ADDRESSING HUMAN
RIGHTS ISSUES IN
CONFLICT SITUATIONS
ADDRESSING HUMAN
RIGHTS ISSUES IN
CONFLICT SITUATIONS
TOWARDS A MORE SYSTEMATIC
AND EFFECTIVE ROLE FOR THE
AFRICAN COMMISSION ON HUMAN
AND PEOPLES’ RIGHTS
ACHPR
31 Bijilo Annex Layout
Kombo North District
Western Region
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The Gambia
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© 2019 African Commission on Human and Peoples' Rights
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Table of Contents
Abbreviations and Acronyms
iii
Foreword
v
Executive Summary
ix
PART 1
01
Introduction
PART 2
Relationship between conflict and human rights: context, applicable law and
salient issues in conflict situations in Africa
The context covered under Resolution 332
The relationship between human and peoples’ rights and conflict
Human rights violations as the consequence of conflicts
Human rights violations as exacerbating conflict
The emergence of new forms of conflict in Africa: nature, prevalence
and dynamics
Some salient human rights issues in conflict and crisis situations
Determination of the applicable law
07
07
10
11
12
13
20
23
Addressing Human Rights Issues in Conflict Situations
\i
PART 3
The African human rights system and conflict situations
Analysis of relevant norms
African Charter
Maputo Protocol
African Charter on the Rights and Welfare of the Child
OAU Refugee Convention and the Kampala Convention on IDPs
Protocol on the Rights of Older Persons
Protocol on the Rights of Persons with Disabilities
African Youth Charter
African Charter on Democracy, Elections and Governance
Protocol establishing the Peace and Security Council
OAU Convention on the Prevention and Combating of Terrorism and
its Protocol
African Union Convention on Preventing and Combating Corruption
Mandate of the African Commission vis-à-vis Conflict and Crisis Situations
Review of Existing Tools and Mechanisms of the African Commission
Coordination and Collaboration by the Commission with other actors
on the continent
31
31
31
35
36
37
38
39
39
40
41
42
43
43
44
66
PART 4
Proposed approach to addressing human rights issues in conflict and crisis situations
and recommendations
83
Proposed approach for a comprehensive response to human rights issues
in conflict situations
83
Monitoring and response
84
Prevention through addressing the root causes of conflict
85
Mainstreaming of human rights in conflict prevention, management,
resolution and post-conflict reconstruction and development
86
Remedial Action measures within the Commission’s procedures
87
Institutional coordination and synergy including operationalisation
of Article 19 of the PSC Protocol
89
Recommendations92
Recommendations to the African Commission
92
Recommendations for the Special Mechanism/focal point to
be established
94
Recommendations to other AU institutions and organs
95
Recommendations to other stakeholders
96
ANNEXURE
Resolution 332 on Human Rights in Conflict Situations
ii/ Addressing Human Rights Issues in Conflict Situations
97
Abbreviations and Acronyms
ACHPR
African Commission on Human and Peoples’ Rights
ACDEG
African Charter on Democracy, Elections and Governance
ACLED
Armed Conflict Location & Event Data Project
AMISOM
African Union Mission in Somalia
APRM
African Peer Review Mechanism
AU
African Union
AUCISS
African Union Commission of Inquiry on South Sudan
CA
Common Article of Geneva Conventions of 1949
CAR
Central African Republic
CCTARC
Civilian Casualties Tracking, Analysis and Response Cell
CEWS
Continental Early Warning System
CRC
UN Convention on the Rights of the Child
CSPF
Continental Structural Prevention Framework
DRC
Democratic Republic of the Congo
IAC
International Armed Conflicts
IDPs
Internally displaced persons
IHL
International Humanitarian Law
IHRL
International Human Rights Law
LRA
Lord’s Resistance Army (Uganda)
Addressing Human Rights Issues in Conflict Situations
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MDC
Movement for Democratic Change (Zimbabwe)
NANHRI
Network of National Human Rights Institutions
NATO
North Atlantic Treaty Organisation
NEPAD
New Partnership for Africa
NGOs
Non-governmental Organisations
NHRIs
National Human Rights Institutions
NIAC
Non-International Armed Conflicts
OAU
Organisation of African Unity
PRC
Permanent Representatives Council of the AU
PSC
Peace and Security Council of the AU
REC
Regional economic communities
RoP
Rules of Procedure of the ACHPR
SADR
Saharawi Arab Democratic Republic
UN
United Nations
UNAMID
UN-AU Hybrid Operations in Darfur
ZANU-PF
Zimbabwe African National Union- Patriotic Front
iv/ Addressing Human Rights Issues in Conflict Situations
Foreword
Conflict and crisis situations present perhaps the most formidable challenge
to the protection and observance of human and peoples’ rights. These are
situations in which observing human rights is not often seen as an important
strategic consideration by conflict actors. The ordinary institutions for the
promotion and protection of rights can also exert weak influence on the
behavior of conflict actors. As experiences from across the various conflict
and crisis situations on the African continent and indeed elsewhere in the
world show, it is also in conflict and crisis situations that the most egregious
violations and abuses of rights are perpetrated.
For all the foregoing reasons, it is in conflict and crisis situations that there is
a greater demand and need for the effective operationalization of applicable
human and peoples’ rights regimes. Given the extraordinary challenge that
they present, it is also in conflict and crisis situations that the relevant human
rights system needs to put in place and effectively deploy appropriate
mechanisms of protection and mobilisation of collective action for ensuring
observance of rights. With the changes in the nature of conflicts and the
attendant heightened threat to human and peoples’ rights, there is a greater
need for the human rights system to pay increasing attention to and provide
effective responses to the challenges that these new dynamics present to the
protection and observance of rights.
In the context of the transition of the Organisation of African Unity (OAU) to
the African Union (AU) and importantly the increasing role that the AU,
Addressing Human Rights Issues in Conflict Situations
\v
through its Peace and Security Council (PSC), on its own or in collaboration
with sub-regional organisations, has come to assume in the promotion and
maintenance of peace and security in Africa, the importance of human and
peoples’ rights has become legally recognised both in the Constitutive Act of
the AU and the Protocol Establishing the PSC. It has thus become imperative
that adequate mechanisms, tools and approaches for ensuring the protection
and observance of rights are established as part of the exercise by the AU of
its role of promoting and maintaining peace and security on the continent.
It is clear from the foregoing that putting in place effective response
mechanisms for addressing the grave challenges that conflict and crisis
situations present to human and peoples’ rights is one of the weightiest
responsibilities of the African human rights system. This is particularly the
case for the African Commission on Human and Peoples’ Rights that enjoys
not only some attributes of judicial powers but also major powers of normmaking, advocacy, investigation and public pronouncement on the most
pressing human rights issues of the day. In conflict and crisis situations, the
exercise of these powers requires different tools, mechanisms and approaches
from the ones used in ordinary situations. As such, there is a need for the
African Commission to have a dedicated framework for conflict and crisis
situations that enables it to effectively respond to the exigencies of such
situations.
The adoption by the African Commission of Resolution 332 on human rights in
conflict situations has thus been a long time coming. As the study it requested
and the interest around it attests, it is one of the Commission’s most
consequential initiatives. As robustly and comprehensively articulated, this
study certainly presents not only the Commission’s authoritative view on
human rights in conflict situations but also how the Commission on its own or
in concert with other relevant actors engages to address the challenges of
human and peoples’ rights in conflict situations in a systematic, proactive and
institutionalised form (as opposed to the ad hoc and mostly reactive approach
dominant thus far). The Study presents by far the most comprehensive
analysis in the African human rights system of the problematic of human
rights in conflict situations and as such it represents a landmark work for the
AU human rights and peace and security system. This has been demonstrated
in the fact that it has already started to inform and shape the AU’s engagement,
including the PSC and in relation to its peace support operations work.
Against the background of five challenges that conflict and crisis situations
pose to human and peoples’ rights identified in the Study, a five-pillar
approach has been advanced as the framework for African Commission’s
engagement as far as human rights in conflict situations is concerned.
vi/ Addressing Human Rights Issues in Conflict Situations
i.
Monitoring and response;
ii.
Prevention;
iii.
Mainstreaming of human rights into conflict prevention, management,
resolution and post-conflict reconstruction and development;
iv.
Remedial Action; and
v.
Institutional coordination and synergy with the institutions identified
above including through operationalisation of Article 19 of the PSC
Protocol, for example through annual consultative meetings and
development of early warning systems.
In terms of implementation modalities, the Study rightly proposed, in the light of
the huge strategic and institutional importance of this area of the Commission’s
work, that the Commission establishes a special mechanism on human rights in
conflict situations.
With the implementation of the proposals contained in this Study, the Commission
will certainly place itself at the forefront of the answer to the pressing demand for
ensuring the protection and observance of rights in conflict situations in Africa.
It is important to point out that the elaboration and adoption of this Study followed
the well-established and rigorous practice of the Commission. Following the
preparation of the inception report and the preparation of the draft study, in my
capacity as a focal person I convened various consultative forums. In April 2018,
I convened in Addis Ababa an experts’ validation consultative workshop, during
which experts from across the AU system including the Peace and Security
Department, from the UN Office in Addis and its field offices and representatives
of national human rights institutions and civil society organisations provided
their invaluable inputs. Additionally, side events and panel discussion were held
during the ordinary sessions of the African Commission. Inputs were also sought
through a public invitation announced on the website of the African Commission
before the revised and updated version was presented for consideration and
adoption by the Commission.
As I could not have carried of this heavy responsibility by my own, I would like to
express my indebtedness to all those who provided their support for the
implementation of my assignment to develop this Study. In particular, I would like
to recognise with deep appreciation the Embassy of Switzerland for supporting
the commissioning of the conception and the drafting of the Study by relevant
experts. Special thanks to Ambassador Andrea Semadeni. My gratitude also
Addressing Human Rights Issues in Conflict Situations
\ vii
goes to the Centre for the Study of Violence and Reconciliation (CSVR) for the
technical support and the printing of this Study. I also thank my colleagues at the
African Commission for their constant support. I do hope that our collective effort
has produced an outcome that not only makes all of us proud but also elevates
the role of the Commission to a higher level.
It now gives me a particular honour to invite and call on the entire African
Commission on Human and Peoples’ Rights, sister bodies of the African human
rights system, the wider stakeholders of the human rights system, the AU peace
and security actors and all those interested in the noble fight for ensuring the
protection and observance of human rights in conflict situations both to read this
study and make full use of its analysis and findings for realising the motto of the
African Commission: human rights, our collective responsibility.
Solomon Ayele Dersso, PhD
Commissioner
ACHPR Focal Person on Human Rights in Conflict Situations
viii/ Addressing Human Rights Issues in Conflict Situations
Executive Summary
Background
Ours is indeed an era witnessing a qualitative shift in the nature and scale of
human rights violations resulting from changes in the nature of conflicts. These
changes are characterised by a significant decline in inter-State conflict, while
intra-state conflicts including civil wars, violent political confrontations such as
protest and riot events arising from demands for political change and armed
violence involving irregular and loosely organised groups, such as clan militias,
guerrilla forces, criminal networks, religious or ethnic militias and terrorist
groups often operating in territories with weak state presence have become
prominent. Some of these new forms of conflicts such as terrorism may or may
not meet the threshold of armed conflicts.
In this context, the need for strengthening the role of the African Union’s human
rights system in addressing violations arising in such conflict and crisis
situations has become very pressing. This challenge facing human rights in this
context further requires that the African human rights system develops the
flexibility and means to effectively meet the demands of these situations.
Cognisant of the challenges arising from human rights issues in conflict and
crisis situations, and acting on its mandate under Article 45 of the African
Charter, the African Commission during its 19th Extraordinary Session adopted
ACHPR/Res. 332 (EXT.OS/XIX) 2016 (Resolution 332). In this Resolution, the
Commission decided to conduct a human rights in conflict situations in Africa
Addressing Human Rights Issues in Conflict Situations
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and collaborate with the AU PSC and other relevant stakeholders working in the
issues of peace and security, towards enhancing the role of the African
Commission in addressing human rights issues in conflict situations.
For purposes of this Study, the term “conflict” thus covers violent and sustained
political and/or social disputes. “Conflict situations” covers armed conflicts,
both international and non-international, and also other instances of crisis
situations manifesting violent actions of various gravity short of armed conflict,
such as conditions of major instability or violence lacking the use of organised
armed force.
Human rights and conflict
In the first place a state of persistent human rights violations may cause crisis
situations or conflict. Even if human rights violations are not the sole cause of
conflict, structural conditions such as horizontal inequalities along ethnocultural lines, corrupt and abusive systems of governance, injustice and
insecurity, have the effect of generating violent conflict. Violation of human
rights may also be the consequence of violent conflict. Conflicts ultimately
result in the killing and displacement of civilians and gross and systematic
human rights violations, including repression of freedom of expression and
media, excessive use of force by armed forces, intimidation of political
opponents, rape and other sexual violations, summary executions,
disappearances and torture and in some instances mass atrocities. Human
rights violations have also been perpetrated through denial of humanitarian
relief and destruction of infrastructure for socio-economic activities and social
services and source of peoples' livelihoods. Thirdly, sustained human rights
violations in a protracted conflict setting can also serve as a driving factor that
deepens divisions and animosity among parties to a conflict.
Vulnerable groups often suffer the most egregious human rights abuses in
conflict. Sexual violence is one of the major forms of human rights violations that
has become common in conflict and crisis situations on the continent, and mostly
affects women. Violence against children is another common form of human
rights violations in conflict settings and crisis situations. Contemporary conflict
and crisis situations have forced millions of people – men, women and children
– to flee in order to escape suffering, human rights violations and starvation.
While States are often the perpetrators of human rights violations, some nonState actors are also perpetrators of human rights abuses in conflict situations.
These include non-State armed groups (rebel and opposition groups, and
terrorist and other criminal groups), and economic non-State actors
(multinational corporations and private military and security companies).
x/ Addressing Human Rights Issues in Conflict Situations
Determination of applicable law
A question which is central to the challenge of addressing human rights issues
in conflict situations is whether and how international humanitarian law (IHL)
applies in relation to international human rights law (IHRL), particularly the
African Charter on Human and Peoples’ Rights (African Charter), in conflict
situations. The African human rights system took the position that the rights
and freedoms guaranteed in the African Charter apply both in peace and war
times. In case of armed conflicts, this entails that there would be co-application
of the two regimes of law. However, what the co-applicability of the two regimes
of law entails is not that the African Commission directly applies IHL. In conflict
situations in which IHL applies, the African Commission resorts to the standards
of the applicable IHL rules on the basis of Articles 60 and 61 of the African
Charter. Instead of making a finding on the existence of violation of IHL, the
Commission, as it did in Thomas Kwoyelo v. Uganda, uses the IHL standards
(rather than the normal human rights standards) for assessing the existence of
violations of Charter rights.
The existing framework for addressing human rights violations
in the context of conflict and crisis situations
The legal framework which forms the basis of for applying human and peoples’
rights to conflict or crisis situations encompasses a number of important human
rights as well as other relevant AU normative instruments. This Study
accordingly offers an analysis of the various applicable legislative instruments
including the African Charter, the Maputo Protocol, the African Children’s
Charter, and the Kampala Convention, the Constitutive Act of the AU, among
others in order to provide an overview of the applicable norms in place that can
be used to address human rights violations in conflict situations.
Additionally, the African Commission’s mandate allows it to address challenges
to human and peoples’ rights within a wide context, including in conflict and
crisis situations. The Commission is vested with both protective and promotional
mandates. While the African Charter has given the Commission expansive
latitude in terms of choosing the mechanisms for implementing its mandate,
including the use of any investigative method of its choice, there are established
mechanisms and procedures which can be used more systematically to address
human rights issues in conflict or crisis situations.
As far as its protective mandate is concerned, apart from the Communications
procedure core to the protection mandate and the related provisional measures,
the available procedures and mechanisms include fact-finding/investigation
Addressing Human Rights Issues in Conflict Situations
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missions, resolutions and urgent letters of appeal and referral of cases to
Political Organs of the AU under the Article 58 of the Charter. Its promotional
mandate is implemented through awareness creation and public mobilisation
activities including promotional missions, seminars, its norm elaboration work,
and examination of state reports under Article 62 of the African Charter and
Article 26 of the Maputo Protocol. Related to the promotion mandate of the
Commission is also its interpretative mandate involving the delivery of advisory
opinion and other interpretative works on the interpretation of the provisions of
the African Charter. The work of the Commission under specific thematic topics
is carried out by Special Mechanisms and each country also has a Country
Rapporteur responsible for the promotion and protection of human rights in
that country.
Coordination and collaboration by the Commission with
other actors
The promotion and protection mandate of the Commission also involves
cooperation with other African and international institutions concerned with
the promotion and protection of human and peoples’ rights. The objective of
these partnerships is to create synergy for the better promotion and protection
of human and peoples’ rights on the continent, which also includes protection
of rights in times of conflict and crisis situations.
Article 45(1)(c) of the Charter authorises the Commission to cooperate with
African and international institutions concerned with the promotion and
protection of human rights. In line with this provision, the African Commission
has forged relations with different AU bodies for the better promotion and
protection of human and peoples’ rights, including in time of conflict or crisis.
Some of these relations have been created explicitly under the Charter and
others through Protocols. These include relationships with the AU policy
organs, the Peace and Security Council of the AU (PSC), the African Court on
Human and Peoples’ Rights (ACHPR), the Committee on the Rights and Welfare
of the Child as well as the African Peer Review Mechanism (APRM).
Apart from the relationships between the African Commission and other African
regional institutions and organs of the AU horizontally, the Commission also
has interaction and collaboration on the vertical axis, at the sub-regional level
with regional economic communities and at the global level with the United
Nations. In addition, the Commission also has crucial relationships with bodies
functioning at the national level, such as national human rights institutions
(NHRIs), civil society organisations and other grassroots actors.
xii/ Addressing Human Rights Issues in Conflict Situations
While the measures taken by the African Commission thus far using its various
tools and mechanisms have contributed to drawing attention to human rights
issues in conflicts in Africa, the Commission faces challenges in the discharge
of its mandate in conflict and crisis situations, including most notably in
initiating responses in a systematic and timely fashion.
Based on the foregoing, five challenges can be identified with respect to the
role of the Commission in addressing human rights issues in conflict situations:
I.
The first of these is the protection challenge. This raises the challenge of
how to arrest incidents of violations and ensure that conflict parties avoid
and take action against the perpetration of violence. Related to this is the
challenge of monitoring, investigation and reporting violations.
II.
The second challenge is the promoting challenge. This challenge entails
the provision of customised inputs by way of general and thematic analysis
for the full consideration and integration of human rights into peace
processes that are deployed for preventing or resolving conflicts.
III.
The third challenge is that of remedying (or coming to terms with) the
violations that the conflict occasioned.
IV.
Fourth, there is the challenge of prevention. This is a challenge about
ensuring that the root causes are addressed, the triggering factors are
removed and the necessary democratic and socio-economic reforms are
instituted.
V.
Fifth and finally, there is the challenge of coordination and synergy with
other relevant AU mechanisms.
Proposed approach for a comprehensive response to human
rights issues in conflict situations
Based on the identification of these five challenges, the African Commission
should consider adopting a five-pillar approach based on the following thematic
priorities:
i.
Monitoring and response;
ii.
Prevention;
Addressing Human Rights Issues in Conflict Situations
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iii.
Mainstreaming of human rights into conflict prevention, management,
resolution and post-conflict reconstruction and development;
iv.
Remedial action; and
v.
Institutional coordination and synergy with the institutions identified
above including through operationalisation of Article 19 of the PSC
Protocol, for example through annual consultative meetings and
development of early warning systems.
Recommendations
The most pertinent of the recommendations identified in the Study is the
establishment by the African Commission of a new special mechanism devoted
to monitoring, reporting and responding to human rights violations that occur
in conflict and crises situations, and for coordinating the strategy and efforts
within the Commission and with other relevant organs of the AU. Until such
time as the proposal for the establishment of a new special mechanism
supported by dedicated experts can be implemented, the Commission should
designate a Commissioner focal person for conflict and crisis situations.
Following the establishment of the special mechanism, it would have a broad
mandate to work in collaboration with the PSC, to monitor the human rights
situation of countries where AU peacekeeping missions have been deployed,
and to develop guidelines and a checklist which the Commission or human
rights observers could use to identify indicators and determine whether there is
a risk of human rights violations deteriorating into conflict, as part of the early
warning system.
The other stakeholders identified in this Study, including the PSC, other AU
institutions and organs, the UN, regional economic communities, nongovernmental organisations and national human rights institutions are all
encouraged to collaborate, share information and support the implementation
of recommendations of the Commission in order for its work to have a
meaningful impact.
xiv/ Addressing Human Rights Issues in Conflict Situations
PART 1
Introduction
1.
1
2
3
4
5
Perhaps the most seminal reference for understanding the disturbing
character of violations that are witnessed in Africa particularly in
conflict situations is the main Report of the African Union (AU)
Commission of Inquiry on South Sudan (AUCISS)1 as well as the
Separate Report of Professor Mohmood Mamdani. 2 As both reports
show, the level of brutality that the violations revealed during the
course of the war that broke out in December 2013 in South Sudan
has been unprecedented. The stories and reports of the human toll of
the violence and brutality have been heart-wrenching states the
AUCISS main report. 3 It went on to note reports of people being burnt
in places of worship and hospitals, mass burials, women of all ages
raped; both elderly and young, women described how they were
brutally gang raped, and left unconscious and bleeding, people were
not simply shot, they were subjected, for instance, to beatings before
being compelled to jump into a lit fire. The Commission heard of
some captured people being forced to eat human flesh or forced to
drink human blood.4 In the words of Mamdani’s separate opinion,
[g]ratuitous degradation was a marked feature in many of the
incidents of brutality narrated to us.5
AU, Final Report of the African Union Commission of Inquiry on South Sudan (2015). [AUCISS Final Report]
AU, A Separate Opinion of Mahmood Mamdani, a member of the AU Commission of Inquiry on South Sudan.
[AUCISS Separate Opinion]
AUCISS Final Report, 380.
Ibid.
AUCISS Separate Opinion, para. 9.
Addressing Human Rights Issues in Conflict Situations
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6
7
8
2.
Ours is indeed an era witnessing a qualitative shift in the nature and
scale of human rights violations resulting from changes in the nature
of conflicts. With even the bare minimum of humane conduct totally
abandoned, violence is used with unrestrained zeal and
unconscionable brutality, leading to what one leading global policy
research organisation called misery as strategy.6 This is particularly
true in conflict and crisis situations. In noting the brutality that is
often witnessed in conflict situations, the African Commission in its
fact-finding mission report on Burundi noted that, [i]n some of the
killings, body parts of victims were butchered, revealing the level of
cruelty on the part of perpetrators and showed complete disregard to
the sanctity of human life.7 Indeed, there is no other context than
situations of major political crises and armed conflicts that exhibits
the worst and most heinous manifestations of violations of human
rights and international humanitarian law.
3.
Ours is also an era when the institutional foundation on which the
human rights edifice has been built, notably the nation state and the
multilateral system, faces unprecedented assault from a web of
both local and global actors. While the occurrence of violations of
human rights and humanitarian law in situations of conflict and
crisis is not new, the changes in the context and nature of conflicts
(as aptly captured in the World Bank’s 2011 World Development
Report) 8 have made the need for a close scrutiny of the role of the
African Union’s human rights system in addressing such violations,
including in close coordination with other relevant bodies such as
the Peace and Security Council (PSC) of the AU, very pressing and
more urgent. The changes in the character of the violations and the
contemporary pressure facing national and multilateral frameworks
reveal that there is a higher demand and urgency for an effective
regional system of response to human rights issues in conflict and
crisis situations than in normal times. This requires that the African
human rights system has the flexibility and is equipped with the
requisite means for effectively meeting the demand and urgency of
these situations.
International Crisis Group, Misery as strategy: The human cost of conflict, 31 May 2018 available on
https: //www.crisisgroup.org/global/misery-strategy-human-cost-conflict.
Report of the Delegation of the African Commission on Human and Peoples’ Rights on its Factfinding
Mission to Burundi, 7–13 December 2015, p32.
Unlike the 20th century paradigm of conflict (involving clearly defined conflict actors, sovereign states or
clearly organized armed rebel groups) on which the global system is largely built, the forms of conflict and
violence in the 21st century ‘do not fit neatly either into “war” or “peace”, or into “criminal violence” or
“political violence”.’ World Bank (2011), World Development Report 2011: Conflict, security and
development, 2.
02/ Addressing Human Rights Issues in Conflict Situations
4.
There are a number of other factors that reinforce the need for such
review of the role of the African human rights system in the present
era vis-à-vis conflict situations. First, not only that the AU has now
become a dominant player in the formulation and deployment of
policy responses to crisis and conflict situations, but it is also at a
stage of exploring ways and means of addressing human rights
issues that emerge in situations where it operates as mediator or
peacekeeper. It is to be recalled that it was the AU PSC that established
the commission of inquiry that investigated the human rights and
international humanitarian law violations in South Sudan referred to
above. The African Commission also undertook the investigation
mission to Burundi in 2015 on the initiative of the PSC.
5.
Second, there are efforts to address conflicts in a more systematic and
comprehensive way. In this regard, a number of initiatives are worth
mentioning. First, on the part of regional organisations such as the AU
Peace and Security Council, there is recognition of the need to have
increasing focus on root causes and structural prevention of conflict in
Africa, and the need for coordination among relevant AU institutions.
For example, in a communiqué it adopted in October 2014, the PSC not
only recognised marginalisation and abuse of human rights as potent
triggers of conflict but it also underscored the need for greater
involvement of several institutions including the African Commission
on Human and People’s Rights (African Commission) in ‘the overall
efforts to promote good governance and prevent conflicts’.
6.
Second, the AU has set an ambitious target for mobilising the continent
towards ‘silencing the guns’ by 2020. This forms part of one of the
goals of Agenda 2063, namely ‘a peaceful and secure Africa’, which is
premised on the recognition that social inclusion, respect for human
rights, justice, rule of law, good governance and democracy are ‘the
necessary preconditions for a peaceful and conflict-free continent’.
