During its final session of 2015 last month, the African Commission on Human and Peoples’ Rights adopted a General Comment on the right to life under the African Charter. General Comments are authoritative interpretations of legal obligations drafted by the relevant treaty bodies, and as such constitute an important part of international human rights law. They help to guide the interpretation and application of those legal standards and to ensure the coherent application to a range of practical situations. And General Comments from one body have a tendency to influence those of others.
As the UN Human Rights Committee continues preparations for its own general comment, the African Commission’s General Comment is a significant example of the potential opportunities for regional human rights mechanisms to contribute to the international system: This new document is bound to have an ongoing impact on how the right to life is interpreted not only by the Commission, but also by other international and domestic bodies.
So what is the Commission’s interpretation of the right to life? At various points, the Commission affirms the “foundational” status of the right to life, describing it as “the fulcrum of all other rights” (para. 1). It notes that the universally recognized right cannot be derogated in time of emergency, including situations of armed conflict or in response to terrorist threats.
Beyond this clear statement of the importance of the right, the General Comment provides guidance on how the right plays out in a number of specific contexts, from situations of armed conflict to the conduct of law enforcement personnel. And throughout, the General Comment is clear that the right to life should be interpreted broadly, protecting not only physical life but also dignified life.
States must prevent arbitrary deprivations of life by their own agents, and protect individuals and groups from such deprivations at the hands of others. They must also investigate any killings that take place in a manner that is prompt, impartial, thorough, and transparent, and that they hold the perpetrators accountable (para. 7). The Commission also underlines that a failure to conduct such investigations is itself a violation of the right to life (para. 15) and will contribute to a climate of impunity.
A State shall also be held responsible for killings by non-State actors if it approves, supports, or acquiesces to those acts or if it fails to exercise due diligence to prevent such killings (para. 9). Moreover, as part of this broader duty, States have a particular responsibility to protect individuals or groups who are frequently targeted or particularly at risk (para. 11). Actions taken in this regard could range from an effective police force to more preventative steps to combat discrimination or incitement on the basis of race, ethnicity, gender, or sexual orientation. It is with respect to this responsibility, for example, that States respond to attacks on people with albinism.
The General Comment highlights that the right to life continues to apply during armed conflict. In such circumstance, an “arbitrary” deprivation of life is determined with reference to international humanitarian law (IHL) (para. 13). However, the Commission also underlines that IHL on the conduct of hostilities “must only be applied during an armed conflict and where the use of force is part of the armed conflict. In all other situations of violence, including internal disturbances, tensions or riots, international human rights rules governing law enforcement operations apply” (para. 33).
The General Comment also presents some general observations on weapons used during hostilities, noting that new technologies (including armed drones) “should only be envisaged if they strengthen the protection of the right to life of those affected.” With particular reference to the potential development of autonomous weapon systems, the Commission states that “Any machine autonomy in the selection of human targets or the use of force should be subject to meaningful human control” (para. 35).
More broadly, the General Comment outlines the extraterritorial scope of application of the right to life (para. 14). States have a responsibility not only to respect the right to life of those outside their territory, but also certain obligations to protect such individuals. When read together with the Commission’s view on advanced weaponry, one wonders how this might play with audiences concerned about the use of African bases for US drone campaigns both on and off the continent.
The General Comment’s discussion of the norms surrounding the use of force by law enforcement officials does not depart from the widely agreed international language: “The intentional lethal use of force by law enforcement officials and others is prohibited unless it is strictly unavoidable in order to protect life (making it proportionate) and all other means are insufficient to achieve that objective (making it necessary).” But, on a continent where many of the domestic legal provisions governing the use of force date from colonial times, the Commission also notes that States must adopt a clear legislative framework in line with international standards. Each State must also “take all reasonable precautionary steps to protect life and prevent excessive use of force by its agents, including but not limited to the provision of appropriate equipment and training as well as, wherever possible, careful planning of individual operations” (para. 27).
The separation of law enforcement and military personnel, training, and equipment is also important for the protection of the right to life. The General Comments points out that members of the armed forces should only be used for law enforcement in exceptional circumstances and where strictly necessary (para. 29). It also suggests that that “attention should be paid to ensuring the availability and use of weapons less likely to cause death or serious injury than are firearms” for law enforcement personnel. However, the Commission also recognizes that such less-lethal weapons can themselves be dangerous, and highlights that appropriate training is essential (para. 30).
In line with the Luanda Guidelines adopted by the Commission in 2014, the General Comment underscores the heightened responsibility of the State to protect the right to life of persons in custody. The Commission provides that “where a person dies in State custody, there is a presumption of State responsibility and the burden of proof rests upon the State to prove otherwise” (para. 37). Many of the issues covered in the Luanda Guidelines were aimed at “criminal justice-related human rights concerns across Africa” including poor detention conditions, and the Commission has once again admirably attempted to address the situation in the General Comment, noting the State’s responsibility to provide or ensure, among other things, adequate food, water, ventilation, and healthcare (para. 36).
Remaining in the field of criminal justice, and as one would expect from a Commission that (like other regional human rights mechanisms) has taken a strong abolitionist stance, the new General Comment draws attention to the fact that the vast majority of African States have now abolished the death penalty in law or in practice. It goes on to argue that “international law requires those States that have not yet abolished the death penalty to take steps towards its abolition in order to secure the rights to life and to dignity, in addition to other rights such as the right to be free from torture, and cruel, inhuman or degrading treatment” (para. 22).
This notwithstanding, the document also provides a restatement of the existing safeguards with respect to the imposition of capital punishment where it has not yet been abolished, including requirements regarding the seriousness of the offense, the fairness of the trial, and the various protections for the accused. The Commission underlines the now widely accepted interpretation of “the most serious crimes” as being only those that involve intentional killing (para. 24).
Broad Conception of the Right to Life
In its previous jurisprudence, the African Commission has noted that the right to life should not be interpreted narrowly. In this General Comment, the Commission highlights how the State’s duty to protect can extend to humanitarian responses to natural disasters, famines, or outbreaks of diseases, or to more preventative steps, such as those to protect the environment (para. 41). It also highlights how issues such as preventable maternal mortality can incur State responsibility (para. 42).
Moreover, at various points throughout the text, the General Comment proceeds from the understanding that the Charter envisages not only the protection of life in a narrow sense, but of dignified life (para. 3). Noting “the role of the State in the enjoyment of a number of other rights which might, collectively, be constitutive of the condition of life, especially a dignified life,” the Commission underscores the significance of the realization of a broad range of economic, social, and cultural rights as part of the right to life (para. 43).
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This document reflects an understanding of the right to life that can resonate not only regionally but also worldwide. As we await the Human Rights Committee’s own general comment on Article 6 of the International Covenant on Civil and Political Rights, this is a timely reminder that not only does universality entail the norms of human rights applying to everyone, but also that all people and all human rights mechanisms be active participants in establishing what those norms are in the first place. The wide diffusion of this General Comment among those working for human rights in Africa and beyond would surely help to advance both the understanding and the greater realization of the right to life everywhere.
Editor’s Note: The author of this piece works with the Unlawful Killings Unit at the Centre for Human Rights in Pretoria. The Centre has a long tradition of providing technical assistance to the African Commission on Human and Peoples’ Rights and was pleased to be able to support the Commission’s Working Group on the Death Penalty and Extrajudicial, Summary or Arbitrary Killings in Africa, which was the mechanism responsible for the initial drafting of General Comment No. 3.