JUSTICE commentary

The right to life is the most basic human right of all. While the right to life does not protect all life absolutely – it is lawful to kill somebody in self-defence, for instance – it is one of the few human rights that can’t be derogated from in time of war or emergency as recognised by the European Convention of Human rights[1] and the International Covenant on Civil and Political Rights. Moreover, the few exceptions of lawful killing that are permitted (e.g. self-defence) are ’exhaustive and must be narrowly interpreted’.[2]

 

 

The right to life means that states and governments are under a duty to protect it. Although states have a discretion about how they fulfil this duty, at the very least states must protect life by making murder and manslaughter illegal, and providing appropriate punishment for the unlawful taking of life. The individual must be able to foresee, to a certain degree, the consequences of his actions.

 

The duty on States to protect the right to life ‘by law’ includes the duty to make sure that the laws protecting human life are properly enforced. For instance, the State has an obligation to take reasonable steps to prevent the taking of life by providing police and security forces, e.g. during arrests or riots. But there are also certain limits to the State’s duty to make sure that the law is enforced. For example, while States have a duty to provide a reasonable level of protection against terrorist acts, States cannot use this duty to justify imposing special measures for an indefinite period.[3]

 

 

The duty upon States to enforce the laws that protect life also requires each State to carry out proper investigation of all suspicious deaths,[4] as well as the prosecution of both public and private offenders.[5] This duty can also extend to the State being required to investigate missing persons, e.g. politically-motivated ‘disappearances’ in suspicious circumstances, and can include such measures as the establishment of an independent scrutiny body.[6]

 

 

 

The duty of the State to protect life is not limited to merely making killing illegal, and prosecuting offenders. In certain circumstances, the duty can also extend to the State being required to take preventative measures to protect life, such as providing police protection for a witness or other person whose life has been threatened,[7] safeguarding the lives of vulnerable persons held in police custody or state institutions,[8] or even the duty to protect the life of a mentally-ill prisoner who presents signs of being a suicide risk.[9] The duty to take preventative measures does not arise in every case - states are not required to take steps to protect everyone at all times – but typically in situations where the State has special knowledge that someone’s life may be at risk, or where the State itself exercises some control over how that person is being treated (e.g. prisoners).

 

The duty of States to take positive steps to protect life may sometimes come into conflict with other rights. For instance, where a prisoner goes on a hunger strike, the question may arise whether the State has a duty to force feed the prisoner in order to save their life. This could lead to a conflict between an individual’s right to physical integrity (e.g. being fed against their will) and the State’s duty to protect the right to life of a prisoner in its custody. In such situations, the courts have concluded that the forced-feeding of a prisoner is permissible if they would otherwise suffer permanent injury. Indeed, in situations where it’s clear that the prisoner would die from starvation, then the State would actually be required to force feed them. But generally speaking, states will not be liable for a failure to take action, where that failure is consistent with the wishes of the individual concerned (at least, so long as the individual is capable of making decisions about life and death).

 

 

The question of the State’s duty to protect the right to life becomes even more problematic in the content of such issues as voluntary euthanasia and abortion.

 

At present, there is no consensus within the European Union as to whether the right to life requires States to prohibit euthanasia at the request of a competent patient. Instead, that matter is left to each Member State to determine for themselves.

 

In the United Kingdom, the law says that a adult of sound mind can refuse to accept life-prolonging or life-preserving treatment. This is because the law recognises that every person should be free to make their own decisions about their own medical treatment, even if those decisions appear to be unreasonable.[10] In such situations, the principle of the sanctity of human life must yield to the principle of individual autonomy and self-determination.

 

Refusing life-prolonging or life-preserving treatment, however, does not mean that voluntary euthanasia is accepted in the UK. The House of Lords Select Committee on Medical Ethics has expressed the view that intentional killing by society should be prohibited[11].  The Select Committee does not believe that the small number of individual cases where euthanasia (including assisted suicide) might be seen as permissible was a sufficient basis to establish a general policy which would have serious and widespread repercussions. It stated that euthanasia was an issue in which the interests of the individual could not be separated from the interests of society as a whole. 

 

The Parliamentary Assembly of the Council of Europe has also recommended that Member States should uphold the prohibition against intentionally taking the life of terminally-ill or dying persons[12]. They maintained the view that the right of an individual to end his or her own life was not the same as justifying a legal claim to die at the hand of another person.

