Introduction

The right to life is extremely broad in scope, extending across human life from before birth and even long after death. The right is not only engaged when a person dies, but covers circumstances where a person is placed in a life-threatening situation (Chongwe v Zambia). This chapter begins by exploring the different sources of this right in International Human Rights Law before examining the different types of obligations it creates for states. In our earlier chapter Types of Obligations in International Human Rights Law, we explored the tripartite typology of human rights, which will be applied to the right to life in this chapter. We will explore the obligation to respect that the right to life demands. This is an obligation to refrain from interfering with the enjoyment of a right under the law and requires the state, for example, not to arbitrarily deprive people of their life through the unlawful use of force. We will explore the obligation to protect, which includes due diligence obligations to protect people against the actions of third parties that may harm them. We will look at the obligation to fulfil, which requires states to adopt appropriate legislative, administrative, budgetary frameworks to ensure a right is guaranteed. In the context of the right to life, this includes putting in place clear regulations governing activities that threaten the lives of individuals. While this framework is useful in illuminating the different areas of coverage, the boundaries between these different types of obligations can often overlap with the obligations to respect and protect also requiring significant regulation. The final section of the chapter explores what is often called the procedural limb of the right to life, the obligation to carry an effective investigation and what this demands of states.

Sources

The right to life is mentioned in many different international human rights instruments with varying degrees of detail. In the original Universal Declaration of Human Rights, the right is mentioned almost in passing in Article 3 and rolled together with a series of others “Everyone has the right to life, liberty and security of person”. When the International Covenant on Civil and Political Rights sought to give binding force to the protection, the resulting article was much more detailed. Much of its content is concerned with placing limitations on the use of capital punishment, but the main provision is set out in Article 6(1), which states

The American Convention on Human Rights takes a very similar approach to the ICCPR also with detailed sub-sections on capital punishment. The framing of the core protection also focuses on preventing “arbitrary” deprivations of life. Article 4 of the African Charter of Human and Peoples’ Rights also takes this approach. However, there is one key difference in the American Convention, it states

It is notable here that the ACHR specifies that the right should be protected “from the moment of conception”. The point at which the protection begins is not specified in the ICCPR or other treaties such as the ECHR. This is obviously important in determining the scope of protection for unborn children, which will be discussed further below.

The right to life in the European Convention is notably different to the protections set out in the other treaties. The other treaties prohibit “arbitrary deprivations” of life while the ECHR identifies an exhaustive list of circumstances in which states are permitted to use force, it states

This arguably creates a much more restrictive framework than the other treaties because protection against “arbitrary” deprivations of life leaves a great deal of latitude to those interpreting the treaties to determine what “arbitrary” means. The differences between these provisions will be discussed further below.

There is also a degree of crossover between the right to life and several rights in other treaties. Several economic, social and cultural rights, including the right to the highest attainable standard of health in Article 12 of ICESCR and the right to food in Article 11 ICESCR intersect with the right to life. As we noted in our Socio-Economic Rights chapter, the enforceability of economic, social and cultural rights has been regularly called into question over the years, while civil and political rights, such as the right to life, have not been subject to the same questioning. This has resulted in different cases trying to realise protection of economic, social and cultural rights through the right to life. As we will see below, the protection of healthcare and maintaining a healthy environment have increasingly come within the ambit of the right to life.

The protections outlined in the treaties have been supplemented by important soft law documents. The UN has issued influential guidelines on discrete elements of the protection, most notably the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials. The Human Rights Committee has issued two General Comments on the right to life, General Comment no.6 in 1982 and General Comment No. 36 in 2019 and a wide range of jurisprudence has developed at the treaty bodies and regional courts providing further detail on the scope of its protections.

Whose Right to Life?

The right to life applies to a very broad range of individuals. Naturally, many victims of a violation of this right will have died, meaning they are unable to bring cases alleging a violation. In these circumstances, as the European Court of Human Rights noted in Van Colle v United Kingdom, “close family members, such as parents, of a person whose death is alleged to engage the responsibility of the State can themselves claim to be indirect victims” allowing them to bring a case to an international court or treaty body.

People who sustain life-threatening injuries at the hands of the state can claim a violation of the right to life, even where they have not ultimately died from the incident. In Chongwe v Zambia, Rodger Chongwe was the chairman of an alliance of opposition political parties in Zambia. His car was shot at by police and he sustained a life-threatening injury to his neck. The UN Human Rights Committee found that Chongwe’s right to life had been violated because the State party had authorised the use of lethal force against him without lawful reasons. The European Court of Human Rights has taken a similar approach. In Tanase v Romania it held that the right to life applies when the person was the victim of an activity which by its very nature put his or her life at real and imminent risk and they suffered life-threatening injuries.

Unusually, the right to life can also be engaged by potential indirect victims. In Lambert v France, for example, relatives of Vincent Lambert, who was left in vegetative state following a traffic accident, submitted that the withdrawal of his artificial nutrition and hydration would be in breach of his right to life. They were allowed to rely on the right even though the violation was a potential, future violation that only indirectly concerned them as relatives.

