An Easy Exam Question on the Right to Life

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

1) Would the use of potentially lethal force against Dexter be ‘arbitrary’ within the meaning of Article 6(1) ICCPR? Discuss with references to the relevant case law.

2) Would the use of potentially lethal force against Dexter be ‘absolutely necessary’ within the meaning of Article 2(2) ECHR in the pursuance of one or more of the specific aims set out therein? Discuss with references to the relevant case law.

3) For bonus marks, compare the results of your analysis under 1) and 2) to an analogous analysis under the Fourth and Fifth Amendments to the US Constitution.

4) For even more bonus marks, compare the results of your analysis under 1)-3) to a scenario of the possible targeted killing of a high-ranking member of terrorist organization operating from a foreign country, whether through the use of a drone or through more conventional means. Confine your analysis solely to human rights law, which you will assume applies extraterritorially, with the additional assumption that international humanitarian law does not apply.