In June 2015, the Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings (Working Group) of the African Commission on Human and Peoples’ Rights (ACHPR) met in Kigali, Rwanda to develop a General Comment on Article 4 (right to life) of the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter (Charter). This meeting also established that the draft general comment would be opened to public consultations and written comments from interested parties. See ACommHPR, Draft General Comment No. 3 on Article 4 of the African Charter on Human and Peoples’ Rights (the right to life) (Draft Comment), June 2015.
The Commission adopts interpretations of specific rights set forth in the Charter in the form of general comments which guide States in understanding the nature, scope, and application of a particular right. See id. at 1. The issues discussed in the draft general comment on the right to life include: abolishment of the death penalty, the use of force by law enforcement, arbitrary killings, the State’s obligations concerning the right to life, and the relationship between the right to life and other rights.
Background to Article 4 (Right to Life)
In July 2014, the Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings (Working Group) of the African Commission on Human and Peoples’ Rights (ACHPR) met in Cotonou, Benin and decided to develop a general comment on Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. Article 4 states: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.” This meeting involved the participation of a wide array of experts, including the UN Special Rapporteur on extrajudicial, summary or arbitrary executions.
Draft Comment on Article 4 (Right to Life)
The Nature of the Right and the Obligations of the State with Respect to the Right to Life
The draft comment emphasizes that the right to life is universally recognized as a fundamental human right, and that it forms the basis of all other human rights. For example, the right to life is guaranteed by Article 4 of the African Charter, Article 5 of the Arab Charter on Human Rights, as well as other national, regional, and international instruments. The right to life includes the right to biological life, but also a dignified life, which entails the protection of civil, political, social, economic, and cultural rights.
In order for a State to abide by its duty, as required by the Charter, to develop and put into place a framework to guarantee the right to life it must: prevent arbitrary killings; promptly investigate right to life violations; provide an effective remedy for victims; establish a law enforcement system, including autopsy and other forensic facilities; create an independent judiciary; and protect vulnerable groups or individuals.
Further, the State must assume responsibility for right to life violations committed by all of its agents, as well as for violations committed by non-State actors in cases where the State fails to properly investigate these crimes. The State is also responsible if it does not perform due diligence in preventing the violation.
Moreover, no derogation from the obligation to ensure the right to life is permissible, even during an emergency, such as an armed conflict or when responding to terrorist threats. See id. at paras. 1-4.
Scope of the Prohibition Concerning “Arbitrary” Deprivation of Life
According to the draft comment, a deprivation of life is arbitrary and unlawful if it is not justified by international law or by more protective domestic laws. Generally, an intentional deprivation of life is justified under international law only if it is the only way to protect the life of another. In the context of armed conflict, the right to life must be respected in accordance with international humanitarian law. The obligation to not arbitrarily deprive someone of life also applies when a State uses deadly force outside of its territory.
Additionally, a State may have positive obligations to protect the right to life of persons outside of the State’s territory depending upon the State’s jurisdiction or whether it exercises authority, power, or control over the perpetrator, the victim, or the location in which the violations occurred. The State may also be held responsible if it engaged in conduct in which an unlawful deprivation of life reasonably could have been foreseen. See id. at paras. 5-6.
With respect to accountability, the State must: put into place measures to ensure that suspicious deaths are investigated and that perpetrators are held accountable; conduct prompt, impartial, and thorough investigations when a life may have been arbitrarily taken; establish effective police investigation procedures and legal procedures; create independent and impartial commissions of inquiry and truth commissions; provide reparations to victims; and enact necessary reforms.
Additionally, non-State entities such as corporations, including private military and security companies, should be held accountable in cases of arbitrary deprivation of life.
The draft comment emphasizes that the State cannot shield itself from protecting the right to life using national security arguments, even during armed conflict or when engaging in counter-terrorism measures. See id. at paras. 7-12.
Abolition of the Death Penalty
The draft comment notes that the African Charter does not provide for the death penalty. Additionally, in 1999 the Commission passed a resolution calling on States to abolish or establish a moratorium on the death penalty, and the Commission has also developed a Protocol on the Abolition of the Death Penalty.
According to the comment, States that have abolished the death penalty should not reintroduce it, and must not collaborate with executions in other States by deporting or extraditing individuals to those States. States that have imposed a moratorium on the death penalty must take steps to formalize its abolition in domestic legislation.
The comment notes that international law dictates that States that have not yet abolished the death penalty must take steps do so. More broadly, States must protect an individual’s right to a dignified life, as well as the right to be free from torture and other cruel or degrading treatment. The death penalty should only be used for the most serious crimes (involving an intentional killing), its application should be in accordance with international standards concerning the protection of vulnerable groups, and States must give public notice of the timing, manner, and number or executions.
