You are on page 1of 13

RIGHT TO LIFE – THE HUMAN RIGHTS PERSPECTIVE

By
Anjana Nayar
LLM (NLSIU)

International human rights law is a body of substantive and procedural rules that deal
with the protection of internationally guaranteed rights of the individuals against violations by
governments. Two branches may be identified therein: first, the so-called normative system and
1
second, the international protections system. The international human rights regime is
characterized by widely accepted substantive norms but with very limited implementation, which
rarely goes beyond information exchange and voluntarily accepted international assistance for
the national implementation of international norms. This normative strength and procedural
weakness-which is the result of conscious political decisions, according to Jack Donnelly-
2
oftentimes negates the very purpose of a right as basic as that to life, as we shall see.

Consequent to the nightmarish reign of utter disregard for basic human rights unleashed
3
during the Nazi regime, the international human rights regime with the International Bill Of
4
Rights as its bedrock, firmly established the individual and peoples as subjects of international
law, with extensive substantive rights and some procedural capacity to act.

The international human rights regime is ‘nested’ within more comprehensive agreements
5
that constitute a complex and interlinked pattern of relations. Thus, there are several ‘lower level’
regional and single-issue human rights regimes, which though not representative of any
hierarchical arrangement, are relatively coherent, ‘nested’ sub regimes. Three regions of the
world have duplicated the international human rights regime within their own socio-cultural
context with more regions following suit.

One of the stronger regimes is the primarily Western European Council of Europe,
wherein civil and political rights are guaranteed by the 1950 European Convention For The
6
Protection Of Human Rights And Fundamental Freedoms and its Protocols, while economic, and
social rights are laid down in the 1961 European Social Charter. Both sets are considerably
similar to the Universal Declaration and the Covenants though the European regime envisages a
stronger monitoring power for the European Commission and vests substantial authoritative
decision-making powers in the European Court of Human Rights.

1
Monica Pinto, Fragmentation or Unification among International Institutions: Human Rights Tribunals
31 International Law and Politics 833 (1999). The normative system is the set of international rules
recognizing human rights, providing for their scope and content and giving criteria for their permissible
restriction and derogation in times of emergency. The international protection system is a set of rules
establishing legal mechanisms for the supervision and control of states parties’ obligations.
2
See generally, Jack Donnelly, International Human Rights: A Regime Analysis 40(3) International
Organization 599 (1986)
3
Donnelly defines an international regime as ‘principles, norms, rules and decision making procedures
around which actor expectations converge in a given issue area’. See, Id.
4
The most important statements of the norms of the international human rights regime are the Universal
Declaration of Human Rights (hereinafter, UDHR), and the International Human Rights Covenants- the
International Covenant on Civil and Political Rights (hereinafter, ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (hereinafter, ICESCR). The standard practice is to treat the norms
of the UDHR and the covenants as more or less binding international standards. Each state however retains
almost complete autonomy in implementing these norms at the national level. Thus, though the norms are
fully internationalized, decision-making in practice remains largely national.
5
See Supra n. 7 at 620.
6
The Convention entered into force on 3rd September 1953.
The normative standards laid down in the various human rights documents are
augmented to a great extent by the jurisprudence that emerges from the various human rights
bodies that are responsible for the implementation and adjudication issues related to the rights
that are guaranteed by them. Here we look at the jurisprudence that has emerged from these
bodies that relate to the rights under study. The focus of this article therefore would be on the
basis of specific violations of the right to bodily integrity.

1. WAR

International human rights law recognizes a state’s authority to use force in maintaining
domestic public order and internationally, in the exercise of its right to self-defence. The use of
organized military force by states is regulated by the law of armed conflict as set forth in the
Geneva Conventions of 1949 and the 1977 protocols to the Geneva Conventions. The law of
armed conflict requires that military forces protect civilians and minimize loss of life and property,
and that military forces balance the estimated military advantage of attacking a particular target
against the likely consequential harm to the civilian population. This latter rule of proportionality
7
has been recognized by a number of States including the US, as customary international law .

Inasmuch as war involves the loss of life, it has been argued that it constitutes a violation
8
of the right to life. However, as Yoram Dinstein explains, war is assuredly a crime under modern
international law; however, the duty of every state to refrain from war confers rights on other
states and not on the individual. Moreover, life is lost in just as well as unjust wars and
international law prohibits only unjust wars. Also, if the proscription of war was based on the
human right to life, then intrastate as well as interstate wars would have to be prohibited, which
international law is not in a position to do. Thus the actual position is that international law does
not in fact forbid wars or internal conflicts, irrespective of the fact of loss of lives. Is it also notable
that the efforts to check the loss of life in military actions have centered more around controlling
the use of nuclear and other weapons of mass destruction rather than challenging the legality of
war itself.

A. The United Nations

The United Nations Human Rights Committee in its general Comment No.6 elaborates on
9
the right to life. It notes that the right to life is the supreme right from which no derogation is
permitted even in the time of public emergency that threatens the life of the nation. It also notes
that it is a right, which should not be interpreted narrowly.

Regarding the scourge of war, the Committee notes, “ …war and other acts of mass
violence continue to be a scourge of humanity and take the lives of thousands of innocent human
beings every year. Under the Charter of the United Nations the threat or use of force by any State
against any other state, except in exercise of the inherent right of self defence is already
prohibited. The Committee considers that states have the supreme duty to prevent wars, acts of
genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to
avert the danger of war, especially thermo nuclear war and to strengthen international peace and
security would constitute the most important condition and guarantee for the safeguarding of the
right to life. In this respect, the Committee notes in particular, a connection between article 6 and
article 20, which states that the law shall prohibit any propaganda for war or incitement to
violence as therein described.” In another General Comment, the Human Rights Committee
asserted that, ‘the designing, testing, manufacture, possession and deployment of nuclear
weapons are among the greatest threats to the right to life which confront mankind today.”

