An examination of the jurisprudence related to the right to life clearly demonstrates that the right entails a broad range of obligations which go beyond the negative obligation to refrain from arbitrary or intentional deprivation of life. It can be concluded from the case-law that the right to life imposes positive, as well as negative, obligations; states are not only required to abstain from killing, they must also take positive measures which vary from case to case.
In those countries which have not abolished the death penalty, only serious offences may be subject to capital punishment. In addition, if the state does not respect safeguards, such as the right to a fair trail, right to appeal and right to seek pardon, imposition of the death penalty will amount to an ‘arbitrary killing’. Mandatory capital punishment also amounts to a violation of the right to life.
States must plan and conduct security operations with the greatest care in order to secure the lives of the individuals living under their jurisdiction. States must respect the principle of proportionality in the use of force and are only allowed to use force when it is strictly necessary under the circumstances of a given situation (see, e.g. the McCann et al. v. The United Kingdom para. 213 and Suarez de Guerrero v. Colombia para. 13.3).
Procedural obligations arising from the right to life require states to carry out an effective investigation when individuals have been killed or have ‘disappeared’. The responsibility of the state to proceed with an ‘effective’ investigation is engaged even though there is no evidence that agents of the state have been implicated in the killing or ‘disappearance’. The members of the victim’s family or others need not have lodged a formal complaint about the killing with the authorities for the duty to be engaged. This duty is more stringent when a ‘disappeared person’ was last held in state custody. In such circumstances, it is incumbent upon the state to provide a plausible explanation as to the detainee’s fate, as well as to ensure some form of independent verification.
If the state fails to undertake an official investigation, it is in breach of the right to life. This duty is particularly evident in the case-law of the European Court and the Human Rights Committee. In the Americas, in light of the Inter-American Court’s statement in Fairén Garbi and Solís Corrales v. Honduras (Judgement of 15 March 1989, Series C No. 6 para. 159), it is not quite clear that a lack of investigation in itself constitutes a violation of the state’s duties.
It is important to stress that it would also entail a breach of the obligation to investigate if the investigation is considered to be ‘ineffective’ by the supervisory organs. The human rights monitoring organs have referred to various reasons for considering an investigation ‘ineffective’; because, for example, it was not initiated promptly and immediately after someone’s death; because it was short in length and limited in scope; because it contained unexplained failures to take obvious steps; or due to the lack of independence of the organs entrusted to investigate. The position of the European Courtregarding the requirements for an ‘effective investigation’ is especially worth mentioning. According to the European Court, the investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (seee.g. Jordan v. The United Kingdom , para. 107). Otherwise, the investigation would be ‘ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.’ ( Assenov et al. v. Bulgaria, Application No. 24760/94, Judgement of 20 October 1998 para. 102). In general, the form of an ‘effective’ investigation will vary according to the circumstances of the case.
The right to life also imposes an obligation upon states to take appropriate measures to protect the lives of individuals held in their custody. This obligation includes the duty to provide proper medical care when requested and to make available adequate food and water in order to sustain life. Some leading cases, such as the Villagrán Morales et al. v. Guatemala and Cyprus v. Turkey seem to demonstrate a tendency to interpret the right to life as imposing a duty to provide assistance for preserving human life.
Finally, it can be deduced from the jurisprudence of the major human rights supervisory bodies that when there has been a violation of the right to life, states are required to take the following actions:
a) To provide compensation where appropriate. Clearly, when someone has been deprived of life, restoration is not possible but the state may be required to make payment to the victim’s family.
b) To undertake a thorough and effective investigation that can lead to the identification and punishment of those responsible for the deprivation of life or the ‘disappearance’ of a person in circumstances that may involve the violation of the right to life.
c) To prosecute perpetrators and bring to justice those found responsible.