The extent to which the right to life protects a foetus has been the subject of debate for a long time. As noted above, the right to life in the ACHR applies from conception meaning it could potentially regulate reproductive health issues. The Inter-American Court addressed this in Artavia Murillo v Costa Rica. The case concerned a ban on IVF in Costa Rica, which the Inter-American Commission alleged amounted to an arbitrary interference with the right to private life and the right to found a family. A debate arose as to when “conception” occurred, with Costa Rica submitting that conception occurred from the fertilisation of the egg. However, the Inter-American Court noted there was no one agreed definition of the beginning of life and defined conception as the moment at which implantation in the uterus occurs. In advance of this, Article 4 did not apply. It noted

The Inter-American Court here entertains the possibility of balancing the rights of the foetus and the rights of the mother against one another with neither automatically taking precedence. Thus, despite the ACHR’s inclusion of specific protection “from conception”, it does not end up providing a substantially different level of protection than other treaty bodies or courts. At the European Court of Human Rights, for example, in Vo v France, the court addressed whether the term “everyone” in the phrase “everyone’s right to life shall be protected by law” included a foetus. The court ruled that if the unborn do have a right to life, it is implicitly limited by the mother’s rights and interests. As such, both courts have reached a similar position.

In practice, issues involving the end of life, through termination of pregnancy, assisted suicide, euthanasia or other measures involve balancing competing rights, most notably the right to life and the right to private and family life. While the right to life is engaged and relevant in these contexts, it is at times offset by concerns over autonomy and privacy. International human rights bodies, like the ECtHR and the IACtHR, appear much more comfortable addressing such issues primarily as issues of autonomy because it avoids difficult questions about when the protection of life begins and ends. In the context of termination of pregnancies, the ECtHR has dealt with many cases under the right to private and family life, avoiding engagement with article 2 (see for example A, B and C v Ireland and Tysiac v Poland). We see a similar approach to assisted suicide, for example, in Pretty v UK. There the Court noted that the right to life could not “without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die”. The Court determined instead that the prohibition on assisted suicide engaged the right to private and family life because the prohibition on assisted suicide interfered with self-determination in the timing and manner of one’s death. The court found that the blanket nature of the ban on assisted suicide in the UK was not a disproportionate interference with this right as it reflected the importance of the right to life while retaining flexibility to consider each particular case. The court later reaffirmed this position in Mortier v Belgium.

That is not to say that there is no role for the right to life to play at all in the context of assisted suicide. As Papadopoulou and Wicks note “the right to life can be used to require very high standards of safety and control in the jurisdictions that already regulate assisted dying” and has been in Mortier v Belgium. A similar focus on the procedures underpinning the termination of pregnancy is also evident at the Human Rights Committee. In General Comment No 36 it noted restrictions on abortion must not jeopardise the lives of women and girls and that states must “provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk”.

Obligation to Respect the Right to Life

The obligation to respect the right to life demands that the state refrain from interfering with the enjoyment of the right under the law. This is a negative obligation, an obligation not to do something and is primarily concerned with protecting people against arbitrary deprivations of their lives by state agents (e.g. police and soldiers) and others in specific circumstances.

We noted the distinction between how the right to life is framed in different treaties above, with the ICCPR and others prohibiting arbitrary deprivations of life, while the ECHR prohibits deprivations of life that were not “absolutely necessary” in specified circumstances.

Arbitrariness vs Absolute Necessity

While the texts differ considerably, the rules governing the use of force are actually quite similar in practice. The use of force across international human rights law is underpinned by a series of important principles which are reflected in the jurisprudence of different treaty bodies and courts. In evaluating whether the use of force was justified, different human rights bodies apply qualitative, quantitative and temporal criteria. We can compare the ECtHR to the Human Rights Committee to illustrate this.

In Giuliani and Gaggio v Italy, the applicants alleged that Italy had violated the right to life of a protestor who was shot during a demonstration against the G8 in Genoa. There were violent clashes between the police and protestors and a police jeep was surrounded by protestors. An officer in the jeep fired two shots out the window, mortally wounding Carlo Giuliani. The incident was investigated by the authorities and the police officer was charged with homicide, although he was not convicted. While the ECtHR did not find a violation of the right to life in this case, it took the opportunity to outline the key principles governing the use of force, specifically referring to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Under Principle 4 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, state agents should use non-violent means wherever possible and the use of force should only be for a legitimate law enforcement purpose. The requirement that force be used only when absolutely necessary is an express criterion in Article 2 and the ECtHR recognised these principles noting “the use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2” (i.e. genuine law enforcement purposes).

Under Principle 5(c) of the UN Basic Principles, a quantitative criterion applies to the use of force and state agents should only use the minimum amount of force in the circumstances to respond to the threat. This is reflected in the judgment where the court observes “the force used must be strictly proportionate to the achievement of the aims set out in [Article 2]”. This also requires that the State’s actions must be planned and controlled to ensure no more force than is absolutely necessary is used in any given situation and a variety of different means should be available to respond to different situations e.g. riot control mechanisms.

Finally, under Principle 9 of the UN Basic Principles, a temporal criterion applies so that the use of force must be deemed absolutely necessary at the time it is used. The ECtHR alluded to this criterion by noting that the use of force “may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken”. Thus, we see qualitative, quantitative and temporal criteria governing the use of force at the ECtHR.

The same is true of the Human Rights Committee. In Guerrero v Colombia police raided a house in Bogota which they believed contained the former Ambassador of Colombia to France, who had been kidnapped. The police waited for the suspected kidnappers and used lethal force against seven people who arrived at the house. The Human Rights Committee ruled that Colombia had violated the right to life.

The Committee applied a qualitative assessment of the use of force, noting the action was not necessary “in their own defence or that of others”, “to effect the arrest” or “prevent the escape of the persons concerned” (i.e. legitimate law enforcement purposes). They also noted that “none of the victims had fired a shot” and the police acted “without warning to the victims and without giving them any opportunity to surrender” meaning it was not absolutely necessary to resort to lethal force.

