Published in July 2018.
This module is a resource for lecturers
International humanitarian law
Whilst the right to life more naturally falls within the sphere of international human rights law, there is significant overlap and convergence with international humanitarian law (see Module 6). Indeed, the Human Rights Committee stated that the two "spheres of law are complementary, not mutually exclusive" (General Comment No. 31 CCPR/C/21/Rev.1/Add.13, para. 11). This being said, it must be recalled that international humanitarian law's primary concern is with the regulation of conduct during armed conflicts, with, as Dinstein noted, one of its central aims being to mitigate for human suffering during these instances (Dinstein, 2010, p. 20). Furthermore, caution must be used when considering international humanitarian law for, despite the use of the adjective 'humanitarian', it would be wrong to assume it is a legal regime concerned principally with the protection of human rights during armed conflicts (Miyazaki, 1984, p. 433). It is undeniable, however, that many of the provisions contained within key international humanitarian law documents can be said to amount to human rights protections, despite the language of human rights law not being expressly utilised. Yet, most of these rights are exclusively granted to States, and not to individuals.
Looking at the key international humanitarian law treaties, this protection of human rights, and specifically of the right to life, becomes quickly apparent. Common article 3 Geneva Conventions 1949 on non-international armed conflict prohibits violence against all persons taking no active part in the hostilities, without any adverse distinction, including people whatever their nationality. This article provides for a minimum protection of rights standard in all types of armed conflict, as was established in the Nicaragua case ( Nicaragua v USA, 1986, para. 218). Article 32 Geneva Convention IV protects aliens and enemy civilians from abuse by the contracting parties. Human rights, including the right to life, are not specifically mentioned, but since the provision "prohibits murder, torture, corporal punishment, mutilation and medical or scientific experiment" it is clear that the protections provided are analogous to the recognized core human rights protections, including the right to life.
Articles 50 and 51 of Additional Protocol I build on those protections enunciated within the Geneva Conventions of 1949, by providing further directions protecting civilians and civilian populations during international armed conflicts. Article 51(2) states that civilians "shall not be the object of attack" with article 51(3) stipulating that "[c]ivilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". Article 75 of the same Additional Protocol provides for the right to life of protected persons in the hands of opposing forces. Specifically, in relation to non-international armed conflicts, Additional Protocol II protects the right to life and the relationship between a State and individuals within its jurisdiction. These examples are not an exhaustive list, rather provide a flavour as to the right to life protections provided for by the key international humanitarian law treaties. The Turku Declaration of Minimum Humanitarian Standards also refers to the inherent right to life (Commission on Human Rights declaration E/CN.4/1995/116), contending with issues related to internal strife, public emergency and disturbances.
Looking beyond these treaty provisions, the right to life is also protected by humanitarian law principles, such as the proportionality, precautionary and necessity principles intended to reduce the loss of life during armed conflict; the principle of distinction; as well as the prohibition of weapons causing preventable and excessive harm and injury. There are also grave breaches provisions which enhance the protection of the right to life.
This all being said, the relationship between international humanitarian law and human rights law is not a simple one. For instance, in addition to international humanitarian law mirroring many aspects of the human right to life, some of the right to life provisions contained in the main human rights instruments, as outlined in the previous section, are also qualified by international humanitarian law. There are also instances where the two regimes can come into conflict (Milanovic, 2010). When looking at the significance of international humanitarian law and its relationship with the human right to life it must be recalled that there are significant variations among the relevant treaties that provide for a human rights protection of the right to life. Therefore, to provide some clarity as to how this relationship differs, dependant on the relevant human rights law regime, it is necessary to examine a number of these systems in turn.
Starting with the European Convention on Human Rights (ECHR), article 2 prohibits any intentional deprivation of life, except for in instances when "it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot", with article 15(2) ECHR permitting for the derogation from the right to life provision in circumstances of "lawful acts of war". For the derogation to article 2 to be effective, the State's deprivation of life would have to adhere to international humanitarian law and thus the ius ad bellum and ius in bello, which is also required by article 15(1) ECHR, meaning that such acts must not conflict with a State's "other obligations under international law".
The European Court of Human Rights (ECtHR) has tended to default, at least in the first instance, to human rights instruments in such circumstances. In this sense, the Court has considered cases of armed conflict as ordinary law enforcement situations, including terrorism related cases, as in the Case of McCann and Others v UK (1995). Further indicating this, Judge Bratza, in his partly dissenting opinion in the Agdas v Turkey case, held that it was necessary for the Court to be satisfied that "the use of force was no more than absolutely necessary" (2004, dissenting opinion of Judge Bratza, p. 6). Therefore, it is evident that States must utilise extreme caution when utilising lethal force, with the Court being of a perspective that there is a necessity component in relation to the deprivation of life; critically, this level of protection is not found in international humanitarian law, with a combatant being a viable target so long as they are not hors de combat (Lubel, 2005, pp. 745-746), with this remaining true, despite temporal restrictions, to civilians taking a direct part in hostilities as indicated in article 51(3) Additional Protocol I.
The International Covenant on Civil and Political Rights (ICCPR), on the other hand, at article 6(1) notes that "[n]o one shall be arbitrarily deprived of his life", with article 4(2) prohibiting derogations from this under any circumstances. However, although the ICCPR only explicitly mentions the death penalty as an exception to article 6, at article 6(2), lawful acts of war have also been accepted to be as such. In the 1998 advisory opinion on Nuclear Weapons, the International Court of Justice affirmed that the use of nuclear weapons may amount to a violation of the right to life under the ICCPR, since "the right not arbitrarily to be deprived of one's life applies also in hostilities" (ICJ, 1996, para. 25). The Court went on to note that no derogation is permitted from article 4, but continued to state that "[t]he test of what is an arbitrary deprivation of life, however, then falls to be determined by the lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." (ICJ, 1996, para. 25).
Taking a similar approach, in the Las Palmeras case (1998, para. 57)the Inter-American Commission on Human Rights (IACommHR) decided issues regarding the right to life by interpreting the American Convention alongside norms of customary international humanitarian law relating to internal armed conflict and Common article 3 to the Geneva Conventions 1949. The Commission did not consider the American Convention on its own to be sufficient to govern the right of life in contexts of armed conflict, including for determining when the loss of life is a lawful act of war. The Commission viewed international humanitarian law as necessary and authoritative lex specialis and, therefore, as having a key role to play in interpreting the scope of the human right to life in times of armed conflict.
It is clear that the right to life is at the core of the body of law comprising international humanitarian law. Though it is distinct from that of its human rights law counterpart, both legal spheres should be seen as complementary and should not be viewed as mutually exclusive, despite some arguments to the contrary. Each body of law provides its own standards regulating the conduct of the States, with there being instances where international humanitarian law notions of the right to life cross-pollinate into the relevant human rights law regimes, therefore it is essential that an understanding of both regimes is necessary in order to fully comprehend the human right to life. (See further Module 6).