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The Right to Life

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Assistance, Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

The taking of human life has been strongly condemned by most world religions and philosophies over the centuries. International human rights law has in turn sought to uphold this most sacrosanct of rights in a number of treaties. The life of an individual is clearly protected from being arbitrarily taken by the state.

The right to life is not, however, as inviolable as it might seem at first sight. There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. The use of the death penalty is one such example. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use. The use of violence in self-defence lies at the base of other justifications for the taking of human life. Killing is permitted at times of war save for the murder of civilians and prisoners of war. Human rights law thus tries to respond to the myriad of ethical dilemmas raised by the right to life by establishing a range of prohibitions and exhortations.


 Executives in USA - 1608-2000

Source: Death Penalty Information Center

 


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Rights at Stake

Every human being has the inherent right to life and this right must be protected by law. However, this right is not as sacrosanct and inviolable as it sounds. The main principle in human rights law is that no-one shall be arbitrarily deprived of life meaning that states can take human life providing laws and procedures are followed. There are a number of situations where a state may deprive persons of their lives without breaching international human rights law. In some cases, these exceptions are based on the premise that violence used in self-defence is justified. Examples include:
- imposition of the death penalty;
- providing it is a result of a judicial process and does not contravene certain minimum safeguards imposed by human rights law (see below);
- deaths resulting from lawful warfare i.e. war which meets the standards of international humanitarian law and does not target protected persons e.g. civilians and prisoners of war;
- some human rights documents (the European Convention on Human Rights, for example) give other situations where deprivation of life does not contravene the convention. Deprivation of life resulting 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 or insurrection.

Human rights law is silent on other controversial areas concerning the right to life, namely abortion and the right of the unborn child and euthanasia.

Death penalty
The death penalty or capital punishment as it is otherwise known continues to be legitimate and practiced in a number of states around the world. Some states have outlawed the death penalty except for most extreme cases e.g. crimes committed during war. Other states while they may not have outlawed the death penalty, are in practice abolitionist by not actually sentencing offenders to death. Some of the earliest human rights activism, for example, by Amnesty International concerned protecting political prisoners from being sentenced to death for their political beliefs.

The death penalty might appear to constitute a violation of the right to life but human rights law falls short of insisting that it does. It leaves states the option to impose the death penalty but urges them to move towards abolition and also imposes certain limits on the way in which the death penalty can be imposed. Capital punishment:
- may only be imposed for the most serious crimes, pursuant to a final judgement rendered by a court and providing it is not contrary to the provisions of human rights law e.g. not a crime of genocide.
- anyone sentenced to death has the right to seek pardon or commutation of the sentence;
- death sentence is not to be imposed on anyone below the age of 18 or carried out on pregnant women.

Even for states which have agreed to abolish the death penalty, human rights law appears ambiguous, allowing them in some statutes to make reservations maintaining the right to use the death penalty at times of war for example. At the same time, the use of the death penalty is totally prohibited from use by the various international criminal courts, like the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.

Situations of armed conflict
International law does not outlaw all kinds of warfare and violence. The right to life in such situations is not absolute. International humanitarian law seeks to impose restrictions on the way violence can be used at times of conflict. Certain categories of persons, civilians or combatants who have laid down their arms or are injured, are considered protected. The right to life of these categories is upheld and can be violated for example, by indiscriminate shelling or deliberate execution or denial of access to water, food or medicine.

Right of non-refoulement
Rights of persons are not to be forcibly returned to countries where their lives may be in danger are protected in certain situations, also know as the right to non-refoulement. Asylum-seekers and refugees are protected if they face such a threat on the grounds of their race, religion, nationality, political opinion or membership of a social group.

Right to survival
When talking about children, the right to life can often mean the right to survival. Human rights law already forbids the use of the death penalty for children. However, child rights treaties impose another obligation on states to meet the basic needs of the child in terms of nutrition, health, food, shelter etc. to enable the child's survival.

Non-state actors
Violations of the right to life may be committed by agents acting outside the official remit of the government e.g. paramilitary groups, civil defence or other private forces. They may operate outside the official military and police forces but are deemed to be agents of the state since they are often set up and supervised by the authorities to operate in situations of internal conflict or disturbance. They are therefore subject to scrutiny for human rights violations in the same way.

Rights of victims
Victims of extrajudicial, summary or arbitrary executions are entitled to adequate compensation from the state where the violation was committed. Granting compensation is separate from the additional obligation on states to conduct investigations and punish perpetrators.