The Committee provided a quantitative assessment of the force used, noting one victim was “shot several times after she had already died from a heart attack” showing an excessive quantity of force was used. The Committee was also critical that the temporal criterion was not satisfied noting “most of them had been shot while trying to save themselves from the unexpected attack” and victims were shot at “point-blank range, some of them shot in the back or in the head”. As the victims were shot in the back as they tried to flee, there was clearly no genuine belief that the police faced an imminent threat in the circumstances (see also Saad v Libya).

Thus, despite the clear differences in the formulation of the different protections of the right to life in the ECHR and ICCPR, unifying principles like proportionality, necessity and assessments of qualitative, quantitative and temporal criteria underpin the right to life as it relates to the use of force specifically.

Obligation to Protect the Right to Life

The obligation to protect takes the form of a positive obligation, an obligation to pro-actively do something. It is primarily concerned with ensuring that individuals are protected from the actions of third parties that put their lives at risk, though as we will see not exclusively so. It is typically framed as a due diligence obligation on the part of the state to take proactive measures to protect an individual.

In Velazquez Rodriguez v Honduras, a student named Manfredo Velazquez was abducted by heavily armed men and driven away in a vehicle without a license plate. The applicants alleged that he was detained and subjected to interrogation and torture in two military locations. The police and security forces denied that he had been detained, but he was never seen alive again. The Inter-American Court of Human Rights examined the case and determined that even though the State had denied responsibility for the abduction of the Velasquez Rodriguez, Honduras was responsible because at the very least it had breached its obligation to protect and prevent human rights violations. It stated

If the state only had an obligation to respect in this context, it could secretly use force through other groups and deny responsibility or any knowledge of the events at issue. By adding an obligation to protect, the state is obliged to ensure, as far as it can, that such events do not happen within its jurisdiction.

The ECtHR implemented an obligation to protect in the famous Osman v UK case. In that case a teacher became obsessed with one of his students, visiting his home and damaging his property. The police received complaints that the teacher was threatening the lives of the student and the deputy headmaster. He later went to the student’s house, seriously injured the student and killed his father and attempted to murder the deputy headmaster. The applicant argued that the police had failed to protect him and his family. The ECtHR held that

Ultimately the UK was not found to have violated this obligation to protect because the relevant standard of suspicion to detain the perpetrator was not met and there was a lack of awareness of the immediacy of the threat.

The obligation to protect people subject to death threats has also been applied by the Human Rights Committee. In Lugumire and Barhatulirwa v Democratic Republic of Congo, one of the applicant’s, Furaha Lugumire, was a nurse working with victims of sexual violence in the DRC. She suffered harassment and received death threats. She reported these to the authorities, including the telephone numbers from which the threats had been received, requesting protection. The authorities failed to respond to the threats or requests for protection. The victim was later attacked by a group of men who abducted her and raped her several times. She complained that the authorities had failed to take sufficient measures to protect her life. The Committee observed

In this case the state was “obliged to respond promptly and effectively to protect her from the specific threats made against her by adopting special measures”, which they failed to do, resulting in a violation of the right to life.

Scope of the Obligation to Protect

The exact scope of the state’s obligation to protect against threats is unclear. We can identify expansions of the obligation both across human rights jurisdictions and in terms of the subject matter it covers. The expansion across jurisdictions can be seen simply by looking at how the Human Rights Committee has treated the right to life in two general comments. In the original comment (General Comment No. 6) from 1982, the committee doesn’t refer to an obligation to protect at all. While the later, in 2019, General Comment No. 36, expressly cites the Osman v UK case, referring to the obligation on the state to “exercise due diligence to protect the lives of individuals against deprivations caused by persons or entities whose conduct is not attributable to the State”. It also contains several pages detailing the parameters of the obligation to protect.

The African Commission on Human and Peoples’ Rights clearly identified this obligation when it issued General Comment No. 3 in 2015 noting

The Inter-American Court of Human Rights applied a similar obligation in the Pueblo Bello Massacre v Colombia case in 2006, when it examined the state’s responsibility for a massacre carried out by a paramilitary group in Colombia. The court directly referenced Osman and acknowledged that the state had “obligations to adopt prevention and protection measures for individuals in their relationships with each other”. However, the state did not have “unlimited responsibility for all acts or deeds of individuals” within its jurisdiction. This responsibility was

The expansion of subject matter covered by the obligation to protect in the right to life is also clearly evident. As Stoyanova notes, the scope of the obligation has expanded such that the state can be held responsible for failing to protect people from self-harm (see for example Renolde v France) and even in circumstances where the targets of the harm are unclear. In Mastromatteo v Italy, for example, prisoners on a short period of leave from prison shot the applicant’s son while trying to take control of his car. In the judgment, the ECtHR considered the state had an obligation to “afford general protection to society” against the acts of persons serving a prison sentence for violent crime, though they considered that obligation had not ultimately been breached in that case, which will be discussed further below.

While the initial case law focused on death threats, it has been extended to other criminal acts of third parties, such as domestic abuse and other gender-based violence. In some cases, it was not necessary to identify a threat from a specific actor as the obligation to protect extended to accidents. In Banel v Lithuania a balcony in a derelict building collapsed on a child and killed them. The state was held to have an obligation to protect in this context because the municipal authorities were aware of the condition of the building and had not complied with their legal duty to care for derelict buildings. Groups of people, rather than individuals, have also been able to invoke the protection. In Sawhoyamaxa Indigenous Community v Paraguay, for example, the displacement of indigenous peoples from their ancestral lands which resulted in them being deprived of basic subsistence and putting their lives at risk triggered an obligation to protect on the part of the state. It has even extended to situations far beyond the state’s control. In A.S., D.I., O.I. and G.D. v Italy, for example, the Human Rights Committee ruled that Italy had an obligation to protect people on a sinking boat when they failed to respond promptly to numerous distress calls (see also Safi v Greece at ECtHR).

