29103

• an obligation to provide a legal regime that effectively protects life; 101
• laws that properly prohibit and punish killings; and
• criminal sanctions against unlawful killings, regardless of who carried out the killings.

This is the case even where a state agent is responsible for the taking of a life, if that use of
lethal force cannot be justified and was not absolutely necessary. Deaths must be properly
investigated, and the law must be effectively implemented.

From a counter-terrorism perspective, the positive obligation to protect life may under cer-
tain circumstances require the state to protect individuals from identifiable threats to their
lives. This positive obligation means:

• having in place measures to deal with incidents of terrorism to ensure that the conse-
quences have as little impact upon the right to life as possible;

• ensuring, through appropriate planning and guidelines, that counter-terrorism measures
themselves have as little impact upon the right to life as possible;

• that those responsible for acts of terrorism resulting in the loss of life are pursued, pros-
ecuted and appropriately sentenced;

• that the state take all appropriate actions to ensure that such acts of terrorism do not occur
in the first instance.

Where it is alleged that loss of life was caused by a state agent, the European Court has held
that this must be proved beyond reasonable doubt.249 However, where an individual dies in
custody and the state fails to provide a satisfactory explanation, the conclusion may be that
the death occurred as a result of the acts or omissions of the state authorities. Where there is
a death in custody, the burden of proof falls on the state to identify the cause of death. When
an individual is detained by the state, there is an obligation to ensure their health and wellbe-
ing. This includes protecting them from committing suicide.250

The extent of the positive obligation to protect life is not limitless. An appropriate balance
must be struck. If law-enforcement agencies fail to act, for example, by opting not to arrest
someone who then goes on to take a life, this will not necessarily violate the right to life. In
Osman,251 the Court found no violation of the right to life where the police did not arrest
an individual who was harassing a family and who then went on to shoot and kill the father
of that family. The police, under the circumstances, had no reason to believe such an event
might occur. The Court found that the police could not be criticized for having failed to use
their powers of arrest when they reasonably believed that they lacked the necessary standard
of suspicion to exercise those powers.

The principle that can be adduced from this case, however, is that if it can be shown that the
authorities failed to take reasonable steps to avoid a real and immediate risk to life of which

249 ECtHR, Yaşa v. Turkey, Case no. 63/1997/847/1054, 2 September 1998, paras. 92-97.
250 “In the context of prisoners, the Court has already emphasised in previous cases that persons in custody are in a

vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account
for any injuries suffered in custody, which obligation is particularly stringent where that individual dies […] There
are general measures and precautions which will be available to diminish the opportunities for self-harm, without
infringing on personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and
whether it is reasonable to apply them will depend on the circumstances of the case”, ECtHR, Keenan v. UK, Ap-
plication no. 27229/95, 3 April 2001, paras. 91 and 92.
251 Op. cit., note 28, ECtHR, Osman v. UK.

Countering Terrorism, Protecting Human Rights

they were aware or ought to have been aware, the right to life may be violated. However, this
does not extend to providing protection for an indefinite period nor to prevent every possibil-
ity of violence. In the counter-terrorism context, therefore, law-enforcement agencies must
make the right risk assessment of the obligation to protect life.

Independent scrutiny of loss of life

The European Court has ruled that the obligation to ensure that law protects everyone’s life
includes a procedural aspect whereby the circumstance of a deprivation of life receives public
and independent scrutiny.252 This includes situations where life has been taken as a result of
acts of terrorism and also where the state has used lethal force to protect against such acts.

Intentional killing must be subject to criminal sanctions, as must unintentional killing that
results from the use of force in circumstances that cannot be justified. Where death is caused
by reckless or negligent acts, whether this must be subject to criminal sanctions partly de-
pends upon the circumstances of the death.

Effective criminal-law provisions must be put in place to deter offences depriving people of
their lives. Domestic law should also regulate the permissible use of lethal force by agents
of the state. Relevant laws designed to protect life should be practical, effective and be en-
forced, although there is a degree of discretion on the prosecuting authorities in determining
whether to prosecute. However, this degree of discretion should not be abused to nurture a
culture of impunity among law-enforcement officers. Therefore:

• a decision on the part of the state not to prosecute or to carry out an inadequate investiga-
tion will engage the right to life;253

• where an acquittal is based on a defence outside the scope of the accepted justifications of
the use of lethal force254 this could amount to a violation of the right to life;

• there is a duty on states to punish those agents who kill unlawfully and to compensate the
victims of unlawful deprivation of life.255