7.
Finally, there is a need not only for optimal utilisation of the African
Charter on Human and Peoples’ Rights (the African Charter), the
founding document of the African human rights system, as well as
associated instruments for addressing the human rights issues in
conflict and crisis situations, but also for equipping the African
Commission, as the principal human rights body of the AU, with the
requisite tools to enable it to effectively address these issues in a
systematic way, including through coordinated action by drawing on
the leverage of other AU mechanisms, notably those forming part of
the African peace and security architecture.
Addressing Human Rights Issues in Conflict Situations
PART 1
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9
8.
The African Commission on Human and Peoples’ Rights (the African
Commission) has not been inactive as far as human rights issues in
conflict and crisis situations are concerned. Indeed, the record of the
work of the Commission shows its various levels of engagement in this
area through its communications procedure, the resolutions it adopted
over the years, the fact-finding missions it has undertaken and the
letters of appeal that Members of the Commission issue.9 However, the
nature of human rights violations in conflict or crisis situations
demands much more than the ad hoc and largely reactive approach
that has thus far characterised the Commission’s engagement.
9.
The major developments highlighted above not only set the context
for looking into human rights in conflict situations but also give rise
to major policy and operational issues. One such policy issue is the
nature and scope of the normative frameworks of the AU system and
their implications for initiating effective responses to human rights
and IHL issues in crisis and conflict situations. The other is the
availability of the decision-making authority and structures and the
requisite mechanisms/tools for tracking, investigating and responding
to human rights issues in conflict situations. Related to this is the
issue of whether the human rights and the peace and security actors
have developed mechanisms for a systematic and institutionalised
consideration of human rights issues in all their initiatives to address
all crisis or conflict situations. There is also the question of what the
practice of the two systems shows in this regard and the gap between
what the legal instruments envisage and the actual operation of the
two institutional frameworks. Equally important is the issue of the
availability of mechanisms for structured coordination and synergy
between the AU institutions on peace and security and those tasked
with the promotion and protection of human rights, and the extent to
which the two systems have in practice coordinated their actions.
10.
Cognisant of the challenges arising from human rights issues in
conflict and crisis situations, and acting on its mandate under
Article 45 of the African Charter, the African Commission during its
19th Extraordinary Session held in Banjul, the Gambia from
16–25 February 2016, adopted ACHPR/Res. 332 (EXT.OS/XIX) 2016
(Resolution 332 attached in the Annexure). In this resolution
addressing the theme of human rights in conflict situations, the
African Commission decided, among others, to:
For a recent review on this see Amnesty International, Counting the gains, filling the gaps: Strengthening
African Union’s Response to Human Rights Violations in Conflict Situations (2017) 23-31.
04/ Addressing Human Rights Issues in Conflict Situations
11.
i.
Conduct a human rights in conflict situations in Africa, with a
view to developing a comprehensive study framework on the
same;
ii.
Collaborate with the AU PSC and other relevant stakeholders
working in the issues of peace and security, towards enhancing
the role of the African Commission, as well as its coordination
with other continental processes, in addressing human rights
issues in conflict situations.
This report is prepared in fulfillment of the responsibility that
Resolution 332 entrusted to Commissioner Solomon Ayele Dersso for
implementing the objectives of the resolution. It presents the analysis
and recommendations of the Study done in pursuit of the objectives
of this resolution. As such, apart from taking stock of the work of the
Commission in this area, the report aims at clarifying ways of meeting
the challenges that conflict situations present to the protection of
human rights and international humanitarian law and fill in the gaps
in the existing approaches.
Addressing Human Rights Issues in Conflict Situations
PART 1
\ 05
PART 2
Relationship between conflict
and human rights: the context,
applicable law and salient issues
in conflict situations in Africa
The context covered under Resolution 332
10
12.
The starting point in clarifying the context covered in Resolution
332 is the term conflict. While the term signifies disagreement
between usually two or more parties over a particular or range of
subjects, for purposes of this Study it covers sustained armed or
political and/or social disputes or crises involving violence. The
types of conflicts (conflict situations in the language of resolution
332) that are of interest to this Study are those classified based on
the parties to the conflict and the existence and degree of violence
involved.10
13.
The human rights issues that are covered under Resolution 332 are
thus those arising in conflict situations. The phrase conflict
situations in this context covers not only armed conflicts, both
international and non-international, to which International
Humanitarian Law (IHL) applies, but also other instances of crisis
situations manifesting violent actions of various gravity short of
armed conflict. Apart from those cases of organised violence
involving organised armed actors between two or more parties,
While this is the approach followed in classifying conflict in the context of human rights, the classification
of conflict under IHL follows a different approach, including that the motivation of organised groups
involved in armed conflict is not a criterion for determining the existence of an armed conflict for purposes
of IHL.
Addressing Human Rights Issues in Conflict Situations
\ 07
either State or non-State armed actors of various forms, conflict
situations thus additionally cover conditions of major instability or
violence lacking the use of organised armed force.
11
12
14.
Such conceptualisation of conflict situations recognises the changes
characterising
various
contemporary conflicts
manifesting
unconventional organisation and use of armed violence (but not
meeting the threshold of armed conflicts) taking the form of
“countless little wars with no front lines, no battlefields, no clear
conflict zones, no distinction between combatants and civilians and
no ideology,”11 whether such involved conventional or traditional
weapons. The inclusion (in Resolution 332’s language of conflict
situations) of crisis situations other than armed conflicts also
recognises internal crises, which, while lacking the use of organised
armed violence, manifest upheavals or disturbances involving nonarmed violent actions. These include riots, uprisings, violently
contested elections, unconstitutional changes of government ,and
other forms of violent contestations over transitions or constitutional
term limits, the systematic and violent crackdown against political
opposition, civil society organisations and the media in situations of
political tension.
15.
Accordingly, the defining characteristic of conflict situations as used
in Resolution 332 should not only be situations involving the use of
armed force by non-state actors of various degrees of organisation,
but should equally cover situations of political tension manifesting
non-armed violent actions.
16.
This interpretation is in line with the spirit of Resolution 332 and the
AU’s legal and normative framework. In one of its operative
paragraphs, Resolution 332 refers to “its previous Resolutions
pertaining to human rights in conflict situations” and mentions four
examples.12 Reading of these four resolutions reveals that they are
not only concerned with human rights violations in situations of
conventional armed conflicts, but also with other cases of crisis
situations, varying from the unconstitutional change of governments
in the Republics of Guinea and Guinea-Bissau to the post-election
crisis in Kenya, and the clampdown on political dissent, journalists
and the media in Eritrea to the barbaric terrorist attacks against
Jeffrey Gettlemant, ‘Africa´s Dirty Wars’ The New York Review of Books (8 March 2012) accessed
11 February 2018.
The four resolutions referred to in Resolution 332 are: ACHPR/Res.117 (XLII) 07 Resolution on Strengthening
the Responsibility to Protect in Africa; ACHPR/Res.157 (XLVI) 09 and ACHPR/Res.207 (L) 11 Resolution on the
General Human Rights Situation in Africa; and ACHPR/Res.276 (LV) 14 Resolution on Terrorist Acts in Africa.
08/ Addressing Human Rights Issues in Conflict Situations
civilians by Al-Shabab, Al-Qaeda and Boko Haram in the Eastern,
Northern and Western parts of the continent respectively.
17.
This approach to the term conflict situations in Resolution 332 is also
consistent with Article 2 of the Protocol Relating to the Establishment
of the PSC, which establishes the PSC as a standing decision-making
organ to facilitate timely and efficient response to conflict and crisis
situations in Africa. According to Article 4 of the same Protocol, one
of the guiding principles of the PSC is to contain crisis situations so as
to prevent them from developing into full-blown conflicts.
18.
The inclusion of conflict prevention, management and resolution in
Resolution 332 further corroborates such inclusive reading of crisis
situations. As the reference to conflict prevention measures
indicates, crisis situations in Africa and the relevance of the use of
the applicable human rights regime are not limited to conflicts.
Rather, mainstreaming of human rights is increasingly becoming
relevant to various forms of management or prevention of crises
including, but not limited to, preventive diplomacy and deployment,
and increasingly in measures for the prevention and countering of
violent extremism.
19.
Finally, the frequency of violent riots and uprisings, the prevalence
of the use of lethal force against civilians, and the pervasiveness of
the declaration of state of emergency on the continent has made
violations of human rights in crisis situations as comparably grave
and alarming as those of armed conflict situations. Furthermore, in
addition to the increasing similarity of the human rights violations
in the two situations, the not uncommon quick escalation of crisis
situations to full-blown conflicts in many instances blurs the
distinction between conflict and crisis situations further justifying
the treatment of the two situations together, without in any way
disregarding the clear separation between the two under IHL.
Addressing Human Rights Issues in Conflict Situations
PART 2
\ 09
The relationship between human and peoples’ rights and conflict
13
14
15
16
20.
Conventional literature articulates human rights violations as multidimensional and multi-causal in relation to conflict.13 Human rights
may be considered as the causes, symptoms and consequences – or
even the means – to transform or perpetuate violent conflict. Chandra
Lekha Sriram, Olga Martin-Ortega and Johanna Herman argue that
the complexity denotes the diversity of the ‘interplay between human
rights violations and conflict and the role of human rights violations
as causes, consequences, or transformers of ongoing conflict
dynamics.’14 In these contexts human rights violations and human
rights protection are closely linked to the patterns of contemporary
conflict in a number of ways. This section provides an overview of the
intersectionality and cross-cutting nature of human rights issues in
conflict contexts.
21.
Some argue that when human rights violations take the form of
insecurity or violence (facing individuals and social groups) arising
from the failure to meet basic human needs, they are causes and
symptoms of violent conflict.15 The complementary approach, in
addition to this basic needs theory, emphasises inequality and
exclusion factors. The groundbreaking works of Ted Robert Gurr,
Francis Stewart and Lars-Erik Cederman, Kristian Skrede Gleditsch
and Halvard Buhaug established how horizontal political and socioeconomic inequalities coinciding with ethno-cultural divisions
accompanied by grievances lead to violent conflicts.16 In contemporary
conflict contexts, issues of inequality and exclusion are multi-faceted
structural conditions generating violence among and within States,
between communities along ethnic, religious or linguistic divides, as
well as race and gender divides. In addition, Thoms and Ron argue
that violations of civil and political rights are more obviously linked to
conflict […]. When populations are unsettled by long-standing
inequalities in access to basic needs and political participation,
Frerks, G. “Human rights violations and contemporary violent conflict; an inquiry into causes and
remedies.” In Human rights and conflict; Essays in honour of Bas de Gaay Fortman, pp. 67-85. Intersentia,
2012. 67, 68.
Sriram, Chandra Lekha, Olga Martin-Ortega and Johanna Herman. War, conflict and human rights: theory
and practice. Routledge, 2017. 3.
Mertus, Julie, and Jeffrey W. Helsing, (eds.) Human rights and conflict: exploring the links between rights,
law, and peacebuilding. US Institute of Peace Press, 2006. 3.
Gurr, Minorities at risk: A global view of ethnopolitical conflicts (1993); Stewart (ed.) Horizontal inequalities
and conflict: Understanding group violence in multi-ethnic societies (2008) and Cederman et al. Inequality,
grievances and civil war (2013).
10/ Addressing Human Rights Issues in Conflict Situations
government repression may trigger violent conflict.17 Other studies
maintain that exclusion of certain groups from social, economic or
political entitlements and the existence of systematic discrimination
have been established as key factors generating violent conflict.18
Experience on the continent also shows that while violations of socioeconomic rights and inequality often constitute root causes of
conflicts, serious incidents of violations of the rights to security,
liberty and life are often likely to trigger conflicts.19
22.
Even if human rights violations are not the only cause of conflict, the
human rights nexus with conflict accentuates structural conditions
such as inequality, corrupt and abusive systems of governance,
injustice and insecurity, generating violent conflict. For example, as
the north African uprisings attested, such violations as torture,
inhumane treatment, arbitrary detention as well as violations of
freedom of thought and other political freedoms, create the conditions
for or accentuate systematic marginalisation and structural violence
against sections of society (such as the youth in the countries where
uprisings took place in 2011) that would, in turn, create grievance,
dissatisfaction and frustration, resulting in the conditions that
incentivise actors to resort to violence and armed conflict.
Human rights violations as the consequence of conflicts
23.
17
18
19
20
Violation of human rights may also be the consequence of violent
conflict. Conflicts that have causes rooted in multi-faceted factors
ultimately result in killing and displacement of civilians and gross and
systematic human rights violations. 20 Contemporary conflicts are
regarded as the major cause of civilian death and suffering, as they
employ deliberate targeting of civilians as a mode of warfare. Some
common human rights violations include torture and disappearances,
destruction of infrastructure for socio-economic activities and social
services as well as sources of livelihoods of affected populations in
general, but there may also be war crimes, crimes against humanity,
Thoms, Oskar NT, and James Ron. “Do human rights violations cause internal conflict?.” Human Rights
Quarterly (2007), 692, at 674, 701.
Global and Social Development Research Center (GSDRC) Research report on Rights, Conflict and Fragile
States. Available on <http://www.gsdrc.org/go/topic-guides/human-rights/rights-conflict-and-fragilestates#frag> accessed 17 February 2018. And also see Sriram, Chandra Lekha, Olga Martin-Ortega and
Johanna Herman. War, conflict and human rights: theory and practice. Routledge, 2017. 5.
S. A. Dersso (2011), “The Role and Place of Human Rights in the Mandate and Works of the Peace and
Security Council of the AU: An Appraisal’, LVIII Netherlands International Law Review 77-101, 78-79.
Sriram, Chandra Lekha, Olga Martin-Ortega and Johanna Herman. War, conflict and human rights: theory
and practice. Routledge, 2017. 5.
Addressing Human Rights Issues in Conflict Situations
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\ 11
and even genocide. 21 Historical examples include the 1994 genocide
against the Tutsi in Rwanda and the protracted conflicts in Angola
and Sudan that demonstrate massive human rights violations. The
rebels of Foday Sankoh’s Revolutionary United Front in Sierra Leone
used human rights violations as a strategy of war to intimidate
opponents and terrorise civilians. These violations included
mutilation and amputation of people’s hands and other body parts,
rape and displacement, as well as targeted ethnic cleansing.
24.
Human rights violations have also been perpetuated through denial
of humanitarian relief and destruction of civilians’ livelihoods. For
instance, the work of humanitarian organisations in South Sudan
has been obstructed by government forces despite the looming
humanitarian crisis that has already put 7.8 million people in dire
need of assistance. 22 Direct violence as a result of conflict situations
often manifests in the form of violations such as repression of
freedom of expression and media, mass atrocities, excessive use of
force, intimidation of political opponents, rape and other sexual
violations mainly targeted at women, summary executions,
disappearances and torture. Other violations directed at children
include child marriage and recruitment of child soldiers. These
often go hand in hand with the destruction of infrastructure such as
schools and health clinics, that in turn affect social and economic
rights, as well as massive displacement of civilian populations and
destruction of their livelihoods, which particularly impacts on
children, women, the elderly and persons with disabilities. In the
South Sudan civil war, 85% of refugees and displaced people are
women and children. 23
Human rights violations exacerbating conflict
25.
21
22
23
Sustained human rights violations in a protracted conflict setting can
also serve as driving factors that deepen divisions and animosity
among parties in conflict. Human rights violations can continue to
reinforce grievances and resentment among opposing parties,
creating fertile ground for elite manipulation, and armed groups can
Ibid 5.
Armed Conflict Location & Event Data Project (ACLED) report on South Sudan – May 2017 and April 2017
Update available on: https: //www.acleddata.com/2017/05/16/south-sudan-april-2017-update/. Accessed
on 2/17/2018.
UN High Commissioner for Refugees “South Sudan Situation – Responding to the needs of displaced
South Sudanese and refugees, Supplementary Appeal January – December 2018”.
12/ Addressing Human Rights Issues in Conflict Situations
also mobilise to create “us vs. them” divides. 24 For instance, the
conflict in the Sudan, that resulted in the deaths of over two million
people and the internal displacement of four million persons out of a
total national population of 38 million, fueled resentment and
protracted the conflict which only ended with the secession of South
Sudan in 2011. In addition, the abuse of natural resources by one or all
sides to the conflict is also both a human rights violation and a factor
which leads to the protraction of conflict, as natural resources are
often used to fund and sustain conflict.
The emergence of new forms of conflict in Africa: nature,
prevalence and dynamics
24
26.
Despite similarities, the nature and manifestation of human rights
issues are not the same for all conflict and crisis situations. The
human rights issues that arise in conflict and crisis situations depend
on the nature and form of the conflict/crisis situation. Human rights
issues that arise in a civil war, in resource-related disputes, in violent
confrontation between protestors and security forces, in situations of
electoral dispute and other constitutional crises, and in the context
of terrorism-related conflicts and/or the so-called war against terror
are not the same.
27.
The nature, dynamics and prevalence of conflict and violence on the
continent have evolved with new driving factors and involving farreaching consequences. As the economic, political, cultural and
demographic landscape has changed, so too has Africa’s security
landscape, with some positive developments but also significant
regression. Observers of the conflict landscape in Africa have
witnessed a significant decline in inter-State conflict, while intra-State
conflicts such as civil wars and other forms of instability showed a
marked rise. Contemporary conflicts in Africa have involved either
factional warfare, ethnic-based or regional conflicts involving State
actors. The factional type of conflicts are characterised by its fluid
nature, often aiming to use or mobilise the civilian population and
controlling commercial, mineral and natural resources to sustain the
conflict. Examples of such conflicts include those seen in Somalia and
Cote d’Ivoire.
Sriram, Chandra Lekha, Olga Martin-Ortega and Johanna Herman. War, conflict and human rights: theory
and practice. Routledge, 2017.
Addressing Human Rights Issues in Conflict Situations
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\ 13
25
26
28.
Other aspects of contemporary conflict are ethnic-territorial based,
mobilising ethnic or regional identities, some of which have resulted
in huge death tolls, massive displacement, fear and insecurity. Such
occurrences have taken place in Burundi, the DRC in the Kivu region,
and most notably in Nigeria, which in recent years have experienced
outbreaks of ethnic and religious violence. The Nigerian conflict has
been characterised by an intensification of conflict between herders
and farmers, as a result of dwindling resources and the impacts of
climate change. A similar upsurge in herder/farmer conflict can be
seen across west and central Africa as resources become scarcer
and people migrate into territories previously occupied by
other groups.
29.
The other major type of conflict on the continent amounts to what
some observers have termed the “new warfare”, also called
transnational warfare, encompassing the regionalised nature of
conflicts involving conventional State forces with military operations
supporting factional armed groups as proxies. This type of conflict
has been witnessed in the past in the wars in the DRC and in Sierra
Leone. In most recent conflicts, it has been observed in the conflict in
South Sudan, which involved strong regional dimensions. 25 As a
result, civilians have suffered displacement and death, epidemic
diseases and multi-faceted human rights violations.
30.
Across the continent, these conflict situations in their varied forms
have resulted in massive internal displacement of civilians, and in
2016 accounted for 12.6 million African civilian casualties, 26 as well
as other forms of extreme violence deliberately targeting civilians.
These human rights violations include increasing use of violence in
the form of mutilation, torture of women and children, violent rituals
and the forcible involvement of children, spouses and other relatives
in killing and rape. These forms of violence are used as a means of
waging war primarily by militia groups and certain State proxies.
31.
The other type of conflict or crisis situation is that related to election
disputes. Clear instances of this sort of conflict situation have
followed contested elections and political tension in Kenya in 2007, in
Department for International Development (DFID), The causes of conflict in Africa – consultation
document – March 200. Available on: http://webarchive.nationalarchives.gov.uk/+/http:/www.dfid.gov.uk/
pubs/files/conflict-africa.pdf. Accessed on 2 February 2018.
Sorcha O’Callaghan and Chloe Sydney: Africa Report On Internal Displacement December 2017. Internal
Displacement Monitoring Center (IDMC) and Norwegian Refugee Council (NRC), Available on: http://
www.internal-displacement.org/assets/publications/2017/20171206-Africa-report-2017.pdf. Accessed on
2 February 2017.
14/ Addressing Human Rights Issues in Conflict Situations
2008 in Zimbabwe, in 2011 in Cote d’Ivoire and after the 2016 elections
in Gabon, to name a few. The violations that often accompany these
conflict situations include violent crackdown against opposition
politicians, civil society actors, journalists, the media and supporters
of opposition parties. Where the situation escalates, as it did in Kenya
in 2007/2008 (without reaching the threshold of armed conflict) and in
Cote d’Ivoire in 2011 (involving armed conflict), the confrontation
between the incumbent and the opposition descends into armed
violence leading to the killing, maiming and displacement on a large
scale of the civilian population.
32.
Distinct but related to the above are crisis situations (short of the
armed conflict threshold) related to contested political transitions,
which at times centre around disputes over constitutional term limits,
unconstitutional changes of government or popular demands for
democratic change of government. This has been the case in a
number of countries including Burkina Faso, Burundi, Congo,
Ethiopia, Guinea-Bissau, Mauritania, Madagascar, Mali, Togo, Cote
d’Ivoire, Egypt and The Gambia, among others. While these often
lead to widespread human rights violations including excessive use
of lethal force by government security forces, extra-judicial killings,
arbitrary detention, torture and crack down on opposition politicians
and civil society actors and the disruption of sources of livelihoods, in
more serious cases the situation escalates into armed violence, as it
did in Burundi in 2015 and in DRC since 2016.
33.
In Burundi, the dispute over the third term of the incumbent president
leading to protests by the opposition and civil society organisations
escalated into conflict involving sporadic armed violence and
confrontation with security forces. As the African Commission
documented in its fact-finding report, the violations that accompanied
this conflict situation include excessive use of lethal force by security
forces, extra-judicial killings, arbitrary detention and arrest without
charges, torture, retaliatory assassinations, violent crackdown against
the media and journalists, arbitrary closure of non-governmental
organisations in breach of the right to freedom of association, sexual
violence and the flight of hundreds of thousands into neighboring
countries.
34.
In the DRC, the failure of the government to hold national elections in
due time and the resultant extension of the term of office of the
incumbent president has put the country in major turmoil. In the
violence that started in 2016 in the Kasai region, the extreme violence
Addressing Human Rights Issues in Conflict Situations
PART 2
\ 15
that government forces and armed militia used including against
civilians reportedly led to the death of thousands, with UN
documenting 87 mass graves and the flight of tens of thousands of
civilians into Angola. 27
35.
27
28
29
30
31
32
The other main issue concerning the contemporary conflict and crisis
landscape on the continent is terrorism, which may or may not meet
the armed conflict threshold. 28 The issues of terrorism and violent
extremism continue as major peace and security threats on the
continent. Terrorist attacks in Chad, Cameroon, Niger, Nigeria,
Burkina Faso, Egypt and Mali have targeted civilian populations,
including women and children, as well as security forces. Targeted
civilian attacks in north-east Nigeria have resulted in the displacement
of over 2.5 million civilians as internally displaced persons and
refugees. 29 Armed groups such as Boko Haram in the north-east and
Fulani militias in the country’s middle belt 30 have carried out smallscale suicide bombings and armed attacks primarily targeting
civilians in rural villages and displacement camps. 31 Similarly, in
Kenya, the terrorist group Al-Shabaab has been targeting security
forces as well as civilians, the most noteworthy of which were the
Westgate Mall attack in September 2013 and the attack on Garissa
University College in April 2015 which left 148 people dead. A similar
trend has been witnessed in Mozambique in 2017 and 2018 carried
out by an armed Islamic group that calls itself ‘Al Shabaab’ and
targets civilians and government institutions in the Cabo Delgado
region. 32 This conflict in Mozambique also has a resource element,
since most of the terrorist attacks take place in an area where oil and
gas reserves have been discovered.
Congo’s Spiralling Kassi conflict, (12 September 2017) https: //www.thenewhumanitarian.org/
feature/2017/09/12/mass-graves-missing-bodies-and-mysticism-inside-congo-s-spiralling-kasai-conflict.
Terrorism in this context should not be understood to be conflated with armed conflict, rather it constitutes a
separate form of crisis situation. Conflation of the concepts may result in groups in armed conflict being
designated as terrorists by definition. Conversely, some acts carried out by groups classified as terrorists
may be considered lawful under IHL, if not under national law. IHL however prohibits as war crimes certain
acts of terrorism perpetrated in armed conflict, such as direct and deliberate attacks against civilians.
See Report of the Secretary-General: Causes of conflict and the promotion of durable peace and
sustainable development in Africa. Seventy-second session Item 67 (b) of the provisional agenda.
New Partnership for Africa’s Development: progress in implementation and international support. General
Assembly Distr.: General 1 August 2017. A/72/269 6/19 17-13183 23.
Armed Conflict Location & Event Data Project (ACLED) Update report on Libya – October 2017. Available
on: https: //www.acleddata.com/2017/10/09/libya-october-2017-update/. Accessed on: 2 February 2017.
Oscar Nkala, “Nigerian Air Force takes delivery of two Mi-35M attack helicopters” Thursday, 12 January
2017. Available on: http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=46413.
Accessed on: 2/17/2018.
The Conversation, Why Islamist attack demands a careful response from Mozambique, October 18, 2017
11.06 am. Available on: https: //theconversation.com/why-islamist-attack-demands-a-careful-responsefrom-mozambique-85504. Accessed on 17 February 2018.
16/ Addressing Human Rights Issues in Conflict Situations
33
36.
Furthermore, increasing numbers of non-State extremist groups and
armed militias have de facto control over some areas in Libya, where the
erosion of central government authority has resulted in a dire human
rights situation. The Armed Conflict Location & Event Data Project
(ACLED) database indicates that there has been increasing violence
targeting civilians since 2016, carried out by militant Islamist groups in
West Africa, including Côte d’Ivoire and Burkina Faso and extending to
Mali in the north and to the Lake Chad basin in the east. These attacks
have been committed by the Al-Qaeda-affiliated Al-Mourabitoun of
Grand-Bassam as well as by other unidentified militant groups.