One of the most significant areas of subject matter growth in recent times has been in the specific context of environmental protection. In Portillo Cáceres v Paraguay, the Human Rights Committee addressed the extensive use of pesticides in the agricultural industry in Paraguay. The applicants in this case complained that extensive pesticide use on soy farms had resulted in the death of a farmer and the poisoning of several others. The Committee indicated they would take an expansive approach to the issue of protection in environmental cases stating that “a narrow interpretation does not adequately convey the full concept of the right to life and that States must take positive action to protect that right” referring to General Comment 36 for the first time. The Committee considered that the massive use of pesticides constituted a foreseeable threat to the lives of the farmers. The right to life encompassed a right to enjoy a life with dignity “free from acts or omissions that would cause their unnatural or premature death”. States must take appropriate measures to this end, including by addressing threats from environmental pollution. In view of the acute poisoning suffered by the applicants and the unexplained death of Mr Portillo Cáceres, Paraguay was deemed to have violated the right to life (see also Billy et al. v. Australia).

The case of Cannavacciuolo and ors v Italy at the European Court of Human Rights also expanded the obligation in environmental cases. The case concerned the illegal dumping of hazardous waste on private land, which gave rise to widespread and complex pollution across a wide geographical area. The applicants claimed inter alia that Italy had failed to protect them from the effects of the pollution which they claimed had led to an increase in cancer rates in that area, posing a threat to their right to life. The court declined to focus on the obligation to fulfil in this case noting

The Court noted there was “ample evidence” that Italy knew about the illegal dumping. Despite this awareness, the authorities had not acted with the required due diligence to address the pollution. There was no evidence of a systematic, coordinated and comprehensive response and efforts at decontamination and investigation of the health impacts of the pollution were very slow. As a result, the state had violated the applicants’ right to life by failing to put in place sufficient protective measures.

The case is striking for several reasons. Historically the ECtHR has tended to deal with issues of environmental pollution under Article 8 of the ECHR, rather than the right to life. As Sommardal notes, it is the first time the ECtHR has applied positive obligations under the right to life in a case on large-scale environmental pollution. Secondly, Italy strongly contested that there was a causal relationship between exposure to the pollution and the onset of the illnesses presented by the applicants. However, the ECtHR ruled there was an imminent risk to the applicants by virtue of the fact that they resided, for a considerable period in the municipalities officially identified as being affected by the pollution. The Court did

Finally, the Court used its pilot judgment procedure to deal with the case, providing detailed instructions to the state on how to remedy the violation. Considering the context of the case where the court broke new ground for the right to life, relaxed its requirements on causation, the use of pilot judgment in addition to these factors makes the case highly significant.

Moderating the Obligation to Protect

The obligation to protect in the right to life is clearly broad, encompassing a wide variety of scenarios. Yet there remain a variety of ways in which the obligation can be moderated and the state can avoid being held responsible. Firstly, the degree of control the state exercises over people and the voluntariness of the circumstances they find themselves in have an impact. In Khudoroshko v Russia, the ECtHR considered the position of conscripted soldiers and those undertaking compulsory military service, likening them to detainees

In this instance they had to protect conscripts from the practice of hazing, a form of initiation for new members of the military characterized by degrading, humiliating, or dangerous tasks, which resulted in the applicant’s son’s death.

Where a person is within the power of the state because they have been detained, specific obligations arise. In Renolde v France, the applicant’s brother suffered from acute psychotic disorders while imprisoned in France. He had attempted suicide and received treatment from medical staff, including placement in a cell under special supervision. However, after he assaulted a guard, he was placed in a “punishment cell” for 45 days and isolated from others. He hanged himself soon after. The court noted that “persons in custody are in a vulnerable position and that the authorities are under a duty to protect them”. The state had failed to protect the prisoner from self-harm by placing him in a punishment cell for a prolonged period, which would inevitably have an impact on his mental state. A crucial factor in these cases is whether the authorities knew or ought to have known of the risk of suicide related to the diagnosis of mental health condition (see further discussion of Hasani v Sweden below).

In Daboussi v Tunisia, the Human Rights Committee applied the obligation to protect to detainees with other illnesses. Jilani Daboussi was detained by Tunisian authorities in good health but suffered a cardiac arrest shortly after his detention. The authorities took a long time to provide medical assistance to Daboussi, but he was eventually taken to hospital. After the incident, the applicant suffered complications from the illness, including kidney failure, which was treated in prison. He eventually died shortly after being released from prison and his family took a case alleging, inter alia, a violation of his right to life. The Committee noted that states “had a heightened duty of care to take any necessary measures to protect the lives of all individuals deprived of their liberty, and that this included providing them with the necessary medical care” and that Tunisia had failed to provide adequate health care to Daboussi thereby violating their obligation to protect under the right to life.

By contrast, where the victim contributes voluntarily to their situation of risk, states have successfully claimed contributory negligence absolved them of liability. Where potential victims expose themselves to danger unnecessarily or contribute to the risk of the harm they suffer, the ECtHR has been reluctant to find a violation of the obligation to protect (see for example Prilutskiy v Ukraine). The Human Rights Committee has taken a similar approach. In Múnera López and others v Colombia, a trade union leader reported death threats to the authorities for his work as a labour organiser. Colombian authorities offered him humanitarian assistance and funds to leave the area, however he remained in the area and was shot and killed shortly after. The Committee noted Colombia had provided protection to Munera Lopez which was conditional on him leaving the area where he faced the threats to his life, a condition he did not follow. As a result, the Committee determined that Colombia had discharged their due diligence obligation to protect Munera Lopez.

