The subject-matterjurisdiction and interpretive competence of the African Court on Human and Peoples' Rights in relation to international humanitarian law

Abstract

The African Court on Human and Peoples’ Rights has a uniquely broad subject-matter jurisdiction that includes any “relevant human rights instrument ratified by the States concerned” (article 3 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights). This article considers the extent to which the Court’s subject-matter jurisdiction includes international humanitarian law (IHL), and the related issue of the Court’s interpretive competence. It is argued that the Court is indeed competent to directly apply norms of IHL. However, the circumstances under which it can do so are limited to two instances: (i) where IHL norms are incorporated by reference into applicable human rights treaties; and (ii) in the likely scenario that the Court regards some IHL conventions as having a human rights character, the primary rules of the applicable IHL obligations must entail an individual right. Whether a given IHL obligation entails an individual right is to be determined on a case-by-case basis, and in any event, such instances will be rare. As a consequence of the limited circumstances under which the Court can directly apply IHL, determining the extent to which the Court can rely on the interpretation of IHL in applying human rights norms remains pertinent. In this regard it is argued that the Court can rely on IHL in the application of human rights norms on two bases. First, considering the complementary relationship the Court has with the African Commission, the Court can rely on the African Charter’s interpretation clause (articles 60 and 61). Secondly, the Court has an implied power to interpret IHL in applying human rights treaties, as this power is necessary for the Court to discharge its mandate.