37.
Riots and violent protests, crisis situations, which like many of the
foregoing situations fall short of the threshold of armed conflicts,
have also become a common occurrence in many African countries,
and these have affected civilian populations with political violence
perpetrated by both State and non-State actors. Again, human rights
issues are at stake because there are abundant reports that security
forces, intelligence and law enforcement authorities, armies and
militias have been engaged in continuing human rights violations in
contexts of protests. Human rights violations such as extra-judicial
killing, detention and torture have targeted journalists, politicians,
and civil society leaders and activists. The general trend on the
continent indicates that riots and protests have been a defining
aspect of political instability in Africa and have often developed into
widespread violence. For example, the ACLED database accounts for
101 riots and protests across Zambia between 2016 and 2017, and
similar widespread riots and violence also occurred in Ethiopia,
Cameroon, Togo, Congo, Angola, the Central African Republic, South
Africa, Egypt, Morocco and Tunisia.
38.
These riots and protests have multi-faceted causes intertwined with
ethnic and/or religious issues and economic and political grievances.
Use of force and repressive tactics remain the most dominant forms
of response to riots and protests, resulting in the narrowing down of
the political space and the resultant deterioration of human rights
situations and the pervasive incidence of violations. 33
39.
Resource-related conflicts in the contemporary conflict landscape of
Africa have also been a major concern. Despite the enormous
potential and tremendous positive economic benefit to development,
natural resources have long been a conflict-generating factor.
Armed Conflict Location & Event Data Project (ACLED) Rioting and Protest in Africa Update report;
Available on: https: //www.acleddata.com/category/rioting-and-protests/ Accessed on 3 February 2018.
Addressing Human Rights Issues in Conflict Situations
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\ 17
Valuable resources including oil, diamonds, copper and cobalt have
demonstrated the natural resource curse, fueling violence through
competition for territorial control, promoting looting and rentseeking, and sustaining violence through financing conflict. For
instance, a UN panel of experts found that the illicit trade of gold and
diamonds is being used to finance conflict in the Central African
Republic. 34 Similarly, logging and trade in diamonds to a large extent
funded the conflict in Sierra Leone. The corruption and misuse
prevalent in natural resource management and extraction has
accentuated existing inequalities and sources of instability. Despite
the extractive industries’ potential, the communities of resource-rich
countries in Africa are poor and underdeveloped. Competition to
control these resources and extract them – combining rent-seeking
with chronic corruption – generates conflict. 35 Even though there is
no definitive empirical data to quantify the exact role that extractive
resources may play in indirectly inciting political violence, the
correlation has been demonstrated. The ACLED database provides
adequate data to illustrate the prevalence of extractive resource
driven conflict, including riots, protests and violence against civilians.
140
130
120
110
100
90
80
70
60
50
40
30
20
10
0
800
700
600
500
400
300
Reported fatalities
Number of conflict events
Figure 1: Resource-related conflict in Africa, 1997–2014 36
200
100
1997
1999
2001
2003
2005
2007
2009
2011
2013
0
Year of event date
Conflict Type:
34
35
36
Battles
Riots/Protests
Violence
Gold, diamonds fuelling conflict in Central African Republic: UN panel, Daniel Flynn. Reuter. November 5, 2014
12:34 am. Available on: https: //www.reuters.com/article/us-centralafrica-un-panel/gold-diamonds-fuellingconflict-in-central-african-republic-u-n-panel-idUSKBN0IO21420141105. Accessed on: 17 February 2018.
Ibid.
ACLED https: //www.crisis.acleddata.com/resource-related-conflict-in-africa/.
18/ Addressing Human Rights Issues in Conflict Situations
Figure 2: Resource-related conflict in Africa, 1997–2014 37
Algeria
Angola
Botswana
Burundi
Cameroon
Central African Republic
Chad
Democratic Republic of Congo
Egypt
Ethiopia
Gabon
Ghana
Guinea
Ivory Coast
Kenya
Liberia
Libya
Mali
Mauritania
Marocco
Namibia
Niger
Nigeria
Republic of Congo
Sierra Leone
Somalia
South Africa
South Soudan
Sundan
Tanzania
Tunisia
Uganda
Zambia
Zimbabwe
0 20 40 60 80 100 120 140 160 180 200 220 240 260 280 300 320 340
Number of conflict events
40.
37
38
Research also shows that armed groups – militias and rebels – employ
various tactics including disruption, control and manipulation of the
extractive resources to finance civil wars. Such instances have been
witnessed, among others in Angola, the DRC and Sierra Leone. 38 The
ACLED dataset captures resource-related conflict related to oil,
mines, diamonds, and resources with more direct links such as
kidnapping of oil workers, conflicts over access to a specific diamond
mine, or protesting against an oil company. In recent years, the
prevalence of conflict with direct links to these resources has been
increasing, and conflict occurrence is now over five times the level it
ACLED https: //www.crisis.acleddata.com/resource-related-conflict-in-africa/.
https: //www.amnestyusa.org/themes/business-human-rights/oil-gas-mining-industries/.
Addressing Human Rights Issues in Conflict Situations
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was ten years ago, although the number of associated fatalities has
been decreasing. Figure 1 shows that the fatalities related to these
conflicts are lower than levels seen in the late 1990s. Nevertheless,
the ACLED dataset illustrates increased conflict (higher prevalence of
riots and protests) driven by extractive resources, resource-related
clashes and instances of violence against civilians only seen in a few
countries such as Nigeria, Sudan, South Sudan, the DRC and Somalia.
Nigeria exhibits a constant rise in directly-resource-related conflict
that has resulted in targeted violence against civilians, followed by
South Sudan, which has experienced violent conflict as a result of
government forces’ and rebel groups’ struggle to control the oil-rich
regions of the new country. 39
Some salient human rights and humanitarian issues in conflict
and crisis situations
39
41.
In the context of new forms of violence and war, both State and
non-State actors are key players in explaining various patterns of
human rights violations related to conflict and violent crisis
situations. Some of the major non-State actors as perpetrators of
human rights violations/abuses in armed conflictsettings and
other situations of violence are non-State armed groups (rebel and
opposition groups, armed militias, and terrorist groups and
criminal networks) and economic non-State actors (multi-national
corporations and private military and security companies). Related
to changes in contemporary violent conflict and related crises in
Africa are also changes in the tactics and methods of fighting of
armed groups.
42.
Sexual violence is one of the major forms of human rights violations
that has become common in conflict and crisis situations on the
continent. ACLED includes a Gendered Repression Dataset, which
lists data from across the continent. Some examples of the tactics
used include rape, physical attack, abduction, killing and the targeting
of female political leaders, whose bodies are used as weapons of
humiliation. Megan Bastick, Karin Grimm and Rahel Kunz argue that
armed groups’ deliberate strategy of employing sexual violence as a
weapon of political conflict aims to humiliate opponents and terrify
ACLED https: //www.crisis.acleddata.com/resource-related-conflict-in-africa/.
20/ Addressing Human Rights Issues in Conflict Situations
society as an ultimately expression of domination.40 The best known
examples of this are the sexual violence that has been used as a
weapon of political violence in the DRC, 41 in the Darfur region of
Sudan, 42 and most recently in South Sudan.43
43.
40
41
42
43
44
45
As documented; the African Committee of Experts on the Rights and
Welfare of the Child report on its continental the impact of conflict
and crises, violence against children is another common form of
human rights violations in conflict settings and crisis situations.
Armed groups use violence against children with the aim of
terrorising and fomenting a sense of fear and insecurity among
civilian populations. For instance, Boko Haram attacks in Nigeria in
recent years have included children as targets of violence,
dramatically increasing the number of child fatalities in the conflict.
Similar incidents of government and rebel forces targeting and
killing children have occurred in South Sudan since 2014, reported
following the discovery of dozens of mass graves. 44 Rebel groups
and armed militias in the Central African Republic (CAR) have also
targeted children and employed public executions of pregnant
women and children, attacks on children using grenades and
machetes, slitting of throats, and burning down homes, amongst
other tactics. 45 Besides directly targeting children with violence,
there are reports that illustrate the prevalent practice of armed
militias and rebel groups conscripting child soldiers. Such instances
Bastick, Megan, Karin Grimm, and Rahel Kunz. “Sexual violence in armed conflict.” Global overview and
implications for the security sector, Geneva: DCAF (2007). Available on: https: //www1.essex.ac.uk/
armedcon/story_id/sexualviolence_conflict_full%5B1%5D.pdf Accessed on 17 February 2018 and
see also United Nations Secretary-General’s UNiTE to End Violence against Women campaign http://
www.un.org/en/women/endviolence/situation.shtml Accessed on: 17 February 2018.
UN official calls DR Congo ‘rape capital of the world’, BBC News Last updated at 16:50 GMT, Wednesday,
28 April 2010 17:50 UK available on http://news.bbc.co.uk/2/hi/8650112.stm. Accessed on 17 February 2018.
See Real time analysis of political violence across Africa –Armed Conflict Location & Event Data Project
(ACLED) database – The Strategic Use of Unidentified Armed Groups in Conflict Zones. Available on:
http://www.crisis.acleddata.com/the-strategic-use-of-unidentified-armed-groups-in-conflict-zones/.
Accessed on 17 February 2018.
See the Final Report of the African Union Commission of Inquiry on South Sudan (AUCISS) (2014)
available at http://www.peaceau.org/uploads/auciss.final.report.pdf.
‘Civilians targeted’ in South Sudan violence’ The Associated Press. United Nations, Saturday, 22 February
2014, Last Update: Saturday, 22 February 2014 KSA 08:50 – GMT 05:50. Available on: http://english.alarabiya.
net/en/News/africa/2014/02/22/-Civilians-targeted-in-South-Sudan-violence.html. Accessed on
17 February 2018.
See Central African Republic: UN credibility at stake amid rising attacks against civilians, 6 November
2014, 00:00 UTC Available on: https: //www.amnesty.org/en/latest/news/2014/11/central-africanrepublic-un-credibility-stake-amid-rising-attacks-against-civilians/ ; ‘Unspeakable horrors in a country on
the verge of genocide’ The Guardian, Available on: https: //www.theguardian.com/world/2013/nov/22/
central-african-republic-verge-of-genocide. See Central African Republic: Seleka Fighters Attack Village
French: African Forces Should Step Up Protection Patrols, March 11, 2014 1:55AM EDT Available on:
https: //www.hrw.org/news/2014/03/11/central-african-republic-seleka-fighters-attack-village.
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are reported to be prevalent in CAR, 46 Uganda and the DRC, most
notably because of the Lord’s Resistance Army (LRA) that was
infamous for child conscription, killing and abduction. 47
46
47
48
49
44.
Contemporary conflict and crisis situations have forced millions of
people – men, women and children – to flee their homes in order to
escape suffering, human rights violations and starvation. Many are
unable to return to their places of origin. Conflict situations in CAR,
Cameroon, Mali, Chad, Niger, Somalia, Nigeria, DRC, South Sudan and
Sudan have continued to generate internally displaced people and
refugees. It has been widely reported that hundreds of thousands of
refugees and migrants traveled to Libya to escape persecution or
extreme poverty and war, only to end up drowning in the Mediterranean
Sea or being forced into slavery. In the process of migration, millions
of people have suffered multi-faceted human rights violations,
including sexual violence, torture and killing. Many have suffered
heinous crimes committed by human traffickers and smugglers.
45.
As at the end of 2017, in northern Nigeria two million people remain
internally displaced, living in host communities or in overcrowded
camps with inadequate food, water and sanitation. 4.5 million South
Sudanese, nearly 40% of the country’s population, have been forcibly
displaced since the civil war broke out in December 2013. Tens of
thousands of internally displaced persons in IDP camps in these
countries have reportedly faced various violations including sexual
exploitation, malnutrition, disease and death due to the severe
conditions.48 Another challenge faced by IDPs and refugees in camps
is that they often face limitations on their freedom of movement and
extremely poor conditions in camps. More than 300 000 people have
fled Burundi and remain in neighbouring Rwanda and Tanzania.
Approximately 2.2 million Somalis live in refugee camps in
neighbouring countries. According to the UN, by the end of 2017 over
20 million people in Africa were either displaced or forced to flee to
other countries, with 6.3 million refugees, up from 5.1 million, and
14.5 million internally displaced persons, up from 11.1 million.49
‘Child soldiers in Central African Republic more than doubled says charity’ The Guardian, Available on:
https: //www.theguardian.com/world/2014/dec/18/-sp-child-soldiers-central-african-republic-doubled.
Accessed on 17 February 2018.
See “DR Congo: Lord’s Resistance Army Rampage Kills 321: Regional Strategy Needed to End Rebel
Group’s Atrocities and Apprehend Leaders’, Human Rights Watch March 28, 2010 2:00PM EDT, Available
on: https: //www.hrw.org/news/2010/03/28/dr-congo-lords-resistance-army-rampage-kills-321 Accessed
on 17 February 2018.
See UN Doc A/73/340, Report of the UN High Commissioner for Refugees (24 August 2018).
Ibid.
22/ Addressing Human Rights Issues in Conflict Situations
Determination of the applicable law
50
51
52
46.
The conflict situations covered under Resolution 332 and the
protection issues that they give rise to necessarily evoke normative
discussion on the applicable law. The issue here is whether and how
international humanitarian law (IHL) applies in relation to the human
rights standards of the African Charter (IHRL) in these conflict
situations.
47.
The main distinction between IHRL and IHL is that IHRL protects the
individual from abusive or arbitrary exercise of power by State
authorities, whereas IHL primarily regulates the conduct of parties to
an armed conflict by regulating methods of warfare and the protection
of those not participating in the conflict, without creating rights that
protected persons enforce through individual complaints, except
through IHRL treaties, such as the African Charter. Therefore, the
application of IHL and hence its relationship to human rights law
arises only in cases of armed conflicts. Secondly, the definition of
armed conflict under IHL is much narrower than the broad definition
of conflict adopted above, which encompasses conflict situations
falling short of armed conflicts. IHL thus does not apply in crisis
situations where the violence is below the threshold for armed
conflict under the definitions of IHL. It is thus necessary for purposes
of determining the application of IHL to have regard to the definition
of armed conflict in the context of IHL.
48.
For purposes of IHL, there are two types of armed conflicts:
international armed conflicts (IACs) and non-international armed
conflicts (NIACs). Common Article 2 of the Geneva Conventions of
1949 defines IACs as “all cases of declared war or of any armed
conflict that may arise between two or more High Contracting Parties,
even if the state of war is not recognised by one of them”, 50 and it also
includes “all cases of partial or total occupation51 of the territory of a
High Contracting Party, even if the said occupation meets no armed
resistance”.52 There is no need for a formal declaration of war, or for
Common Article 2 of Geneva Conventions of 1949.
In the words of art. 42 of the 1907 Hague Regulations, “territory is considered occupied when it is actually
placed under the authority of the hostile army”.
This paragraph, although it may look superfluous, guarantees protection to not only to the sick military
personnel of the occupied country, but also to all the personnel, establishments and property covered by
the Convention, so as to enable them to freely carry on their charitable work as required. Otherwise, the
Occupying Power could have been free to use for its own purposes medical establishments or property
protected by the Convention as well as the doctors and other members of the medical service of the
Occupied State.
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recognition of the state of war.53 As the Commentary to the Geneva
Conventions put it “[It] makes no difference how long the conflict
lasts, or how much slaughter takes place”.54
49.
53
54
55
56
According to Common Article 3 (CA 3), NIACs are “armed conflicts
not of an international character occurring in the territory of one of
the Contracting Parties”.55 These include armed conflicts in which
one or more non-governmental armed groups are involved in a fight
either against the government or between themselves and sometimes
against both the government and between themselves. The Additional
Protocol II in Article 1(1) provides that, for a conflict to constitute
NIAC, the armed opposition forces must be “under responsible
command, exercise such control over a part of its territory as to
enable them to carry out sustainable and concerted military
operations and to implement this Protocol”.56
The substitution of the term war, of which legal definition may lead to endless debates, with armed
conflicts was deliberate. A State can always pretend, when it commits a hostile act against another State,
that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The
expression “armed conflict” makes such arguments less easy. Any difference arising between two States
and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2. Jean
S. Picket, Commentary on Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, ICRC, 1952, p. 32.
The respect due to human personality is not measured by the number of victims. Nor, incidentally, does
the application of the Convention necessarily involve the intervention of cumbrous machinery. It all
depends on circumstances. If there is only a single wounded person as a result of the conflict, the
Convention will have been applied as soon as he has been collected and tended. Id., p. 32.
As the four Geneva Conventions have universally been ratified now, the requirement that the armed
conflict must occur “in the territory of one of the High Contracting Parties” has lost its importance in
practice. Indeed, any armed conflict between governmental armed forces and armed groups or between
such groups cannot but take place on the territory of one of the Parties to the Convention. Perhaps a
question arises with respect to NIACs that occur on the territories of more than one state.
The Commentary of the ICRC on Common Article 3 of the 1949 Geneva Conventions lays down an
elaborate requirement/criteria that an armed conflict should fulfil to be regarded as NIAC: “That the Party
in revolt against the de jure Government possesses an organised military force, an authority responsible
for its acts, acting within a determinate territory and having the means of respecting and ensuring respect
for the Convention. (2) That the legal Government is obliged to have recourse to the regular military forces
against insurgents organised as military and in possession of a part of the national territory.(3) (a) That the
de jure Government has recognised the insurgents as belligerents; or (b) That it has claimed for itself the
rights of a belligerent; or (c) That it has accorded the insurgents recognition as belligerents for the
purposes only of the present Convention; or (d) That the dispute has been admitted to the agenda of the
Security Council or the General Assembly of the United Nations as being a threat to international peace, a
breach of the peace, or an act of aggression”. Available at https: //ihl-databases.icrc.org/applic/ihl/ihl.
nsf/1a13044f3bbb5b8ec12563fb0066f226/466097d7a301f8c4c12563cd00424e2b. (4)(a) That the
insurgents have an organisation purporting to have the characteristics of a State. (b) That the insurgent
civil authority exercises de facto authority over the population within a determinate portion of the national
territory. (c) That the armed forces act under the direction of an organised authority and are prepared to
observe the ordinary laws of war. (d) That the insurgent civil authority agrees to be bound by the
provisions of the Convention.
24/ Addressing Human Rights Issues in Conflict Situations
57
50.
According to the foregoing definition and as elaborated by the
Commission in its decision on Communication 431/12 – Thomas
Kwoyelo v. Uganda, 57 drawing on the jurisprudence of both the
International Criminal Tribunal for Rwanda and International Criminal
Tribunal for the former Yugoslavia, there are four cumulative elements
for determining the existence of NIAC. First, the conflict has to be
between armed forces of a state and dissident or other organised
armed groups. Second, the conflict takes place in the territory of the
state. Third, the dissident or the armed opposition group has to be
organised with command and control structure and exercising
control over a part of the territory of the state. Fourth, the conflict has
to be a situation of regular and intense armed confrontation and
hence involving direct hostilities between the armed forces of a state
and the dissident or opposition armed group.
51.
Accordingly, for an armed conflict of a non-international character to
come into existence in a situation of violence between a State and a
non-State armed group or between two or more non-State armed
groups, it is a pre-requisite that the criteria of intensity and
organisation are fulfilled. However, with the change in the nature of
conflicts including in terms of the unconventional means and
methods of violence, the use of new technology and the levels of
organisation and control of territory, the lines that international
norms neatly draw have become blurred and it has become difficult
to determine which legal regime should apply.
52.
For example, in the South Sudan civil war that erupted in December
2013 the conflict would not be treated as NIAC before it reaches the
threshold in Common Article 3 of the Geneva Conventions in relation
to intensity and organisation. Similarly, in the conflict involving
Boko Haram it is not clear at what point it would be classified as
NIAC, since the sporadic violence and the lack of clear organisational
structure renders such classification difficult. Other situations that
similarly give rise to challenges in determining the applicable law
include i) those involving foreign intervention in intra-state conflicts
of another state, such as the role of Ugandan forces in the 2013
South Sudan conflict, as well interventions by international
organisations such as NATO (North Atlantic Treaty Organisation),
UN or AU; ii) NIAC of a transnational nature; iii) other forms of intrastate conflicts taking place on the territories of several states, as in
the conflict involving the Lord’s Resistance Army in the central
Africa region or Boko Haram in the Lake Chad basin; iv) the increased
Para 144.
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participation of civilians in armed conflict; and v) the amalgamation
of tasks assigned to armed forces, including military operations and
law enforcement tasks, such as in the G5 Sahel Joint-Force, which is
in addition tasked with curbing “transnational organised crime,
including arms and drug trafficking, the smuggling of migrants,
trafficking in persons”.
58
59
60
61
62
53.
A further point to note in terms of the applicable law is that the
traditional distinction that reserves the application of IHL to war
times and IHRL to peace no longer holds. 58 Traditionally, jus in bello
(or IHL), is the law that governs the way in which warfare is
conducted, in order to limit the suffering which is caused by the
armed conflict. “The law therefore addresses the reality of a conflict
without considering the reasons for or legality of resorting to
force.”59 On the other hand, jus ad bellum is the law on the use of
force, and is the concern of IHRL. IHRL is thus concerned with the
legitimacy and lawfulness of use of force, including that it should
only be used as a last resort.60 Thus, while it may be argued that the
use of force in certain circumstances in NIAC is legal from the
perspective of IHL, 61 from the perspective of IHRL standards the
same use of force could be a breach of IHRL if the use of force was
not applied as a last resort.62
54.
However, given the changes in the nature of conflicts noted above
and the ensuing legal issues, the co-applicability of these two regimes
of law has become a legal imperative currently supported by diverse
sources of authority. The contemporary international law position
thus does not uphold a watertight dichotomy between human rights
Suter, Keith D. “An Enquiry into the Meaning of the Phrase Human Rights in Armed Conflicts.” Mil. L. &
L. War Rev. 15 (1976): 393. 394.
ICRC “jus ad bellum and jus in bello” 29 October 2010 available at https: //www.icrc.org/en/document/
jus-ad-bellum-jus-in-bello.
Lubell, Noam. “Parallel Application of International Humanitarian Law and International Human Rights
Law: An Examination of the Debate.” Israel Law Review 40, no. 2 (2007): 650-62.
While State armed forces are not considered civilians, practice is not clear as to whether members of
armed opposition groups are civilians subject to Rule 6 on loss of protection from attack in the event of
direct participation or whether members of such groups are liable to attack as such, independently of the
operation of Rule 6. This is a quote needs to be in 1 J. HENCK.A ERTS & L. DOSWALD-BECK,
CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 19, & 17-24 (2005); see also International
Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 28th International Conference of
the Red Cross and Red Crescent, ICRC, Geneva, 2003, 27- 36, available at http://www.icrc.org/Web/eng/
siteeng0.nsf/html/5XRDCC).
Eight UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Basic Principles on the
Use of Force and Firearms by Law Enforcement Officials, 9, UN Doc. A/ CONF.144/28/Rev.1 (1990);
G.A. Res. 34/169, UN Code of Conduct for Law Enforcement Officials, annex, 3, 34 UN GAOR Supp.
(No. 46) LYN Doc. A/34/46 (1979); McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97 (1995), at
paras. 147-149; C.K. Boyle, The Concept of Arbitrary Deprivation of Life, in The right to life in international
law 221 (B.G. Ramcharan ed., 1985).
26/ Addressing Human Rights Issues in Conflict Situations
law and IHL in armed conflicts. The evolving legal consensus has
been that, that even in times of armed conflict, human rights continue
to apply but, unlike in situations other than those amounting to armed
conflict, human rights law does not have exclusive application. Rather
it applies alongside IHL.63 Even in cases of emergency, according to
the UN Human Rights Committee, States are not considered as
operating in a legal vacuum, and in its General Comment No. 29 the
Committee clearly affirmed that States’ measures of derogation from
treaty obligation should be in accordance with humanitarian law.64
Emergency derogation from human rights law in cases of armed
conflict thus activates the application of humanitarian law, which
enforces the criteria of distinction between civilian and military
targets, requirements of necessity and proportionality, and humane
treatment of protected persons.
55.
63
64
The African human rights system took the position that the rights and
freedoms guaranteed in the Charter apply both in peace and war
times. First, in legislative terms, unlike other human rights instruments
that allow derogation in cases of a state of emergency, the African
Charter does not make a similar provision. The African Commission
adopted a more explicit position in its practice. According to the
Commission, people must be protected from violation of their rights,
including threats to their lives not only in times of peace but also in
war situations. Similarly, based on Articles 60 and 61 of the African
Charter, the African Commission upheld the applicability of IHL rules
in various cases of conflict situations.
In 1996, the ICJ in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapon opined that
the protection of the International Covenant on Civil and Political Rights does not cease in times of war,
except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in
time of emergency. The European Union Guidelines states “IHL is applicable in time of armed conflict and
occupation. Conversely, human rights law is applicable to everyone within the jurisdiction of the State
concerned in time of peace as well as in time of armed conflict. Thus while distinct, the two sets of rules
may both be applicable to a particular situation.” See European Union Guidelines on promoting compliance
with international humanitarian law [2005] OJ. Further, concurrent applicability of IHRL and IHL is
evidenced in the States’ declaration at the Teheran Conference in 1968; decisions of international and
regional judicial and quasi-judicial bodies; general comments of the UN Human Rights Committee and the
UN Committee on Economic, Social and Cultural Rights; decisions of the International Court of Justice and
the Inter-American Commission and Court of Human Rights. Finally, the interdependence and parallel
application of IHL and IHRL is affirmed in the International Court of Justice decisions on the Construction
of the Wall in the Occupied Palestinian Territory and DRC v. Uganda. In the Congo-Uganda case, the Court
observed that Uganda committed human rights law and humanitarian law violations because Ugandan
forces in the occupied parts of the Congo committed serious and widespread human rights and
humanitarian law violations.
UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a
State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, (para. 11). Available at: http://www.
refworld.org/docid/453883fd1f.html [accessed 17 February 2018]. According to the Committee, states
may in no circumstances invoke Art. 4 ICCPR for acting in violation of humanitarian law.