 

Again, while this is the situation in the UK, it is up to each Member State to decide the extent to which voluntary euthanasia or assisted suicide is lawful or unlawful [13]. No violation of Article 2 would be found if a Member State does prohibit euthanasia nor would there be a breach of Article 2 if another Member State does not prohibit it.

 

 

The same approach is taken to the issue of abortion. Article 2(1) states that “everyone has the right to life”, but the issue of whether the word ’everyone’ includes unborn children has never been resolved[14]. Accordingly, abortion is a matter that is regulated by domestic legislation of each Member State[15]. It has been held, however, that a ‘therapeutic abortion’ (an abortion carried out in order to save the life of the mother) does not violate the right to life: even if ‘everyone’ did include a foetus, then the right to life of the mother would take precedence.[16]

 

 

Apart from a ‘positive’ duty to protect life, the State has also a ‘negative’ duty not to take life. Article 2 of the EU Charter states that no one shall be condemned to the death penalty, or executed, and capital punishment in general is forbidden throughout the EU.[17] Indeed, such is the force of condemnation of the death penalty in the EU that even the ‘death row phenomena’ - the prolonged detention of people awaiting execution for their crimes – is considered to amount to a form of inhuman treatment.[18]

 

The duty of the State not to take life also extends to cases of deportation, extradition, and removal on immigration grounds[19]. No state is permitted to remove, deport or extradite someone if there is a real risk that that person would be killed on their return.[20]

 

 

There is no violation of the right to life when death results from the lawful use of necessary force. This means the use of force – which must be no more than than ‘absolutely necessary’ – in following circumstances:

 

in self-defence or defence of others – but not of property;[21]

 

to carry out an arrest or prevent escape;[22] or

 

to quash a riot or insurrection.[23]

 

These exceptions include not only the deliberate use of lethal force[24] but also allow for any unintentional deaths which are the consequences of the lawful use of force, e.g. the firing of a stray bullet that kills an innocent bystander.[25]

 

The use of force is only lawful where it is no more than ‘absolutely necessary’. This means that the force used must be proportionate in the circumstances. For example, it would be disproportionate for the police to shoot a suspect in a situation where they could just as easily use non-lethal force, such as a laser or pepper spray, to incapacitate them instead. At the same time, the ‘absolute necessity’ test must be applied carefully. When judging whether the state used necessary force, the courts consider not only the events themselves but also the degree of planning by the state to ensure minimal loss of life.[26] For instance, public disturbances involving loss of life in the 1970’s in Northern Ireland were quite common and were, most of the time, not considered to be in violation of the right to life.[27] The use of force by the security forces in Turkey, on the other hand, is often regarded to be in violation of the right to life.[28] Similarly, the use of a ‘shoot-to-kill’ policy of IRA suspects by the UK was found to breach the test of ‘absolute necessity’.[29]

 

 

It is lawful for the state to use force in self-defence or to defend the lives of others. However, the exception of self-defence does not cover the use of force to protect property. A number of cases have considered how the test of proportionality has applied to police officers using force against suspects in self-defence. For example: the shooting of armed robbers following a grenade attack was held to be necessary force;[30] similarly, the use of special firearms officers to rescue a woman from a house who is being held at gun point by her former partner was also considered to be necessary force.[31] Even the killing of a suspect who is already in police custody may be lawful, in circumstances where the suspect has a gun and is threatening the lives of police officers.[32]

 

 

The use of force by the State to effect an arrest or prevent an escape is another recognized exception to the right to life. However, it is questionable whether the deliberate use of lethal force can ever be justified under this heading. This is because, if the purpose of using force to effect an arrest is to bring a suspect before the appropriate authorities, then killing that person is inconsistent with that purpose.

 

 

The use of force to quell a riot or an insurrection also falls within the accepted exceptions.

 

The terms ‘riot’ and ‘insurrection’ have an autonomous meaning.

 

 An assembly of 150 persons throwing missiles at a patrol of soldiers to the point that they risked serious injury could be considered to constitute a riot[33]. The strict interpretation of the ‘absolute necessity’ test requires that law enforcement officers when dealing with large crowds at public gatherings and demonstrations that get out of control should act with extreme caution. The shooting of an innocent bystander by a policeman acting to quell a riot constitutes a violation of the right to life when the use of firearms is not lawful because authorisation has not been given[34].