Article 2 of The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) contains the right to life. It states that everyone’s right to life shall be protected by law. The State has an obligation to secure the effective enjoyment of the right to life for everyone in its jurisdiction. It follows that the rights must be effective and practical.
As well as the negative obligation to refrain from intentionally or unlawfully depriving an individual of their right, states are under a positive obligation to protect the right to life by law. This obligation involves substantive and procedural aspects. Substantively the taking of life, by both State agents, acting outside their lawful powers in breach of Article 2, and private citizens should be illegal and punishable under domestic law.
Exceptions to right to life
The right to life under Article 2 is not an absolute right. Article 2 of the ECHR includes several specific exceptions to this right. The first exception is that an individual’s right to life may be overridden if they are sentenced to death by a court following their conviction for a crime.
Article 2 also states that an individual may lawfully be deprived of their right to life if it is necessary to do so in order to:
- Protect any person from unlawful violence,
- Lawfully arrest an individual or to prevent the escape of an individual from lawful custody; or,
- Lawfully prevent a riot or an insurrection or rebellion against the established authority of a state.
- Where an individual is killed in any of the above circumstances, their right to life may have been breached if the force used was more than was absolutely necessary to prevent the relevant circumstances from occurring.
Widely recognized practices that undermine right to life
Death penalty & right to life:
Death penalty under International Law- in particular its reference under Art2-right to life
Article 2(1) provides the only explicit exception to the prohibition on the intentional deprivation of life – the death penalty. For States that have abolished the death penalty, Article 2 does not, in its terms, prevent its reintroduction or the recommencing of executions where they have been suspended.
Under Article 2 of the ECHR a lawfully executed death penalty is not a breach of an individual’s human rights. However, two later amendments (known as protocols) to the ECHR abolished the death penalty. The first amendment abolished the death penalty in all circumstances other than in a time of war; subsequently the ECHR was amended again to abolish the death penalty in any circumstances.
The practice of death penalty under International Law-move towards abolition of death penalty
The death penalty or capital punishment as it is otherwise known continues to be legitimate and practiced in a number of states around the world. Some states have outlawed the death penalty except for most extreme cases e.g. crimes committed during war. Other states while they may not have outlawed the death penalty, are in practice abolitionist by not actually sentencing offenders to death.
The death penalty might appear to constitute a violation of the right to life but human rights law falls short of insisting that it does. It leaves states the option to impose the death penalty but urges them to move towards abolition and also imposes certain limits on the way in which the death penalty can be imposed.
Further international remarks on the abolition of the death penalty
In Resolution 65/206 adopted by the General Assembly on moratorium on the use of the death penalty provides that the States which have abolished the death penalty not to reintroduce it. The General Assembly also called upon States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing it
In 2010 to 2011 Report of the Secretary-General on death penalty states that the General Assembly has emphasized that the death penalty undermines human dignity. Abolishing the death penalty is a long process for many countries. States should make the relevant information on the death penalty available to the people to make such debates meaningful. Until the death penalty is abolished, States. Members of the United Nations who still intend to impose the death penalty should either introduce a moratorium on the death penalty or apply the death penalty only in the cases of the most serious crimes.
General Comment No. 06: The right to life (art. 6) provides that right to life is a right which should not be interpreted narrowly. The Committee also considered that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. It was further provided that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes.
General Comment No. 14: Nuclear weapons and the right to life provides that the production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity. The Committee accordingly, in the interest of mankind, calls upon all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace.
Shoot to kill & justification of states:
Philip Alston- Special Rapporteur report
Alston defines target killings as the intentional, premeditated, deliberate use of force by states acting under the colour of law. He suggests that the definition should be narrow, when states (through their actions) identify, target and kill specific individuals, since this action is not random.
Further, he examines whether target killings can be lawful, depending on the context in which such actions were carried out.
- If such killings are carried out in an armed conflict, such killings may suffice to be lawful, since intentional killing is the main purpose in war (i.e. to kill the opponent soldiers), and so if this is the case, such killings are subjected to different kind of law. The central issue is who are enemy combatants and civilians. International Human Rights Law protects against military targeting, allowing it to be lawful if it is proportional and necessary. Thus, law of war is regulated, so narrow arena where enemy combatants are targeted.
