direct application of international humanitarian law, in contrast, is less prone to subordinating international humanitarian law to human rights in cases of conflict, but it comes with other risks.

A direct application of international humanitarian law is not only problematic with regard to the text of the African Charter and the African Commission’s mandate, but its benefits are also perhaps more questionable in the African than in the European context. Many of the problems under the European Convention have arisen because the European Convention sets out both narrow and detailed textual provisions that make an interpretation of Convention rights in light of international humanitarian law more difficult than elsewhere. In particular, the right to life in article 2 and the right to liberty and security in article 5 of the European Convention are framed in very detailed terms that make it difficult to accommodate more lenient international humanitarian law standards with regard to the killing or detention of combatants, as the jurisprudence of the European Court demonstrates.

In contrast, the African Charter sets out individual Charter rights in comparatively less detail and, in doing so, leaves considerable room to take humanitarian law standards into account, as is evident in the traditional fields where problems arise, namely, the rights to life and liberty. The African Charter merely protects the right to life against arbitrary deprivations and the right to liberty against any deprivation of freedom ‘except for reasons and conditions previously laid down by law’, similarly ruling out ‘arbitrary’ arrest or detention.67 In determining what counts as an arbitrary deprivation of life or liberty, the African Commission is, therefore, free to take the Geneva Conventions and Additional Protocols as well as customary international humanitarian law into account. In doing so, it can rely on the ICJ precedent in the Nuclear Weapons case:68

The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict, which is designed to regulate the conduct of hostilities.

A potential hurdle to reading international humanitarian law into African Charter rights may, however, be article 7 of the Charter which entails a general right to have one’s cause heard, comprising ‘the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force’ and article 4, ‘the right to be tried within a reasonable time by an impartial court or tribunal’. It, therefore, envisages a more classical law enforcement model and has been read by the Commission more broadly as a right to fair trial,69 limiting, among others, the jurisdiction of military tribunals to ‘offences of a pure military nature committed by military personnel’.70 How, then, does this square with articles 5 and 21 of the Third Geneva Convention, which allow for the detention of prisoners of war until the end of hostilities, granting only a right to a status determination by a ‘competent tribunal’, and of civilians for security reasons under articles 78 and 43 of the Fourth Geneva Convention, which is subject only to periodical review and appeal by an ‘appropriate court or administrative body’?

The answer is that it does. For once, it seems already doubtful whether article 7(1)(a) is applicable to international armed conflicts, given that its wording (‘competent national bodies’) is clearly tailored to domestic rights violations. Even if we assume that it applies, the wording (‘bodies’) does in itself not necessarily require more than a status review board for prisoners of war or an ‘administrative body’ with regard to the security detention of civilians. Insofar as the Commission has understood article 7 more broadly as the right to a fair trial, limiting, inter alia, the jurisdiction of military commissions which will typically be involved in status reviews for prisoners of war and security detention for civilians, it is important to emphasise that it has done so in the context of criminal convictions. It is, therefore, not in conflict with the Geneva Conventions as long as such bodies are not pronouncing criminal sentences. Of course, this does not mean that military review boards should not be structured and staffed in such a way as to guarantee sufficient fairness and impartiality. Indeed, they must, as the International Committee of the Red Cross (ICRC) commentary on article 43 GC IV confirms.71 Last but not least, the more specific standards required by the Geneva Conventions, such as periodic review, can be accommodated in the interpretation of article 7.

The situation in non-international armed conflicts is different insofar as there is no explicit legal basis for detention in Additional Protocol II, though it is contested whether the rules for international armed conflicts may by analogy apply here.72 In either case, conflicts with article 7 of the African Charter are unlikely to arise. As has been seen, article 7 leaves room for an (analogous) application of the Geneva rules on detention. In all other cases domestic law must conform to article 7 standards. If one selects the humanitarian law route, however, it seems appropriate in non-international armed conflicts to adopt a human rights-friendly reading of the relevant norms and add, along the lines of the European Court’s recent Hassan decision, that there must also be ‘sufficient guarantees of [...] fair procedure to protect against arbitrariness’.73

Finally, like any human rights instrument, the African Charter allows for limitations of rights. Of the three rights discussed here, only the right to liberty contains an explicit limitation requirement, namely, that deprivations of liberty must be in accordance with the conditions previously laid down by law. This broad formulation may suggest that states have wide leverage to curtail the right to liberty, but the African Commission has refused to adopt a broad understanding of this clause as a general ‘claw-back’ clause. Instead, it has read this formulation more narrowly, requiring in particular that international rather than domestic legal standards must be satisfied, referring to articles 60 and 61 of the Charter. Commentators have taken this as a broader reference to international practice, requiring in addition that domestic limitations meet proportionality standards in being necessary and proportionate to the interest protected.74

This ultimately points in the same direction as article 27 of the African Charter, for even though the Charter does not contain an explicit general limitation clause, the African Commission has de facto turned article 27 into such a clause. Providing that rights ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest’, the Commission has read article 27 to stipulate a broader proportionality requirement.75 In doing so, it has followed the international human rights trend with its approach to proportionality, requiring that limitations be both ‘absolutely necessary for the advantages which are to be obtained’ and ‘strictly proportionate’ with them.76 In addition, the Commission has read article 27(2) of the African Charter to stipulate a sort of essential core guarantee in requiring that the right in question may not become ‘illusory’.77

For advocates of international humanitarian law, this is good news: Proportionality offers an assessment of rights limitations that is tied to the aim and purpose of the limitation and is, therefore, broadly suited to deal with situations of both armed conflict and peace. This is not to say that proportionality implies that anything goes - the robust jurisprudence of many constitutional courts employing proportionality shows that this would be in error78 - but merely that grave circumstances, such as armed conflict, may justify rights infringements that go beyond what is acceptable in times of peace.