7
Francisco Forrest Martin, International Human Rights Law And Practice: Cases, Treaties And Materials
(the Hague: Kluwer Law International, 1997), 392
8
Yoram Dinstein, Supra n. 21 at 120
9
The Right to Life (art. 6): 30/07/82 CCPR General Comment 6. (Sixteenth Session, 1982)
Central to the analysis of the legality of nuclear weapons is the fundamental humanitarian
principle of minimizing harm to civilians and other categories of protected persons.

The Human Rights Committee indicated in General Comment 14 that the use of nuclear
weapons does implicate the right to life; however, the Committee declined to address the issue
under its adjudicatory powers and held two petitions invoking Articles 6 and 7 as being violated by
10
the use of nuclear weapons to be inadmissible.

The most significant opinion to date on the legality of nuclear weapons under
international law is the advisory opinion issued by the International Court of Justice. In the ruling
on the General Assembly’s request for an advisory opinion on the legality of the use or
threatened use of nuclear weapons under international law, the Court unanimously concluded
that international law does not expressly authorize the threat or use of nuclear weapons. By
eleven votes to three, the Court concluded that international law does not expressly prohibit the
use or threat of use of nuclear weapons. While the Court concluded that the threat or use of
nuclear weapons would be “ generally contrary to the rules of international law applicable in
armed conflict”, this statement was again qualified by the concession that, “in an extreme
circumstance of self defence, in which the very survival of a state would be at stake”, the threat or
use of nuclear weapons might not be prohibited.

With specific reference to the right to life, the Court was faced with two opposing views.
The first contended that the use of nuclear weapons would violate the right to life as guaranteed
by the Covenant as well as regional instruments. The counter argument is that the Covenant
makes no mention of war or weapons and is directed at the protection of human rights in
peacetime, whereas questions relating to unlawful loss of life in hostilities are governed by the
law of armed conflict; in short, that the Covenant cannot regulate the legality of nuclear weapons.

In paragraph 25 of the opinion, the Court acknowledges the continuing applicability of the
Covenant in times of warfare, with the exception of those rights, which, under Article 4, may be
derogated from ‘in time of public emergency which threatens the life of the nation’. This means
that ‘in principle, the right not to be arbitrarily deprived of one’s life applies also in hostilities’. The
Court observes, however, that the ‘test of what is an arbitrary deprivation of life…then falls to be
determined by the applicable lex specialis, namely, the law applicable in armed conflict…’. It
concludes therefore, that ‘whether a particular loss of life, through the use of a certain weapon in
warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant,
can only be decided by reference to the law applicable in armed conflict and not deduced from
the terms of the Covenant itself.’

The Court refers back to the lex specialis of humanitarian law, in which, paradoxical as it
may seem in a law licensing the right to kill, the right to life is found among a hard core of rights
protecting persons under the specific circumstances prevailing in an armed conflict. Some of
these rights relate to capital punishment, murder and extermination for those who find themselves
directly under the power of a party to the conflict. Thus Article 32 of the Fourth Convention

10
The first petition claimed that the deployment of cruise missiles by the Netherlands violated Article 6,
citing the Committee’s General Comment 14. E.W. et al. V. the Netherlands, Communication No.
429/1990, UN.Doc. CCPR/C/47/D/429/1990 (1993). The second claimed that the arrest and prosecution of
protestors who disrupted traffic as a part of a campaign to stop the deployment of the missiles violated the
protestor’s rights under Articles 6 and 7. E.C.W. v. The Netherlands, Communication No. 524/1992, UN
Doc. CCPR/C/49/D/524/1992 (1993). The Committee held in both cases that the petition was not
admissible. In the first it was held that the deployment of nuclear weapons did not in itself give rise to the
violation of the right to life of the petitioners. In the second, the Committee referred the first decision and
concluded that the arrest and prosecution of individual who blocked traffic to protest the deployment of
nuclear weapons did not state a claim for a violation under the covenant. The committee rejected the
petitioner’s argument that their actions were necessitated by the fact that the deployment would violate
international law, and would constitute a crime against humanity.
applies to alien or enemy civilians; Article 75 of Additional Protocol 1 applies to a broad notion of
protected persons. The right to life is also protected by a series of ‘cardinal principles’ examined
11
by the Court which include the prohibition of weapons that cause unnecessary suffering, the
prohibition of attacks on civilians and civilian objects, and the principle of proportionality are all
aimed at minimizing the loss of life during military operations. Common Article 3 of the Geneva
Conventions relating to conflicts not of an international character, but identified by the Court in the
12
Nicaragua case as the minimum yardstick, constituting ‘fundamental general principles of
humanitarian law’ applicable as customary law in all circumstances, including international armed
conflicts and regardless of nationality, also protects the right to life. Although the Court in its
Advisory Opinion is not concerned with conflicts of an internal nature, the provisions of Protocol II
are also relevant in this context. The said provisions are also bolstered by the grave breaches
13
provision of Fourth Convention and Additional Protocol I .

The position that emerges is that the right to life has not gained the recognition that
Judge Weeramantry sought to give it in his dissenting opinion in the same advisory referred to, as
constituting ‘one of the rights which constitute the irreducible core of human rights’. Despite a
strong substantive law on the subject, the Court has shied away from the responsibility of
augmenting it with a strong judicial response.

