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Home Armed Conflict Securing the Right to Life: A cornerstone of the human rights system

Securing the Right to Life: A cornerstone of the human rights system

Published on May 11, 2016        Author: 

The right to life has been described as the ‘supreme’ or ‘foundational’ right. Efforts to ensure other rights can be of little consequence if the right to life is not protected.

In the broadest sense, the prohibition of the use of force except under narrowly defined circumstances, both in armed conflict and interpersonally, reflects a pre-occupation with the protection of this core human value. The criminal justice and other mechanisms of investigation are also aimed at ensuring the protection of life. The linkage of the term ‘right to life’ to a specific position in the debate about abortion in the North American context hardly does justice to the terrain covered by this concept.

The duty to respect and protect the right to life manifests itself on numerous terrains: The excessive use of force by law enforcement agencies or others (such as hit squads whose actions can be attributed to the state); the death penalty; the responsibility of states for the lives of those in their custody (for example in prisons); and the failure to exercise due diligence to protect members of the public from violence by other individuals or groups. The right to life also continues to apply during armed conflict. A violation of the right to life is irreversible. It is for this reason that it is important to underline that the protection of the right to life has two components: the prohibition of arbitrary deprivations of life, and accountability where they occur. A lack of accountability in itself constitutes a violation of this right.

The right to life is a well-established and developed part of international law, in treaties, custom, and general principles, and, in its core elements, in the rules of jus cogens. Its primacy and the central features of the prohibition on arbitrary deprivations of life are not contested. Nonetheless, in practice, life remains cheap in many parts of the world. This is true in the many armed conflicts that are raging, but also outside such conflicts, where police and others authorised or tolerated by states often use excessive force, or there is a failure to investigate homicides.

The great importance attached to this right is reflected in a flurry of recent developments in this field, aimed at setting out the norms more clearly or ensuring their better realisation. We have been pleased to be able to contribute to several of them:

  • The UN Human Rights Committee is developing an updated General Comment on the right to life. General Comment No.6 was written in the early 1980s, and the new draft text considerably expands upon it, as well as bringing it up to date with the jurisprudence of the Committee since then.
  • Last November, the African Commission on Human and Peoples’ Rights adopted its own General Comment No.3 on the right to life. This document was designed to guide States, NHRIs and civil society with respect to the range of application of Article 4 of the African Charter.
  • The Office of the UN High Commisisoner for Human Rights, in collaboration with the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, is updating the UN Manual on the effective prevention and investigation of extralegal, summary or arbitrary executions (sometimes also called the “Minnesota Protocol”). This is in essence a re-statement and consolidation of the standards applicable to the investigation of all potentially unlawful deaths.
  • A number of bodies are involved in exploring whether new laws are needed in the context of the use of armed drones and autonomous weapons systems, during armed conflict as well as law enforcement. On the question of drones, the Special Rapporteurs on summary executions and on the protection of human rights while countering terrorism submitted reports to the General Assembly in 2013. Also in 2013, the Special Rapporteur on summary executions submitted a report to the Human Rights Council on the human rights implication of autonomous weapons systems, an issue which has subsequently been taken up by the Convention on Certain Conventional Weapons.
  • Recently, the Special Rapporteurs on peaceful assembly and association, and on summary executions presented a report to the Human Rights Council on the “Proper management of assemblies”. Of particular concern in this and other contexts is the proper use of so-called “less lethal” weapons. Likewise, the Office for Democratic Institutions and Human Rights (OSCE) recently produced a Human Rights Handbook on Policing Assemblies. The United Nations Office on Drugs and Crime and the High Commissioner for Human Rights are developing a handbook in the field as well. The African Commission has recently turned attention to broader questions of assembly and association, and will be developing Guidelines over the coming year.
  • Amnesty International has in 2015 released a new commentary on the UN Basic Principles on the Use of Force and Firearms, commemorating the 25th anniversary of their adoption. A report on the use of force by private security providers will be presented to the Human Rights Council in June.

Even around what remain fundamentally controversial issues, such as the death penalty, there have been positive developments. We have argued elsewhere that overall, the trend is away from this form of punishment, and that States have a responsibility to protect the right to life by progressively taking steps to abolish the practice. Amnesty International recently published their annual report on the use of the death penalty around the world, highlighting a year in which the trend was interrupted. However, the practice is increasingly isolated—with only three countries accounting for nearly 90% of all known executions in 2015.

The threat of terrorism has had a discernible effect of the protection of the right to life. It has contributed, for example, to the expansion of the application of the death penalty, perhaps most prominently in Pakistan, but also in Chad. The use of draconian anti-terrorism legislation to enhance the powers of police forces or create special counter-terrorism units, and to shield them from civilian oversight or accountability is also a serious concern.

The right to life should also not be seen merely as dealing with direct physical threats to the human body – indirect threats such as the deprivation of food and healthcare or a failure to protect against natural disasters also can also constitute violations of the right. This has clear ramifications for the current challenges facing Europe regarding its response to migration flows across and around the Mediterranean Sea.

It is clear that in many instances there is little dispute about the applicable standards, but rather about the facts. States will accept that arbitrary executions are unlawful and that there should be accountability where they occur, but deny that they are involved in such things. As a result fact-finding, and in particular the role of emerging technologies in this area, has become increasingly important. Cell-phone images of executions in Sri Lanka and Syria, and more sophisticated technology in the case of ISIS, are freely available on the Internet and are increasingly used by human rights fact-finders.

The right to life thus remains a dynamic field of law, and continued contact between practitioners who focus on this area in various international systems, both at UN and regional levels, is of great importance in the coherent development and application of the standards in this field. In order to ensure that there is a forum for the discussion of these issues, we have partnered with the Geneva Academy to present an Expert Seminar on the right to life, which will bring together practitioners and other experts who work on these issues on a daily basis in human rights and humanitarian institutions worldwide, as well as leading academics in this field. Designed to facilitate discussions and a deeper understanding of the subject matter, this initiative will hopefully facilitate multi-regional and multi-disciplinary collaborations in this field.

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4 Responses

  1. André de Hoogh André de Hoogh

    Dear authors, I’d be interested to hear more about your claim that the right to life, in its core elements, possesses the status of jus cogens. We know of course that this is asserted for the prohibition of genocide, but whether the right to life more generally constitutes part of jus cogens is open to debate and, as far as I can tell, little has been written about this.

    What core elements are you referring to? How do you account for a possible restricted scope of the prohibition of deprivation of life to those which are arbitrary/intentional and the relationship to the scope of the jus cogens rule? How would you explain the existence of exceptions (acts of law enforcement; the death penalty; lawful acts of war) considering that jus cogens rules would not allow for any ‘derogation’?

    Disclosure: I’m in the process of writing a contribution on exceptions to peremptory norms.

  2. Jordan

    The ICCPR, for example, conditions the right with the word “arbitrary,” which provides a major and maleable limitation in all social contexts (including self-defense targetings). Another limitation is the “effective control” test (which some seem to ignore when addressing self-defense or law of War targetings.

  3. Jordan

    p.s. General Comment No. 24 lists arbitrary deprivation of life as among jus cogens. I see no reason why h.r. jus cogens need to be without built-in limitations.

  4. Andrea

    Many thanks to both authors for this most useful and interesting post. I recently read with students the case of Armani Da Silva v. the United Kingdom by the ECHR…and I was puzzled…I had the feeling that the right to life is somewhat more important in theory than in practice and I consider this case a step back from the more articulate and convincing McCann case…I still have to digest the case and understand it fully so perhaps my doubts are misplaced…but I would be grateful for any thought on that case that the learned authors would like to share.