Of course, proportionality in a human rights context differs from a proportionality analysis as it is conducted in humanitarian law. This is because international humanitarian law proportionality restricts the goods to be weighed - military advantage versus the (collateral) damage to civilians (article 51(5)(b) of Additional Protocol I) - whereas human rights proportionality has a broader scope which grants protection not only to civilians but also to soldiers, and is in principle open towards considering not only the rights at stake in particular military actions, but also the causes of armed conflict and the broader values involved. Indeed, proportionality is open to a large range of considerations, and this may for some serve as a welcome argument to break down the currently-existing strict boundaries between ius ad bellum and ius in bello.79 However, if proportionality in a human rights analysis is broader than under international humanitarian law, this is not to say that under sufficiently war-like circumstances, it cannot be read in the narrower sense of international humanitarian law. After all, not all considerations must be accorded the same weight in the balancing test of proportionality. Therefore, one does not necessarily need to go as far as the Israel Supreme Court, which frequently blurs its international humanitarian law and human rights analysis, emphasising that proportionality is both a constitutional principle and a general principle of international law.80 For even if human rights proportionality differs from international humanitarian law proportionality by increasing the scope of what needs to be taken into account, its results must not necessarily differ from international humanitarian law: While even an enemy soldier’s life must be attributed a value under human rights proportionality, it may routinely be outweighed by military advantages in case of an armed conflict. (This may change when child soldiers, whether forcibly recruited or not, are involved, since their right to life will weigh more heavily given their lack of autonomy at the time of their recruitment, but their life, too, may not always outweigh military necessity.)81 Certainly, the African Commission’s additional requirement that a right may not become illusory raises further questions in this regard: Does a soldier’s right to life not become illusory if it is routinely subjected to other considerations in an armed conflict? No doubt, good arguments may be found for either side here, yet, if we seek to impose realistic constraints on warfare, much suggests that the answer will, at least in the standard cases, not be a resounding ‘yes’.

Particularly during international armed conflict, international humanitarian law can give content to vague human rights provisions, something much needed in this context. Whereas international human rights bodies and courts have by now developed considerable jurisprudence on many human rights issues, the same is not true for the application of human rights in emergency scenarios or during armed conflict. Indeed, the recent discussion on human rights in the ‘war on terror’ with its very disparate voices from all ends of the political spectrum emphasises that we are still some way from agreeing on what emergencies and terror should mean for human rights protection. In international armed conflicts, however, there is an established body of humanitarian law. Even human rights bodies confronted with such situations would, therefore, do well to draw on the Geneva Conventions and Additional Protocols.

This is somewhat, but not entirely, different for non-international armed conflicts, which are more prevalent in Africa and governed only by Common Article 3, the Additional Protocol II to the Geneva Conventions as well as a body of customary law, the status of which is, however, often contested. Because explicit written rules are much rarer here, human rights already play an important role in this field. In determining the state of customary law in this area, the ICRC, for example, routinely draws on human rights standards as well as the rules for international armed conflicts and soft law.82 However, the fact that the law is less clear regarding non-international armed conflict should not be a reason to adopt a pure human rights approach in the case of non-international armed conflict. It is granted that a more context-sensitive analysis will be necessary here than in the case of international armed conflict. Nevertheless, while any application of customary law is fraught with difficulties, there is considerable useful scholarship as well as extensive work by the ICRC in this area. Together with Common Article 3 and Additional Protocol II, this body of work can provide important guidance to courts dealing with situations of armed conflict, often lacking under a human rights paradigm. Finally, if the law here is nevertheless less determinate than international humanitarian law regarding international armed conflict, this to some degree appropriately reflects that many contemporary conflicts no longer represent classical battlefield situations. That human rights standards will have to be modified to some extent to meet demands for security is nothing unusual, and proportionality is in many ways ideally suited to accommodate shifting levels of threat and violence: Many domestic constitutional courts have in the past reduced their human rights standards in dealing with terrorism. Internal armed conflicts, therefore, present merely the next level downwards on the ladder of rights protection.

As a result, the most important objection to an interpretive approach in other systems such as the European - namely, that it does not leave sufficient room to adopt international humanitarian law standards in situations of armed conflict - is not persuasive in the African context. More openly-formulated textual provisions together with a broad understanding of proportionality, as developed by the African Commission, enable African institutions to take an international humanitarian law-friendly approach to their interpretation of African Charter rights without the risk of overstretching member states’ obligations in armed conflicts.