Similarly, where the state has more limited control over the circumstances or people behave unpredictably, states have been absolved of liability. In Mikayil Mammadov v. Azerbaijan, for example, the applicant and his family, who were internally displaced people, took possession of abandoned rooms owned by the local army-recruitment office. When local authorities came to evict them, the applicant’s wife became distressed, threatening self-immolation. Shortly afterwards she set herself on fire and died in hospital a few days later. The applicants complained that the authorities had not taken her threat of suicide seriously and failed to take measures to protect her. The ECtHR did not find a violation of the obligation to protect because the authorities could not have anticipated the suicide attempt since such conduct was not a reasonable or predictable reaction to the circumstances. Equally, it was impossible for the court to establish whether the state agents had become aware of the danger in time to prevent it.

Similarly, the obligation to protect requires knowledge (or constructive knowledge) on the part of the state of the threat and its immediacy before the state can be held liable. In Tershana v Albania, for example, the applicant was subject to an acid attack and suspected her ex-husband, who had previously been abusive, of the crime. She alleged that the state authorities had failed to take sufficient measures to protect her from the violence her ex-husband had inflicted. However, the Court found that the state did not need to take preventive operational measures as they only found out about his violent behaviour after the incident in question. As they lacked sufficient knowledge of the threat, they were not held liable. While in Mastromatteo v Italy the court considered that nothing in the information the national authorities possessed would have alerted them to the fact that the prisoners’ release would pose a real and immediate threat to life and as such the obligation was not breached.

The question of how to define the immediacy of a risk for the obligation to apply has been problematic. In Kurt v Austria, the applicant’s husband had a history of domestic violence against both her and their children. She reported him to the police for choking and raping her and filed for divorce. A barring order was issued against the husband preventing him from going to the family home. Soon after her husband went to her son’s school and asked to speak to his son in private. The teacher, who was unaware of the family history allowed this, her husband shot the child and took his own life. The child died a few days later. The applicant brought a case against Austria alleging they had failed to take sufficient measures to protect her son’s right to life. The ECtHR ruled that Austria had discharged their obligation in this case inter alia by issuing a barring order against the husband and that the state could not have been aware of the risk to life of the children in the circumstances.

The judgment is interesting for how it defines the concept of immediate risk. The Court drew a distinction between domestic violence and what they described as “incident-based situations” like Osman. Domestic violence was characterised by cycles of violence of increasing frequency and intensity and this context needed to be taken into account by the state. As such, the concept of “immediate risk” had to be applied in “a more flexible manner” taking into account the common trajectory of escalating violence, “even if the exact time and place of an attack could not be predicted in a given case”.  As such, the court downplays the immediacy requirement in the context of domestic violence cases and demands that the state take into account the surrounding context and circumstances. McQuigg notes that this increases the likelihood that states will be found liable in such cases.

The ECtHR took a different approach to evaluating risk in the context of suicide in Hasani v Sweden. There the applicant’s brother was an unaccompanied minor from Afghanistan who sought asylum in Sweden. He had a history of mental illness and suicide ideation and attempted suicide in February and July 2017. He stated that if the Swedish authorities returned him to Afghanistan, he would take his own life. Sweden ordered that he be deported to Afghanistan in September 2017 and he killed himself the next day. The court declined to find a violation. They emphasised that Hasani had never been diagnosed with any psychiatric condition or considered in need of medication, hospitalisation, or compulsory psychiatric care. While the authorities knew the negative decision on the asylum application would be distressing, there were “no signs to alert the authorities” immediately prior to his death that a suicide attempt was likely and the state’s obligation to protect him was not engaged.

The court’s approach in Hasani contrasts sharply with the approach in Kurt with the court taking extensive note of the lead up to the event in Kurt, while virtually ignoring it in Hasani. It is worth noting that Hasani is a Chamber judgment while Kurt is a Grand Chamber judgment, meaning Kurt carries more weight in the jurisprudence. Nonetheless, Hasani seems to indicate that the more flexible approach to determining immediacy is confined to the specific context of domestic violence. Ismayilova has criticised Hasani’s narrow interpretation of the real and immediate risk test. As the court focused exclusively on the final days before the suicide, they overlooked the persistent and foreseeable threat of suicide. She argues that the immediacy of the threat must not be viewed in isolation but rather take into account the person’s specific vulnerabilities. Ultimately these cases create confusion over the significance of background events when evaluating risk and immediacy, with a patchwork of different applicable standards depending on whether the person is at risk of domestic violence, suicide or something else.

To conclude, there is an over-arching obligation to protect within the ambit of the right to life across different jurisdictions. It is engaged where the authorities had knowledge (or constructive knowledge) of a real and imminent danger to a person within the jurisdiction of the state and failed to take reasonable measures to prevent or avoid the identified risk. However as the obligation requires a high degree of negligence on the part of the state and has a variety of caveats, the scope of the obligation is more limited than it appears.

Obligation to Fulfil the Right to Life

The obligation to fulfil the right to life requires that the state adopt appropriate legislative, administrative, budgetary frameworks to ensure a right. The scope of this right is extremely broad, as we can see, for example, in the case of Budayeva v Russia at the European Court of Human Rights. In that case, the applicants complained that Russia had failed to implement planning and emergency protocols to respond to a foreseeable risk of a landslide. The European Court of Human Rights observed that there is

As such the obligation can be engaged in a range of different circumstances from police training to medical treatment protocols and health and safety measures. The rest of this section explores a few important examples, but is by no means an exhaustive exploration of the scope of the obligation to regulate.

