The right to life is fundamental and recognized by several international treaties - it encompasses the right to not be arbitrarily deprived of life and has evolved to include positive duties on states.
Key Treaties and Provisions :
- Art. 3 Universal Declaration of Human Rights (UDHR) : Recognizes the right to life, liberty, and security.
- Art. 6 ICCPR :
Ø Ensures the inherent right to life which cannot be arbitrarily taken away.
Ø Restricts death penalty for countries that have not abolished it by stating that it can only be applied for the most serious crimes and must align with the laws in place when the crime was committed – the sentence must also follow a final judgment by a competent court.
Ø Grants the right to pardon or commutation to anyone sentenced to death.
Ø States that the death penalty cannot be imposed for crimes committed by persons under 18 and cannot be carried out on pregnant women.
Ø Nothing in this article should be used to delay or obstruct the abolition of the death penalty.
- Art. 2 European Convention on Human Rights (ECHR) :
Ø Ensures the protection of everyone’s right to life and prohibits its deprivation except as a court-ordered sentence following a conviction for a crime where such a penalty is legally allowed.
Ø Allows for deprivation of life if the use of force is absolutely necessary (1) To protect any person from unlawful violence (2) To carry out a lawful arrest or prevent the escape of a legally detained person (3) To control a riot or insurrection, provided the action is lawful.
- Art. 4 American Convention on Human Rights (ACHR) : This article underscores the protection of life from conception, restricts the use of the death penalty to the most serious crimes who must follow a final judgment by a competent court, and prevents its retroactive application to additional crimes (cannot be extended to crimes not previously punishable by death).
A retenir :
As shown in these articles, the right to life is non-absolute, and narrowly defined exceptions exist :
- Death Penalty : Allowed only for the most serious crimes in states that have not abolished it, and under strict conditions (art. 6 ICCPR and 2 ECHR).
- Use of Lethal Force by Law Enforcement : Force may only be used when absolutely necessary to protect life or prevent serious injury, such as defending against immediate threats (art. 6 ICCPR and 2 ECHR).
- Non-Derogable Right : The right to life is non-derogable, meaning it cannot be suspended, even in emergencies (art. 4(2) ICCPR and 15(2) ECHR).
1. Key Principles and Scope of the Right to Life
- Protects individuals from intentional killing.
- Ensures human’s right to survival and a ‘good life’(e.g. access to emergency medical treatment ; to basic food for those who are at risk of dying from starvation ; access to housing/education).
- The HRCttee stresses that the right to life includes protection from actions likely to cause premature death / ensures living with dignity and reminds that art. 6 ICCPR guarantees this right for all human being without discrimination (HRCttee, General Comment 36, para.1).
- The right to life does not imply protection from all potential threats, as this would overwhelm state resources and infringe on other rights – it focuses on preventing unjustified loss of life while balancing state capabilities.
2. Duties Arising from the Right to Life
General Duties :
- States must “respect and ensure” the right to life by adopting domestic laws to prevent interference with this right and adopting any other necessary preventive, educational, and administrative measures to safeguard life against common threats (art. 2 ICCPR) .
Law Enforcement Use of Force :
- Legal Basis and Proportionality :
Ø A deprivation of life that lacks a legal basis or is inconsistent with life-protecting laws and procedures is considered arbitrary in nature (HRCttee General Comment 36, para.11).
Ø Use of lethal force can be lawful under domestic law but still be arbitrary if it lacks ‘elements of reasonableness, necessity and proportionality’ or when domestic law has elements of injustice, lack of predictability and the absence of due process of law (=absence d’une procedure de droit régulière) (HRCttee General Comment 36, para.12).
- Legitimate Aim : Force can only be used as an extreme measure to protect life or prevent serious injury from an imminent threat (HRCttee General Comment 36, para.12).
- Strict Necessity : Lethal force should be employed only as a last resort measure and cannot exceed the amount strictly needed for responding to imminent threat, which is why police operations are carefully planned to avoid any potential lethal outcome (HRCttee General Comment 36, paras.12-14).
A retenir :
Suarez de Guerrero v Colombia, HRCttee :
Art. 2(2)(b) ECHR allows law enforcement to use force, including potentially lethal force, when absolutely necessary, “in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.”
- In this case, Colombian police officers, acting on intelligence, entered a building where the suspects were reportedly staying. Upon entering, the police officers immediately opened fire, killing Suarez de Guerrero and several others.
- The police argued that the use of force was necessary to neutralize a perceived threat from the suspects but evidence suggested that the individuals might have been unarmed, and there were indications that the police had conducted a summary execution rather than a lawful arrest attempt.
