International humanitarian law in the work of regional human rights courts: African and comparative trends
Authors Brian Sang YK
Affiliations: Research Fellow, Centre for Alternative Research on Law and Policy
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 1 – 33
Regional human rights courts have applied human rights law and international humanitarian law (IHL) when considering alleged violations in the context of armed conflict. This offers a useful basis for examining how regional human rights bodies have been or can be used to enforce IHL and how, and the extent to which, human rights and IHL norms interact. But it also poses challenges to the legitimacy and efficacy of regional bodies that apply IHL. This article analyses trends in the application of IHL in regional human rights systems, as reflected in the work of African, Inter-American and European human rights treaty monitoring bodies. Supported by comparative case law, the article argues that regional human rights courts have contributed to the implementation of IHL, albeit to various extents. It also argues that the growing convergence of IHL and human rights norms means that regional mechanisms can be utilised to strengthen compliance with both IHL and human rights law. Yet this is undermined by the lack of systematic engagement with IHL within and across regional human rights systems. To reverse this trend, this article proposes that regional systems must clarify: (a) their competence to directly apply IHL, or only refer to it as an aid in interpreting human rights law; (b) the extent to which IHL can or should influence the interpretation of regional human rights treaties or specific norms; and (c) which body of law or, in the alternative, the specific rule that should prevail in case of a conflict of norms.