252 “The Court confines itself to noting […] that a general legal prohibition of arbitrary killing by the agents of the State
would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force
by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with
the State’s general duty under Article 1 (art. 2+1) of the Convention to ‘secure to everyone within their jurisdiction
the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of
effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents
of the State”, ECtHR, McCann and Others v. UK, Case no. 17/1994/464/545, 5 September 1995, para. 161; op. cit.,
note 249, ECtHR, Yaşa v. Turkey, para. 98; ECtHR, Güleç v. Turkey, Case no. 54/1997/838/1044, 27 July 1998, paras.
77-78; ECtHR, Ergi v. Turkey, Case no. 66/1997/850/1057, 28 July 1998, para. 82; ECtHR, Kaya v. Turkey, Case no.
158/1996/777/978, 19 February 1998, para. 86.

253 “To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official
investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that
criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is
justified by the findings of the investigation […] In such cases, the competent authorities must act with exemplary
diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the
circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and,
secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue”,
op. cit., note 248, ECtHR, Öneryildiz v. Turkey, para. 94. Moreover, “there must be a sufficient element of public
scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of
public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be
involved in the procedure to the extent necessary to safeguard his or her legitimate interests”, ECtHR, Hugh Jordan
v. UK, Application no. 24746/94, 4 May 2001, para. 109.

254 As spelt out in Article 2(2) ECHR.
255 Op. cit., note 239, HRC, Guerrero v. Colombia, paras. 13-15.

102 Countering Terrorism, Protecting Human Rights

Obligation to investigate deaths 103

The obligation to investigate deaths arises irrespective of how the authorities found out about
the death, whether state agents were involved, or the circumstances surrounding the death.
This procedural obligation is not confined solely to circumstances where an individual has
lost his or her life as a result of an act of violence. This obligation is not diminished in the
counter-terrorism context. For example, in the McShane case the right to life was held to
be engaged in relation to negligent driving of an armoured vehicle into a rioting crowd in
Northern Ireland.256

It is not decisive that a formal complaint has been lodged. The mere knowledge of a killing on the
part of the authorities gives rise to an obligation to carry out an effective investigation.257

Failure to investigate properly a death will be at odds with a state’s procedural obligations in
relation to the right to life, and this will be in addition to any violation found in relation to
the killing itself.258 There are therefore two aspects to the right to life. There is a procedural
element as well as a substantive one. Merely paying compensation in the absence of an inves-
tigation is not sufficient to satisfy either.259

Disappearances

“Enforced disappearances” are the practices of abduction and secret detention. Unacknowl-
edged detention may lead to torture and eventual killing. As such a number of human rights
are engaged including:

• the right to life;
• the right to liberty;
• protection from torture;
• due process rights such as habeas corpus, and the requirement of legality; and
• the right to an effective remedy.

256 “The Court recalls that Article 2 covers not only intentional killing but also situations where death may result as
an unintended outcome of the use of force […] Nor is the term ‘use of force’ applicable only to the use of weapons
or physical violence. It extends, without distortion of the language of the provision, to the use of an army vehicle
to break down and dismantle barricades. The facts of this case may be distinguished from a road traffic accident,
where, for example, a soldier happens to injure a pedestrian as he is driving home from work, when it may be consid-
ered that the involvement of a member of the security forces is incidental. Where however a soldier is given orders
to use a heavy armoured vehicle, during a riot, to clear away a barricade in the close vicinity of civilians who are
using it either as cover or a shelter, this must be regarded as part of an operation by the security forces for which
State responsibility under Article 2 of the Convention may potentially arise”, ECtHR, McShane v. UK, Application
no. 43290/98, 28 May 2002, para. 101.

257 Op. cit., note 252, ECtHR, Ergi v. Turkey, paras. 82-83.
258 “[…] Having regard to the lack of effective procedural safeguards disclosed by the inadequate investigation carried

out into the disappearance and the alleged finding of Ahmet Çakıcı’s body […] the Court finds that the respondent
State has failed in its obligation to protect his right to life. Accordingly, there has been a violation of Article 2 of the
Convention on this account also”, ECtHR, Çakici v. Turkey, Application no. 23657/94, 8 July 1999, para. 87.
259 This stems from the joint application of Art. 2 and Art. 13 ECHR: “In cases of the use of lethal force or suspicious
deaths, the Court has also stated that, given the fundamental importance of the right to the protection of life, Arti-
cle 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investiga-
tion capable of leading to the identification and punishment of those responsible for the deprivation of life, including
effective access for the complainant to the investigation procedure […] In a number of cases it has found that there
has been a violation of Article 13 where no effective criminal investigation had been carried out, noting that the
requirements of Article 13 were broader than the obligation to investigate imposed by Article 2 of the Convention”,
op. cit., note 253, ECtHR, Hugh Jordan v. UK, para. 160. In the same vein, op. cit., note 252, ECtHR, Ergı v. Turkey,
para. 98 and ECtHR, Salman v. Turkey, Application no. 21986/93, 27 June 2000, para. 123).