Regulating the Use of Force

The most obvious incarnation of this obligation is set out in the Human Rights Committee’s General Comment no. 36 which notes

The regulation of the use of firearms has understandably been a recurring theme in this area in different jurisdictions. In Makaratzis v Greece, for example, the ECtHR examined an incident where the police chased a man driving a car through the streets of Athens making liberal use of firearms in an attempt to stop him. Several police officers were involved using pistols, revolvers and sub-machine guns. The man was shot multiple times, though he survived the incident. The ECtHR found a violation of the right to life, criticising Greece’s law regulating the use of force, which dated back to 1943, when Greece was under Nazi occupation. The ECtHR observed it was an “obsolete and incomplete law for a modern democratic society” which did not offer clear guidelines and criteria governing the use of force in peacetime.

In Giuliani and Gaggio v Italy, discussed above, the ECtHR observed that

The Inter-American Court of Human Rights has imposed a similar obligation. In Landaeta Mejias Brothers v Venezuela, the Court examined the extra-judicial killing of two brothers by police. The Court observed that at the time of the killings, “Venezuela did not have laws establishing parameters for the use of force by State agents”. The Court observed that

This required the state to “establish precise internal policies in relation to the use of force”, provide “different types of weapons, ammunition and protective equipment” and “courses for its agents to ensure they know the legal provisions that allow the use of firearms and that they have adequate training”.

The Human Rights Committee has repeatedly challenged the legal regulations governing the use of force in different countries. This has predominantly occurred through its concluding observations to different state reports, including Lichtenstein, Kenya, the USA and Mexico. The Mexican National Act on the Use of Force, for example, was subject to detailed criticism by the Committee as some of its provisions “run counter to the provisions of the Covenant”, it “does not clearly specify the circumstances in which the use of lethal force is permissible” or provide “appropriate mechanisms […] to ensure transparency and accountability in the use of force”.

There has been comparatively less jurisprudence on the regulation of the use of force at the Human Rights Committee compared to other human rights bodies. In Murne v Sweden, the applicants’ family member, Daniel Murne, suffered from psychosis and mental health issues and the police were called to assist in hospitalising him. During his encounter with the police, he approached them in an agitated state with kitchen knives in his hands. In response, the police shot and killed him. The applicants complained inter alia about “deficiencies in police training and legislation on self-defence” in Sweden. The Committee observed that the state was required to put in place

The Committee did not however consider that the applicants had established that the legislative framework and police training were deficient. The Committee did find a violation of the obligation to fulfil in Mendoza and Hulca v Peru. In that case, the applicants’ relatives had been shot by police during a demonstration in Huamanga. The Committee observed that the state had an obligation to adopt procedures to ensure that law enforcement actions are adequately planned, including the instructions and equipment for and the deployment of all relevant officials and units. Furthermore only law enforcement officials trained on the relevant human rights standards should be deployed to police assemblies. The committee considered “these measures do not appear to have been implemented” on the facts presented in the case, giving rise to a violation.

Regulation of Healthcare

The regulation of healthcare is another major subject of jurisprudence, giving rise to a range of cases across different jurisdictions. In Xákmok Kásek Indigenous Community v Paraguay, for example, the Inter-American Court of Human Rights ruled that Paraguay had violated the right to life of several members of an indigenous community because they had died from illnesses that were easily preventable. The IACtHR noted that

Paraguay had failed in this duty and as a result several members of the community had not received adequate medical care.

There is often significant overlap between the obligation to protect and the obligation to fulfil here. In Bizurukova v Kyrgyzstan, for example, the applicant’s husband developed a medical condition requiring surgery while detained in a prison in Kyrgyzstan. The prison authorities failed to properly treat the condition resulting in his death. The applicant alleged that the state had failed to provide adequate healthcare to her husband in violation of the right to life. The obligations under the right to life clearly overlap in this case. The Committee observed that the state had “a heightened duty of care” to protect the lives of individuals deprived of their liberty. However, it went on to focus its criticism on the state’s obligation to fulfil stating “it is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected” and that “a properly functioning medical service” should have provided the prisoner with the requisite care.

The overlap is also evident at the ECtHR. In Fernandes de Oliviera v Portugal, for example, the applicant’s son was voluntarily admitted to a state psychiatric hospital for treatment after attempting suicide. A month later, he escaped from the hospital and jumped in front of a train, resulting in his death. The applicant complained that her son’s right to life had been violated because the hospital had negligently failed to supervise him or install adequate security fencing to prevent him from leaving the grounds of the hospital. The ECtHR acknowledged that the state had an obligation to put in place a regulatory framework for hospitals to adopt appropriate measures for the protection of patients’ lives. However, the ECtHR determined that there was no violation of the obligation to fulfil here.

The court placed a strong emphasis on the fact that the applicant’s son was hospitalised voluntarily. As we noted above, where a person voluntarily places themselves at risk or in the care of the state, this can have an impact on the scope of the obligation to protect. The hospital was following the relevant domestic legislation, which required that “mental-health care should be provided in the least restrictive environment possible” in line with international standards. The court was also conscious of the need to strike a balance between the state’s obligation to protect and regulate and the need to respect the patients’ privacy. On the one hand, this approach helps to counter prevalent problems in the realm of mental health treatment of over-institutionalisation and detention of mentally ill people for convenience. On the other hand, the distinction drawn between “voluntary” and “involuntary” admissions has drawn criticism from Bartlett. He argues distinguishing on this basis can be problematic because the circumstances surrounding voluntary admission to psychiatric care can vary considerably and at times not involve a free choice.