The regional human rights bodies have not so far specifically commented on the legality
or otherwise of war as a violation of human rights. The ECHR, in Article 15 specifically mentions
war as one of the exceptions to the right to life. The ACHR makes no such reference on the
14
subject. We can safely assume that the positions in the regional bodies are in concurrence with
that of the United Nations on the subject.

2. CAPITAL PUNISHMENT

One of the most significant issues facing international law in recent decades is the
15
abolition of the death penalty. Although a significant number of states have in recent times
moved in the direction of abolition there is still a significant number that have retained capital
punishment and this fact has been taken note of in all the major human rights documents which
recognize abolition as a desirable goal; nevertheless they are forced to lay down certain minimum
standards to be followed by those states that continue to impose capital punishment as a punitive
measure. Optional Protocols have been adopted to all three major documents declaring an overt
goal of abolition among the signatories. In the face of international recognition of the existence of
the death penalty, no international court has seen fit to declare the death penalty as violative of
provisions relating to bodily integrity rights. The Courts have however attempted to use the
existing language of the conventions to set limits on the imposition of the death penalty and the
conditions under which it may be carried out.

11
Advisory Opinion, Para 7, 8.
12
Nicaragua Case, ICJ Reports 1986, p.114
13
Article 147 of the Fourth Convention and 85 (2), (3) of Additional Protocol I; For further discussion on
the right to life under humanitarian law, See, Lawrence Boisson de Chazournes, Philippe Sands ed.,
International Law, The ICJ and Nuclear Weapons (United Kingdom: CUP, 1999) 315- 337
14
Although the Inter American Commission was called upon to comment on the related issue of a right to
life during armed conflict in Disabled People’s International v. United States, the Commission did not rise
to the occasion to bring about any advancement to the right to life jurisprudence. See, David Weissbrodt,
Beth Andrus, The Right to Life During Armed Conflict: Disabled Peoples’ International v. United States 29
(1) Harvard International L.J. 59 (1988)
15
For an exhaustive study on the issue of death penalty, See, William A. Schabas, The Abolition Of The
Death Penalty In International Law (United Kingdom: CUP, 1997)
A. The United Nations

The Human Rights Committee in its general comment on the right to life refers to the
importance of ‘all measures of abolition’ as regards the death penalty implying that even partial
abolition or limitation of the death penalty should be considered within the rubric of abolition. The
Committee also states that Para 2 of Article 6 in fact suggests that ‘abolition is desirable’. The
Committee goes on to state, “ while it follows from Article 6 (2) to (6) that state parties are not
obliged to abolish the death penalty totally they are obliged to limit its use and in particular to
abolish it other than the ‘most serious crimes’. Accordingly, they ought to consider reviewing their
criminal laws on this light and in any event are obliged to restrict the application of the death
penalty to the ‘most serious crimes’.” The Committee also expresses the opinion that the phrase
‘most serious crimes’ must be read restrictively to mean that the death penalty should be quite an
exceptional measure. It also follows from the express terms of Article 6 that ot can only be
imposed in accordance with the law in force at the time of the commission of the crime and not
contrary to the Covenant. The procedural guarantees therein prescribed must be observed,
including the right to a fair hearing by an independent tribunal, the presumption of innocence, the
minimum guarantees for the defence and the right to review by a higher tribunal. These rights are
in addition to the particular right to seek pardon or commutation of the sentence. These views of
the Committee are also augmented in the case law relating to Article 6 that relate to capital
punishment and the allied phenomenon referred to as the ‘death row phenomenon’, which is
mainly seen as an issue relating to the violation of the rights under Article 7 of the Covenant.

In addition to the General Comments on the subject, the HRC has had the task of
reviewing a large number of individual petitions on the subject of capital punishment and death
row phenomenon, mostly from Trinidad and Tobago which retains the capital punishment and
Canada which does not impose death punishment but extradites fugitives to the United States
where they may be sentenced to capital punishment.

‘Inherent’ Right To Life And Its ‘Arbitrary’ Deprivation In a dissenting opinion in the case
16
Kindler v. Canada , HRC member Bertil Wennergren states that by guaranteeing to every human
being the ‘inherent right to life’ the covenant makes clear that the object of the provisions of
Article 6 as a whole is the protection of human life. Wennergren identifies two exceptions to this
inherent right: the death penalty, which is a ‘necessary evil’ and the rule of absolute necessity,
which is implicit in all legal systems. He states that the stated objective of the death penalty has a
limited objective that cannot override the cardinal principle in Para 1. Rajsoomer Lallah, another
member of the HRC, who wrote another dissenting opinion to the same case, discussed the
scope of the term ‘arbitrarily’. He opined that in Canada, where individuals were entitled to full
protection of the right to life as capital punishment had been abolished, the ‘deliberate and
coercive’ act of the state in sending individuals away from its territory to another state where the
‘fatal act runs the real risk of being perpetrated amounts to ‘arbitrary’ deprivation of life. He also
argues that the inequality in imposition of the death penalty amounted to breach of Article 26 of
the covenant.

These positions are not supported by the travaux relating to Article 6, nor are they the
stated positions of the HRC on the matter, as they are dissenting opinions. However, these
positions are in the spirit of the General Comment of the HRC on the right to life, which warns
against a ‘narrow interpretation’ of the right and represent welcome strides forward in the
jurisprudence relating to capital punishment.