- According to the Committee, lethal force should only be used as a last resort when there is an imminent threat to life and in this case, evidence suggested that the police had not tried to arrest the individuals or use non-lethal means before resorting to deadly force and that the individuals were likely unarmed and had been summarily executed without posing an immediate danger to the officers.
- The Committee emphasized the principle of proportionality, meaning that the level of force used should match the threat posed but in this case, the force used by the police was found to be disproportionate given the situation because the police raid did not seem to have been planned or executed with the intention of preserving life.
- This interpretation prioritizes life preservation over mere enforcement objectives, underscoring that arrest or detention alone does not justify lethal measures unless immediate danger exists.
3. Addressing Threats from Third Parties
States also have a duty to protect individuals from foreseeable life-threatening actions by so called ‘third parties’ who are private parties or entities, other states, international organizations, multinational corporations, NGOs and even natural phenomena (General Comment 36, paras.18, 22 and 26).
- States must enact laws and take preventive measures on states’ territory against third-party actions that could endanger life, such as criminal violence (homicide, infanticide, use of firearms) terrorism, or unsafe corporate practices (lynching, death threats) (General Comment 36, para.20).
- States are under a ‘due diligence obligation’ to take reasonable measures that do not impose disproportionate burdens on them in response to ‘reasonably foreseeable threats’ (the state knew or should have known about it) emanating from third parties, in order to protect individuals (General Comment 36, para.21).
- States must adopt special measures such as police protection or restraining order against potential aggressor in response to specific threats against identified person(s) (General Comment 36, para.23).
A retenir :
E.g.1. Pathmini Peiris v Sri Lanka, UN HRCttee :
- Applicant’s husband had reported concrete death threats against himself and his family several times to Sri Lankan police who didn't take any action to protect the applicant’s husband who was shot dead one day by masked men.
- HRCttee found violation of Art.6(1) ICCPR because Sri Lankan authorities failed to proactively protect (with due diligence) the right to life of Mr Peiris against these concrete threats to his life.
A retenir :
E.g.2. Opuz v Turkey, ECHR :
For positive obligations to arise under ECHR, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party.
- In this case, the ECHR held Turkey accountable for failing to protect Mrs. Opuz and her mother from domestic violence, which ultimately led to the mother’s death.
- There was a pattern of escalating violence against Mrs Opuz (and her mother) with sufficiently serious threats that the authorities knew about due to numerous reports by applicants to the police.
- The criminal proceedings were terminated (=closes), no further research as to whether Mrs Opuz and her mother faced an imminent danger to their lives and no protective measures were ordered, even though this was possible under Turkish law.
4. Societal Threats to Life
States should take reasonable steps to address general societal conditions that pose threats to life, though not all fall directly under the right to life (General Comment 36) :
- That includes necessary measures to ensure access to individuals to essential goods and services such as food, water, shelter, health care, emergency response operations (firefighters, ambulance services, police forces), electricity and sanitation.
- States parties should also develop strategic plans for advancing the enjoyment of the right to life such as plans to fight the stigmatization associated with disabilities and diseases (including STD’s), plans to promote education for non-violence, campaigns for raising awareness of gender-based violence and harmful practices.
- Furthermore, States parties should also develop, when necessary, contingency plans and disaster management plans for hurricanes, tsunamis, earthquakes, radioactive accidents and massive cyberattacks resulting in disruption of essential services.”
However, the implementation of these measures can be complex because their resources and capacity are limited.
Therefore, the current states’ duties under the right to life are limited to duties to take all reasonable measures to address general conditions in society that pose foreseeable, potentially deadly threats to concrete people so as a minimum, to ‘provide access to existing health-care services that are reasonably available and accessible when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in loss of life’ (HRCttee, Nell Toussaint v Canada).
5. Procedural Duties of States : Investigate, Prosecute, and Punish
- Investigate All Unexplained Deaths : Prompt and thorough investigations must be conducted for deaths potentially resulting from state or private actor actions.
- Prosecute and Punish : Where violations of the right to life are identified, responsible parties must face justice to prevent impunity and reinforce accountability.
A retenir :
Eshonov v Uzbekistan, HRCttee (2010) :
- In this case, the HRCttee found that Uzbekistan had violated the right to life (6 ICCPR), freedom from torture and inhuman treatment (7 ICCPR), and fair trial rights (14 ICCPR) in its treatment of Mr. Eshonov during his detention and trial, underscoring the obligations of states to prevent torture, ensure fair trials, and protect the lives of detainees.