If criminal proceedings, including mass trials, are not in accordance with Article 7 of the Charter (right to a fair trial), the application of the death penalty will be considered arbitrary. Finally, the draft comment emphasizes that the death penalty cannot be a mandatory punishment for an offense and that military courts should not have the authority to impose the death penalty. See id. at paras. 13-16.
Use of Force in Law Enforcement
With respect to the use of force by law enforcement officials, the draft comment notes that the use of force must be proportionate (no other means are sufficient) and necessary (one cannot avoid using force to protect someone’s life). Additionally, the State has a responsibility to take reasonable steps to prevent the use of excessive force by its agents, including by: providing appropriate equipment and training, ensuring that individual operations are carefully planned, and adopting domestic legislation that complies with international standards regarding the use of deadly force.
The draft comment discourages the militarization of law enforcement and encourages the use of “less-lethal” weapons; agents should be properly trained to use their weapons in a manner that respects the right to life. See id. at paras. 17-19.
Use of Force in Armed Conflict
According to the draft comment, international humanitarian law should guide the meaning of “arbitrary” with respect to the deprivation of the right to life during hostilities. Individuals must exercise “meaningful human control” when using machines to select human targets or to determine whether the use of force is appropriate. Moreover, if it is possible to achieve a military objective using non-deadly force, this is the preferable option. See id. at paras. 20-23.
Other Violations That May be Attributed to the State
The draft comment notes that if an intentional killing “falls outside the narrowly-defined exceptions” of the following circumstances, it will be considered an arbitrary deprivation of life: a judicial sentence, an armed conflict in compliance with international humanitarian law, or legitimate force to defend one’s life or the life of another. The State has a responsibility to hold perpetrators accountable for murder under domestic law, and to hold itself accountable for the acts of its agents, with agent defined as “any individual or group acting under the control or authority of the State or at the State’s instigation, or with the consent or acquiescence of such an authority.” The draft comment emphasizes the need for both domestic and international independent oversight bodies in this process as well as with respect to allegations of disappearances, which often lead to extrajudicial executions. See id. at para. 24.
Arbitrary Killings in State Custody (Custodial Deaths)
With respect to custodial deaths, the draft comment notes that the State has a greater responsibility to protect the rights of individuals when the State has deprived them of their liberty. This includes the duty to protect detainees from violence or emergencies, such as fire or flooding. Additionally, the State should protect detainees’ right to a dignified life, including by providing food, water, and adequate healthcare.
The State should also provide information about the place of detention, who is detained, and the authorities responsible for detention. The draft comment notes that when a person dies in State custody, the State is presumed to be responsible and carries the burden of proof to show otherwise through an effective and transparent investigation conducted by an independent and impartial authority.
The draft comment reiterates that the State’s increased responsibility extends to those detained in prisons, official and unofficial detention facilities, and facilities in which the State exercises greater control over individuals’ lives. See id. at para. 25.
Responsibility for Violations by Non-State Actors
The State also has an obligation to protect individuals from violations caused by private individuals, including by ensuring that individuals are able to exercise their rights and freedoms. The State is responsible for deaths that have not been adequately investigated and prosecuted, as well as situations where authorities knew or should have known of an immediate threat; these responsibilities increase when an observable pattern of violations is overlooked or ignored. See id. at para. 26.
Interpreting the Right to Life Broadly
The draft comment emphasizes the need to interpret the right to life broadly, which includes the State’s obligations to: refrain from endangering individuals’ lives (for example by extraditing them to States where their right to life might be threatened), investigate “death threats,” and take positive steps to protect individuals from risks caused by the action or inaction of third parties. The State’s obligation in this respect also entails responding when the right to life is endangered, including during emergencies such as natural disasters, famines, and outbreaks of infectious diseases. Violations of social, economic, or cultural rights may also constitute violations of the right to life. See id. at paras. 27-29.
The Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings (Working Group) of the Commission will meet again with various international experts in September 2015 in Geneva, Switzerland. Prior to this upcoming meeting, interested parties, including those who contributed to earlier stages of the drafting process, are invited to submit written comments. These comments can be emailed to firstname.lastname@example.org and copied to Ogendip@africa-union.org until September 1, 2015.
The general comment, which is aligned with Goal 16 (promoting peaceful and inclusive societies by significantly reducing all forms of violence and related deaths) of the UN’s Sustainable Development Goals, will be adopted before the beginning of the 2016 African Year of Human Rights. See Draft Comment at 1.