‘The Most Serious Crimes’ Para 2 of Article 6 which states that the death penalty may be
applied only for the ‘most serious crimes’ has been criticized for allowing too much divergence in
state practice in the absence of an enumeration of what constituted the ‘most serious crimes’.
This was sought to be rectified by the ‘Safeguards Guaranteeing Protection Of Those Facing The
Death Penalty’, adopted by the Economic And Social Council and later ratified by the general

16
Kindler v. Canada (No. 470/1991), UN Doc. A/48/40, Vol. II, p. 138; 14 HRLJ 307
assembly which declares that the ambit of the term ‘most serious crime’ ‘should not go beyond
17
intentional crimes with lethal or other extremely grave consequences’. The Fourth Geneva
Convention provides an enumeration of capital crimes applicable to civilians in occupied
territories: espionage, serious crimes of sabotage of military installations and intentional murder.
The term in the Covenant also resembles the term ‘particularly serious crime’ to which the
principle of non-refoulement applies under article 33 of the Convention on the Status of
Refugees. Only one communication under the Optional Protocol has resulted in the Committee
18
addressing the interpretation of the term ‘most serious crime’. In Lubuto v. Zambia, where the
offender had received a mandatory sentence of death for an armed robbery, the Committee
stated: ‘Considering that in this case, the use of firearms did not produce the death or wounding
of any person and that the court could not under the law take these elements into account in
imposing the sentence, the Committee is of the view that the mandatory imposition of the death
sentence under these circumstances violates Article 6, Para 2 of the Covenant.’

Procedural Fairness The HRC’s views on procedural fairness as regards capital


punishment- if article 14 is violated during a capital trial then article 6 is also breached- as set out
in the General Comment on the right to life has already been alluded to. Procedural fairness has
long been recognized in domestic law and capital cases have received special procedural
treatment. The HRC’s conclusion in this regard is especially significant because although article
14 may be subject to derogation in times of war or emergency in accordance with article 4 of the
covenant there may be no derogation where the specter of the death penalty looms over the
19
proceedings. Augmenting this position in Reid v. Jamaica, the HRC states: “ the Committee is of
the opinion that the imposition of the death penalty upon the conclusion of a trial in which the
provisions of the covenant have not been respected constitutes, if no further appeal against the
sentence is available, a violation of article 6 of the covenant…” It added that ‘in capital
punishment cases, the duty of the State parties to observe rigorously all the guarantees for a fair
trial set out in article 14 of the covenant is even more imperative.’
20
In Mbenge v. Zaire , where the accused was sentenced to death without being ‘duly
summoned…to appear before the tribunal’ the HRC held that although in absentia proceedings
were not invariably vitiated, at the very least serious efforts to notify the accused must be
undertaken. Also, insufficient notice deprived the accused of the time necessary for preparation of
a proper defence and thus violated not only article 14 but also article 6 (2).

Other standards laid down by the HRC regarding procedural fairness in imposition of
capital punishment include the following:

• Where the complainant was informed of the date of appeal after it had taken place, there was
21
found to be a violation of the requirements of fair trial

• Where state appointed counsel concluded that there was no merit to an appeal and
abandoned it without consultation with the accused, the Committee held that ‘the right o
22
counsel includes consulting with the accused…’


23
The right to fair trial includes the right to an impartial tribunal.


24
The trial and appeal must take place within a reasonable time.
17
ESC Res. 1984/ 50 Appendix 8, p. 336; GA Res. 39/ 118
18
Lubuto v. Zambia (No. 390/ 1990), UN Doc. CCPR/C/55/D/390/1990/Rev.1, no.7.2
19
Reid v. Jamaica (No. 250/1987), UN Doc. A/45/40, Vol. II, p.185
20
Mbenge v. Zaire (no.16/ 1977), UN Doc. CCPR/C/OP/2 p.76
21
Thomas v. Jamaica (No. 272/1988) UN Doc.A/47/40 p.261
22
Henry v. Jamaica (No. 230/ 1987) UN Doc. A/47/40, p. 218
23
Collins v. Jamaica (No. 240/1987) UN Doc. A/47/40, p. 227
24
Kelly v. Jamaica (No. 253/1987) UN Doc. A/46/40, p.241; Also see Id.
It is now an internationally recognized that death sentence shall not generally be carried
out on certain classes of people especially the elderly, young mothers, the insane and the
mentally handicapped although the classes specifically protected by the covenant are minors and
pregnant women. Under the United Nations regime there has been little litigation or debate
regarding these categories, as there is wide acceptance of the humanitarian concerns behind
these exceptions. The death row phenomenon is dealt with under the heading of torture.

B. The ECHR Regime

The European Convention presents the death penalty, as one of the stated exceptions to
the right to life and what is notable is that the Convention refrains from listing most of the
limitations and safe guards that are listed in other documents in imposing and carrying out the
death penalty. However, these shortcomings are of no consequence in practice as most state
parties to the ECHR are abolitionist states. The Protocol no. 6 to the ECHR abolishing death
penalty in peacetime was adopted in 1983 and there has not been any instance of litigation
before the European Court arising from the imposition of capital punishment. The European Court
25
in Soering v. United Kingdom and Germany stated that the death penalty no longer exists de
26
facto in any of the contracting parties to the ECHR. Europe has also refused extradition to
states on other continents where capital punishment still exists.