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65
66
67
56.
However, even with the co-applicability of IHRL and IHL, there are
enormous challenges in actual implementation in the context of
emerging situations, notably the war on terror or intra-state conflicts
in the territories of several states that brings in, among others, the
problem of IHRL’s extra-territorial applicability.65 This is mainly
because there are different rules and considerations, which regulate
the extra-territorial application of IHL and IHRL. However, as the
African Commission held in its decision in Thomas Kwoyelo v.
Uganda, there are ample precedents that provide evidence about the
extra-territorial applicability of IHRL if it is established that the armed
forces of a state exercise control over the territory of another state.66
Many point to the International Court of Justice decision and the UN
human rights bodies and their case law.67 This means that, if a State
exercises effective control over a territory, the State should abide by
its obligations under IHRL. Additionally, even in instances where
there are doubts on the question of effective control where a State
uses force, no legal vacuum arises and the applicability of IHL and/or
IHRL should understandably be determined after due examination of
the specific circumstances of the conflict situation.
57.
For purposes of the African Charter and indeed this Study, what the
co-applicability of the two regimes of law entails is not that the
African Commission directly applies IHL. In conflict situations in
which IHL applies, the African Commission resorts to the applicable
IHL rules on the basis of Articles 60 and 61 of the African Charter. And
instead of making a finding on the existence of violation of IHL, the
Commission uses, as it did in Thomas Kwoyelo v. Uganda, the IHL
standards, rather than the normal human rights standards for
assessing existence of violations, to determine violations of
Charter rights.
58.
In terms of the applicable law, the other issue that arises is the
applicability of IHRL to non-state actors. IHL is applicable to armed
non-State groups provided that these armed groups are party to an
Lubell, Noam. “Parallel Application of International Humanitarian Law and International Human Rights
Law: An Examination of the Debate.” Israel Law Review 40, no. 2 (2007): 648-660.
Ibid 649-650; ACHPR, Communication 431/12, Thomas Kwoyelo v. Uganda.
Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A)(1995)(Preliminary Objections), at para. 62-64 available at:
http://www.prio-cyprus-displacement.net/images/users/1/ECtHR/Loizidou%20v.%20Turkey_
Preliminary%20Objections.pdf; Cyprus v. Turkey, 2001-IV Eur. Ct. H.R., at para. 77 (GC) Available at:
http://www.asylumlawdatabase.eu/en/content/ecthr-cyprus-v-turkey-application-no-2578194-10may-2001. And see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. p.136, at para.107-112.
28/ Addressing Human Rights Issues in Conflict Situations
armed conflict 68 and fulfill the legal definition with sufficient
organisation and the requisite degree of intensity of the fight.69
However, the binding nature of IHRL on armed non-State groups in
either wartime or peacetime is contentious, because they are not
party to international treaties.70 There is an emerging view in
international law that certain rules of IHRL apply to non-state actors
where they exercise effective control over territory. 71 Such arguments
have been advanced by the UN Human Right Council, stating that
certain IHRL provisions should be applicable to armed non-State
actors in Afghanistan and Libya because they have de facto control
over a territory.72 Similarly, the UN Security Council denounced the
human rights violations and acts of violence committed in northern
Mali. The report directly calls out rebels, terrorist groups and other
organised transnational crime networks for the violence perpetrated
against women and children, the killings, the hostage-taking,
pillaging, theft and destruction of religious and cultural sites, as well
as the recruitment of child soldiers, and calls for the perpetrators of
these acts to be brought to justice.73 The African Commission held
similar views in the various resolutions and statements it issued in
relation to various conflict situations including the one involving
Boko Haram. This illustrates the tacit recognition of the applicability
of IHRL to non-State armed groups under certain circumstances. The
Commission would have to engage further with the exact extent and
scope of application of IHRL to non-state actors who are traditionally
seen as being beyond the jurisdiction of an instrument such as the
African Charter.
68
69
70
71
72
73
Prosecutor v. Sam Hinga Norman (Decision on the Preliminary Motion Based on Lack of Jurisdiction)
Special Court for Sierra Leone (SCSL) (31 May 2004). para. 22. Available at: https: //webcache.
googleusercontent.com/search?q=cache:7JrRFREtH3EJ:https: //sierralii.org/sl/judgment/special-court/20
04/18+&cd=2&hl=en&ct=clnk&gl=us or http://www.sierralii.org/sl/judgment/special-court/2004/18.,
Accessed 17 February 2018.
416Prosecutor v. Dusko Tadić (Judgement) ICTY Case IT-94-1-A (15 July 1999), para. 70. Available at:
http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf accessed 17 February 2018,
Sivakumaran, Sandesh. “Re-envisaging the international law of internal armed conflict.” European Journal
of International Law 22, no. 1 (2011): 251.
Geneva Academy of International Humanitarian Law and Human Rights, Rules of engagement: protecting
civilians through dialogue with non-state actors (Geneva 2011) <http://www.geneva-academy.ch/docs/
publications/Policy%20studies/Rules%20of%20Engagement.pdf> accessed 25 May 2014, 25.
Assembly, UN General. Human Rights Council: Report of the International Commission of Inquiry to
investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya. UN Doc.
A/HRC/17/44, 2011. UN Doc. A/HRC/17/44, 1 June 2011.para.72. http://www2.ohchr.org/english/bodies/
hrcouncil/docs/17session/A.HRC.17.44_AUV.pdf accessed 3 February, 2018.
Security Council, Resolution 2056, UN Doc. S/Res/2056 2012, para.13 available at: http://www.un.org/en/
ga/search/view_doc.asp?symbol=S/RES/2056(2012) accessed on 18 February 2018 and also see Security
Council, Resolution 2071, UN Doc. S/ Res/2071 (2012),para.14 available at: http://www.un.org/en/ga/
search/view_doc.asp?symbol=S/RES/2071(2012) accessed on18 February 2018 and Security Council,
Resolution 2085 UN Doc. S/Res/2085 2012,para.6 Available at: http://www.un.org/en/ga/search/view_
doc.asp?symbol=S/RES/2085(2012) accessed on 18 February 2018.
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PART 3
The African human rights system
and conflict situations
Analysis of relevant norms
59.
The legal framework, which forms the basis of the interaction between
the human rights system and conflict or crisis situations, encompasses
human rights instruments. This part seeks to identify and discuss the
relevant legal instruments and how these instruments address conflict
and crisis situations. This offers an analysis of the various legislative
instruments including the African Charter, the Maputo Protocol, the
African Children’s Charter, and the Kampala Convention, as well as the
other relevant AU instruments including the Constitutive Act of the AU.
African Charter
60.
74
The founding instrument of the African human rights system if the
African Charter which was formally adopted by the nineteenth
summit of the Organisation of African Unity (OAU, now AU) in Nairobi,
Kenya, in June 1981 and entered into force in October 1986. The
African Charter is broadly divided into three parts: part one (Articles 1
to 29) specifies the list of human and peoples’ rights and individual
duties; part two (Articles 30 to 63) addresses the establishment and
organisation of the ACHPR; finally, part three (Articles 64 to 68)
contains general procedural provisions. 74
Promotion of Human Security in Africa: The role of African Human Rights Institutions, ISS Monograph
No. 145 (June 2008), 11.
Addressing Human Rights Issues in Conflict Situations
\ 31
75
76
77
78
79
80
81
61.
The African Charter enshrines almost all internationally recognised
rights. Accordingly, it recognises the civil and political rights of
individuals, including those to freedom from discrimination; to
equality; to bodily integrity and to life; to dignity and to protection
from torture and inhumane treatment; to liberty and security; to a fair
trial; to freedom of conscience; to freedom of expression, association,
assembly and movement and to political participation. As rightly
pointed out, these guarantees seek to protect people from
institutional, political or social conditions that threaten their liberty,
physical integrity and freedoms.75 They do so through proscribing
extra-judicial and arbitrary killings, unlawful detention or
imprisonment, torture and other physical or psychological abuses.
62.
The African Charter provides for economic, social and cultural rights
on an equal footing with civil and political rights.76 These rights
include those to equitable and satisfactory conditions of work, health,
education, property and protection of the family. In addition,
Guidelines for National Periodic Reports define parameters for,
among others, the rights to social security, social insurance and an
adequate standard of living, which are not expressly mentioned in
the Charter.77 The decision of the Commission in SERAC v. Nigeria78
expanded on socio-economic rights by recognising the right to food79
as well as housing.80 The protection of the right to water under the
African Charter was confirmed by the Commission through the
adoption of Resolution 300 on the Right to Water Obligations, which
also requested the Working Group on Economic, Social and Cultural
Rights to elaborate Guidelines and Principles on the Right to Water.81
Given that socio-economic deprivations and inequality often create
the underlying conditions for the emergence of conflict or crisis
situations on the continent, the socio-economic rights of the Charter
offer a useful framework in the fight against poverty and mend social
Ibid.
Ibid, 12.
Ibid.
Communication 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and
Social Rights (CESR) v. Nigeria.
SERAC case, para 65: “the right to food is inseparably linked to the dignity of human beings and is
therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and
political participation”.
SERAC case, para 60: “Although the right to housing or shelter is not explicitly provided for under the
African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best
attainable state of mental and physical health, cited under Article 16 above, the right to property, and the
protection accorded to the family forbids the wanton destruction of shelter because when housing is
destroyed, property, health, and family life are adversely affected.”
Resolution 300 on the Right to Water Obligations – ACHPR/Res.300 (EXT.OS/XVII) 20, adopted by the
Commission during its 17th Extraordinary Session held from 19 to 28 February 2015.
32/ Addressing Human Rights Issues in Conflict Situations
divisions that catalyse political competition and subsequent violent
conflict.82
82
83
84
85
86
87
63.
Socio-economic rights guarantee protection to individuals and
communities against destruction of their homes, sources of
livelihoods and infrastructures of public services on which they
depend for their survival, through violent acts. In various
communications, the African Commission has dealt with violations of
economic and social rights in conditions of armed conflicts or
situations of political instability. In the Communication of COHRE v.
Sudan 83 the Commission found several violations. It considered that
the right to health under the African Charter had been breached,
given that “the destruction of homes, livestock and farms as well as
the poisoning of water sources, such as wells, exposed the victims to
serious health risks”. The Commission also relied on the right to
property in finding violations of the right to housing (in that) “the fact
that the victims cannot derive their livelihood from what they
possessed for generations means they have been deprived of the use
of their property under conditions which are not permitted by
Article 14.”84 Similarly in Democratic Republic of the Congo v. Burundi,
Rwanda and Uganda, 85 the Commission stated that “the looting,
killing, mass and indiscriminate transfers of civilian population, the
besiege and damage of the hydro-dam, stopping of essential services
in the hospital, leading to death of patients and the general disruption
of life and state of war […] are in violation of Article 14 guaranteeing
the right to property’.
64.
Perhaps the most distinctive feature of the African Charter vis-à-vis
other human rights instruments is its elaboration of the collective
rights of peoples.86 The importance attached to peoples’ rights and
the resultant uniqueness of the African Charter is expressed by the
use of peoples’ rights together with human rights in the title of this
historical document. The formulation of these rights under the
African Charter is by far the most generous and comprehensive.87 The
Ibid.
Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE)/Sudan,
Communications Nos. 279/03 and 296/05, decision of May 2009.
Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE)/Sudan,
Communications Nos. 279/03 and 296/05, decision of May 2009. See in particular paras. 9–14, 205, 209
and 212; Office of the UN High Commissioner for Human Rights (2014); Transitional Justice and Social,
Economic and Cultural Rights HR/PUB/13/5).
Communication 227/99 Democratic Republic of the Congo v. Burundi, Rwanda and Uganda.
Ibid, 13; also see The African human rights system and the issue of Minorities in Africa, 20 (2) The African
Journal of International and Comparative Law (2012).
See Fatsah Onguergouz, The African Charter on Human and Peoples’ Rights: A comprehensive agenda for
human rights and sustainable democracy in Africa (2003), 203.
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African Charter proclaims not only the internationally recognised
right of all peoples to self-determination88 but also the right of peoples
to equality; 89 the right to existence;90 the right to development;91 the
right to national and international peace;92 and the right to
environment.93 Given that conflicts in Africa often follow group-based
identity lines, the enunciation of these collective rights of peoples is
of paramount importance to address the full scope of rights issues
that arise in such conflicts.
88
89
90
91
92
93
94
65.
Article 20 of the African Charter provides for the right of all peoples to
existence and self-determination. At a minimum, this article prohibits
measures that would amount to genocide according to international
law. “Article 20 also prohibits what is known as ‘cultural genocide’,
that is, acts that, although do not destroy a group physically, have the
effect of destroying the group as such.” The Charter also guarantees
peoples’ rights to self-determination which is not only important in
asserting collective identity, but is also instrumental in ensuring the
rights of people to dispose their wealth and resources, and the right
to determine their own path of political, economic and social
development.
66.
Another substantive right of particular importance is the right to
peace provided for under Article 23 of the African Charter. This right
demands, among others, that measures are taken to prevent conflicts
and where conflicts have erupted, all steps are taken to manage,
resolve and bring them to an end. For countries in conflict, the right
to peace and security imposes the obligation on parties to seek peace
negotiations and achieve compromise for ending the conflict and the
attendant human and peoples’ rights violations.
67.
The African Charter displays equal measure of uniqueness in
enshrining the duties of individuals, dubbed by one of the leading
African human rights scholars Makau Mutua, the “African cultural
fingerprint”.94 Articles 27 to 29 of the African Charter provide for an
individual’s duties towards his/her “family and society, the State and
other legally recognised communities and the international
Article 20.
Article 19.
Article 20.
Article 22.
Article 23.
Article 24.
The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties, (1994-95) 35
Virginia Journal of International Law. 339.
34/ Addressing Human Rights Issues in Conflict Situations
community”, 95 while being called upon to exercise his/her rights
“with due regard to the rights of others, collective security, morality
and common interest”.
Maputo Protocol
95
96
97
68.
As with the African Charter, the Protocol to the African Charter on the
Rights of Women in Africa (Maputo Protocol) has a number of articles
that have specific provisions that envisage the right to peace and the
right to protection in armed conflicts. Article 3 of the Maputo Protocol
states that States are duty bound “to adopt and implement
appropriate measures to prohibit exploitation or degradation of
women and ensure the protection of every woman’s right to respect
for her dignity and protection of women from all forms of violence.”
This is a responsibility for States that must identify the causes and
consequences of violence against women and take appropriate
measures to prevent, eliminate and punish such violence.
69.
In terms of its treatment of violence, the Maputo Protocol moves
beyond the definition in the UN Declaration on the Elimination of
Violence against Women, by including violence against women in
conflict situations.96 Articles 10 and 11 go further, making direct
reference to the right to peace, which affirms that women have the
right to a peaceful existence and protection in armed conflicts. This
means that the Protocol envisages that states are obliged to respect
and ensure protection for women in armed conflict. Under Article 11,
“State Parties shall take all necessary measures to ensure that no
child, especially girls under 18 years of age, take a direct part in
hostilities and that no child is recruited as a soldier”.
70.
Further, a cumulative reading of Article 11(2) with Article 11(3) requires
State parties to “protect civilians including women, irrespective of
the population to which they belong,” including asylum-seeking
women, refugees, returnees and internally displaced persons,
against all forms of violence, rape and other forms of sexual
exploitation, and to ensure that such acts are considered war crimes,
genocide and/or crimes against humanity.97 And by virtue of
Article 11(2), these crimes are those defined “in accordance with the
obligations incumbent upon them under the international
African Charter, Article 27(1).
Keetharuth, 2009, p.185.
African Charter Art. 11(2).
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humanitarian law.”98 This provision is important for two main
reasons. Sexual violence during armed conflict constitutes a crime
against humanity, a war crime and even genocide, acts that constitute
peremptory norms – jus cogens – from which no State can derogate.99
The violations also constitute what the Constitutive Act of the AU
under Article 4(h) terms grave circumstances which warrant
intervention against the State in which they occur or there is threat of
occurrence.
African Charter on the Rights and Welfare of the Child
71.
The African Charter on the Rights and Welfare of the Child (African
Children’s Charter) became the first – and, to date, only – regional
children’s rights document in the world, applying to all persons under
the age of 18.100 The relevant two areas in which the Children’s Charter
expanded the level of protection that the UN Convention on the
Rights of the Child (CRC), according to Frans Viljoen, are the complete
ban of the use of child soldiers in conflicts and in its protection of
child refugees, the African Children’s Charter extends its ambit to
‘internally displaced children’, something the CRC does not do.101
72.
Indeed, the African Children’s Charter envisages prohibition of
certain acts while demanding proactive measures to protect children
during armed conflicts. Under Article 22(1) of the African Children‘s
Charter, State Parties to the Charter are obliged to “undertake to
respect and ensure respect for rules of international humanitarian
law applicable to conflicts which affect children relating to conflicts
and crises”. Article 22(2) of the African Children‘s Charter obliges
State parties to “take all necessary measures to ensure that no child
shall take a direct part in hostilities and prohibition on child
conscription to take part in hostility”.
98
Kindiki, Kithure. “The normative and institutional framework of the African Union relating to the protection
of human rights and the maintenance of international peace and security: a critical appraisal.” African
human rights law Journal 3, no. 1 (2003): 108.
99 This means that crimes against humanity, genocide, war crimes and torture are international crimes that
constitute to the level of jus cogens. Bassiouni, M. Cherif. “Universal jurisdiction for international crimes:
historical perspectives and contemporary practice.” Va. J. Int’l L. 42 (2001): 81.108. Also see Bassiouni,
M. Cherif, and Edward Martin Wise. Aut dedere aut judicare: the duty to extradite or prosecute in
international law. Martinus Nijhoff Publishers, 1995.52. Bassiouni, M. Cherif, and Madeline H.
Morris. Accountability for international crimes and serious violations of fundamental human rights.
Duke University, School of Law, 1996. p.9, 17.
100 Article 2 of the African Children’s Charter.
101 Frans Viljoen, p. 262
36/ Addressing Human Rights Issues in Conflict Situations
73.
The African Children‘s Charter also obliges States to protect the
civilian population (including refugee children102) in armed conflict in
line with their obligations under international humanitarian law. And
it further obliges States to take all feasible measures to ensure the
protection and care of children affected in armed conflicts. The
obligation is also applicable to children in situations of internal armed
conflict, tension and strife.103 This Charter provides a broad set of
provisions that aim to protect children from a wide range of violations
and acts of exploitation, violence, abuse and discrimination in all
types of conflict or crisis situation.
OAU Refugee Convention and the Kampala Convention
on IDPs
74.
One of the sources of law for the African human rights system is the
OAU Convention Governing Specific Aspects of Refugee Problems in
Africa of 1969. This Convention was adopted in 1969 and came into
force in 1974. The protections envisaged in this Convention are of
paramount importance as various conflicts in Africa have forced
many people to flee their countries and seek refuge in neighbouring
states. It provides a framework for the protection of the rights of
refugees and the provision of humanitarian assistance.
75.
The African Union Convention for the Protection and Assistance of
Internally Displaced Persons in Africa, also known as the Kampala
Convention was adopted on 23 October 2009 and entered into force
on 6 December 2012. States have to protect the rights of internally
displaced persons (IDPs), no matter what the cause of displacement
is, by refraining from and preventing discrimination, genocide,
crimes against humanity, war crimes, arbitrary killings and detentions,
enforced disappearance, abduction, torture, sexual and genderbased violence and starvation.104 One obligation is of particular
interest, namely the obligation for States to safeguard places where
IDPs are sheltered from being infiltrated by armed groups and to
ensure that IDPs do not engage in subversive activities.105
76.
The Convention also imposes a host of other obligations on States
such as providing special support to women IDPs, protection
against forcible return, guaranteeing freedom of movement,
102 ACERWC Art. 23 and 24.
103 ACERWC Art. 22(3).
104 Art. 9(1) of the Kampala Convention.
105 Art. 3(1)(f) of the Kampala Convention.
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putting safeguards against environmental degradation and the
protection of individual, collective and cultural property left behind
by IDPs.106
77.
Perhaps the most distinctive aspect of the Convention is its treatment
of the obligation of non-State groups. The Convention provides that
armed groups and their members are criminally responsible in case
they violate the rights of IDPs under international or national law.
They are explicitly but non-exhaustively, prohibited from carrying
out arbitrary displacement, hindering the protection or assistance of
IDPs in any way, restricting the IDPs’ freedom of movement, recruiting
children, engaging in abduction, slavery or trafficking.107
78.
With regards to monitoring compliance, Article 14 establishes a
Conference of States Parties to monitor and review the implementation
of the objectives of the Convention. The same provision also requires
states to submit reports to the African Commission and the African
Peer Review Mechanism on legislative and other measures that have
been taken to give effect to the Convention.
79.
It is also worth mentioning that the Convention imposes an obligation
on the African Union to share information with the African Commission
on the situation of displacement and the protection and assistance
given to IDPs in Africa, and also to cooperate with the Special
Rapporteur on Refugees, Returnees, IDPs and Asylum Seekers in
Africa in addressing issues of IDPs.108
Protocol on the Rights of Older Persons
80.
The Protocol to the African Charter on the Rights of Older Persons
that was adopted on 13 January 2016 has not yet been ratified by any
African country, and hence has not come into force.109 With respect to
protection of older persons in conflict and disaster situations, it is
provided that they should be given priority in accessing assistance
during rescue efforts, settlement, repatriation and other interventions.
They are also entitled to humane treatment, protection and respect at
106 Art. 9(2)(c) – (m) of the Kampala Convention.
107 Art. 7 of the Kampala Convention.
108 Art. 8(3)(e) & (f) of the Kampala Convention.
109 Five countries have signed onto the Protocol on the Rights of Older Persons, which are: Benin, Comoros,
Ghana, Sierra Leone and Zambia. Status List, Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Older Persons, adopted on 30 January 2016 available at https: //au.int/sites/
default/files/treaties/31391-sl-protocol_to_the_african_charter_on_human_and_peoples_rights_on_the_
rights_of_older_persons.pdf.
38/ Addressing Human Rights Issues in Conflict Situations
all times and should be provided with medical assistance when
needed.110 So, older persons are another category of vulnerable
group that enjoy legal protection in time of conflict and crisis under
the African human rights normative framework.
Protocol on the Rights of Persons with Disabilities
81.
The AU Assembly of Heads of States and Government during its 30th
Ordinary Session held from 28-29 January 2018 in Addis Ababa,
Ethiopia adopted the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Persons with Disabilities in Africa.
While the Protocol is not yet available in the public domain, the Draft
Protocol provided for an obligation on State Parties to take special
measures to ensure the protection and safety of persons with
disabilities in situations of risk, including situations of armed conflict,
humanitarian emergencies and natural disasters.
African Youth Charter
82.
In addition to children and older persons, Africa also has a treaty on
the rights and responsibilities of its youth. The African Youth Charter
was adopted on 2 July 2006 and entered into force on 9 August 2009,
and has thus far 38 ratifications.111
83.
The African Youth Charter recognises the important role that the
youth play in the promotion of peace and non-violence, and the
lasting physical and psychological impacts of violence, armed
conflicts and war. In light of this, the African Youth Charter imposes
obligations on States to, among others, strengthen the capacity of
the youth and their organisations in peace building, conflict
prevention and resolutions; condemn armed conflict and prevent the
participation in whichever form and recruitment of young people in
armed conflicts; mobilise the youth for the reconstruction of areas
devastated by war; and facilitate and assist physical and psychological
recovery and social integrations of young victims of armed conflicts.112
110 Art. 14 of the Protocol on the Rights of Older Persons.
111 Status List, African Youth Charter, 2 July 2006, available at https: //au.int/sites/default/files/treaties/7789sl-african_youth_charter_1.pdf
112 Art. 17 of the African Youth Charter.
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African Charter on Democracy, Elections and Governance
84.
The African Charter on Democracy, Elections and Governance
(ACDEG) was adopted on 9 January 2007 and came into force on
15 February 2012 and is ratified by 30 states so far.113 This is an
important instrument particularly in relation to conflict and crisis
situations involving electoral disputes, contested transitions and
unconstitutional changes of government. The inclusion of all these
aspects within ACDEG makes it “an important instrument that
represents a systematic and comprehensive presentation and
elaboration of the commitments of member states of the OAU in
various instruments”.114
85.
The general obligation under ACDEG as set out in Article 9 stipulates
that “state parties undertake to design and implement social and
economic policies and programmes that promote sustainable
development and human security”. The Charter also envisages the
need for promoting a culture of democracy and peace, dedicating one
of the chapters of the Charter. Most notably, Article 13 of the Charter
enjoins States parties to “take measures to ensure and maintain
political and social dialogue, as well as public trust and transparency
between political leaders and the people, in order to consolidate
democracy and peace”.
86.
The ACDEG specifically addresses measures that should be taken in
relation to election disputes, unconstitutional changes of government
and conditions that may threaten constitutional order. Article 17(2)
provides that States shall establish and strengthen national
mechanisms that redress election related disputes in a timely manner.
Under Article 24, the PSC of the AU is vested with the power to take
appropriate measures when situations arise in a state party that may
affect its “democratic political institutional arrangements or the
legitimate exercise of power”. Articles 23 and 25 respectively provide
for the conditions that constitute unconstitutional changes of
government and the steps that the PSC is mandated to take when
such conditions arise in a State party.
113 Status List, African Charter on Democracy, Elections and Governance, 9 January 2007, available at https: //
au.int/sites/default/files/treaties/7790-sl-african_charter_on_democracy_elections_and_governance_8.pdf.
114 African Security Review (21/3). 11.
40/ Addressing Human Rights Issues in Conflict Situations
Protocol establishing the Peace and Security Council
87.
One of the major legal frameworks dealing with conflict situations is
the Protocol to the AU Constitutive Act on the Establishment of the
Peace and Security Council (PSC) of the AU.115 It is in this Protocol
that the role and place of human rights in the context of peace and
security and the whole gamut of conflict prevention, management
and resolution as well as post-conflict reconstruction is
comprehensively articulated.116 Two of the six objectives of the PSC
underscore the inherent interdependence of peace and security and
human rights and thereby tasking the PSC to undertake its activities
within this framework and to the end of achieving the related
objectives of ensuring human rights and peace and security.