Medical Negligence

As the right to life has expanded to encompass aspects of healthcare, questions over whether medical negligence should trigger violations of the right to life have naturally been raised. In Gonzales Lluy and Ors v Ecuador, Talia Gonzales Lluy, a 3 year old child was diagnosed with thromboctopenis purpura, a disorder that led to easy or excessive bruising and bleeding and required a blood transfusion. A transfusion was given, but the blood provided was not tested for blood-borne infections and as a result the child contracted HIV. The applicants alleged that the private clinic responsible for carrying out the transfusion had inter alia breached Talia’s right to life by failing to conduct basic tests on the blood prior to transfusion. The IACtHR observed that the state had an obligation to regulate and supervise the conduct of both public health care entities and private institutions providing health care services. The court found a violation of the right to life, criticising the “inadequate supervision and inspection by Ecuador” which resulted in a “serious omission” which allowed infected blood to be transfused resulting in a permanent impairment of her health.

The ECtHR has also found violations of the right to life in medical negligence cases. In Elena Cojocaru v. Romania the applicant’s daughter was taken to hospital as she was giving birth prematurely. The doctors considered that she needed an emergency C-section to save her life, but the doctors refused to perform the operation and transferred her to another hospital 150km away where the operation was performed. The mother and child both died shortly after the operation. The applicant complained that Romania had failed to protect her daughter and grand-daughter’s right to life. The ECtHR found a violation noting “acts and omissions of the authorities in the context of public-health policies may […] engage their responsibility under the substantive limb of Article 2” and that the right to life required that “a regulatory structure be set up, requiring that hospitals, be they private or public, take appropriate steps to ensure that patients’ lives are protected”. The court went on to find the state had not properly regulated the provision of healthcare, criticising the “lack of coordination of the medical services”, “delay in administering the appropriate emergency treatment” and more broadly the “ineffectiveness of the domestic legal procedures following the incident”.

More recently, the ECtHR seems to be trying to curtail the scope of the application of the right to life in medical negligence cases. In Lopes de Sousa v Portugal, the applicant’s husband died following an operation to remove polyps from his nose. He had contracted different infections following the surgery and been admitted and discharged from hospital several times before he eventually died from septicaemia. The applicant claimed that the State had breached the right to life due to medical negligence. As Stoyanova notes, even where medical negligence is established, the Court will usually only find a violation where the relevant regulatory framework failed to ensure proper protection of a patient’s life. In this case, however, the Chamber found both violations of the obligation to investigate and the obligation to regulate, condemning the “lack of coordination” between different hospital departments, which had deprived the applicant’s husband of the possibility of access to appropriate emergency care. By contrast, when the Grand Chamber considered the same case, it only found a violation of procedural aspect of Article 2 on account of the length of the disciplinary, criminal and civil proceedings, but not that the state had failed to properly regulate the medical profession.

The Grand Chamber observed that Portugal had provided for high professional standards among health professionals and that “errors of judgment” or “negligent coordination of health care” could not be considered sufficient to trigger the State’s obligations.  The ECtHR stated

It was only in “exceptional circumstances” that the state could be held responsible for the acts and omissions of health care providers. The ECtHR then outlined the different exceptional circumstances that trigger state responsibility. In doing so, the ECtHR drew some very fine distinctions between different circumstances. They said the state’s obligations under the right to life could be engaged where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment, but not where “deficient, incorrect or delayed treatment” has been provided. The ECtHR observed there must be a systemic or structural dysfunction in hospital services, which results in a patient being deprived of access to life-saving emergency treatment. The dysfunction must arise from the state’s failure to meet its regulatory obligation. The state must deny a patient emergency medical treatment while fully aware of the risk it presents to the person’s life.

The Grand Chamber ultimately ruled that these conditions were not fulfilled on the facts and it was instead a case of “mere” medical negligence, not triggering state responsibility. The case has prompted criticism, with Lavrysen observing that while the Chamber judgment went too far in extending the obligation to fulfil in mere negligence cases, the Grand Chamber went too far in opposite direction. Judge Pinto de Albuquerque, in a partly dissenting opinion, claimed the court had engaged in a “Herculean effort to narrow the previous case-law as much as possible” criticising the inconsistency in the standards of knowledge required by the court (from “full awareness” to constructive knowledge) and the high burden of proof applicants will face.

Obligation to Investigate

In order to secure the effective protection of the right to life, states are required to carry out effective investigations where death or life-threatening injuries have been inflicted on people within their jurisdiction either by the State or by non-state actors.

This obligation serves several purposes. Firstly, it ensures the effectiveness of other elements of the right to life. As the European Court of Human Rights observed in Armani da Silva v UK

It serves to promote accountability within the state and among its agents for deaths that occur within the jurisdiction, as the ECtHR observed in Nachova v Bulgaria “The essential purpose of such an investigation is […] to ensure their accountability for deaths occurring under their responsibility”. Finally, it helps to reinforce public confidence as the ECtHR noted in Armani da Silva v UK “What is at stake here is nothing less than public confidence in the state’s monopoly on the use of force”.

As with the other obligations discussed above, the scope of the obligation to investigate is similar across different jurisdictions. In General Comment No 36, the Human Rights Committee observed that “investigations into allegations of violations of [the right to life] must always be independent, impartial, prompt, thorough, effective, credible and transparent”.