Although the ECHR has refrained from listing the limitations to the imposition of capital
punishment, it has left open the possibility that such limitations could be considered as implicit in
article 2 or on the other hand, that they be read into the article by dynamic interpretation. In fact
the European Court has held in McCann et al. v. United Kingdom that article 2 must be
‘interpreted and applied so as to make its safeguards practical and effective’. The Court goes on
to add, “ as a provision which not only safeguards the right to life but sets out the circumstances
when the deprivation of life may be justified, article 2 ranks as one of the most fundamental
provisions in the Convention- indeed one which in peacetime admits of no derogation under
article 15. Together with article 3 of the Convention, it also enshrines one of the basic values of
the democratic societies making up the council of Europe.’ Use of the death penalty in war time
being already regulated by the Geneva Conventions and their Protocols, it can be safely
concluded that the ECHR admits of no derogation to article 2 with respect to the death penalty
even in times of war.

The European Court and Commission have also considered the possibility of death
penalty raising issues under article 3-what has already been referred to as ‘death row
phenomena’ which will be taken up under article 3.

C. The ACHR Regime

Inter American human rights law draws on both the United Nations and European human
rights traditions. Thus it has a protocol that seeks the abolition of the capital punishment.
However, unlike the European system, the American regime has several state parties that
continue to impose the death penalty and thus it has had the occasion to render decisions in
several cases relating to the death penalty. The jurisprudence that emanates from the American
human rights institutions relate to the American Declaration on Human Rights as well as the
binding convention.

One of the major decisions of the inter American Commission on the subject, Roach and
27
Pinkerton v. United States addressed the issue of whether article I of the American Declaration

25
Soering v. United Kingdom (App. No. 14038/88), Series A, Vol.161-231
27
Roach and Pinkerton v. United States (Case No. 9647), resolution No. 3/87, reported in OAS.Doc.
OEA/Ser.L./V/II.71 doc.9 rev. 1 p.147
concerns capital punishment at all. In their complaint, the petitioners, both sentenced to death in
separate cases of rape and murder committed while both were below the age of eighteen alleged
that the United States had violated article I (the right to life) and article VII (special protection of
children) and article XXVI (prohibition against torture) of the American Declaration by executing
persons for crimes committed before the age of eighteen. The petitioners also alleged a violation
of their right to life guaranteed under the American Declaration, as informed by customary
international law, which prohibits the execution of persons for crimes committed before the age of
eighteen. However, the Commission was convinced by the United States government’s argument
that there was no norm of customary international law establishing eighteen to be the minimum
age for imposition of the death penalty. Besides, it was argued, that even if a customary norm did
exist it would not bind a state that protested the norm as the United States had done by placing a
reservation on article 5 of the ACHR stating that it ‘reserved the right in appropriate cases to
subject minors to procedures and penalties applicable to adults’. The Commission found that
among the members of the OAS there was a recognized norm of jus cogens, which prohibits the
state execution of children. The United States also affirms this norm however it disputes the
consensus as regards the age of majority. The Commission addressed the ‘patchwork scheme of
legislation’ in the United States, which resulted in startling variations in the juvenile death penalty
from state to state. In leaving the issue of ‘this most fundamental right –the right to life’ to its
States, with the ensuing ‘pattern of legislative arbitrariness’ the United States had created a
situation of ‘arbitrary deprivation of life and equality before the law’ contrary to articles I and II of
the American Declaration. The logic of the Commission’s position seems to be that if the
application of the death penalty is arbitrary and depends only on the state in which the crime is
committed, then it is arbitrary for adults, women, blacks and children alike. However, in another
decision of the Commission this position seems to take a beating.
28
In Celestine v. United States, an impoverished young black man with a far below
normal IQ was sentenced to death for the rape and murder of an elderly woman under the
influence of drugs and alcohol. In the words of the Commission, this was ‘a poor case upon which
to recommend the reversal of the US criminal justice practice’. However, what is notable in this
case is the racial under tone with the petitioner having argued that in Louisiana the death penalty
was imposed in a racially discriminatory fashion as demonstrated by statistical evidence and that
he was also denied an impartial hearing because he was sentenced by a ‘death-qualified’ jury.
The Commission however found that the statistical evidence demonstrating that the death penalty
is applied in a racially discriminatory fashion was insufficient. The same conclusion was reached
regarding death –qualified juries. The application was thus declared inadmissible.

On the issue of racial discrimination in capital sentencing, Celestine invoked studies


showing that the race of the defendant was a significant factor at all stages of the criminal justice
system, from the decision to file a first degree murder charge to the decision to submit the case to
a jury trial. The studies also showed that in Louisiana whites who kill blacks never receive the
death sentence whereas the opposite is not the case. In deciding this case the Commission had
29
relied on the US Supreme Court case McCleskey v. Kemp wherein it was stated that ‘black
defendants such as McCleskey have the greatest likelihood of receiving the death sentence’ but
still decided that statistical likelihoods are insufficient to prove racial discrimination.

The three regimes under study show various levels of success in meaningfully enforcing
the right to life by dealing with capital punishment. The United Nations regime, which has a strong
normative framework, inclined towards abolition seeks to minimize the sting of the continuance of
capital punishment by placing emphasis on procedural fairness in the imposition and carrying out
of the death penalty. The ECHR, which has the least safeguards in built into its right to life as

28
Celestine v. United States (Case No. 10,031), resolution no. 23/89, reported in OAS Doc.
A/Ser.L./V/II.76 rev.1 doc. 7 p.62
29
McCleskey v. Kemp 107 S. Ct. 1756 (1987); ON the issue of racial disparity in the imposition and
execution of the death penalty, see the Amicus Commisae Brief submitted to the Inter American
Commission on Human Rights in Andrews v. United States Case no. 11. 139
regards the capital punishment, however has the greatest level of success in this regard as most
of its state parties are abolitionist states. The ACHR, which has the greatest number of in built
safeguards, however reveals the least success in ensuring the right to life for its people. The
disturbing trend of imposing capital punishment and the racial undertones evident in the
sentencing and execution goes to reveal the necessity of absolute abolition as against procedural
safeguards when it comes to something as fundamental as the right to life. The absolute
irrevocability of the capital punishment even it is shown later that there was some error in the
sentencing should be a factor that leads to greater circumspection in sentencing and execution of
the death penalty.