88.
Accordingly, one of the objectives of the PSC is to “promote peace,
security and stability in Africa, in order to guarantee the protection
and preservation of life and property, the well-being of the African
people and their environment, as well as the creation of conditions
conducive to sustainable development”.117 Reinforcing this
centrality of the concern for human rights in the context of peace
and security in Africa, another objective that the Protocol sets out
for the PSC is to “promote and encourage democratic practices,
good governance and the rule of law, protect human rights and
fundamental freedoms, respect for the sanctity of human life and
international humanitarian law, as part of the effort for preventing
conflict”.118 It these human rights precepts that the PSC is legally
bound to give due regard to in undertaking its conflict prevention
functions such as in particular “early warning and preventive
diplomacy”, “peacemaking” and the overarching “promotion of
peace and security”.
89.
The powers of the PSC are set out in Article 7 of the Protocol. For the
purpose of this Study, the most important of the PSC’s powers include
115 For discussion on the PSC and its protocol see The AU Audit Report; Jermey I Levitt, The Peace and
Security Council of the AU: The Known Unknowns, 13 Transnational Law and Contemporary Problems
(2003) 109. For early examination of the PSC see Jakkie Cilliers and Kathryn Sturman, Challenges Facing
the AU’s Peace and Security Council, 13 (1) African Security Review (2004) 97.
116 For literature on human rights and the AU Act see S.A. Dersso, (2011) “The Role and Place of Human
Rights in the Mandate and Works of the PSC: An Appraisal”, 58(1) Netherlands International Law Review,
77–101; SA Dersso, the role of the African human rights system in the operationalization of Article 4(h) of
the AU Constitutive Act, in D Kuwali and F Viljeon (eds.) Africa and the responsibility to protect (2014), 195,
198-200; A Abass and M Baderin “Towards effective collective security and human rights protection in
Africa: An assessment of the Constitutive Act of the new African Union” (2002) 49 Netherlands
International Law Review.
117 Art. 3 (a) PSC Protocol.
118 See Art. 6 on the functions of the PSC.
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90.
a)
anticipate and prevent disputes and conflicts, as well as policies
that may lead to genocide and crimes against humanity; […]
e)
recommend to the Assembly, pursuant to Article 4(h) of the
Constitutive Act, intervention […] in respect to grave
circumstances, namely war crimes, genocide and crimes against
humanity, as defined in relevant international conventions and
instruments; […]
m)
follow-up, within the framework its conflict prevention
responsibilities, the progress towards the promotion of
democratic practices, good governance, the rule of law, protection
of human rights and respect for the sanctity of human life and
international humanitarian law by Member States; […] and
p)
support and facilitate humanitarian action in situations of armed
conflicts or major natural disasters.
In recognition of the importance of human rights in peace and
security, Article 19 of the PSC Protocol provides:
“The Peace and Security Council shall seek close cooperation with
the African Commission on Human and Peoples’ Rights in all matters
relevant to its objectives and mandates. The Commission on Human
and Peoples’ Rights shall bring to the attention of the Peace and
Security Council any information relevant to the objectives and
mandate of the Peace and Security Council.”
OAU Convention on the Prevention and Combating of Terrorism
and its Protocol
91.
The 2004 Protocol on the Convention against Terrorism mandates the
PSC with the task of harmonising and coordinating efforts in the
prevention and combating of terrorism by, among others; facilitating
information gathering, processing, and dissemination on patterns
and trends of terrorist acts and the activities of terrorists and sharing
of such information among states; examining reports submitted by
states parties on the implementation of the provisions of the
Protocol.119
119 Art. 4 of the Protocol on the Convention against Terrorism.
42/ Addressing Human Rights Issues in Conflict Situations
African Union Convention on Preventing and Combating
Corruption
92.
The Preamble of the Convention on Preventing and Combating
Corruption, which entered into force on 5 August 2006, expresses the
concern of Member States about the negative effects of corruption
and impunity on the political, economic, social and cultural stability
of African States, and goes on to indicate the principles which
signatories to the Convention agree to abide by, including respect for
democratic principles and institutions as well as human rights.120 Not
only do conflict situations create a viable environment for corruption,
“[w]hen it becomes endemic, corruption can derail political and
economic transitions, undermine state capacity and legitimacy,
exacerbate poverty and inflame grievances linked to conflict.”121
Therefore, African States should during both conflict and peace time
strive to ensure that corruption does not exacerbate or inflame
conflict or crisis situations through taking the measures to combat
corruption as set out in this Convention.
Mandate of the African Commission vis-à-vis conflict and
crisis situations
93.
The African Commission is vested with both protective and
promotional mandates. While the African Charter has given the
Commission expansive latitude in terms of choosing the mechanisms
for implementing its mandate, including the use of any investigative
method of its choice, there are established mechanisms and
procedures for discharging its mandates. As far as its protective
mandate is concerned, apart from the Communications procedure
core to the protection mandate, the available procedures and
mechanisms include fact-finding missions, resolutions and urgent
letters of appeal, and the Article 58 procedure.
94.
Its promotional mandate is implemented through awareness creation
and public mobilisation activities including seminars, its norm
elaboration work, examination of Atate reports under Article 62 of the
African Charter and Article 26 of the Maputo Protocol, special
mechanisms and promotional missions. The promotional mandate
also relates to cooperation with other African and international
institutions concerned with the promotion and protection of human
120 Article 3 of the African Union Convention on Preventing and Combating Corruption.
121 M O’Donnell “Post-conflict Corruption: A Rule of Law Agenda?” (2006) Civil War and the Rule of Law.
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and peoples’ rights.122 The objective of these partnerships is to create
synergy for the better promotion and protection of human and
peoples’ rights on the continent, which also includes protection of
rights in times of conflict and crisis situation. Related to the promotion
mandate of the Commission is also its interpretative mandate
involving the delivery of advisory opinion on the interpretation of the
provisions of the African Charter.
Review of existing tools and mechanisms of the African
Commission
95.
So as to properly discharge its mandate, the African Commission has
put in place several tools and mechanisms. The existing tools and
mechanisms of the Commission that are pertinent to situations of
conflict and crisis are Communications procedure, which includes
Provisional Measures and referral of cases to Political Organs of the AU
and the African Court; protection and promotion missions; urgent
appeals, resolutions, statements, state reporting, Special Mechanisms
and Country rapporteurs. While these various tools and mechanisms
have been used in responding to human rights issues, these responses
have been ad hoc and fragmented. This section will review the potential
of these mechanisms to be more affectively applied and the additional
approaches that may be required to fill in existing gaps to address
human rights issues in conflict and crisis situations on the continent.
Communications procedure123
96.
Depending on the entity that files human rights complaints,
Communications before the Commission can be of two types: interState, and “other” or individual Communications. Inter-State
Communications are human rights complaints brought by one or
more State Parties against one or more other State Parties to the
Charter and are governed by Articles 47 to 54 of the Charter and Rules
86 to 92 of the Rules of Procedure (RoP) of the Commission. Individual
Communications, on the other hand, are human rights complaints
filed by non-governmental organisations (NGOs) or individuals, on
their own behalf or on behalf of victim(s) against a State party and are
regulated by Articles 55 to 57 of the Charter and Rules 93 to 113 of the
RoP of the Commission.
122 Art. 45(1)(c) of the African Charter.
123 This procedure is the embodiment of the Commission’s quasi-judicial mandate. Through the
Communications procedure the Commission deals only with specific cases of violations contained in the
application of individual or group complainants. As a judicial process, this procedure is also set in motion
only on the initiative of claimants and never on the Commission’s own motion.
44/ Addressing Human Rights Issues in Conflict Situations
97.
States and individuals alike have been using this procedure to get
redress for human rights violations in conflict situations. In the only
inter-State Communication decided by the Commission so far, DRC
filed a complaint against Burundi, Rwanda and Uganda alleging that
the three countries had committed grave violations of human and
peoples’ rights by invading its territory and through the activities of
rebels groups which DRC alleged were supported by the States.124 In
its decision, the Commission found that the actions of the three
states in occupying the territories of DRC violated the rights of the
Congolese people to self-determination and constituted a threat to
national and international peace and security. The Commission
further found that the killings and massacres committed in
Congolese provinces occupied by the military forces of the
occupying States violated the Fourth Geneva Convention and
Articles 2 and 4 of the African Charter.125 The Commission stated
that, by taking charge of several natural resources producing areas
of DRC, the occupying States had deprived the Congolese peoples
of their rights to freely dispose of their natural resources.
Accordingly, the Commission found several violations of the
provisions of the Charter and requested the offending States to,
among others, pay adequate reparations for and on behalf of the
victims for human rights violations committed by their armed forces
while they were in effective control of the provinces of DRC.126
98.
In terms of the individual Communications procedure under
Article 55(1), the Commission has addressed human rights issues in
various conflict situations. According to the Commission, people
must be protected from violation of their rights, including threats to
their lives, both in times of peace and of war. In a decision on a
Communication against Chad, while finding that several accounts of
killings and assassinations were contrary to the right to life, the
Commission indicated that the State could not use the civil war in
Chad as an excuse to violate rights, or to permit or tolerate violations
of rights in the African Charter.127
124 ACHPR, Communication 227/99 Democratic Republic of Congo v. Burundi, Rwanda and Uganda, (May 2003).
125 Id., paras 79-80.
126 Ibid.
127 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad, Ninth
Annual Activity Report (1995–1996), para 21.
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99.
Similarly, it emphasised that “[e]ven if Sudan is going through a civil
war, civilians in areas of strife are especially vulnerable and the State
must take all possible measures to ensure that they are treated in
accordance with international humanitarian law”.128
100. The Commission held that people should be protected not only from
life-threatening conditions and acts for which State authorities are
directly responsible but also from those created or perpetrated by
non-state actors. In the case against Sudan, it held that even if some
of the executions committed were not the work of government forces,
the government had a responsibility to protect all the people under
its jurisdiction.129 Furthermore, it held that a sState had a responsibility
to secure the safety and liberty of its citizens and to conduct
investigations into murders even where it could be proved that
violations were committed by government agents.130
101. Another characteristic of the Communications procedure, which is
currently underutilised, is amicable settlement. The African Charter
provides in relation to inter-State Communications that, before
making a finding, it should first have “tried all appropriate means to
reach an amicable solution based on the respect of human and
peoples’ rights” (Article 52) and this is confirmed in Rule 90 of the
RoP. This availing of its good offices to the Parties is also provided for
in the context of individual Communications, but in this regard it is
not a requirement, but good offices may be extended on the
Commission’s own initiative or at the request of either of the parties
concerned.131 Particularly in situations of crisis, which has the potential
to escalate into conflict, the use of amicable settlement may be more
effective than a decision on the violation of rights.
Provisional Measures
102. A Provisional Measure is a request made by the Commission to a
Government of a State Party, against which a Communication is
pending before the Commission, to prevent irreparable harm against
an individual’s or group’s rights. Therefore, for the Commission to
issue a Provisional Measure, firstly, there should be a pending case
before it and secondly, one or more of the victims in the Communication
128 Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comite Loosli Bachelard, Lawyers
Committee for Human Rights and Association of Members of Episcopal Conference of East Africa v.
Sudan, Thirteenth Annual Activity Report (1999–2000), para. 50.
129 Ibid.
130 Communication 74/92 (above), para. 22.
131 Rule 109, Rules of Procedure of the African Commission.
46/ Addressing Human Rights Issues in Conflict Situations
must face a serious and imminent threat that may cause irreparable
harm. Usually such requests are made to stop executions, evictions
or prevent torture.
103. Provisional Measures apply in normal times but are particularly
important in conflict or crisis situations. For instance, in a number of
communications joined together against Nigeria in relation to the
Niger Delta conflict alleging violations of the rights to life, security
and liberty, fair trial, freedom of assembly and others against a
human rights activist and environmentalist Saro-Wiwa and
communities living in Ogoniland, Nigeria, the Commission issued a
request for a Provisional Measure to stop the execution of the above
mentioned victims who were sentenced to death for incitement of
violence and murder. The victims were, however, executed by the
Government in complete disregard for the appeal by the
Commission.132
104. In a myriad of cases brought against Egypt following the recent
alleged mass arrests and trials, arbitrary detention and torture of
political dissidents, journalists and human rights activists in the
context of the change of government and political instability and
terrorism related insecurity, the Commission issued a number of
Provisional Measures.133
105. Provisional Measures of the Commission have a very low rate of
implementation despite the gravity and urgency of the issues they
raise. In the cases referred to above, the provisional measures that
the Commission requested were not implemented, leading in some
instances to irreparable damage being caused.134 This is in line with
the findings of the literature, which shows that “shaming” as a
method of ensuring compliance, while not the most effective of
methods, is even less effective in situations of conflict and crisis
where political actors may depend on repression to retain or gain
power.135
132 ACHPR, Communications 137/94-139/94-154/96-161/97 International Pen, Constitutional Rights Porject,
Civil Liberties Organization and Interights (on behalf of Ken Saro-Wiwa Jr.) v Nigeria, (October 1998).
133 See generally 38th to 43rd Activity Reports of the Commission.
134 Press Release on the execution of Mohammad Bakri Mohammad Haroun and five others, 21 May 2015,
available at http://www.achpr.org/press/2015/05/d259/.
135 Helfer & Slaughter, supra note 2, at 329. Steiner and Alston, supra note 2, at 621, 871, 874-881; Douglas
Donoho, Human Rights Enforcement in the Twenty-First Century, 35 Georgetown Journal of International
and Comparative Law. L. 1, 11, 28-29 (2006); Christopher C. Joyner, Redressing Impunity for Human
Rights Violations: The Universal Declaration and the Search for Accountability, 26 Denver Journal of
International Law and Policy 591, 609 (1998); Jack Donnelly, Recent Trends in UN Human Rights Activity:
Description and Polemic, 35 Int’l Org. 654 (1981); Henry Steiner, ‘International Protection of Human
Rights’ in Malcolm Evans (ed.) International Law 768 (Oxford Univ. Press 2003).
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106. In a Communication brought against Libya in 2012 regarding the
arrest and incommunicado detention of Saif Al-Islam Gaddafi, the
second son of the former President of Libya Muammar Gaddafi,
following the armed conflict that broke out in the country, the
Commission issued a Provisional Measure to stop a possible death
sentence that may be rendered in a trial marred by procedural
irregularities. The request was not complied with and subsequently
the Commission had to refer the matter to the African Court.136
Article 58 procedure
107. As an important component of the protection mandate of the African
Commission, Article 58 of the African Charter laid down procedures
for responding to grave and emergency cases of violations of the
rights guaranteed in the African Charter.
“1.
When it appears after deliberations of the Commission that one
or more communications apparently relate to special cases
which reveal the existence of a series of serious or massive
violations of human and peoples’ rights, the Commission shall
draw the attention of the Assembly of Heads of State and
Government to these special cases.
2.
The Assembly of Heads of State and Government may then
request the Commission to undertake an in-depth study of these
cases and make factual report, accompanied by its findings and
recommendations.
3.
A case of emergency duly noticed by the Commission shall be
submitted by the latter to the Chairperson of the Assembly of
Heads of State and Government who may request an in-depth
study.”
108. There are a number of points worth noting from these provisions.
First, there are two cases envisaged in paragraphs 1 and 3 with
respect of which the procedure is envisaged. These are what the
Charter calls “special cases” and a “case of emergency”. Second,
with respect to special cases under paragraph 1, it is not necessary
for the Commission to conclusively establish the existence of the
“special cases”. It suffices that there are prima facie indications from
the Communication/s to reasonably believe that such cases appear to
136 AfCHPR, Application No. 002/2013 – African Commission on Human and Peoples’ Rights v. Libya, Order
of Provisional Measures, (March 2013).
48/ Addressing Human Rights Issues in Conflict Situations
exist. Third, the “special cases” involve situations manifesting “a
series of serious or massive violations of human and peoples’ rights”.
109. Fourth, the Commission is legally responsible for drawing the
attention of the Assembly to these “special cases”. Fifth, it emerges
from paragraph 3 that, apart from the “special cases”, another basis
for invoking Article 58 involves “a case of emergency duly noticed by
the Commission”. In this particular instance, the Commission shall
submit such cases of emergency to the Chairperson of the Assembly.
Sixth and finally, it is apparent that both situations in paragraphs 1
and 3 must be based on communications with which the Commission
is seized.
110. Although it can apply in times outside of conflict situations,137 the
most common instances in which Article 58 arises involve conflict
situations. The nature, scale and gravity of violations that occur in
conflict situations put them under the category of serious or massive
violations. It was based on this understanding that the Commission
qualified the 1994 genocide against the Tutsi in Rwanda,138 the
conflicts in Darfur,139 South Sudan,140 Central African Republic,141 DRC142
and Northern Mali143 as involving serious and/or massive violations of
human rights.
111. In another case against DRC, then Zaire, the Commission found
serious and massive violations of rights as a result of, among others,
the extrajudicial executions, torture and inhumane treatment, the
arbitrary arrest and detention and unfair trials that were perpetrated
on a large scale by the government.144 In fact, in this case, the
Commission had referred the matter to the Assembly of Heads of
State and Government based on Article 58(1) of the Charter.145
137 ACHPR, Resolution on Nigeria, 22 March 1995.
138 ACHPR, Resolution on Rwanda, 17 April 1994; ACHPR, Resolution on Rwanda, 3 November 1994.
139 ACHPR, Resolution on Darfur, 4 June 2004.
140 ACHPR, Resolution on the Human Rights Situation in the Republic of South Sudan, 14 March 2014.
141 ACHPR, Resolution on the Human Rights Situation in the Central African Republic, 24 July 2013; ACHPR,
Resolution on the Human Rights Situation in the Central African Republic, 14 March 2014.
142 ACHPR, Resolution on the Situation in the Democratic Republic of Congo, 5 December 2005; ACHPR,
Resolution on the Situation in the Democratic Republic of Congo, 24 July 2013.
143 ACHPR, Resolution on the Situation of the North of the Republic of Mali, 2 May 2012.
144 ACHPR, 25/89 – 47/90 – 56/91-100/93: Free Legal Assistance Group, Lawyers’ Committee for Human
Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehova v DRC, 18th Ordinary
Session, October 1995.
145 ACHPR, 25/89 – 47/90 – 56/91-100/93: Free Legal Assistance Group, Lawyers’ Committee for Human
Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehova v DRC, paras. 5 & 15, 18th
Ordinary Session, October 1995.
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112. The above cases reveal the existence of crisis situations in those
countries. The types, nature, gravity and scale of human rights
violations in a country could therefore be both indicators (of the
existence) and fallouts of conflict and crisis situations. Therefore,
human rights violations that arise in most conflict and crisis situations
do fall under Article 58(1) as illustrated above. When such situations of
“series of serious or massive” violations of rights are brought to the
attention of the Commission, it can either refer the matter to the
Assembly of Heads of State and Government as envisaged under
Article 58(1) or to the PSC as per Rule 84(1) of the RoPs of the Commission.
113. While referral of cases to the Assembly is one of the important
avenues for the African Commission to mobilise political pressure for
averting the series of serious or massive violations, the Commission
has not applied it on a regular basis. However, contrary to the
perception of Article 58 having “gone into a state of disuse”,146 the
Commission has not stopped applying Article 58, albeit sparingly and
on an ad hoc basis.
Urgent Appeals
114. Urgent Appeals or Letters of Appeal are letters addressed to a Head
of State or Government by a Special Mechanism of the Commission,
Commissioner Rapporteur of a country or the Chairperson of the
Commission in accordance with Article 46 of the Charter. When the
Commission receives reliable information that an individual or group
or community in a country are likely to suffer or are suffering from
violations of human rights that may cause irreparable harm to life,
security, liberty or freedoms guaranteed in the Charter, the
Commission issues an Urgent Appeal with a view to prevent such
harm from occurring.
115. Once again while these can be used in times outside of conflict
situations, Letters of Urgent Appeal are commonly used in conflict or
crisis situations including in cases of electoral tensions, contestations
over constitutional term limits and situations of protests and riots. In
June 2017, a Letter of Urgent Appeal was sent to Egypt concerning
allegations of the sentencing of ten individuals to death by Egyptian
courts.147 Thh Urgent Appeal to Kenya of May 2017 relates to the
alarming trends of extrajudicial killings implicating the police in
Kenya as well as the lack of investigation and prosecution in such
146 Amnesty International, Counting Gains, Filling Gaps (2017), 32.
147 Id., 43rd Activity Report, para. 30.
50/ Addressing Human Rights Issues in Conflict Situations
cases.148 In October 2016, the Commission sent a Letter of Urgent
Appeal regarding the alleged deaths of more than 55 people in a
stampede in Bishoftu, Oromia Region of Ethiopia.149 In an Urgent
Appeal to The Gambia, the Commission expressed its concern in
respect of the alleged brutal repression of a peaceful demonstration
and torture to death of certain opposition members challenging
electoral laws in the country.150
116. Out of these four Urgent Appeals only the one, that of The Gambia,
received a response from the State. All the rest have not solicited any
response from the concerned States. This shows the low rate of
compliance by States with appeals from the Commission, or at the
least it shows the lack of communication between State Parties and
the Commission in cases where there may have been implementation,
but no response is received.
117. Urgent Appeals are confidential correspondences and thus the
Letters themselves cannot be disclosed to third parties or the wider
public. But the Commissioner who issued the Letter can reveal the
contents of the report while presenting his/her activity report
together with the response of the government, if any.
118. Since the existence of a pending Communication is not required for
issuing Urgent Appeals, the Commission has the latitude to either
issue by its own initiative or with the request of stakeholders
whenever grave violations that endanger the life, security, liberty,
freedom and property of individuals or communities arise. Urgent
Appeals create the opportunity for constructive dialogue with
governments over human rights situation in their countries, which
makes them an essential tool in addressing human rights violations
that occur in situations of conflict and crisis.
119. The Commission issues numerous Urgent Appeals every year
through its various special mechanisms and members.151 While there
is no complete record of Urgent Appeals issued by the Commission,
the Commission has started listing Urgent Appeals sent to States in
its Activity Report together with status of implementation. This is
instrumental in keeping record of the Urgent Appeals as well as in
tracking implementation.
148 ACHPR, 42nd Activity Report, para. 36.
149 ACHPR, 41st Activity Report, para. 27.
150 ACHPR, 40TH Activity Report, para. 19.
151 See generally Activity Reports of the Commission available at http://www.achpr.org/activity-reports/.
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Protection/fact-finding missions
120. Protection missions, also known as fact-finding missions, are visits to
a State Party undertaken by members of the Commission in order to
investigate serious violations of rights brought to the attention of the
Commission. The purpose of fact-finding missions is to gather firsthand information and evidence by visiting places where the alleged
human rights violations occurred, meeting with victims of the
violations, with relevant government officials, national human rights
institutions, civil society, UN agencies and diplomatic missions based
in the country, and any other entity or individual that is capable of
enlightening the Commission on the situation.
121. Protection missions are sanctioned by Article 46 of the Charter and
Rules 81 and 82 of the RoPs. The Commission can proprio motu
request to undertake protection missions or be invited by a State
Party. Other organs of the AU can also request the Commission to
carry out a mission. A State where the Commission plans to visit is
required to extend an open invitation, and provide the necessary
security protection and documents required for the mission by the
delegation. The State should also guarantee the free movement of
members of the mission and provide the facilities and authorisation
needed. The State should also commit not to take any kind of
retaliatory measures against entities and individuals that provide the
delegation with information, testimony and/or evidence.
122. When a request for a protection mission comes from an organ of the
AU, the onus is on the requesting organ to cover the expenses of the
mission. When missions are requested by an AU organ, securing
authorisation is no longer a concern, since the request usually comes
from an organ that has the political leverage obtain the the
authorisation. However, obtaining authorisation is not as easy when
the request comes from the Commission. As in the case of promotion
missions, requests for protection missions from the Commission are
often either ignored or rejected by States. This is understandable
given the fact that protection missions by and large are requested
when there is a volatile political situation in country that leads to
widespread violations of rights. The protection missions carried out
by the Commission so far are to countries destabilised by either
armed conflicts or crisis situations.
123. The Commission is also entitled to undertake promotion missions.
The difference between a promotion mission and a protection
52/ Addressing Human Rights Issues in Conflict Situations
mission is that a promotion mission is undertaken to monitor the
general human rights situation in the country and a country’s level of
compliance with Charter obligations, whereas, protection missions
are intended to investigate particular violations of human rights that
are grave and widespread.
124. Some of the countries to which the Commission undertook protection
mission are Zimbabwe (2002), Sudan (2004), Central African Republic
(2012), Saharawi Arab Democratic Republic (SADR) (2012), Mali (2013)
and Burundi (2015).
125. These cases show how protection missions are best suited in dealing
with human rights violations that occur in conflict and crisis situations.
First and foremost, in reaching a conclusion and making
recommendations, the Commission does not rely on outside sources
or the parties to the conflict. Rather it bases its findings largely on
first-hand information that the Commission gathered through
meetings with relevant stakeholders, visits, testimonies and
documents. Second, missions create the opportunity for continued
constructive dialogue with the government as well as other concerned
bodies. This enables the Commission to continuously and regularly
engage with the government, which creates the feeling of partnership
and trust which again increases the chances of implementation of
recommendations. Third, when organs of the AU are involved, the
Commission gets the political leverage that it ordinarily lacks, which
allows the Commission to carry out missions with fewer or no
diplomatic and procedural bottlenecks. It also helps in approaching
and addressing the situation in a holistic manner, that is both legal
and political, which is critically needed in conflict and crisis situations.
Promotion Missions
126. As noted above, the Commission can also conduct promotion
missions to State Parties, with the aim of monitoring the general
human rights situation in the country and a country’s level of
compliance with Charter obligations. As in the case of protection
missions the Commission needs authorisation from the State
concerned before a promotion mission can be undertaken. One
example of a promotion mission which was undertaken to a country
experiencing a crisis/conflict situation, is the mission which the
Commission undertook to Nigeria in 2016. This mission particularly
engaged with the conflict in the north-east of the country.