In Zambrano Velez et al v Ecuador, the Inter-American Court examined a case of extra-judicial killing and whether Ecuador had conducted an effective investigation into the death of Wilmer Zambrano Vélez and others. In the judgment, the court outlined several conditions that the state would have to satisfy for the investigation to be considered “effective”. It must be capable of

1. identifying the victim; (see also Ogur v Turkey)
2. identifying possible witnesses to the death and gathering statements from them; (see also Ozalp v Turkey)
3. determining the cause, manner, place, and time of death; (see also Armani da Silva v UK)
4. distinguishing between death from natural causes, accidental death, suicide and murder and
5. carrying out appropriate forensic investigations. (see also Armani da Silva v UK)

An Obligation of Means?

There has been some debate over whether a specific outcome from investigations is required, with some confusing statements arising in different jurisdictions. The Inter-American bodies have pursued the idea that effective human rights protection may need to result in prosecution and punishment. In Velasquez-Rodriguez, for example, the Court observed that “States must prevent, investigate and punish any violation of the rights recognized by the Convention” (emphasis added). Later in the specific context of the right to life in Santo Domingo Massacre v Colombia, it stated

The obligation to investigate is generally understood to be an obligation of means rather than result, but a requirement for it to result in prosecution casts doubt on that idea. The European Court of Human Rights appeared cognisant of this in Al-Skeini v UK, noting

The idea that an investigation into a potential violation of the right to life should result in prosecution has drawn criticism from different academics (e.g. Basch). Mavronicola has argued that demanding the penalisation of acts or omissions related to the right to life may result in establishing liability for conduct which as a matter of principle or policy may not necessarily warrant a criminal punishment.

Independence

It is important that the agents carrying out the investigation into the potential breach of the right to life are considered independent. In principle, this requires institutional, hierarchical and practical independence of the investigators.

Institutional independence requires that the investigators and alleged perpetrators should not be members of the same institution. In the case of Ramsahai v Netherlands, for example, the ECtHR ruled that the investigation was ineffective because “essential parts of the investigation were carried out by the same force” to which the officers implicated in the killing belonged.

Hierarchical independence requires that the alleged perpetrators and investigators should not be part of the same command structure or answerable to the same person. In the case of Hinojosa v Ecuador, the Inter-American Court examined a case where a police officer had been shot dead by fellow police officers during a standoff while he was intoxicated. At the time, police officers in Ecuador were subject to a special criminal jurisdiction distinct from the civilian courts. This was overseen by judges who were “members of the police institution” who conducted the investigation into the incident. The applicants complained inter alia that the investigation into Valencia Hinojosa’s death was ineffective. The Inter-American Court condemned the absence of hierarchical independence within the police criminal jurisdiction noting

The requirement of practical independence is perhaps the least well-developed of the independence obligations. In principle, this requires that investigators must have access to their own resources and be self-reliant. In the case of Anguelova v Bulgaria the ECtHR cited Ergi v Turkey as an example of a case where practical independence was not secured. In that case Havva Ergi was killed when Turkish security forces set up an ambush to attack insurgents in a village in South-East Turkey. It was unclear who was responsible for the killing, but the ECtHR found inadequacies in the investigation. The court in particular criticised the degree of emphasis that the public prosecutor investigating the case had placed on the conclusions of the police incident report, which had been drafted by a commander who was not present at the incident. In other cases, the ECtHR has been less concerned about issues with practical independence. In Jaloud v Netherlands, for example, the court did not consider the fact that investigators shared the same living quarters as those implicated in the alleged violation to give rise to concerns over their independence. The decision is problematic because the requirement for independence should encompass both the actual independence of the investigators as well as the avoidance of any appearances of a lack of impartiality.

Initiative and Speed

The obligation to investigate under the right to life requires that the authorities act of their own volition to begin an investigation once a death or life-threatening injury is brought to their attention (see e.g. Cruz Sanchez v Peru). As the European Court of Human Rights observed in McCaughey v United Kingdom “Article 2 requires investigations to begin promptly and to proceed with reasonable expedition”.

In Novakovic and Novakovic v Serbia, the Human Rights Committee addressed a claim that a death investigation was ineffective due to a lack of speed and initiative. The applicants’ relative died in a state-owned hospital following negligent medical treatment of a tooth infection. The facts indicated that standard medical procedures were not followed, potentially reaching the threshold of criminal malpractice. The state’s investigation into Zoran Novakovic’s death was very slow. The first suspect was not interrogated until 40 months after Zoran’s death, no criminal indictment was issued until 5 years after the death and forensic examinations were only carried out over two years after the death. In these circumstances, the Committee considered that the obligation to investigate promptly under the right to life had been violated.

The ECtHR, for its part, has accepted that there “may be obstacles or difficulties which prevent progress in an investigation in a particular situation”. The leeway the state receives from the court is not unlimited though and the court has found violations in a variety of different circumstances, including terminating investigations prematurely, ceasing and restarting investigations multiple times and sometimes a mixture of these issues.

Transparency

The investigation also requires a degree of transparency on the part of the authorities. The victim’s relatives must be involved “to the extent necessary to safeguard their legitimate interests” (Edwards v UK). The authorities do have some discretion to withhold information when this is necessary for the sake of an ongoing investigation (McKerr v UK). However, much like the rationale for the investigative obligation in the first instance, there needs to be a degree of public scrutiny to maintain public confidence in the police and security services (Anguelova v. Bulgaria).

Finally, it is worth noting that human rights bodies, like the ECtHR can find a violation of the obligation to investigate independently of a “substantive” violation of the right to life. In practice this means that the state may not be deemed to have violated the substance of the right e.g. by arbitrarily killing someone, but may still have breached the right for not properly investigating how the death came about.

Suggested Citation – Stuart Wallace, ‘The Right to Life’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)