- Eshonov ultimately died in custody and authorities claimed that he had committed suicide, but the family argued that his death was directly due to the abuse and lack of proper medical assistance he received in detention.
- The case established that states have an obligation to investigate any suspicious death in custody thoroughly and transparently and failing to do so, especially when there is evidence suggesting abuse, violates the ICCPR and undermines public trust in law enforcement and judicial systems.
6. The Death Penalty Exception
Art.6(2)-(6) ICCPR : D.penalty exception from the right to life applicable to states that ‘haven't abolished’ it yet.
Substantive Limitations :
- Allowed only for “most serious crimes,” typically interpreted as crimes of extreme quality involving intentional killing (art.6(2) ICCPR) => must involve intentional killing (Chisanga v Zambia, HRCttee (2005)).
- Crimes not resulting directly and intentionally in death (e.g. attempted murder, corruption, drug and sexual offences) do not qualify under art 6 (General Comment 36, para.35).
- ‘Under no circumstances can the death penalty ever be applied as a sanction against (…) adultery, homosexuality, apostasy, establishing political opposition groups or offending a head of State. …’ (General Comment 36, para.36).
- Thompson v St. Vincent and The Grenadines, HRCttee (1998) : The Committee concluded that the automatic and mandatory imposition of the death penalty for certain crimes violated the right to life as well as the right to a fair trial because it precludes any consideration of mitigating circumstances by a court, This therefore requires states to provide flexibility in sentencing, even for serious crimes.
- Non-Retroactivity : D.P can only be applied to crimes that were punishable by death at the time of the offense (art.6(2) ICCPR) = lex mitior principle.
Personal Limitations :
- Prohibition of d.penalty on persons under the age of 18 and on pregnant women (art. 6(5) ICCPR).
- D.P cannot be imposed on individuals with serious psycho-social or intellectual disabilities (General Comment 36, para.49).
Procedural Limitations :
- D.P is only permissible after a fair trial in compliance with due legal process standards, including the right to appeal and the right to seek pardon (art 6(2) ICCPR and 14 ICCPR – right to a fair trial).
=> E.g. No legal representation (Aliboeva v Tajikistan, 2005) ; Right to appeal must be granted in capital punishment cases (Mansaraj et al v Sierra Leone, 2001).
- Consistency with other provisions of the ICCPR = Prohibition of methods of execution that amount to torture or inhuman or degrading treatment/punishment (art. 7 ICCPR).
=> Injection of untested lethal drugs, gas chambers, burning and burying alive and public executions are contrary to art.7 (General Comment 36, para.40).
=> Soering v UK, ECHR, 1989 : Spending protracted periods of time on death row prior to execution (‘death row phenomenon’) amounts to inhuman treatment and thus violation of art.7 ICPR and 3 ECHR.
7. Moving Toward Abolition of the Death Penalty
> In Europe, all Council of Europe member states have ratified Protocol 6 to the ECHR (1983) and abolished the D.P.
- Öcalan v. Turkey, ECHR, 2005 : The court has established that the death penalty, especially after an unfair trial, constitutes inhuman and degrading treatment which is contrary to Article 3 ECHR (even if the death penalty had not been applied, the imposition of a capital sentence following an unfair trial amounted to inhuman treatment).
= This principle has strengthened the prohibition of the death penalty in Europe and contributed to strengthening European standards on human dignity and respect for fundamental rights.
- Al-Saadoon and Mufdhi v. UK, ECHR, 2010 : Al-Saadoon and Mufdhi, two Iraqi nationals, were accused of murder in Iraq and at risk of death - in 2004 they were transferred from the custody of British forces to the Iraqi authorities, despite the high risk of death sentences in Iraq.
= The Court held that the death penalty was no longer compatible with the European Convention, marking a step towards total and absolute abolition of this penalty in the Council of Europe member states.
= It held that the UK had an obligation not to transfer detainees to a country where they might be executed which has allowed to broaden the scope of art. 3 ECHR to include the prohibition of exposing an individual to a real risk of death in another country.
= By affirming that the death penalty is fundamentally incompatible with human dignity, the ECHR pointed out that art. 2 (right to life) of the Convention had to be interpreted in coherence with art. 3.
> The HRCttee's General Comment 36, paragraph 51 suggests that while art. 6(2) ICCPR originally allowed for the D.P, it did not imply its universal acceptance.
Over time, state practices and agreements, including the increasing ratification of the Second Optional Protocol of the Covenant (aiming for abolition), various international prohibitions indicate a shift toward viewing the death penalty as cruel, inhuman, or degrading under art. 7 ICCPR.