3. TORTURE

This article looks at torture and other forms of cruel, inhuman or degrading treatment or
punishment as violation of the category of rights called ‘bodily integrity’ rights which is defined for
the purpose of this paper as the right to integrity of the human body and its right to continued
existence. Thus rather than look at it as a separate right, this paper looks the prohibition of torture
as a necessary element of the right to life. Also, having categorized it as a ‘public violation’, we
shall be looking at state sponsored or instigated torture, which is primarily employed against
prisoners and includes the ‘death row’ phenomena which was mentioned earlier.

Torture is prohibited in international treaty law, customary international law, and is


universally recognized to be one of the few jus cogens norms. There is no definition of torture in
any of the human rights instruments. A definition, though not binding, is see in article 1 of the
Declaration on the protection of all persons from being subjected to torture and other cruel,
inhuman or degrading treatment or punishment, adopted by the General Assembly in 1975. This
definition reads:

1. For the purpose of this declaration, torture means any act by which sever pain or
suffering, whether physical or mental is intentionally inflicted by or at the instigation of a public
official on a person for such purposes as obtaining from him or a third person information or
confession, punishing him for an act he has committed or is suspected of having committed, or
intimidating him or other persons. It does not include pain or suffering arising only from, inherent
or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the
Treatment of Prisoners.
2. Torture constitutes an aggravated and deliberate from of cruel, inhuman or
degrading treatment or punishment.

From this definition, it is seen that torture has three key elements. First, it is a mode of
punishment or a form of treatment with certain ulterior motives. Second, the reason motivating
torture-whether inducing confessions, eliciting information or instilling fear- is immaterial. Third,
torture may be either physical or mental. The term torture is to be distinguished from ‘cruel,
inhuman or degrading treatment or punishment, which according to the European Court ‘derives
30
principally from a difference in the intensity of the suffering inflicted’ . The expression torture
attaches ‘a special stigma to deliberate inhuman treatment causing a very serious and cruel
31
suffering’ .

30
Ireland v. the United Kingdom, 25 Pub. Eur. Ct. Hum. Rts, Ser. A. Para. 167 (1978)
31
As seen from the case law, the level of suffering which justifies the use of the term ‘inhuman’ seems to
be higher than that which warrants the adjective ‘degrading’. The levels of aggression seem to commence
with degradation, mount to inhumanity and ultimately attains the level of torture. The level of suffering
which merits the label ‘cruel’ seems to stand somewhere in between inhuman conduct and torture. There
also seems to a distinction between cruel/ inhuman/ degrading treatment on the one hand and cruel/
inhuman / degrading punishment on the other.
A. The United Nations Regime

The United Nations stand on torture is enshrined in General Comment No. 20 concerning
prohibition of torture and cruel treatment or punishment in which it is stated that article 7 of the
32
ICCPR is intended to protect the dignity and the physical and mental integrity of the individual. It
goes on to add, ‘ it is the duty of the state party to afford everyone protection through legislation
and other measures as may be necessary against the acts prohibited by article 7, whether
inflicted by people acting in their official capacity, outside their official capacity or in a private
capacity.’ It also notable that the Committee notes that article 7 allows of no limitation even in
times of public emergency, nor does it leave space for any justification or extenuating
circumstances to be invoked to excuse a violation of article 7.

The General Comment lists certain acts as constituting torture, noting the absence of a
definition of the same in the Covenant, the distinctions being based on ‘the nature, purpose and
severity of the treatment applied. The Committee lists the following as constituting torture:
(i) Acts that cause mental as well as physical suffering to the victim. In this context
specific reference is made to corporal punishment including excessive chastisement as a
disciplinary measure in schools.
(ii) Prolonged solitary confinement, according to the Committee amounts to torture. Also,
capital punishment, where still applied by a state party should be carried out so as to cause least
mental and physical suffering.
(iii) Article 7 specifically prohibits any kind of medical or scientific experimentation without
consent and in this context special protection should be afforded to those under any kind of
detention.
(iv) It is not sufficient that state parties prohibit torture and make it a crime within their
own territory. They should also ensure that individuals are not exposed to the danger of torture
upon return to another country by way of extradition, expulsion or refoulement.

The Committee further lays down certain procedural guidelines and suggests certain
measures for monitoring acts of torture, imposing reporting liabilities upon the state parties. We
shall now look at the response of the ad judicatory bodies of the UN to the same issue. It is
notable that the HRC does not go as far as the European Court in defining and classifying various
acts as ‘torture’ or lesser forms of ill treatment. There is however a tendency to label most acts of
suffering inflicted in detention as ‘ill treatment in violation of article 7’ which somehow seems to
lessen the significance of the violation.
33
In Linton v. Jamaica, where the author of the petition and a compatriot who succumbed
to a fatal gun shot in an escape bid were subject to ‘physical abuse and psychological torture’
including beatings until they fell unconscious and perpetrating rumors of their being sentenced to
death, the Committee found that the ‘mock execution and denial of medical care constitute cruel
and inhuman treatment within the meaning of article 7’. With regard to the pretrial ill treatment,
the Committee notes the absence of ‘further substantiation’ and the also the ‘lack of detailed
refutation’ by the State party. The latter element, rather than strengthen the petitioner’s
contentions, seem to have weakened the case before the Committee, implying a lack of
sensitivity on the part of the Committee and a hesitation to take a strong stand against the state.
34
In Zelaya Blanco v. Nicaragua, the Committee notes the detailed account of torture and
ill treatment suffered by the petitioner and ‘bearing in mind that the State party has not disputed
the author’s allegations’ finds that the author was ‘a victim of a violation of articles 7 and 10 of the
Covenant’. It is notable that in this case also the Committee refrains from labeling the violation as
‘torture’. Such instances of the Committee finding for the petitioner but refraining from labeling the
violation as torture are aplenty. There seems to be a harsher indictment of and greater