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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to life. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

The following are the international treaties, declarations and commitments that determine standards for the protection of the right to life:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 3)
The Universal Declaration of Human Rights (UDHR) is a resolution of the UN General Assembly and was adopted in 1948. As a resolution, it is not itself formally legally binding despite common assumptions to the contrary. However, the UDHR did establish important principles and values which were later elaborated in legally binding UN treaties. Moreover, a number of its provisions have become part of customary international law. Article 3 upholds the right to life, liberty and security of the person.

International Covenant on Civil and Political Rights (1966) (article 6, 4)
This main international treaty on civil and political rights, also known as ICCPR, is very specific about the right to life and the death penalty:
"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant."
Article 4 further asserts that states are not able to derogate from the article 6 even in times of a public emergency.

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (1989)
This optional protocol to the ICCPR urges states to take all necessary measures to abolish the death penalty and stipulates that no reservation is allowed except for the application of the death penalty for most serious crimes of a military nature committed during wartime.

The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of the Commission on Human Rights was appointed in March 1982. This was the first appointment of a person to study a particular type of human rights violation on a worldwide basis. Following this special rapporteurs were appointed on a variety of other subjects e.g. torture, violence against women. The mandate of the rapporteur is to examine situations where such executions are taking place. The mandate specifies that particular attention should be paid to summary executions of women and children or violations concerning individuals exercising their right to carry out peaceful activities in defence of human rights.

The Special rapporteur receives communications on violations from organizations and individuals. The rapporteur is able to issue an urgent appeal to prevent imminent violations. Specific allegations are taken up with the rapporteur directly with the government in question. Problems have been reported with the follow-up and some governments have failed to respond to issues taken up by the rapporteur. General reports wider issues such as persistent reports of impunity or infringements of international human rights law by national legislation, are contained in overview reports of the rapporteur. Country visits are also carried out for the purpose of obtaining first-hand information.

Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (1984)
The Siracusa Princples developed by the UN Sub-commission on the prevention of discrimination and protection of minorities in 1984 assert that no state party shall even in time of emergency threatening the life of the nation, derogate from a number of key guarantees which include the right to life.

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984)
Elaborates further on the circumstances under which the death penalty can be imposed and the procedures to be followed.

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989)

Rome Statute of the International Criminal Court (1998) (article 6, 7j)
Protects the right to life where it amounts to crimes of genocide, war crimes and crimes against humanity. Under the Rome Statute of the International Criminal Court (ICC), killing of persons either by direct murder or by inflicting conditions which bring about their death e.g. deprivation of food, water and medication come under the jurisdiction of the court if they amount to: genocide which means such acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (article 6); crimes against humanity if such acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (article 7); war crimes if they constitute grave breaches of the Geneva Conventions of 12 August 1949, namely acts against persons or property protected under the provisions of the relevant Geneva Convention. Moreover, the statute of the ICC states that the death penalty is excluded from punishments the court is permitted to impose despite the fact it has jurisdiction over very serious crimes.


UN treaties relating to specific categories of persons can also to protect the right to life:

Convention on the Prevention of Punishment of the Crime of Genocide (1948)
Prohibits the killing of members of a national, ethnic, racial or religious group with the intent to destroy the group in whole or in part.

The Geneva Conventions of 1949 governing the laws of war uphold the right to life of civilians and certain types of combatants, those who are injured or have laid down their arms, at times of war:

Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) (article 3)

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1949) (article 51, 57, 75, 85)

Finally, the right to life of particularly vulnerable groups such as children, refugees and racial minorities is protected by the following international treaties:

Convention Relating to the Status of Refugees (1951) (article 33)
The Refugee Convention is relevant as it prohibit forced return (the principle of non-refoulement) of persons facing a threat to their lives in their home country.

International Convention on the Elimination of All Forms of Racial Discrimination (1965)
This is the most comprehensive treaty concerned with the rights of racial and ethnic minorities. Violations concerning the right to life and in particular the discriminatory and disproportionate use of the death penalty as far as ethnic and racial minorities are concerned have been raised with the Committee on the Elimination of Racial Discrimination which oversees the implementation of the convention.

Convention on the Rights of the Child (1989) (article 37)
Prohibits the use of the death penalty for persons under 18 at the time of the crime. In addition, a number of other articles are concerned with ensuring the right of survival through the provision of essential food, water, health care etc. necessary for life itself.


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples’ Rights (1981) (article 4)
The main African human rights instrument protects the right to life.