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State reporting
127. Article 62 of the African Charter requires states to submit periodic
reports every two years on legislative and other measures that they
have taken so as to ensure the realisation of the rights and freedoms
guaranteed in the Charter. Article 26 of the Maputo Protocol also
requires states to report on measures taken to give effect to the
provisions of the Protocol. In the same vein, under Article 14(4) of the
Kampala Convention states are required to report to the African
Commission on the implementation of the provisions of the
Convention. In order to assist states in the drafting and presentation
of state reports and to facilitate the process of consideration, the
Commission has adopted elaborate reporting Guidelines on the
African Charter and the Maputo Protocol.
128. The State ¬ procedure creates a forum for constructive dialogue
between the Commission and States. States are able to take stock of
their achievements and failures in the light of the Charter and other
supplementary treaties. It also allows the Commission to monitor the
implementation of the relevant treaties and be informed of challenges
that States are facing in their implementation.
129. A State report submitted to the Commission must address measures
taken to give effect to the provisions of the Charter and the two
supplementary treaties; progress made and challenges faced in the
implementation of the Charter and the relevant supplementary
treaties. One of the factors that impede implementation is the
presence of conflicts or crisis situation in a country, and that has been
raised as an issue of concern during the consideration of State
reports.
130. In the Concluding Observations on the second periodic report of
Uganda in November 2006, the Commission pointed to the existence
of NIAC in the country between government forces and armed rebel
groups as one factor restricting the enjoyment of the rights in the
African Charter. The Commission noted that the rebel groups were
involved in the abduction of children and other human rights
violations which affected marginalised groups. The link between the
conflict in Uganda with other regional conflicts was also identified as
a factor that undermined development projects, which in turn
jeopardises the enjoyment of rights guaranteed in the Charter.152
152 ACHPR, Concluding Observations and Recommendations on the Second Periodic Report of the Republic
of Uganda, 40th Ordinary Session, 15–29 November 2006.
54/ Addressing Human Rights Issues in Conflict Situations
131. Under areas of concern, the Commission again emphasised that the
conflicts in northern Uganda are undermining development projects.
To address these challenges, the Commission recommended that the
Government of Uganda, among others, reduce the marginalisation of
the northern part of Uganda by strengthening central government
services to eradicate poverty and insecurity, and also to collaborate
with national and international actors to sensitise people and address
Uganda’s difficulties, in particular those related to insecurity and
development.153
132. The Government of Uganda was urged to inform the Commission of
steps that it has taken to address the areas of concern and how it has
implemented the recommendations of the Commission in its next
periodic report.154
133. In compliance with the recommendations of the Commission, in its
third periodic report presented in May 2009, Uganda reported that
with a view to address the issue of insecurity facing the northern
region, it has established the Ministry of State of Karamoja Affairs
and also launched the Karamoja Integrated Disarmament
Development Programme in 2008 to develop and implement a
comprehensive, coordinated and sustainable disarmament
programme that enhances peace building and development in
Karamoja. It also reported that it has adopted the Peace, Recovery
and Development Plan of Northern Uganda 2007–2010 for the
stabilisation, rehabilitation and consolidation of peace in northern
and eastern parts of Uganda.155
134. The Commission noted the progress and commended the Government
of Uganda for its efforts to address the human rights violations that
occur in the country as a result of armed conflicts.156
135. However, the Commission also expressed its concern with regards to
the continued internal armed conflict in the northern part of Uganda,
and noted with concern the gruesome human rights violations that
were being committed by rebel groups such as attacks on civilians by
raping, mutilating, slaughtering, abducting civilians, raiding villages,
looting properties, burning houses and schools and recruiting child
153 Ibid.
154 Ibid.
155 ACHPR, Concluding Observations and Recommendations on the Third Periodic Report of the Republic of
Uganda, 45th Ordinary Session, 13–27 May 2009.
156 Ibid.
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soldiers.157 In subsequent Concluding Observations adopted by the
Commission on the fourth and fifth periodic reports of Uganda, the
issue of conflict-related human rights violations was not raised as an
issue as the conflict had subsided.158
136. Another country where the issue of human rights violations in armed
conflicts has recurred in its engagement with the Commission
through the State reporting procedure is Sudan. After considering
Sudan’s first combined periodic report in May 2004, the Commission
expressed its concern about the devastating armed conflict that has
been ongoing for decades that has been the cause of serious human
rights violations in the country. The Commission also noted with
concern the state of emergency that has been in place for years in
parts of the country that have been affected by armed conflicts,
which curtails the normal enjoyment of rights guaranteed in the
Charter and other international instruments.159
137. The Commission can follow up on the implementation of its
recommendations emanating from Concluding Observations not
only through the State reporting procedure but also through
promotion missions that are undertaken to that particular country.
During such missions, questions can be posed by the delegation to
the relevant government offices on the status of implementation of
the recommendations of the Commission. Recommendations from
promotions missions could also be followed up during the
consideration of state reports. This system of following up on
recommendations of the Commission during State reporting and
promotion missions can also be extended to recommendations from
Communications, fact-finding missions, requests for Provisional
Measures, Urgent Appeals, and resolutions. A synchronised and
coordinated approach may contribute to a better rate of
implementation of decisions/recommendations.
138. Another challenge arises where States do not report or do not report
regularly. There is currently no procedure for reviewing countries,
which have not submitted reports.
157 Ibid.
158 ACHPR, Concluding Observations and Recommendations on the Fourth Periodic Report of the Republic of
Uganda, 49th Ordinary Session, 28 April to 12 May 2011.
159 ACHPR, Concluding Observations and Recommendations on the Periodic Report of the Republic of
Sudan, 35th Ordinary Session, 21 May 4 June 2004.
56/ Addressing Human Rights Issues in Conflict Situations
Thematic and country-specific resolutions
139. Article 45 of the Charter mandates the Commission to “formulate and
lay down principles and rules aimed at solving legal problems relating
to human and peoples’ rights.” Pursuant to this provision, the
Commission adopts resolutions to address diverse human rights
issues. These resolutions could generally be classified into three
main types, namely: thematic, country-specific and administrative
resolutions.160 Administrative resolutions deal with the Commission’s
procedures, internal mechanisms and relationships between the
Commission and other organs of the AU, inter-governmental
organisations, national human rights institutions, and NGOs. The
types of resolutions that are relevant for the purposes of this Study
are thematic and country-specific resolutions.
Thematic Resolutions
140. A thematic resolution elaborates in greater detail specific human
rights themes or a particular substantive right covered in the Charter.
It defines states’ obligations in respect of such right, and describes
the standard set by the Charter.161 The Commission has passed a
number of thematic resolutions covering a wide range of themes
including, arrest and detention, counter-terrorism, combating sexual
violence, freedom of expression and fair trial, indigenous peoples,
socio-cultural rights, HIV/AIDS, and freedom of association.162
141. Although not many of the thematic resolutions adopted by the
Commission so far deal solely with human rights in conflict
situations, some have parts that touch on the scope and protection
of specific rights during conflict and crisis situations. One example
is the Resolution 283 on the Situation of Women and Children in
Armed Conflict, adopted at the Commission’s 55th Ordinary Session
in May 2014, which expressed concern about in particular sexual
and gender-based violence such as rape, sexual slavery, and sexual
mutilations of women and children, mostly used as a tactic of war.163
This resolution called on States to provide comprehensive support
to women and children affected by war, including through
legislation, provision of redress and support to survivors, conduct
investigations and punish perpetrators and ensure the involvement
160 ACHPR, Documents-Resolutions available at http://www.achpr.org/search/.
161 Ibid.
162 See ACHPR, Legal Instruments – Soft Law available at http://www.achpr.org/instruments/.
163 http://www.achpr.org/sessions/55th/resolutions/283/.
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of survivors throughout the post-conflict peacebuilding processes.
Resolution 276 on Terrorist Acts in Africa164 adopted during the
same Session condemns the terrorist attacks which had been taking
place in countries across the continent, called upon the perpetrators
to put an end to these attacks, and urged States to take the necessary
steps for perpetrators to be brought to justice. Other relevant
resolutions include Resolution 7 the Promotion and Respect of
International Humanitarian Law and Human and Peoples’ Rights
and Resolution 17 of 2007 on Strengthening the Responsibility to
Protect in Africa, which both deal with aspects of human rights and
conflict, including the need for training of national militaries on
humanitarian and human rights law.
Country-specific resolutions
142. Country-specific resolutions address pertinent human rights
concerns in states parties. This genre of resolution has proven very
useful whenever there are widespread violations in a state party but
no individual has submitted any communications to the Commission
in respect of those violations.165 The Commission has passed one or
more country-specific resolutions to address the human rights
situation in Sudan, Uganda, Zimbabwe, Ethiopia, Eritrea, Somalia,
Kenya, CAR, DRC, Côte d’Ivoire, Comoros, Libya, Tunisia, GuineaBissau, Liberia, Burundi, Rwanda and many other countries.
143. For instance, in 2012 the Commission passed a resolution on
Somalia, inter alia, calling on the government and all armed groups
to end ongoing violations of human rights against journalists and
media practitioners.166 During the genocide in Rwanda the
Commission issued a resolution calling on parties to the conflict to
respect the Charter and rules of IHL and to immediately cease
hostilities and work towards peaceful settlement.167 A 2015
resolution on Nigeria condemned acts of violence against civilian
population by Boko Haram militants and the use of female and
children suicide bombers.168 The 2013 resolution of the Commission
on Mali urged the government to put an end to human rights
violations, acts of violence and impunity caused by the political
instability in the country.169 The Commission condemned the gross
164 http://www.achpr.org/sessions/55th/resolutions/276/.
165 ACHPR, Documents-Resolutions available at http://www.achpr.org/search/.
166 ACHPR, Resolution on Attacks Against Journalists and Media Practitioners in Somalia, 2 May 2012.
167 ACHPR, Resolution on the Situation in Rwanda, 27 April 1994.
168 ACHPR, Resolution on the Human Rights Situation in the Federal Republic of Nigeria, 28 February 2015.
169 ACHPR, Resolution on the Political Situation in the Republic of Mali, 24 July 2013.
58/ Addressing Human Rights Issues in Conflict Situations
human rights violations committed by armed groups in eastern DRC
against civilians including rape and other forms of violence on
women and children.170
144. Following the violence that broke out in the wake of the December
2007 elections in Kenya, the Commission condemned the human
rights violations perpetrated by all parties, and called on them to
exercise patience and restraint. The Commission also decided to
undertake a fact-finding mission to investigate allegations of
violations of human rights and called on the government and the
opposition to cooperate and extend assistance to the fact-finding
mission.171 The mission never took place because the government did
not grant permission for the mission to go ahead. A resolution that
deplored the serious human rights violations as a result of the
unconstitutional change of government twice in a year in GuineaBissau was adopted by the Commission on 2 May 2012.172 The
Commission also condemned the mass arrest and trial, and the
imposition of death penalty following trials that completely
disregarded fair trial standards on political dissenters and critics in
Egypt in February 2015.173
145. Similar country-specific resolutions were also issued on Eritrea and
Ethiopia in 2005 and 2012 respectively. In Eritrea, the Commission
was concerned about the arbitrary arrests and continued detention
without trial for many years of several former cabinet ministers and
government officials, members of opposition groups, journalists and
media practitioners in violation of the provisions of the African
Charter.174 In the case of Ethiopia, the Commission was alarmed by
the arrests and prosecution of journalists and opposition members,
charged with terrorism and other offences including treason, for
exercising their legitimate rights to freedom of expression and
freedom of association. The Commission also condemned the
excessive restrictions placed on human rights work by the Charities
and Societies Proclamation, denying human rights organisations
access to essential funding, endowing the Charities and Societies
Agency with excessive powers of interference in human rights
organisations.175
170
171
172
173
174
175
ACHPR, Resolution on the Human Rights Situation in the DRC, 24 July 2013.
ACHPR, Resolution on the Human Rights Situation in Kenya, 23 February 2008.
ACHPR, Resolution on the Unconstitutional Change of Government, 2 May 2012.
ACHPR, Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, 28 February 2015.
ACHPR, Resolution on the Human Rights Situation in Ethiopia, 5 December 2005.
ACHPR, Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, 2 May 2012.
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146. From the foregoing it is obvious that resolutions play a crucial role
in bringing to light grave human rights violations that are
committed in conflict and crisis situations. From the Rwandan
genocide to the post-election crisis in Kenya, unconstitutional
change of government in Guinea-Bissau, terrorist attacks in
Nigeria and Somali and internal tensions in Ethiopia and Eritrea,
country-specific resolutions have proved to be vital tools in
responding to human rights violations.
147. One shortcoming of resolutions is that they are adopted only when
the Commission is in Session, which is four times in a year maximum.
The implication of this is that the Commission cannot give timely
response through resolutions to human rights violations that occur in
conflict and crisis situations unless the violations occur when the
Commission is in Session or close to it.
148. The other major limitation of country-specific resolutions is that the
rate of compliance of resolutions of the Commission is lower than the
other decisions and recommendations of the Commission for various
reasons.
149. The first could be the procedure followed in issuing resolutions.
Most of the times draft resolutions come from NGOs through the
NGO forum or from the Commission itself sponsored by country
rapporteurs or special mechanisms. In both cases, however, the
State is not given the opportunity to give its response or feedback
on the draft resolution before it is adopted by the Commission.
Therefore, there is a tendency from States to view it as a procedure
that lacks impartiality, and hence they seem to be reluctant to
implement/comply. Some States have even accused the
Commission on a number of occasions of copying resolutions of
international organisations. This problem is exacerbated by the
apparent absence of rules in the Charter or RoP of the Commission
that regulate the procedures for the consideration and adoption of
resolutions.
150. The second reason is the lack of follow-up mechanism in the RoP as
well as in practice. The Commission has not yet developed a system
to follow up on the implementation of its resolutions.
Recommendations of missions are followed up by subsequent
missions or State reports, and State reports by State reports or
missions. Decisions on communications including provisional
60/ Addressing Human Rights Issues in Conflict Situations
measures by the Working Group on Communications176 or referral or
missions and/or state reports. But there is no mechanism for
following up on resolutions.
151. The third reason, related to the second, is that after resolutions are
adopted they are not sent to the concerned State and stakeholders.
There is a haphazard practice of sending a compilation of adopted
resolutions to embassies in Addis Ababa after each session. While
this is commendable, if the Commission is serious about getting its
resolutions implemented or followed up then when country-specific
resolutions are adopted, in addition to sending the compilation, it
should also send the specific resolution to each State on which a
resolution has been adopted with an accompanying letter requesting
the State to report on implementation. This is, of course, assuming
that the procedural defects identified above are cured by giving the
State the opportunity to forward its feedback on the draft resolution,
if any, before it is adopted.
152. As it stands, States on which country-specific resolution have been
adopted are neither availed with a copy of the resolution as a matter
of regular and formalised procedure, nor are they requested to report
on implementation or compliance. There is no point in adopting a
resolution on a State if the State is not going to be informed of it.
153. In order to accommodate all the above suggestions, the Commission
should reconsider its resolution procedure and adopt detailed
guidelines on resolutions that lay down the procedure for the
presentation of draft resolutions, their consideration, adoption and
follow up. However, any procedure adopted should still give proper
consideration to the interests of the victims, and the process should
not be so cumbersome that it is not practicable.
Press releases/statements
154. Press releases or press statements are statements that the
Commission issues on topical human rights issues or its activities.
The type of press release that is of relevance to this Study is the one
on topical human rights issues as it can be used to condemn or
express concern about ongoing human rights violations in conflict or
176 The expanded mandate of the Working Group on Communications includes following up and collecting
information on the status of implementation of the Commission’s decisions on communications. ACHPR,
Resolution on the Expansion of the Mandate of the Working Group on Communications and Modifying its
Composition, 22 October 2012.
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crisis situations. Press releases on activities are meant to give
information to the public on just concluded, ongoing or planned
activities of the Commission or in commemoration of events.
155. The advantage that press statements have over country-specific
resolutions is that they can be issued at any time. The Commission
does not need to be in Session to issue them. In fact, most statements
are issued when the Commission is not in Session, enabling timely and
prompt response to human rights violations. Other than this, press
statements also share similar challenges as country-specific
resolutions vis-à-vis lack of follow-up mechanisms and implementation.
156. Some of the most recent press releases of the Commission are on
the human rights situations in Cameroon, Kenya and DRC. In its
January 2018 press release the Commission condemned the
violence and human rights violations, in particular the militarisation
of the English-speaking regions of Cameroon and the
disproportionate use of force against the population. It also
condemned enforced disappearances, arbitrary detention under
deplorable conditions, and prohibition of peaceful demonstrations
and displacement of Anglophone Cameroonians.177
157. The press release on Kenya was jointly issued by the Commissioner
Rapporteur for Kenya and the Special Rapporteur on Freedom of
Expression and Access to Information. The Press statement raised
concerns regarding the shutting down of private TV stations that
were attempting to live broadcast the swearing-in of opposition
leader, Raila Odinga, and the refusal of the government to obey a
court decision allowing the stations to be re-opened. The Commission
also condemned the arrest and detention and mistreatment in
detention of two opposition figures for their role in the inauguration
ceremony, and the deportation of one of them from the country.178
The press release on DRC was issued by the Country Rapporteur
strongly condemning the abusive and disproportionate use of force
against peaceful demonstrators that resulted in the loss of life and
injuries.179
177 ACHPR, Press Release on the Human Rights Situation in Cameroon, 29 January 2018.
178 ACHPR, Press Statement of the African Commission on Human and Peoples’ Rights on the Human Rights
Situation in Kenya by Commissioner Rapporteur for the Republic of Kenya, Commissioner Solomon Ayele
Dersso and the Special Rapporteur on Freedom of Expression and Access to Information, Commissioner
Lawrence Mute, 9 February 2018.
179 ACHPR, Press Release on the Human Rights Situation in the Democratic Republic of Congo by
Commissioner in charge of monitoring the human rights situation in DRC, Commissioner Soyata Maiga,
8 January 2018.
62/ Addressing Human Rights Issues in Conflict Situations
158. The Commission also issued press statements on the plight of the
Chibok girls, who were abducted by the Boko Haram militants in
Nigeria in April 2014, as well as on the further abductions of girls in
Borno and Yobe States, condemning the instigators and perpetrators
of these indefensible acts of violence, and demanding an immediate
end to their attacks on civilians. In a press statement of 1 March 2018,
the Commission stressed that these abductions do not only amount
to acts of violence against these girls, but also violate their right of
education, underscoring the negative impact of conflict and crisis
situations on the right to education.
Special Mechanisms
159. The African Commission has twelve human rights thematic Special
Mechanisms, tasked with specific mandates in relation to Refugees,
Asylum Seekers, Migrants and Internally Displaced Persons; Rights
of Women; Prevention of Torture; Economic, Social and Cultural
Rights; Rights of Older Persons and People with Disabilities; and
Extractive Industries and Environment, among others. Under their
thematic mandates, in addition to the various tools of the Commission
discussed above, including initiation of resolutions and the issuing of
press statements and letters of appeal, Commissioners can also be
given the responsibility to develop normative instruments for
adoption by the Commission. A few of these have touched on the
issue of conflict and crisis situations.
160. For example, the Guidelines on Combating Sexual Violence and its
Consequences in Africa that was adopted in May 2017 has a part on
the investigation and prosecution of crimes of sexual violence in
situations of conflict and crisis as international crimes.180 The
Commission’s Special Rapporteur on Rights of Women has a crucial
role in ensuring that women who are victims in conflict are protected
and receive redress, and also that women are empowered to take part
in the peace processes. In this regard, the Special Rapporteur during
2017 took part in workshops in Nigeria and Cameroon organised by
the UN Office on Drugs and Crime and aimed at addressing the
gender dimensions in the fight against terrorism.
180 ACHPR, Guidelines on Combating Sexual Violence and its Consequences in Africa, (2017), paras. 44-52.
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161. The 2015 Principles and Guidelines on Human and Peoples’ Rights
while Countering Terrorism in Africa under the General Principles
provides that States have the obligation to respect their human rights
obligations while conducting counter-terrorism operations abroad,
including in times of armed conflict during which times IHL is also
applicable.181 The part on implementation further states that the
obligations outlined in the Guidelines should always be guaranteed
in law and practice even during armed conflicts and state of
emergency.182 The 2014 Guidelines on the Conditions of Arrest, Police
Custody and Pre-Trial Detention in Africa imposes the same obligation
of guarantee on states.183
162. The Principles and Guidelines on the Implementation of Economic,
Social and Cultural Rights in Africa in defining vulnerable and
disadvantaged groups includes victims of armed conflicts as one
group.184 It also obliges States to provide mental health care to
survivors of conflicts among others.185 States are also required to give
social security services to areas affected by armed conflicts.186
Through engaging States in conflict, at risk of conflict and emerging
from conflict on the socio-economic and development issues which
are often the underlying causes or drivers of conflict, the Working
Group on Economic, Social and Cultural Rights can play useful role in
providing guidance on addressing the socio-economic rights
dimension of conflicts.
163. The 2002 Robben Island Guidelines absolutely prohibit torture, inhuman
or degrading treatment or punishment even under situations of state of
war, threat of war, internal political instability or any other public
emergency.187 It further proscribes the use of notions of ‘necessity’,
‘national emergency’, and ‘public order’ as justification of torture,
inhuman or degrading treatment or punishment.188 The Committee for
the Prevention of Torture in Africa (CPTA) is the special mechanism of
the Commission responsible for promoting and facilitating the
implementation of the Robben Island Guidelines within the Member
181 ACHPR, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa,
(2015), General Principles L, p. 15.
182 Id., Implementation A, p. 39.
183 ACHPR, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, (2014).
184 ACHPR, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in
Africa, (2012), para. 1(e), p. 8.
185 Id., para. 67(ff) p. 27.
186 Id., para. 82(k) p. 47.
187 ACHPR, Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines), (2002), para. C(9).
188 Id., para. C(10).
64/ Addressing Human Rights Issues in Conflict Situations
States. CPTA also developed the General Comment No. 4 on the African
Charter on Human and Peoples’ Rights: The Right to Redress for Victims
of Torture and Other Cruel, Inhuman or Degrading Punishment or
Treatment (Article 5), which inter alia deals with the right to redress
where torture took place in the context of armed conflict, and sets out
the duties of both States and armed non-state groups.
164. As noted above, one of the main consequences of conflict on the
continent is the displacement of people, either internally or outside of
their countries. The Special Rapporteur on Refugees, Asylum
Seekers, Migrants and Internally Displaced Persons thus has an
important role in the context of conflict and crisis situations, including
in relation to prevention of conflict resulting in displacement. In
addition, and related to this, in some conflicts the right of freedom of
movement of civilians is violated, in that conflict parties restrict
directly or indirectly the ability of civilians to move from areas of
violence to seek safe havens. The Commission could have a role in
ensuring the establishment of corridors of humanitarian aid through
which such persons can escape to neighbouring countries and be
granted asylum.
165. Similarly, the Commission should also strengthen the role of the
Working Group on Rights of Older Persons and People with Disabilities
in relation to these vulnerable groups particularly affected by conflict
and crisis situations.
Country rapporteurs
166. Each of the Commissioners also bear the responsibility to monitor
the human and peoples’ rights situations in specific countries,
covering all the State Parties under the Charter. The Country
Rapporteur will thus often be the first person to be aware of
developments in their countries of responsibility, and if it is a matter
of wider concern, can bring it to the attention of the Commission, or
specific Commissioners, for a coordinated response. Thus, for
example, a letter of appeal sent to Kenya regarding the widespread
patterns of extra-judicial killings implicating the police in Kenya was
a joint letter sent by the Chairperson of the Working Group on Death
Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa
and the Commissioner Rapporteur on the Human Rights Situation in
the Republic of Kenya. Such collaboration strengthens the impact of
the mechanisms of the Commission.
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Coordination and Collaboration by the Commission with other
actors on the continent
Coordination and Collaboration of the Commission with relevant
AU Bodies
167. Article 45(1)(c) of the Charter authorises the Commission to cooperate
with African and international institutions concerned with the
promotion and protection of human rights. In line with this provision,
the African Commission has forged relations with different AU bodies
for the better promotion and protection of human and peoples’ rights,
including in time of conflict or crisis. Some of these relations have
been created explicitly under the Charter, others through Protocols
and still others through RoP of the Commission, resolutions and
Memoranda of Understanding (MoU). Some of these formalised
relationships are discussed below.
Relationship with AU policy organs
168. The Constitutive Act of the AU sets the promotion and protection of
human rights in accordance with the African Charter as one of the
objectives of the AU.189 Some of the principles of the AU also directly
relate to the mandate of the Commission such as respect for
democratic principles, human rights, rule of law and governance;
promotion of social justice; respect for the sanctity of human life,
condemnation and rejection of impunity and political assassination,
acts of terrorism and subversive activities; condemnation and
rejection of unconstitutional changes of governments; prevention of
conflicts and war crimes, crimes against humanity and genocide.190
169. Policy organs of the AU in the context of this Study refers to the
Assembly of Heads of States and Government (the Assembly), the
Executive Council and the Permanent Representatives Council (PRC).
170. The relationship between the Commission and the policy organs of
AU has been set out under various provisions of the Charter191 and
further elaborated in the RoP of the Commission.
171. The most relevant provisions laying out the relationship between
the Commission and the policy organs, which can be applied in
189 Constitutive Act of the African Union, 2000, Art. 3(h).
190 Id., art. 4.
191 See for example arts. 30, 33, 37, 39, 41, 44, 45(3) & (4), 52, 53, 54, 58, 59.
66/ Addressing Human Rights Issues in Conflict Situations
cases of human rights violations in conflict and crisis situations are
Articles 58 and 59 of the Charter. The nature of the relationship
between the two provisions has been discussed in detail above
under “The review of existing Tools and Mechanisms of the African
Commission”, and there is no need to repeat that discussion here.