32
General Comment 20 (Article 7) UN Doc. HRI/ GEN/ 1/ Rev. 1 at 30 (1994)
33
Linton v. Jamaica UN Doc. CCPR/C/46?D/255/1987 (1992)
34
Zelaya Blanco v. Nicaragua UN Doc. CCPR/C/51/D/328/1988 (1994)
contribution to the jurisprudence relating to torture from other UN bodies rather than the primary
human rights monitoring body. Some of the advancements made to the issue of torture by other
functionaries of the UN are listed below.

(i) A state party has on obligation not to return an asylum seeker to the country where
he has ‘substantial grounds for believing that he would be in danger of being subjected to
35
torture’.
(ii) Rape, sexual abuse and other forms of gender-based violence, when committed by a
36
government official constitute torture or cruel, inhuman or degrading treatment.

The UN Committee has however found that prolonged detention on death row did not per
37
se constitute a violation of article 7 . In particular cases the Committee has found article 7
violations surrounding the use of the death penalty. However, in cases involving extradition to the
United States from a nation obligated under the Covenant, the Committee has declined to find
38
article 7 violations on death row grounds.

B. The ECHR Regime

The European Court has gone the farthest among the international human rights tribunals
in drawing a clear distinction between torture and cruel, inhuman or degrading treatment. In 1971,
in an application brought by the Republic of Ireland, the European Court, it was held that the ‘five
39
techniques’ employed by the British government against suspected terrorists did not amount to
torture but constituted inhuman and degrading treatment within the meaning of article 3 of the
40 41
ECHR . Earlier, in The Greek Case, the Commission had made a distinction between ‘a certain
roughness of treatment’, which was tolerated, and acts of torture. The Commission had therein
adopted a working definition of torture stating that it was ‘often used to describe inhuman
treatment, which has a purpose, such as the obtaining of information or confessions, or the
infliction of punishment, and it is generally an aggravated form of inhuman treatment’. In the Irish
case, the Commission had in fact found that the ‘five techniques’ amounted to torture but the
Court in its wisdom found that ‘… whilst there exists on the one hand violence which is to be
condemned both on moral grounds and also in most cases under the domestic law of the
Contracting States but which does not fall within article 3 of the Convention, it appears on the
other hand that it was the intention of the Convention, with its distinction between ‘torture’ and
‘inhuman or degrading treatment’ should by the first of these terms attach a special stigma to

35
Mutumbo v. Switzerland UN Committee against Torture UN Doc. A/49/44 at 45 (1994)
36
Statement of the United Nations Special Rapporteur on Torture to the UN Commission on Human
Rights, E/CN.4/1992/SR.21; UN Committee on Elimination of Discrimination Against Women, Adoption
of Report, 11th Session General Recommendation No. 19 at 2, UN Doc. CEDAW/C/1992/L.1/ Add. 15
(1992)
37
Pratt and Morgan v. Jamaica, Communication Nos. 210/1986 and 225/1987, UN Doc. A/44/40 at p.13.6
38
Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1001 (1993); Ng. V. Canada, UN Doc.
CCPR/C/40/D/469/1991 (1994); Cox v. Canada, UN Doc. CCPR/C/52/D/539/1993 (1995)
39
The techniques involved the combined application of five particular ‘disorientation’ or ‘sensory
deprivation’ techniques which consisted of:
(i) Wall standing: forcing the detainees to remain for periods of some hours in a ‘stress position’
described by those subject to it as involving standing ‘spread-eagled against the wall, with
fingers high above the head on the wall, legs spread apart and feet apart, causing them to
stand on their toes with the body weight mainly on the toes’.
(ii) Hooding: putting a black or navy colored bag on the detainee’s heads
(iii) Subjection to noise: pending interrogation, the detainees were held in a room where there was
a continuous loud and hissing noise
(iv) Deprivation of sleep
(v) Deprivation of food and drink
40
Ireland v. United Kingdom 25 Eur. Ct. H.R. (1978)
41
The Greek Case 12 Y.B. Eur. Conv. On H.R. (1969)
deliberate inhuman treatment causing very serious and cruel suffering’. Accordingly, “ although
the five techniques, as applied in combination undoubtedly amounted to inhuman and degrading
treatment, although their object was the extraction of confessions and the naming of others
and/or information and although they were used systematically they did not occasion suffering of
the particular intensity and cruelty implied by the word torture as so understood. Later in the
judgment there is also the charitable reflection that ‘…while the practices in question involved
some degree of compulsion and must have caused hardship, they were the result of lack of
judgment rather than an intention to hurt or degrade.’ With the ad judicatory bodies being so
charitable to state agencies it is difficult to envisage the kind of human rights sensitivity and
tolerance necessary to ensure something as basic as the right to life, percolating to the lower
echelons of the power structure within states. It is however interesting to note the dissenting
opinions voiced in the same judgment, which vociferously argue to uphold the Commission’s
finding that the said techniques did indeed constitute torture for all intents and purposes.