African Charter on the Rights and Welfare of the Child (1990) (article 5)
This treaty protects the right of the child to survival and development, which means both the right not to be sentenced to death but also the right to be provided with adequate resources to survive.


COUNCIL OF EUROPE

Convention for the Protection of Human Rights and Fundamental Freedoms (1949) (article 2, 15)
This treaty, commonly known as the European Convention on Human Rights (ECHR), protects the right to life and stipulates circumstances under which deprivation of life shall not be regarded as contravening this article where 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 or insurrection (article 2). It also does not allow derogation from this principle even in times of emergency except for deaths resulting from lawful acts of war (article 15).

Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedom on the abolition of the death penalty concerning the abolition of the death penalty (1983)
States parties to the protocol shall abolish the death penalty. It allows them to retain this penalty for certain situations in war time.

 

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EUROPEAN UNION

Charter of Fundamental Rights of the European Union (2000) (article 2)
This treaty defends the right to life and prohibits the use of the death penalty.

 

 

ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1978) (article 4)
The American Convention protects the right to life and restricts the situations in which the death penalty can be used. Countries that have not abolished the death penalty the death penalty may be imposed only for "the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply." It also stipulated that the death penalty shall not be reestablished in states that have abolished it; it shall not be administered for political offenses nor imposed on persons who, at the time the crime, were under 18 years of age or over 70 years of age, nor shall it be applied to pregnant women.

Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990)
Any nation that is a party to the American Convention on Human Rights may sign this Protocol. Those states that sign the Protocol agree to eliminate the death penalty, although they may declare, upon signing, the intent to retain the death penalty in wartime for serious military crimes, in keeping with international law. In this case, the state is obligated to inform the OAS Secretary General of its national legislation regarding the use of the death penalty during times of war.



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National Assistance, Protection and Service Agencies

Countries which have ratified these international and regional treaties have agreed to meet their obligations under these conventions by inter alia implementing these provisions fully at national level. States need to adopt appropriate legislative measures and provide judicial remedies to protect the right to life.

Impunity for perpetrators is one of the main reasons why human rights violations continue unabated. This is particularly the case with violations of the right to life and the obligation of governments to identify, bring to justice and punish perpetrators is evident in human rights standards. Problems and concerns with implementation in individual countries is well documented in reports of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

 


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Advocacy, Educational and Training Materials

For advocates

International standards on the death penalty (Amnesty International)
This document gives extracts of international and regional instruments (treaties, declarations) relevant to the abolition or restriction of the death penalty, arranged by subject. Among other things, the instruments set forth safeguards and restrictions on the death penalty. The appendix of this document includes the texts of the relevant sections of the instruments.

Non-Discrimination and Right to Life (Asian Human Rights Commission)
A lesson which introduces the non-discrimination principle and conventions and the right to life based on the case of the suicide of the Catholic Bishop John Joseph in Pakistan in 1998.

United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Minnesota Advocates for Human Rights)
This guide provides a brief overview of the relevant and available institutions and forums where state compliance with international human rights standards can be subjected to monitoring and implementation procedures.


For educators

Death Penalty Curricula for High School: Teacher Edition (Michigan State University Communication Technology Laboratory/Death Penalty Information Center)
This curriculum addresses history of the death penalty, arguments for and against, court cases on the death penalty and additional resources. The site includes two sample units plans for teachers. Each of the units involves an extensive amount of group work, simulations, persuasive and individual essay writing, and class participation.

 


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Other Resources

Courses and training opportunities

Organisations advocating for the abolition of the death penalty

International Death Penalty Abolition Day (1 March)

World Day Against the Death Penalty (10 October)

 

 

 

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Key terms

capital punishment or death penalty - punishment of death prescribed by law for a crime

summary, arbitrary or extra-judicial executions - killings which are not authorized by law as punishment for crim but carried out in an ad hoc manner by state or non-state actors usually for political purposes

Historical dates

1786 - death penalty abolished in Toscany

1787 - death penalty abolished in Austria

1847 - the state of Michigan (USA) first English-speaking territory in the world to abolish capital punishment

1948 - Universal Declaration of Human Rights includes the right to life

1982 - Special Rapporetur on Extrajucial, summary or arbitrary executions

1985 - Council of Europe adopts Protocol to the European Convention on Human Rights on the abolition of the death penalty

1989 - Second Optional Protocol to ICCPR on the abolition of the death penalty adopted by the UN General Assembly

2000 - Protocol to the American Convention on Human Rights on the abolition of the death penalty

2003 - International Criminal Court

This guide was developed by Asmita Naik.

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