But it should be recalled that according to Article 58, the Assembly
has the ultimate and full power to enforce the decisions and
recommendations of the Commission. Hence, the enforcement of
the decisions of the Commission on violations of human rights in
conflict and crisis situations completely depends on the Assembly.
Only the Assembly has the power to convince or force the State
concerned to comply with the decision of the Commission, and that
requires political will from the Assembly.
172. So far, the Assembly has not demonstrated the required political will
to enforce the decisions of the Commission. Except making general
statements requiring States to comply with decisions of the
Commission, the Assembly and the Executive Council have not taken
any concrete steps to enforce decisions. And this has seriously
hampered the effectiveness of the protection mandate of the
Commission and, by extension, the tools and mechanisms of the
Commission relevant for addressing human rights violations in times
of conflict and crisis.
173. Contrary to the supportive role that they are expected to play, the
working relationship between the policy bodies and the Commission
has become fraught with tension. As a result, at the January 2018
summit, the AU Assembly decided that the Commission should hold
a retreat with the members of the Permanent Representatives
Committee for addressing the various issues affecting the
relationship of the Commission with these bodies. The policy organs
of the AU have also in the past forced the hand of the African
Commission when they determined that its work caused them
political inconvenience. Any close cooperation with policy organs
should thus be approached with caution to ensure that it does not
impact on the actual or perceived independence and impartiality of
the Commission.
174. On the positive side, the Executive Council on a few occasions has
requested the Commission to undertake fact-finding missions to
investigate reports of serious and massive human rights violations in
a member state. The case of SADR is one exampl, as discussed above.
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175. Thus, the greatest challenge in making the relationship between the
Commission and the political organs of the AU work is the lack of
political will of the latter. Additional challenges of a technical nature
include the absence of established working relationships and
mechanisms for operationalising the relationships envisaged under
the African Charter. Until and unless these issues are addressed, the
objectives of the envisaged working relationship will not be effectively
achieved.
Relationship with the PSC
176. In upholding the human and peoples’ rights in the African Charter,
both the Constitutive Act of the AU and the Protocol Establishing the
Peace and Security Council acknowledge the role of the African
Commission in the peace processes of the AU. Against this
background, there have been instances in which the PSC resorted to
the Commission as part of its effort in maintaining peace and security
in Africa.
177. Since 2004 the PSC has made a number of requests to the ACHPR to
undertake investigations of issues of human rights in various
situations on the continent, including in Cote d’Ivoire, Darfur, the
Republic of Guinea, and Somalia. Most recently, the PSC tasked the
African Commission to investigate the human rights situation in
Burundi. Acting on this request, the Commission undertook its
investigations on 7–13 December 2015 and presented its investigation
report to the PSC on 28 April 2016. However, following the report
there was no clear indication that the recommendations made were
taken on board by the PSC, other than the suggestion by the PSC for
the mediators of the Burundi conflict to take account of the
recommendations. The PSC could also have taken a more proactive
role in assisting the Commission to overcome challenges in obtaining
permission to undertake the mission to Burundi. There is thus a clear
lack of synergy and full cooperation between the two institutions,
which requires that a closer working relationship be established.
178. In terms of the normative basis for this relationship, both the PSC
Protocol and the African Commission’s legal instruments reveal that
there is clear overlap in the mandates of the African Commission and
the PSC. Accordingly, under the PSC Protocol, the PSC enjoys the
power: (a) to institute sanctions whenever an unconstitutional change
of government takes place in a Member State and (b) to follow up on
the progress towards the promotion of democratic practices, good
68/ Addressing Human Rights Issues in Conflict Situations
governance, the rule of law, protection of human rights and
fundamental freedoms, and respect for the sanctity of human life and
international humanitarian law by member states. Additionally,
regarding “grave circumstances” identified under Article 4(h) of the
Constitutive Act of the AU, the PSC is vested with the power: (a) to
anticipate and prevent policies that may lead to genocide and crimes
against humanity192 and (b) to recommend to the AU Assembly
intervention in a member state in respect of grave circumstances.193
179. These dimensions of the mandate of the PSC fall squarely within the
area of competence of the African Commission, whose mandate and
activities in the promotion and protection of human and peoples’
rights directly feature in and concern all the areas of engagement of
the PSC, conflict prevention, management, resolution and postconflict transition processes. These are all areas in which various
issues of human and peoples’ rights loom large.
180. This overlap in mandates, as well as the effective implementation of
the respective responsibilities of the two institutions in these areas of
common interest, require that the two bodies adopt an institutionalised
mechanism for a close working relationship.
181. Rule 84(1) of the Rules of Procedures of the Commission stipulates
that the African Commission may refer situations falling under
Article 58 of the African Charter to the PSC. A more comprehensive
framework for institutionalised close working relationship between
the PSC and the African Commission is laid down under Article 19 of
the PSC Protocol. This provision states:
“The Peace and Security Council shall seek close co-operation with
the African Commission on Human and Peoples’ Rights in all matters
relevant to its objectives and mandates. The Commission on Human
and Peoples’ Rights shall bring to the attention of the Peace and
Security Council any information relevant to the objectives and
mandate of the Peace and Security Council.”
182. Building on the Conclusions of the Dakar Retreat of the PSC in 2007
that provided for the holding of an annual consultative meeting
between the two bodies, and in order to operationalise Article 19 of
the PSC Protocol in an institutionalised framework, the African
Commission made a request to attend a session of the PSC to discuss
192 PSC Protocol, Art. 7(1)(a).
193 PSC Protocol, Art. 7(1)(e).
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the modalities for a closer working relationship between the PSC and
the African Commission. Despite the fact that the meeting requested
by the Commission under Article 19 of the PSC Protocol did not take
place, its request led to the convening of a session of the PSC on
5 September 2017 with organs of the AU with human rights mandates,
including the African Commission.
183. From the current format of collaboration, it is clear that there is a lot
to be gained from a close working relationship between the two
bodies. Indeed, the limited experience with respect to various
situations including Mali or Burundi has shown that such a close
working relationship helps to advance the respective mandates of the
two bodies. Given that currently the working relationship remains
largely ad hoc and reactive, there is a need for having a more
institutionalised arrangement in implementing Article 19 of the PSC
Protocol, including through activating the Conclusions of the 2007
Dakar Retreat of the PSC mandating the convening of the annual
consultative meeting. Most importantly, there is a need for articulating
a framework for the multidimensional operationalisation of the
provisions of Article 19 of the PSC Protocol with respect to prevention,
management and resolution of conflicts.
Relationship with the African Court
184. The relationship between the Commission and the Court is envisaged
under Article 2 of the Court Protocol and further sketched out in the
respective RoP of the Commission and the Court. The relationship is
one of complementarity, with the Court complementing and
reinforcing the protection mandate of the Commission.194 The reason
why the protection mandate of the Commission needed to be
complemented by the Court is because the decisions and
recommendations of the Commission are not legally binding. As a
result, the majority of the decisions/recommendations of the
Commission are not implemented by States, and hence the need to
establish a Court that gives legally binding decisions.
185. Whether the lack of compliance with decisions can be rectified by
establishing a Court is beyond the scope of this Study. However, it
should be emphasised that the problem of compliance in the African
human rights system is largely related to the lack of will by
governments to uphold their commitments and the prevalence of
weak systems of democratic governance and rule of law, conflicts
194 See the Preamble and Article 2 of the Court Protocol.
70/ Addressing Human Rights Issues in Conflict Situations
and prevailing socio-economic factors such as poverty, corruption
and harmful traditional practices. The establishment of a Court is not
something that will rectify these conditions that hinder compliance.
186. Regardless, there is no doubt that the establishment of the Court
contributes to enhanced protection of human and peoples’ rights on
the continent complementing the role of the Commission. Creating
a smooth, cordial, and effective relation between the Commission
and the Court is indispensable for the better protection of human
rights in Africa. Especially at this stage where only seven states
have made the Declaration under Article 34(6) of the Court Protocol
allowing individuals direct access to the Court,195 the role of the
Commission for enabling the complementary protection role of the
Court is crucial.196
187. However, the reality is very different from this aspiration. While the
Commission has referred only three cases,197 there remain a number
of challenges that have impeded the full operationalisation of
complementarity. One of the reasons for this is the lack of clear rules
and guidelines within the Commission to identify cases to be referred
to the Court. In this regard Rule 118 of the Commission’s RoP lays out
some general criteria for referral cases, which are: cases of noncompliance by States with decisions on Communications or requests
for Provisional Measures of the Commission, and cases that involve
serious or massive violations of human rights.
188. Despite the apparent simplicity of these rules, there are several
factors, including the deficiency of the rules, that impede the
implementation of the referral system. Firstly, from the side of the
African Commission, referral of cases to the African Court requires
195 Article 34 of the Protocol [Ratification] stipulates that “at the time of ratification of this Protocol or any
time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases
under Article 5(3) of this Protocol. The Court shall not receive any petition under Article 5(3) involving a
State which has not made such a declaration.” Article 5(3) states as follows: “The Court may entitle
relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and
individuals to institute cases directly before it, in accordance with Article 34(6) of this Protocol.” The
seven states that have made the Declaration under Article 34(6) are: Burkina Faso, Malawi, Mali, Tanzania,
Ghana, Cote d’Ivoire and Benin. See the Status List (of ratification) of the Court Protocol available at https:
//au.int/sites/default/files/treaties/7778-sl-protocol_to_the_african_charter_on_human_and_
peoplesrights_on_the_estab.pdf.
196 Rule 33 of the Rules of Court.
197 The most recent case to be referred to the Court was against Libya, in the case of Saif Al-Islam Ghaddafi,
(AfCHPR, Application 002/2013 – African Commission on Human and Peoples’ Rights v. Libya, Judgment,
June 2016) which was referred in 2012. The Court rendered a judgment in the case in 2016. In another case
relating to the Ogiek indigenous communities of Kenya (AfCHPR, Application No. 006/2012, African
Commission on Human and Peoples’ Rights v. Republic of Kenya, Judgment, May 2017), the Court decided
in favour of the Commission in May 2017. The third case was also against Libya and is discussed below.
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that there is a capacity within the Commission that prepares, files and
follows up the cases. Currently the Commission lacks the resources
and dedicated capacity that this requires. It would be incumbent on
the AU to provide the necessary human and financial resources for
the Commission to establish a litigation unit, in order that more cases
may be referred to the African Court, to strengthen the implementation
of complementarity and provision of access to justice.
189. Secondly and more importantly, there are some legal challenges,
among which is the loose or inadequate criteria for referral of cases.
If one looks at the criteria under Rule 118 of the current RoP of the
Commission, referral of a case that has been finalised at the level of
the Commission to the Court on account of non-implementation can
lead to the re-opening of the case by the Court and its reconsideration
on admissibility and the merits. Such reopening of the case would
entail not only waste of judicial resources but also leads to major
frustration for the parties and creates undue legal uncertainty. In
addition, in relation to cases involving Article 58 situations, referring
cases on the basis of gravity of violations or their jurisprudential
importance would imply that the Commission deals with less serious
or less important cases, which would be contrary to the clear terms of
the Court Protocol which envisages the role of the Court to be
complementary to that of the Commission.
190. Despite the Commission and the Court having held regular meetings
every year since 2011, they have not articulated mechanisms for
resolving these institutional, technical and normative issues and
these challenges remain unresolved.198
191. The first case that was referred to the Court against Libya in 2011 was
struck out by the Court for lack of diligent prosecution.199 This was a
test case for two reasons. Firstly, it was the first ever case referred
from the Commission to the Court. Secondly, the case relates to
human rights violations committed during the Libyan revolution by
the Gaddafi regime200 and hence could have been used to demonstrate
how the Court can afford a better protection to human rights in
conflict situations. But it was struck out for failure by the Commission
to diligently prosecute the case, clearly demonstrating the lack of
proper thinking about the institutional and resource implications of
198 See the 30th to the 43rd Activity Reports of the Commission available at http://www.achpr.org/
activity-reports/.
199 AfCHPR, Application No. 004/2011 – African Commission on Human and Peoples’ Rights v. Great Socialist
People’s Libyan Arab Jamahiriya, Order, March 2013.
200 Ibid.
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the complementarity principle noted above. Since then, the Ogiek
case referred to by the Commission has been concluded with the
Court handing down a judgment in favour of the Ogiek Community
against Kenya.
192. It is hoped that the ongoing process of the revision of the Rules of
Procedure of the Commission would afford an opportunity in
addressing at least the legal/technical challenges limiting referral of
cases and hence the poor implementation of the complementary
relationship between the Court and the Commission, although
effective operationalisation of complementarity requires addressing
the other legal (reopening of communications) and institutional
challenges.
193. The other issue is that the complementary relationship between the
two entails a two-way traffic involving referral both from the
Commission and from the Court. In relation to referral from the Court
as well, discussions thus far between the two bodies show that it is
only cases involving States that did not ratify the court protocol or
did not make the Article 34(6) declaration that the Court is inclined to
refer to the Commission. This however may not be considered as
referral given the lack of jurisdiction on the part of the Court.
194. From the perspective of the focus of this conflict and crisis situations,
what is of significance in terms of the working relationship between
the Commission and the Court is the opportunity that it presents for
elaborating the effective protection of the Charter standards in
conflict situations.
Relationship with the Children’s Committee
195. The Commission and the Children’s Committee are both regional
human rights treaty-monitoring bodies under the auspices of the AU,
and have similar mandates. While the Commission is mandated to
promote and protect human and peoples’ rights in Africa, the
Children’s Committee is entrusted with the mandate of promoting
and protecting the rights of the child on the continent.201 Thus while
the Commission has a general mandate, the Committee has a
specific-group focused or thematic mandate.
201 See Article 45 of the African Charter and Article 42 of the Children’s Charter.
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196. Despite the existence of general provisions in their constitutive
instruments that allow the two institutions to collaborate and
cooperate with other AU institutions with similar mandates, no
explicit statutory relation has been established between the
Commission and the Children’s Committee. 202 However, since their
mandates are similar and deal with cross-cutting human rights
issues, they have formalised their relationships through a resolution,
and continuous engagement and sharing of information.
197. The 2009 resolution of the Commission establishes a formal relation
with the Children’s Committee with a view to enhance the cooperation
between the two institutions. It also appointed the Special Rapporteur
on the Rights of Women in Africa as the focal person of the
Commission for the cooperation between the two institutions, who is
also required to report on the status of cooperation at every Ordinary
Session of the Commission. 203
198. Given the similarities of the mandate and working tools of the two
bodies, there is huge potential for joint action in addressing human
rights issues in conflict and crisis situations. The most significant
collaboration to date has been the adoption of a joint General
Comment between the two institutions on ending child marriage. In
August 2017, the Commission and the Committee also sent a joint
Letter of Urgent Appeal to the Government of Tanzania concerning a
statement made by the President on 22 June 2017 to the effect that
pregnant girls and teen mothers would no longer be allowed to attend
school and continue their education. 204 This is encouraging and can
be effectively used to protect human rights in time of conflict and
crisis situations.
199. Similar joint actions or activities can be carried out in undertaking
fact-finding missions, issuing resolutions and perhaps also in
referring cases to the political organs of the AU. Taking joint action
will have more visibility and force, and is a strategy that should
particularly be often used in cases involving human rights violations
in conflicts and crisis situations. If for instance a joint fact-finding
mission is undertaken to a troubled country and a joint report is
presented to the political organs, its impact will be felt much more
than if it is done individually.
202 See in particular Article 45(1)(c) and Article 42(a)(iii) of the Children’s Charter.
203 ACHPR, Resolution on Cooperation between the African Commission on Human and Peoples’ Rights and
the African Committee of Experts on the Rights and Welfare of the Child, 27 May 2009.
204 ACHPR, 43rd Activity Report, para. 30.
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200. Since the two institutions also face the same problem when it comes
to implementation of their decisions, they should develop a joint
strategy, if possible together with the Court, to strengthen
implementation of their decisions. One possibility is to propose the
establishment of a body at the AU that is dedicated to oversee the
enforcement of the decisions of regional human rights bodies. A
continuous and concerted effort in this regard will yield the necessary
results sooner than a piecemeal approach.
201. Specifically in relation to the focus of this Study, there were also
some missed opportunities for cooperation that the Commission and
the Committee should draw lessons from. A case in point is the 2016
study of the Committee on the Impact of Conflict and Crises on
Children in Africa. 205 The Committee was requested to undertake the
Study by the PSC206 and the involvement of the Commission would
have contributed to its outcome and outreach. It would have also
solidified the tripartite cooperation between the Commission, the
Committee and the PSC. In order to set a precedent for the future, this
present Study has benefitted from the input from representatives of
both the Committee and the PSC.
202. Despite these ad hoc collaborations there is still no institutionalised,
regularised and systematised relation and cooperation between the
Commission and the Committee and its establishment is crucial.
Relationship with the APRM
203. The African Peer Review Mechanism (APRM) was established in 2003
by the New Partnership for Africa (NEPAD) as an instrument for
monitoring performance in governance among Member States.
Performance and progress are measured in four thematic areas:
democracy and political governance; economic governance and
management;
corporate
governance;
and
socio-economic
development. In addition, one of the key indicators of the APRM peer
review process is the respect for and protection of fundamental rights
and freedoms. There is thus a clear overlap in what the African
Commission and APRM hope to achieve.
204. The APRM review process requires that the Report of the APRM
should be formally and publicly tabled before the ACHPR. In addition,
205 ACERWC, Continental the Impact of Conflict and Crises on Children in Africa, 2016.
206 See a brief description of the background to the the ACERWC available at http://www.acerwc.org/
study-children-and-armed-conflicts/.
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the Commission in 2010 adopted Resolution ACHPR/Res.168 (XLVIII)
10 on the Cooperation between the African Commission on Human
and Peoples’ Rights and the African Peer Review Mechanism, and
renewed the mandate of the Focal Point on APRM in 2016. These
preliminary arrangements culminated in the signing during the 62nd
Ordinary Session of the Commission of a Memorandum of
Understanding between the Commission and APRM to regulate and
promote closer cooperation and collaboration.
205. In relation to conflict situations on the continent there is also room for
collaboration. In this regard the APRM produced a Country Review
Report on Kenya in 2006 which noted that “the country still exhibits
many of the factors that have been markers of civil strife elsewhere,
such as strong ethnic divisions, polarised political issues, political
manipulation, rampant violence, socio-economic disparities,
deepening levels of poverty and endemic corruption”, and urged
reforms to address the issues. 207 This warning was borne out by the
outbreak of post-election violence in the 2007 election. Sharing of
such information between the two institutions could be applied
future in prevention strategies.
206. From the foregoing, it can be concluded that although the
Commission has the requisite statutory or formalised relation with
the relevant AU organs and institutions with human and rights and
conflict related mandate, the formal relation has not been translated
into meaningful and impactful practice. Apart from political will, the
main challenges include the ad hoc nature of the interactions, a
tradition of working in silos, difference of interests (as between the
Commission and the policy bodies in which States are represented),
lack of institutionalised arrangements for regular exchange and
appropriate frameworks for the proper operationalisation of working
relationship. And this problem is not unique to these organs only
but cuts across the whole AU system. Short of a radical and holistic
reform of the system and institutions of the AU, commitment and
articulation of workable strategy could address some of these
challenges.
Relationships with other Actors on the continent
207. Apart from the relationships between the African Commission and
other African regional institutions and organs of the AU, which are
horizontal relationships, the Commission also has interaction and
207 APRM Country Review Report of the Republic of Kenya, May 2006, p14.
76/ Addressing Human Rights Issues in Conflict Situations
collaboration on the vertical axis, at the sub-regional level with
regional economic communities and at the global level with the
United Nations. In addition, the Commission also has crucial
relationships with bodies functioning at the national level, such as
National Human Rights Institutions (NHRIs), civil society organisations
and other grassroots actors.
United Nations
208. A UN High-Level Independent Panel on Peace Operations in 2015
concluded a reassessment of the UN’s peace operations, which inter
alia concluded that “stronger global-regional partnerships are central
to effective international peace and security engagements”. 208
Following this, in April 2017, the two organisations signed the Joint
UN-AU Framework for Enhancing Partnership on Peace and Security,
with the aim to ensure closer cooperation and coordination between
the two organisations on peace and security. This was followed by
the signing of an MOU in September 2017. While some of the areas of
collaboration are assigned to specific organs and institutions, such as
the UNSC with the AUPSC, or the United Nations Office to the African
Union, other agreed areas of collaboration are between the two
organisations in general, which provides room for collaboration
between the UN and the African Commission. Examples of such
areas include exchange of information on understanding the root
causes of conflict, particularly socio-economic causes or other
causes related to the violation of human rights; prevention of conflict
through early warning analysis; and including “peacebuilding
strategies in joint planning of conflict prevention and peace
operations, taking full account of cross-cutting themes such as
human rights, justice and reconciliation, gender, children’s rights,
etc.”, among other areas.
209. The African Commission should also strengthen its engagement with
not only the UN High Commission for Human Rights and the UN
special mechanisms but also the UN Human Rights Council and the
peace and security bodies of the UN in New York. Given the nature of
its mandate, the African Commission can also play a central role in
the UN-AU partnership in the field of human rights generally and
human rights in conflict situations in particular. The role that the
Commission can play in this regard has been demonstrated with the
support that the Commission’s focal person on human rights in
conflict situations has, on request from the AU Department of Peace
208 http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/682.
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and Security, given in assessing the experience of AU peace missions
in human rights and IHL compliance and in proposing a framework
for such compliance.
210. The AU and UN also have a number of joint operations on the
continent, for example the UN-AU Hybrid Operations in Darfur
(UNAMID), as well as joint actions to fight Boko Haram in the Lake
Chad Basin, and in Somalia the UN provides logistics, technical and
training support to the African Union Mission in Somalia (AMISOM).
The Commission could have a role in these missions particularly in
terms of the standards that they should comply with, the specific
human rights and IHL violation risks that should be mitigated in such
operations, and the training and monitoring measures that should be
put in place in such operations.
211. Finally, given the resource constraints within the AU and the African
Commission specifically, collaboration with the UN provides for a
possibility for joint resource mobilisation and implementation on
issues of mutual concern.
Regional economic communities
212. In the African context, regional organisations have a core role in
preventing and addressing conflict as well as in post-conflict
processes. Some of the most recent examples include the role played
by Economic Community of West African States (ECOWAS) in
ensuring a peaceful settlement to the political crisis in The Gambia in
2016/2017, and the continued efforts to end the conflict in South
Sudan, which is led by Intergovernmental Authority on Development
(IGAD), in close collaboration with both the AU and the UN. A regional
intervention, which remains unsuccessful, but for which through the
recommendation of the Commission the PSC requested the East
African Community (EAC) mediator to take account of the findings of
the African Commission’s Burundi investigation report’, was the
attempt by EAC to resolve the crisis in Burundi.
213. Interaction between regional communities and the African
Commission has to date been nominal. A possible role for the
Commission in this regard could be to strengthen the human rights
aspect of the interventions of the regional communities, through
playing an advisory role where they intervene in one of their member
states. In addition, there could also be an important aspect of
information sharing between regional communities and the
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Commission, particularly in relation to early warning and prevention
of crisis from escalating into full-scale conflict.
National Human Rights Institutions
214. The Commission has adopted, and recently revised the Resolution
regulating its relationship with NHRIs. The 2017 Resolution on the
Granting of Observer Status to National Human Rights Institutions in
Africa provides that national institutions which have affiliate status
“will assist the Commission in the promotion and protection of
human rights at national level”. Rule 75 (5) of the Rules of Procedure
of the Commission in addition provides that in the consideration of
State reports the Commission shall “explore all the pertinent
information relating to the human rights situation in the State
concerned, including statements and shadow reports from National
Human Rights Institutions”. This is an important way in which NHRIs
can provide the Commission with information on emerging conflict
and crisis situations on the continent.
215. The Resolution further takes account of the establishment of the
Network of National Human Rights Institutions (NANHRI), the regional
umbrella body that brings together African NHRIs and works to
support and strengthen national human rights institutions in Africa.
By engaging with NANHRI, the Commission is thus able to reach all
the NHRIs on the continent, including those that do not have affiliate
status with the Commission.
Grassroots actors and civil society
216. The Commission has to date granted observer status to 518 NGOs
working on human rights issues on the African continent. These
NGOs have an obligation to report to the Commission every two
years on the activities which they had undertaken, which reports
could be invaluable to the Commission in terms of assessing some of
the challenges affecting specific countries. However, not many NGOs
comply with this requirement, and in addition, the Commission has
serious limitations in its capacity to interact with NGOs on a regular
basis. One of the most relevant forums for engagement is during the
Commission’s Sessions, including through making statements on
specific human rights concerns, hosting side events and participation
of the Commission in the NGO Forum, the latter of which can be
capitalised on to a bigger extent.
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217. In relation to other grassroots actors including women’s groups,
youth groups, traditional leaders, e-activists, among many others,
the Commission is not able to interact with each of these individually,
for example by providing training at national or community level, due
to resource and mandate constraints. The Commission should thus
find other ways in which it can empower such groups to play a role in
conflict situations. One way in which such engagement can take
place is consultations with ordinary people which take place during
promotion or fact-finding missions.
218. One significant challenge in this regard is that the African Commission
as an institution is not well known to the African people. The
Commission could benefit from a public presence. To this end, it
should implement a communication/media and advocacy strategy in
order to enhance its public recognition and deepen its legitimacy in
the eyes of ordinary people.
219. While the measures taken by the African Commission thus far,
including through its Communications procedure, adopting relevant
resolutions on conflicts, conducting fact-finding missions, issuing
Letters of Appeal, among others, have contributed to drawing
attention to human rights issues in conflicts in Africa, the Commission
faces challenges in the discharge of its mandate especially in conflict
and crisis situations. 209
220. As the foregoing analysis clearly established, there are five challenges
that can in particular be identified with respect to the role of the
Commission in addressing human rights issues in conflict situations:
I.
The first of this is the protection challenge. This has to do with
the issue of how to arrest incidents of violations and ensure that
conflict parties avoid and take action against perpetration of
violence. Related to this is the issue of the monitoring,
investigation and reporting of violations.