- Outside armed conflict, there is a tendency to blur the distinction where there used to be clarity, i.e. the direct participation of hostiles (i.e. the distinction between members of armed forces and civilians). One would normally say that combatants took part in direct hostiles: for e.g. if loaded bombs became participants, but when not didn’t so.
The issue is that target killings may be lawful, if state is under a war in which case state is under the laws of war. Thus, target killings are a breach of law, but will not be a breach of law if in armed conflict. However, if not in armed conflict, then special circumstances must exist. Outside armed conflicts, international human rights law is clear, in that if the objective is to kill, then the killing cannot be lawful.
- Another dimension is interstate forces such as US and Pakistan carrying out attacks as an act of self-defence. Situation is different if Pakistan consents to arrival of hardware (in which case attacks can be lawful) can consent since protecting civilians. Although, Pakistan consenting by way of informal agreements to such actions results in a possibility of a derogation of the right to life, given its ratification of the ICCPR, it has a duty to protect right to life by form of positive obligations. Nevertheless, such things make states less safe.
Alston points out that there is international legal regulation, where life can be taken (which is lawful under international human rights law) and so there is a need to be vigorous in examining the facts, applying the law to the facts and so not allowing blurring to occur. However, it is not a simple black and white question, whether drone attacks are lawful. Alston simply says there is no need to get muddled up, since need to know what the law is and apply it to the realities of drone attacks. There is also a link between the high standards of the right to life, since there needs to transparency and accountability in the measures employed to carry out such attacks, such as the information/data/investigation.
Drone attacks are not legal as there is a lot of collateral damage. Someone in computer room in US press the button and the person is killed. The play station nature of these attacks lack the procedural laws and accountability is also absent. There should be strong check and balance. Moreover, the unmanned aircrafts and strong technology which involve weapons of mass destruction have also gained importance. But they are less important as they are ultimately controlled by the human beings. The real important thing is not the nature of weapons but the way they are used in taking lives of people in extra-judicial killings. In, a nutshell, drone attacks lack the transparency procedures.
Drone attacks are unmanned operations with no loss of life from their side, but to dispatch people who cause loss of other people’s lives is bad. The idea revolves around the idea that technology is so advanced now, that it can be used to kill people.
Further, technology will only go forward and that fact that such machinery is unmanned is important, since the problem lies not in the nature of the weapon but what it is capable of doing if it is in the wrong hands.
US justification for targeting practices (in particular- drone attacks)-view of US international lawyer
Harold Hongju Koh, ‘The Obama Administration and International Law’ Annual Meeting of American Society
Professor Koh believes US targeting practices (such as drone attacks) to be compatible with the laws of the war, resulting in such practices to be lawful. He describes the so-called ‘war on terror,’ as one that has led the US to be in an ‘armed conflict’ against terrorist groups, which would thus allow the use of force under the right to self-defence under International Law (to protect its citizens).
Further, he highlights the US Administration’s careful review of the rules that govern targeting practices, which are consistent with the laws of war principles. These principles include: (i) distinction: which require attacks to be limited to military objectives and civilians not be the object of the attack and (ii) proportionality: which prohibit attacks that may be expected to cause incidental loss, injury, damage or injury to civilians, which would be excessive in relation to the direct military advantage expected.
Moreover, he responds to the 4 legal objections raised against U.S. targeting practices:
- The very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war: He describes such individuals as ‘lawful targets’ under international law, and such actions resulting in the narrowing of the force employed to carry out such operations and so avoiding broader harm to civilians.
- Tthe very use of advanced weapons systems, such as unmanned aerial vehicles: He mentions that there are no rules or prohibition under the laws of war on the types of weapons used to carry out such operations, and considers such systems to be the best for planning operations, and minimizing casualties.
- The use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing: He justifies situations of armed conflict/ legitimate self-defence as not requiring to give such targets due legal process.
- Targeting practices violate domestic law: He suggests that under domestic law, the use of lawful weapons, in compliance with the laws of war for precision targeting when acting in self-defense or during an armed conflict is not unlawful.
