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