II.
The second challenge is the promotion challenge. This challenge
entails the provision of customised inputs by way of general and
thematic analysis for the full consideration and integration of
human rights into peace processes that are deployed for
preventing or resolving conflicts.
209 Amnesty International, Counting Gains, Filling Gaps: Strengthening African Union’s response to Human
Rights Violations committed in Conflict Situations, 2017.
80/ Addressing Human Rights Issues in Conflict Situations
III.
The third challenge is that of remedying (or coming to terms
with) the violations that the conflict occasioned.
IV.
Fourth, there is the challenge of prevention. This is a challenge
about ensuring that the root causes are addressed, the triggering
factors are removed and the necessary democratic and socioeconomic reforms are instituted.
V.
Fifth and finally, there is the challenge of coordination and
synergy with other relevant AU mechanisms.
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PART 4
Proposed approach to addressing
human rights issues in conflict
and crisis situations and
recommendations
Proposed approach for a comprehensive response to human
rights issues in conflict situations
221. The African Commission in collaboration with relevant stakeholders,
especially the PSC, should move away from the dominant ad hoc
approach to a more institutionalised, predictable and systematised
framework for promoting and protecting human rights. The adoption
of Resolution 332 provides an opportunity to realise this ambition. In
the implementation of Resolution 332, and in light of existing gaps in
the promotion of human rights in Africa, the African Commission
should consider adopting a five-pillar approach based on the
following thematic priorities:
i.
Monitoring and response;
ii.
Prevention though addressing root causes of conflict;
iii.
Mainstreaming of human rights into conflict prevention,
management, resolution and post-conflict reconstruction and
development;
iv.
Remedial measures within the Commission’s procedures; and
v.
Institutional coordination and synergy, including
operationalisation of Article 19 of the PSC Protocol.
the
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Monitoring and response
222. The African Commission requires a dedicated capacity for monitoring
human rights situation on the continent and, where necessary,
investigating violations when they occur, either on its own initiative
and/or on the request of relevant AU organs. The establishment of
such dedicated capacity helps the Commission in initiating
promotional measures aimed at averting the occurrence of abuses or
violations in conflict situations. This is to be achieved through issuing
proactive statements on risks of such abuses or violations and by
availing advice to the peace and security actors on adopting
preventive measures as part of their conflict prevention, management
and resolution initiatives, thereby supporting the promotional
mandate of the Commission. In addition, the establishment of such a
capacity is crucial, as the ad hoc arrangements such as Commissions
of Inquiry, assessments and State reporting do not offer the timeliness
and predictability that are required to inform political decisionmaking and effective responses.
223. As a measure of taking the proposed action in the preceding
paragraph, the Commission should further adopt a more
institutionalised and predictable approach to monitoring and
response to crises through various means tailored to the demands of
the particular situation. In this regard, the Commission should adopt
a special mechanism supported by a team of experts for monitoring
and investigation of human rights violations that occur in conflict and
crisis situations. The mechanism will also be responsible for following
up on decisions and actions taken by the Commission in such
situations. The Secretariat should also be capacitated to support the
Commission in the monitoring of human rights violations in conflict
and the coordination of responses.
224. Effective response would also require that the Commission makes
use of its power under Article 58 to refer serious and massive
violations to the Assembly of Heads of State and Government or
the PSC.
84/ Addressing Human Rights Issues in Conflict Situations
Prevention through addressing the root causes of conflict
225. Prevention of violations of human rights cannot be isolated from
broader processes aimed at addressing the root causes of conflict
and crisis situations. The African Commission should increasingly
work with development actors, including within the AU, other African
home-grown organisations as well as relevant UN and AU specialised
agencies in promoting a rights-based approach in addressing root
causes of conflicts and crises, including factors such as climate
change, unemployment, and unequal access to land, water and
wealth, among other factors. In this regard the Commission could
specifically consider the role that it can play in the context of the AU
Agenda 2063. Facilitating this synergy will meaningfully contribute
towards structural prevention of crisis situations and by extension,
substantially mitigate the risks of human rights violations emanating
from such situations of conflict.
226. Importantly, the Commission should be in a position to identify the
conditions and factors showing threats of violations evolving into
conflict situations and should outline specific measures that should
be taken for preventing such violations and their escalation into
conflicts. Such a process would require regular tracking of
developments across the continent and integrated engagement of all
the country rapporteurs. Yet the experience has shown that the
Commission, in articulating the standards that should apply in
various situations, for example the use of force by government
security forces in the management of protests or in counter-terrorism
operations, is able to specify the precautionary measures that should
be taken for preventing the human rights violations that could
otherwise occur in such situations.
227. Further, in relation to its norm-setting role, the Commission should
consider developing guidelines to States on factors, particularly those
related to socio-economic rights, which have the potential to be
conflicts of crisis and conflict situations, on which States would be
expected to report in their State Periodic Reports. In relation to the
Communications procedure before the Commission, a central role
should be given to the possibility of friendly settlement, particularly as
a tool to prevent violent conflict from erupting. The Commission should
thus assess Communications before it, particularly where they arose in
the context of emerging conflict situations, as the Commission may of
its own volition decide to offer its good offices to the Parties, and could
thereby prevent the grievances from escalating to full conflict.
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Mainstreaming of human rights in conflict prevention,
management, resolution and post-conflict reconstruction and
development
228. Beyond the structural dimension of conflict prevention in addressing
the root cause dealt with in the foregoing, pillar three is particularly
concerned with the operational prevention of conflict and the role of
human rights in this regard. AU strategies on preventing and resolving
crises should integrate human rights and in particular the role of the
African Commission. There are emerging opportunities that could be
further explored: for example, the adoption by the AU Commission of
a Continental Structural Prevention Framework (CSPF) with human
rights as one of its five pillars would require fleshing out and
implementation; and the current development of a framework on
preventive diplomacy should necessarily include a human rights
dimension. Importantly, the Commission should establish working
arrangements for sharing information and its statements on emerging
situations with the Continental Early Warning System of the AU, the
conflict preventive diplomacy mechanism of the Panel of the Wise and
relevant regional economic communities (REC) and UN structures.
229. In addition, the planning, deployment and management of peace
support operations especially in the development of mandates,
Concept of Operations and other mission directives must mainstream
human rights and where possible the role of the African Commission.
Such integration of human rights is also required in all cycles of
peace processes in general. A robust mainstreaming of human rights
into AU peace processes, as well as processes led by the RECs, will
ensure that the protection challenges associated with imminent or
actual crisis situations are addressed to the maximum extent
possible. The Commission through its dedicated mechanism can
elaborate general guidelines and case specific advisory notes that
help the various AU actors and peace-making processes on the ways
and means of integrating human rights as part of the conflict
prevention, management and resolution initiatives.
230. There are also similar opportunities for integrating the work of the
African Commission into the post-conflict reconstruction and
development (PCRD) work of the AU. This is not only in relation to the
implementation of certain components of peace agreements such as
transitional justice processes but also constitutional and institutional
reform measures including justice sector reforms, which would
benefit from the human rights perspective offered by the Commission,
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including on matters such as the inclusion of women and the youth in
peace and reconstruction processes. In this respect as well, the
Commission can provide general guidelines applicable in all
processes and case or thematic specific advisory notes for designing
case- and implementing PCRD works that adequately uphold the
standards of the African Charter.
Remedial measures within the Commission’s procedures
231. The African Commission can initiate various remedial measures
through the creative use of its protective and promotion mandates.
One such measure is the availing of its Communication procedure to
people whose rights are affected in conflict situations. From the
jurisprudence of the African Commission arising from the
Communications procedure, one of the most useful pronouncements
relevant to the adjudication of issues of interest for conflict situations
relate to the requirement of exhaustion of local remedies under
Article 56 of the African Charter. Accordingly, in relation to
Communications revealing mass violations, the Commission held
that “[i]n accordance with its earlier decisions on cases of serious and
massive violations of human rights, and in view of the vast and varied
scope of the violations alleged and the large number of individuals
involved, the Commission holds that local remedies need not be
exhausted and, as such, declares the Communications admissible”. 210
The Commission has reaffirmed this position of excluding the
application of the requirement of exhaustion of local remedies in
conflict or crisis situations in a number of cases. 211
232. In addition, the jurisprudence of the Commission in relation to
remedies granted in Communications has developed over the years,
and currently provides for a wide spectrum of possible remedies in
addressing violations, including revision of legislation, payment of
compensation to victims, provision of psycological support, and
determining the wherabouts of missing persons, among others. 212 In
relation to victims of sexual and gender based violence, the
Commission should make provision for access to remedies such as
210 Communication 27/89-46/91-49/91-99/93 Organisation mondiale contre la torture, Association
Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des
droits de l’Homme v. Rwanda, para 18.
211 See Communication 299/05 – Anuak Justice Council v. Ethiopia; para 59.
212 See for example the extensive remedies granted by the Commission in Communication 155/96 – Social
and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria;
Communication 339/2007: Patrick Okiring and Agupio Samson (represented by Human Rights Network and
ISIS-WICCE) v. Republic of Uganda; Communication 393/10 – Institute for Human Rights and
Development in Africa and Others v. Democratic Republic of the Congo.
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essential services, including sexual and reproductive rights services.
There should also be provisions for monitory compensation in
relation to pecuniary and non-pecuniary damages suffered.
233. In relation to recommendations in Communications, conflict
situations also provide an opportunity to the Commission to move
from an approach of mainly providing for individual compensation to
a broader approach of addressing structural concerns and
constitutional justice, including addressing gender discrimination
and transitional justice processes.
234. Another avenue for remedial action is the use of the fact-finding role
of the Commission. In this respect, it is appropriate that the
Commission articulates gudelines on the criteria and processes for
the deployment of fact-finding missions on its own motion.
235. In relation to conflict situations for which the AU deploys conflict
management and resolution tools, support of victims is again a
necessary component of promoting durable solutions in addressing
human rights abuses against vulnerable groups. In this respect, the
African Commission should support the establishment of AU policies on
compensation or ex-gratia payments including medical services (where
required) to support victims. In addition, in contexts of AU peace support
operations, mechanisms such as a Civilian Casualties Tracking, Analysis
and Response Cell (CCTARC) could be established and resourced to
provide support to victims. As the experience in Somalia illustrates,
facilitating the establishment of independent hotlines has sometimes
served to build confidence amongst local communities on real-time
reporting and action against violations. Depending on the nature of the
crisis situations, the African Commission should consider suitable
mechanisms that will alleviate the suffering of victims.
236. In relation to its state reporting guidelines, the Commission should
provide for guidelines in relation to conflict, and in particular require
of states to submit on the remedial actions which had been put in
place following situations of conflict or crisis, including the remedies
provided to the most vulnerable groups; as well as the steps that
were taken to hold perpetrators to account. In its conclusions on
State Reporting as well as conclusions on missions undertaken, the
Commission can make recommendations on the considerations for
restorative measures beyond and above accountability for violations
in conflict by the forces of conflict parties.
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Institutional coordination and synergy, including the
operationalisation of Article 19 of the PSC Protocol
237. As has been pointed out earlier, addressing the current limitations
and lack of institutionalised working relationship between the
Commission and the PSC, envisaged under Article 19 of the PSC
Protocol, requires the elaboration of modalities for the full
operationalisation of this article to take the current ad hoc relationship
to a higher level. The following are some of the proposed modalities.
Annual consultative meeting envisaged in the 2007 Dakar Conclusions of
the PSC Retreat on PSC Working Methods
238. A starting point for the actualisation of the working relationship is the
implementation of the annual consultative/briefing meeting between
the ACHPR and the PSC envisaged in the Dakar Conclusions of the
PSC Retreat on Working Methods in 2007. The Commission could
also use the opportunity of this annual meeting to submit a report to
the PSC on the state of human rights in conflict and crisis situations
on the continent. As an interim measure, until the production of such
a report is viable, the Commission could make a contribution on
human rights to the PSC report on conflict.
Submission by the African Commission on the human rights dimensions
of AU peace and security processes
239. The African Commission is best placed to highlight the human rights
dimensions of specific crisis situations and provide recommendations
on how those human rights issues can be integrated and addressed
in AU peace processes through preventive diplomacy, mediation,
peacemaking, peace support operations and post-conflict
reconstruction support initiatives. This includes supporting the AU in
integrating human rights in the mandates, design and implementation
of peace processes including peace support operations.
240. In addition, the Commission could advise the PSC on ensuring the
streamlining of women’s rights in the peace and security processes
of the AU, including through greater representation of women in such
processes, as mediators and experts.
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Informal consultations
241. A close working relationship between the PSC and the African
Commission can also be optimally implemented through regular
informal consultations in which the African Commission shares
information with the PSC on existing or emerging situations of
concern, with a view to enabling the PSC to take a policy position on
dealing with the situation appropriately with due regard to the human
rights issues involved. There should thus be open channels of
communication between the two institutions.
Investigation missions and participation in PSC field missions
242. By virtue of its mandate of monitoring the human rights situation on
the continent and initiating appropriate responses, the African
Commission together with the Children’s Committee are the only
bodies with the requisite mandate and experience for undertaking
investigations into the human rights dimension of emerging or
existing conflict situations.
243. Therefore, the Commission could be represented in the field missions
of the PSC for advising on the human rights dimensions of its visits
and the follow-up actions required. The Commission in the short term
can provide briefings to the PSC in advance of missions taking place,
to inform all aspects of the human rights dimension of the conflict
situation where the PSC undertakes field visits.
Early warning systems
244. The African Commission, by virtue of its mandate and the nature of
its activities, continuously and regularly receives and collects
information on the human rights situation of State Parties to the
African Charter, including those on the agenda of the PSC. Since
patterns of systematic or serious violations on which the African
Commission receives and collects information from various sources,
including through visits to the field, often serve as important and
first-hand indications of emerging or impending crisis, sharing
information on such situations with the Continental Early Warning
System (CEWS) and the PSC contributes to enhancing the early
warning and early response system of the AU. There is accordingly a
need for the African Commission to formally draw the attention of the
PSC to emerging or impending situations of concern including
through submitting its statements and reports to the PSC, as
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appropriate. Conversely, the PSC could also provide the Commission
with information on emerging situations, so that it may follow up on
the human rights implications. In this regard there is simply a need to
establish the link with the conflict processes and circulate the
information to the relevant offices.
Briefing the PSC formally on the human rights dimension of the situation
or theme on the agenda of the PSC
245. The African Commission has various mechanisms and has developed
a number of thematic guidelines and frameworks on various areas of
human rights including human rights as they relate to situations of
counter-terrorism, transitional justice and conflict. Accordingly, the
African Commission can provide the PSC with briefings on the human
rights dimension of the situation or theme on the agenda of the PSC.
The establishment of a standing thematic agenda of the PSC on human
rights and peace and security
246. In the light of the fact that human and peoples’ rights form part of the
mandate of the PSC, the African Commission submits that the PSC
could establish human rights and peace and security as a standing
thematic item on the agenda of the PSC, or through the holding of biannual sessions dedicated to the theme of human rights and peace
and security in Africa. This will be one avenue through which the PSC
receives reports dedicated to the subject of human rights and peace
and security in Africa with a view to help it be fully informed of the
current and emerging human rights issues in crisis situations during
the reporting period, and adjust its approaches to those crisis
situations accordingly.
Proposing to the PSC the tabling of a situation on its agenda
247. Finally, one of the avenues that are available for mobilising effective
policy action for addressing human rights issues in conflict situations
is the referral of such situations to the PSC for it to put it on its agenda.
It would however be important that the Commission first elaborates
transparent criteria on the basis of which country situations meeting
the threshold are to be referred to the PSC for placing them on its
agenda.
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248. In addition to these strategies of further collaboration with the PSC,
the Commission should also strengthen its coordination and synergy
with other bodies and institutions. The main focus of such cooperation
should be the protection of human rights through preventive
measures by taking actions before conflicts erupt and through
intervention measures to ensure that civilians are spared the
consequences of conflict situations.
249. In addition, collaboration at the vertical level with bodies such as the
UN and RECs is critical. In this respect, the African Commission can
make use of its work for informing the conflict prevention,
management and resolution interventions of the UN and RECs. Also
important is the collaboration with the UN High Commission for
Human Rights and the other UN human rights mechanisms,
particularly the special mechanisms, to maximise the effectiveness
of their preventive, protective and remedial efforts in situations of
emerging or ongoing conflicts.
Recommendations
250. This Study lays out the general approach and direction that the
Commission should adopt as part of its long-term plan for effectively
redressing human rights violations that occur in the context of
conflicts and crisis situations. For a comprehensive and coordinated
response in conflict and crises situations, the following interim and
longer-term measures are recommended:
Recommendations to the African Commission
251. A new mechanism should be established that is devoted to
monitoring, reporting and responding to human rights violations that
occur in conflict and crisis situations, and for coordinating the
strategy and efforts within the Commission and with other relevant
organs of the AU. This mechanism would also be responsible for
monitoring state of emergency laws and practices in Africa, and
review the Commission’s position on derogation from Charter rights
under states of emergency. It should also be given the mandate to
follow up decisions and recommendations as well as Letters of
Appeal and resolutions relating to conflict or crisis situations. Such a
mechanism could also be supported by a pool of experts upon whom
the Commission can call for expert contributions;
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252. Pending the establishment of a new special mechanism supported by
dedicated experts can be implemented, the Commission should
continue with the focal person, who will be responsible for monitoring
human rights in conflict and crisis situations and for coordinating
action among the various special mechanisms of the Commission
and country rapporteurs for swift, coordinated and effective response
by the Commission. The focal person will also be responsible for
coordinating effort with other AU organs and institutions and to
ensure that dedicated capacity is available within the Secretariat to
support the focal point;
253. The Commission should work towards the full and effective
operationalisation of provisions of treaties and instruments that call
for a joint and coordinated action for monitoring and implementation
including Article 58 of the African Charter; Article 19 of the PSC
Protocol; Article 5(1)(a) of the Court Protocol; Article 26(1) of the
Maputo Protocol; Article 42(a) and (b) of the African Children’s
Charter; Article 14 and Article 8(3)(e) and (f) of the Kampala
Convention; Article 49(2) and Art. 45(c) of the ACDEG; the 2009
Resolution on Cooperation between the Commission and the
Committee and the Joint UN-AU Framework for Enhancing
Partnership on Peace and Security;
254. When AU Policy organs request the Commission to undertake a factfinding mission, there is a need for ensuring that such organs facilitate
that authorisation for undertaking the mission is secured;
255. When feasible, undertake fact-finding missions together with other
AU organs and institutions such as the PSC and the Children’s
Committee; and
256. Develop, together with the Children’s Committee and the African
Court, strategies to effectively lobby AU political organs for the
establishment of a strong and independent body for the enforcement
of their decisions and for direct reporting by States to the Executive
Council on implementation.
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Recommendations for the Special Mechanism/focal point to
be established
257. Work through the special mechanism and in consultation with the
PSC towards the adoption and implementation of the modalities
highlighted above on the operationalisation of Article 19 of the PSC
Protocol and initiate their implementation through engagement with
relevant PSC bodies;
258. The special mechanism should also be tasked as part of its mandate
to develop a strategy to further strengthen its cooperation with all the
relevant AU bodies, the UN, RECs, NHRIs and others with a function
in relation to early warning systems, prevention and resolution of
conflict situations, particularly in relation to sharing of information
and in ensuring compliance with human rights obligations;
259. It should also be part of the mandate of the special mechanism to
strengthen its oversight role in ensuring that human and peoples’
rights are observed in all peace and security processes through
a) participating in the design and delivery of training of AU peace
operations leadership, mediators and troops on human rights,
b) briefing AUC Missions, and c) playing an advisory role in peace
negotiations led by the AU; AU electoral missions; and in relation to
special or hybrid Courts spearheaded by the AU. In relation to State
Parties to the Charter, the Commission can do the same through
advising on the planning and implementation of training on human
rights and playing an advisory role in the establishment of national
Truth and Reconciliation Commissions;
260. Through the special mechanism the African Commission should
regularly monitor the human rights situation of countries where AU
peace-keeping missions have been deployed from its inception and
throughout the life cycle of the mission;
261. The mandate of the special mechanism should include developing
norms and guidelines on the respect for, protection as well as
application of IHRL and IHL in conflict and crisis situations, including
as it relates to non-state actors, as well as the effective and timely
response by the Commission in such situations; and
262. As part of the mandate of the special mechanism, develop guidelines,
advisory notes and a checklist which the Commission or human
rights observers could use to identify indicators and determine
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whether there is a risk of human rights violations deteriorating into
conflict, as part of the early warning system; and which States can
use to report on potential conflict situations.
Recommendations to other AU institutions and organs
263. In order to achieve the institutional cooperation and synergy between
the Commission and the PSC, it is imperative that both institutions
commit to an institutionalised closer collaboration and information
sharing, including through articulating a framework for the
operationalisation of the provisions of Article 19 of the PSC Protocol
as well as adopting annual joint action plans;
264. The AU organs, especially the PSC, should also assist in securing
authorisation from States when the Commission on its own initiative
decides to undertake a fact-finding mission involving conflict or crisis
situations;
265. AU policy organs should establish effective follow-up mechanisms
which can track and enforce implementation of decisions and
recommendations of the African Commission, the African Court and
the Children’s Rights Committee;
266. The AU policy organs should continue the practice of taking the
initiative in requesting the Commission to undertake fact-finding
missions to investigate reports of serious and massive human rights
violations in Member States, and should facilitate the timely granting
of authorisation for such missions, as well as ensure the timely
consideration of the report of such missions and the implementation
of its recommendations; and
267. In addition, the policy organs should encourage States to provide
standing invitations to the Commission for the purpose of fact-finding
missions to help address human rights issues in situations of political
instability and violent conflicts.
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Recommendations to other stakeholders
268. The UN, with its wide presence or reach as a major actor in peace
processes and its comparatively large capacity for mobilising
resources, stands to benefit from collaboration with the Commission
in the latter’s role on human rights in conflict situations in Africa,
particularly in planning of conflict prevention and peace operations
on the continent, thereby ensuring the adequate integration of human
rights considerations. The collaboration would also include technical
facilitation in helping the Special Mechanism/focal point effectively
implement the role of the African Commission in conflict situations
notably through information sharing on conflict situations and the
operationalisation by the Special Mechanism/focal point of the five
pillars approach set out above;
269. The ICRC should establish institutionalised collaboration with the
special mechanism/focal point for sharing lessons learned, working
together in the Commission’s work in developing technical documents
and in working jointly in helping Member States in integrating
appropriately human rights and IHL in their peacekeeping curricula.
270. NHRIs should monitor and support implementation of the
recommendations made by the Commission at the national level, and
should provide regular updates to the Commission both on
implementation as well as areas of concern which may lead to
conflict, thereby contributing to early detection, enhancing the
possibility of prevention of conflict and crisis situations; and
271. Civil society and grassroots activists can support the work of the
Commission and particularly the Special Mechanism/focal point by
providing it with reliable and verifiable information and data on
human rights abuses or violations or risks of such abuses or violations
in countries where conflict or crisis situations are present.
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ANNEXURE
Resolution 332 on Human Rights in
Conflict Situations
Resolution 332 on Human Rights in Conflict Situations –
ACHPR/Res.332(EXT.OS/XIX)2016
The African Commission on Human and Peoples’ Rights (the Commission),
meeting at its 19th Extra-Ordinary Session, held in Banjul, The Islamic Republic
of The Gambia, from 16 to 25 February 2016;
Recalling its mandate to “promote human and peoples’ rights and ensure their
protection in Africa”, including in particular in a situation of serious or massive
violations of human and peoples’ rights as provided under the African Charter
on Human and Peoples’ Rights (the African Charter);
Considering that one of the objectives of the African Union (AU), as outlined
under Article 3(f) of its Constitutive Act, includes “promoting peace, security
and stability on the Continent“ and that Article 3 (f) of the Protocol Establishing
the Peace and Security Council (PSC Protocol) has as its objective protecting
“human rights” and “respect for the sanctity of human life and international
humanitarian law”;
Considering further that Article 23 of the African Charter guarantees the rights
to peace and security;
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Bearing in mind its previous Resolutions pertaining to human rights in conflict
situations on the continent, including, amongst others Resolution ACHPR/
Res.117 (XLII) 07 on Strengthening the Responsibility to Protect in Africa;
Resolutions ACHPR/Res.157 (XLVI) 09 and ACHPR/Res.207 (L) 11 on the General
Human Rights Situation in Africa; and Resolution ACHPR/Res.276 (LV) 14 on
Terrorist Acts in Africa;
Deeply concerned by the on-going conflict situations affecting various parts of
Africa, as well as the consistent reports of violence being faced by civilian
populations and the attendant widespread violations of human and peoples’
rights and humanitarian law;
Considering that despite the existing regional normative and institutional
frameworks for addressing conflicts and threats of conflicts in Africa, there
seem to be limitations in coordinated responses to human rights violations
arising in conflict situations;
Mindful of the role of the Commission under the African Charter, in particular,
Article 58, to respond to cases of “series of serious or massive violations of
human and peoples’ rights” and to ensure that human rights issues are
addressed in conflict prevention, management and resolution;
Recognising the urgent need for institutionalising a human rights-based
approach to conflict prevention, management and resolution on the continent;
Further recognising the need to work closely with the AU Peace and Security
Council in accordance with Article 19 of the PSC Protocol and other regional and
sub-regional processes, in addressing human rights in conflict situations;
The Commission:
Decides to:
•
•
•
Conduct a human rights in conflict situations in Africa, with a view to
developing a comprehensive strategy and framework on the same;
Collaborate with the AU Peace and Security Council and other relevant
stakeholders working on issues of peace and security, towards enhancing
the role of the Commission, as well as its coordination with other continental
processes, in addressing human rights issues in conflict situations; and
Task Commissioner Solomon Ayele Dersso to work on the implementation
of this resolution and report to the 61st Ordinary Session of the Commission.
Done in Banjul, The Islamic Republic of The Gambia, 25 February 2016
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