Despite, his reasoning for the lawfulness of targeting practices, he fails to specify the so-called ‘targets,’ that such measures are designed to catch in its bid to ‘end the war against terror.’
The Test Of Absolutely Necessary-Under Art2-Right To Life
Any force used for the achievement of one of the specified aims of Article 2(2) must be no more than ‘absolutely necessary’. The use of the adverb ‘absolutely’ suggests that a stricter test of necessity must be applied to State action. Under these qualified rights, any State action used to restrict the right must be ‘necessary in a democratic society’, which means that there must be a pressing social need and the interference with the right must be proportionate to the legitimate aim pursued. However, to justify depriving someone of his life, there must be a more compelling justification than a ‘pressing social need’. There are two limbs used to determine whether the use of force was no more to the achievement of one of the aims the State operation to achieve one of the aims must have been “planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.
Jurisprudence (Test Of Absolute Necessary Examined)
In the case of Wolfgram v Germany, the police had arrested five men whom they reasonably, and as it turned out correctly, believed were on their way to carry out an armed robbery, and for that purpose were armed with dangerous and deadly weapons. When one of the men detonated a grenade, the police responded with lethal force, opening fire and killing two of the five men. The Commission held that the use of force was justified both in terms of self-defence and to effect a lawful arrest. To achieve these aims, it was accepted that the level of force used was no more than ‘absolutely necessary.
Mccann v UK
Facts: The applicants are parents of the victims, who were shot dead by members of a regiment of the British Army, which was expecting a terrorist attack by the IRA. They claimed a violation of Article 2 on the basis that the deceased were intentionally deprived of their right to life by the use of unnecessary, unlawful force, without any attempt to effect a lawful arrest. The Commission considered that, given the soldiers’ perception of the risk to the lives of the people of Gibraltar, the shooting of the three suspects could be regarded as absolutely necessary for the legitimate aim of the defence of others from unlawful violence.
Holding: 10 votes to 9, the ECtHR found a violation of article 2 of ECHR.
Reasoning:In determining whether the force was compatible with Article 2, the Court must decide whether the force used by the solders was proportionate to the aim of protecting persons against unlawful violence, and whether the operation was planned and controlled by the authorities so as to minimize, to the greatest extent possible, the recourse to lethal force.
The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, that it was necessary to shot the suspects in order to prevent them from detonating a bomb and causing serious loss of life. The actions they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. The actions of the soldiers do not, in themselves, give rise to a violation of this provision.
The question arises, however, whether the anti terrorist operation as a whole was controlled and organised in a manner which respected the requirements of Art. 2 and whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adeguately into consideration the right to life of the three suspects.
“In sum, having regard to the decision not to prevent the suspects from traveling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2…”
Given the facts of the case, the majority of the Court found that not enough was done to minimize, to the greatest extent possible, the recourse to the use of lethal force. There was a lack of appropriate care in the control and organisation of the arrest operation.
Dissent: Dissenting judges underlined general point: That the need for the authorities to act within the restraints of the law, while the suspects were operation in a state of mind in which members of the security forces were regarded as legitimate targets and incidental death or injury to civilians as of little consequence, would inevitably give the suspects a tactical advantage that should not be allowed to prevail.
Conclusion:
When planning and implementing operations, state authorities are under a strict obligation, which has been developed over the years by the Commission and the Court, to take all feasible precautions to avoid or minimise the incidental loss of civilian life, regardless of whether the risk emanates from State or non-state actors (e.g. criminals or terrorists).
Precautions include choosing the most appropriate means and methods of carrying out the security operation, and ensuring that security forces are appropriately and adequately trained, and that they have instructions on the appropriate use of force for a particular operation, including the use of warning shots before using targeted fire. All information passed to the security forces must be up-to-date and carefully scrutinised to ensure that force is used only when absolutely necessary and that the extent of this force is no greater than the intelligence assessments objectively justify. The authorities therefore need to have appropriate systems for gathering and processing information and passing this on to their agents. Only in this way can the requirements to protect life under Article 2 be fulfilled.