Of course, the debate does not end here. An interpretive approach will further melt the boundaries of human rights and humanitarian law. Human rights advocates have in the past feared that this will in the long run damage and reduce human right protection.83 Rights will, in other words, no longer be the trumps we want them to be. This squares with the frequent critique of tools such as proportionality, which can - so some critics worry - justify just about anything if the dangers on the other side are sufficiently great.84 Yet, this development is neither as problematic as it may seem at first glance, nor is it unavoidable. It is not as problematic as it may seem because there are - at least as a matter of law - reasonably clear thresholds for when an international or non-international armed conflict exists and when, therefore, humanitarian law becomes applicable.85 Second, and more importantly, proportionality does not force us to go all the way down the sliding scale; it allows us to choose a more structured approach to questions of rights limitation. The history of proportionality demonstrates that there is room for this possibility, as proportionality initially evolved from a more structured, three-tiered test in German constitutional jurisprudence that set different requirements for each particular kind or level of rights limitation.86 In those cases where an international armed conflict exists, proportionality may, therefore, be understood to generally afford the level of rights protection guaranteed by the applicable humanitarian law. In non-international armed conflicts, in turn, there is a different, if less definite, set of rules. A more context-specific approach will be necessary here.

Given this need for context-sensitivity and nuanced legal reasoning, of course, it may be of concern that the jurisprudence of the African Commission and, indeed, the African Court has frequently been of questionable quality. The Commission’s analysis has in the past often been extremely thin and superficial. Rather than engaging in a detailed legal analysis, it tends to jump from the statement of facts immediately to the legal conclusion that a specific provision in the African Charter has been violated without providing much explanation or reasoning. For the kind of context-sensitive approach that will be necessary to address particularly non-international armed conflicts adequately, a more detailed and considered legal analysis is vital. Without this, there is not only the risk of damaging the Commission’s authority by overstretching human rights obligations in situations of civil war, but also of lowering human rights protection in the long run if it is not sufficiently clear what the respective requirements and thresholds are in different circumstances.

The African Commission’s minimalist approach may partly be a reflection of French legal traditions present in much of Francophone Africa. It is, therefore, important for African lawyers to recall the key role that preparatory materials and the Advocate-General’s advisory opinion play in the French system in explaining minimalist French judicial decisions,87 but which are lacking in the African system. Moreover, there is typically less of an established legal culture in regional human rights courts88 and little supporting doctrine in whose terms observers may be able to understand the reasoning behind scarce judicial decisions. More than in the case of other courts, it is important for regional bodies such as the African Commission to make the details of their reasoning transparent to the parties as a means of strengthening their authority.

One should also not defend the often vague and unclear language of the African Commission as an adequate reaction to the kind of situations the Commission is often confronted with. Only at first glance may we think that when citizens are killed in their thousands, tortured or detained without any possibility of appeal, there is no need for a detailed legal analysis because things are clear. Given the increase in non-traditional conflicts and the blurring between classical wars and internal riots, they will not always be so. Much therefore suggests that the African Commission should take a more structured and better reasoned approach in its current decision-making practice, even in cases that do not seem to call for a more legalistic approach on their own. As a matter of legal style, the Anglo-American tradition is better suited here to reconcile the strong emotional and rhetorical language appropriate to make a moral point with detailed legal analysis.

4 Conclusion

Keeping these things in mind, there are no reasons why the African Commission and Court should not be successful in elaborating a strong interpretive approach to the relationship between human rights and international humanitarian law in situations of armed conflict. By infusing the broad provisions of the African Charter with the standards of international humanitarian law, many of the inconsistencies and problems of the European approach in treating armed conflicts like situations of normalcy and peace can be avoided, without having to dismiss cases where no other institutions may be available to provide a measure of justice to the victims.

From a strategic perspective, too, this approach seems preferable to a stronger human rights-focused model. The African Commission correctly emphasises that regional African institutions must curb excesses of state power, but they also need to make sure that they do not reach too far into what many countries and executives consider classical state prerogatives. The downfall of the Southern African Development Community (SADC) tribunal89 demonstrates the dangers associated with a lack of circumspection in African regional courts, which the African Commission and Court have so far done well to avoid. Drawing on humanitarian law may thus allow them to balance their human rights expectations adequately with states’ concern for domestic security in a way that is likely to find more acceptance than a pure human rights-based approach.

In doing so, African institutions may even be at the forefront of the contemporary debate that accords a central role to human rights as part of global constitutional law and a grundnorm for other international legal regimes.90 Unlike a direct application of international humanitarian law, the interpretive approach retains this foundational role of human rights. In doing so, it also avoids further contributing to what has been described as the ‘fragmentation’ of international law.91 The constitutional role of international human rights is not challenged by the fact that they may mean different things in different situations. Their expansion to cover ever newer fields of life and ever newer questions has made it inevitable that they be flexible and adapted to new challenges and situations. One size has never fit all, and today ‘all’ has become an even wider circle than it used to be.