A welcome addition to the repertoire of cases that have advanced the cause of
42
prohibition of torture is that of Soering v. United Kingdom, in which the Court held that
extradition of a person to a state where he was likely to face time on death row and ultimately
death penalty, was a breach of article 3. Most other cases relating to article 3 violations have
43
been with regard to the ‘lesser’ evils like ‘inhuman or degrading’ treatment/punishment. It is also
44
interesting to note the cases wherein the court refused to find any violation of article 3.

C. The ACHR Regime

One of the harshest indictments of state highhandedness in violating fundamental human


45
rights was seen in the Inter American Court case of Velasquez Rodriguez v. Honduras , in which
the victim’s involuntary disappearance for over 7 years was classified as violation of the right
against torture and the right to humane treatment. The Court held that ‘the forced disappearance
of human beings is a multiple and continuous violation of many rights under the Convention that
the State parties are obligated to respect and guarantee…” it was also added ‘…regardless of the
seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power
of the State is not unlimited, nor may the State resort to any means to attain its ends. The state is
subject to law and morality. Disrespect for human dignity cannot serve as the basis for any state
action….’ This case is more notable for the indictment of unlimited state power and the emphasis
on remedy for the victims rather than any advancement in the jurisprudence relating to torture
itself. One of the most important observations of the Court in the case was that ‘an illegal act
which violates human rights and which is not initially directly imputable to a state (for example,
because it is the act of a private person or because the person responsible has not been
identified) can lead to international responsibility of the State, not because of the act itself but
because of the lack of due diligence to prevent the violation or respond to it as required by the
Convention’.

42
Soering v. United Kingdom 11 EHRR 439; Ser. A. No.161
43
In Tyrer v. United Kingdom, 2 EHRR 1 (1979-80) it was held that judicial corporal punishment inflicted
on the applicant was ‘degrading’ treatment under article 3 though not torture; Campbell and Cosans v. UK,
19 EHRR 112 (1995) led to the abolition of corporal punishment in schools. See, http: /
/www.slas.co.uk/digest1.html
44
De Wilde, Ooms and Versyp, Ser. A, No.12 (1971) in which it was held that punishment for refusal to
work was not violation of article 3; Marckx Ser. A NO.31 (1979) wherein it was held that ‘while legal rules
at issue probably present aspects which the applicants may feel to be humiliating, they do not constitute
degrading treatment coming within the ambit of article 3; Guzzardi Ser. A No.39 (1980) wherein the
applicant had complained of degrading if not inhuman living conditions and the Court found that ‘certain
aspects of the situation were undoubtedly unpleasant or even irksome…. however, it did not attain the level
of severity….which treatment falls within the scope of article 3;
45
Velasquez Rodriguez v. Honduras Inter American Court of Human Rights Judgment of July 29, 1988,
Ser. C. No. 4
Further contribution of the Inter American Commission and Court have been upon the
issue of gender violence or the deliberate employment of rape as a tool to extract information or
46
as part of a general policy of terror and subjugation. In Hernandez Rivas v. El Salvador, the
Inter American Commission heard a petition concerning the brutal torture including rape, of a 14
year old girl by the members of the National Guard of El Salvador and found that the Government
of El Salvador had not only violated the right to humane treatment and other rights in ACHR but
also noted the state’s obligation to respect the provisions of the UN Convention on the Rights of
the Child. It is a welcome step forward that there be an acceptance of the symbiotic relationship
between various normative systems, which can only lead to a strengthening of the whole
framework of human rights. The Commission similarly dealt with a similar instance of the rape of
47
a 7-year-old girl by a military officer.

Thus from the discussion above it emerges that international law is powerless to declare
war itself as illegal and violative of human rights, especially the right to life. However, the right to
life guarantees continue to exist even in times of war, both by means of the guarantees of
mainstream human rights and the humanitarian laws that apply in war time. Capital punishment is
limited by specific reference to fair trial requirements and other safeguards both in the documents
themselves and further augmented by the case law jurisprudence. However, unless complete
prohibition is strongly striven for, it continues to be an unequal application of the law, depending
on which state the crime is committed in and also leaving space for potential racial discrimination
and other such degradations rearing their ugly heads. Torture is normatively better positioned as
an absolute right from which no derogation is permitted. However, it appears that the international
human rights bodies recognize a highly restricted and narrow definition of what constitutes
‘torture’ as is evidenced by the tendency to classify most complaints of torture as ‘cruel, inhuman
and degrading treatment or punishment’ rather than as torture. On the subject of private violations
of the right to life, the international bodies have thus far restrained themselves from tackling some
of the most basic questions. This still leaves the right to life, in so far as it is ‘protected’ by
international human right law, a rather vague concept still open to the vagaries of state practice.
This is not to deny the steps, however small, that have been taken to ensure that there is a
certain minimal ‘core’ of what constitutes the right to life that is guaranteed by international human
rights law at least in theory, mostly by way of procedural safe guards as has been referred to in
earlier contexts. However, it cannot be denied that the state continues to be the greatest
perpetrator of the violations of the right to life and the compromises to the right to life effected in
its dual capacity as violator and protector can only be decried.

46
Hernandez Rivas v. El Salvador OEA/Ser.L/V/II.85 Doc. 9 rev. at 188 (1994)
47
Rivas Quintilla v. El Salvador 10.772, Report No. 6/94, Inter-Am. C. H. R. OEA/Ser.L/V/II.85 Doc. 9
rev. at 181 (1994)