Countering Terrorism, Protecting Human Rights



























































Denial of medical treatment

The intentional withholding of medical treatment from persons in places of detention or
from persons injured by an act attributable to public officials will engage the protection from
torture, inhuman and degrading treatment.

The Standard Minimum Rules for the Treatment of Prisoners set out the following
principles:

• detainees should have access to at least one qualified medical officer with some knowledge
of psychiatry and to a qualified dental officer;

• sick prisoners who require specialist treatment should be transferred to specialized insti-
tutions or civil hospitals; and

• medical officers should daily see all sick prisoners, and any prisoner to whom their atten-
tion is specially directed, and should report to the director of the institution whenever
they consider that a prisoner’s physical or mental health has been or will be harmed by
continued imprisonment or by any condition of imprisonment.

Appropriately qualified medical officers should regularly inspect and advise the director on
the quantity and quality of food, the hygiene and cleanliness of the institution and the prison-
ers, and observance of the rules concerning physical education.

Protection from torture and inhuman and degrading treatment will also be relevant to en-
forced treatment in psychiatric hospitals and also experimental treatments. The European
Court found in one case that failure to treat adequately a heroin addict for her addiction in
prison who subsequently died amounted to a violation of Article 3, ECHR.375 Similarly, fail-
ure to treat a prisoner with a history of mental illness who subsequently committed suicide
also amounted to a violation of Article 3.376

OSCE participating States have committed themselves to “protect individuals from any psy-
chiatric or other medical practices that violate human rights and fundamental freedoms and
take effective measures to prevent and punish such practices.”377

375 “Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained 133
persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of
the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establish-
ing Judith McGlinchey’s weight loss, which was a factor that should have alerted the prison to the seriousness of
her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring
of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of
the prison to take more effective steps to treat Judith McGlinchey’s condition, such as her admission to hospital
to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the
vomiting”, ECtHR, McGlinchey and Others v. UK, Application no. 50390/99, 29 April 2003, para. 57.

376 “The lack of effective monitoring of Mark Keenan’s condition and the lack of informed psychiatric input into his as-
sessment and treatment disclose significant defects in the medical care provided to a mentally ill person known to
be a suicide risk. The belated imposition on him in those circumstances of a serious disciplinary punishment - seven
days’ segregation in the punishment block and an additional twenty-eight days to his sentence imposed two weeks
after the event and only nine days before his expected date of release - which may well have threatened his physical
and moral resistance, is not compatible with the standard of treatment required in respect of a mentally ill person”,
ECtHR, Keenan v. UK, Application no. 27229/95, 3 April 2001, para. 116.

377 Op. cit., note 29, 1989 Vienna Document, Questions Relating to Security in Europe, Principles para. 23.6.

Countering Terrorism, Protecting Human Rights

Hunger strikes and forced feeding

The World Medical Association considers that force-feeding of an individual will amount
to inhuman or degrading treatment. In the Association’s view doctors should never be used
to break hunger strikes through acts such as force-feeding.378 The European Court has also
made a similar finding.379

The UN Special Rapporteur on the Right to Health, as part of his report on the situation of
detainees in Guantánamo Bay, made the following observation: “From the perspective of the
right to health, informed consent to medical treatment is essential, as is its ‘logical corollary’
the right to refuse treatment. A competent detainee, no less than any other individual, has
the right to refuse treatment. In summary, treating a competent detainee without his or her
consent — including force-feeding — is a violation of the right to health, as well as interna-
tional ethics for health professionals.”380

Forced medical treatment

The European Court has found that it was a breach of Article 3 to administer an emetic to
obtain the regurgitation of a small quantity of swallowed drugs.381 Furthermore, the Court
found a breach of the right to a fair trial in that the subsequent conviction of the applicant
was based on material obtained in breach of the Convention.

The Court reiterated that the Convention did not, in principle, prohibit recourse to a forcible
medical intervention that would assist in the investigation of an offence. However, it was
stressed that any interference with a person’s physical integrity carried out with the aim of
obtaining evidence had to be the subject of rigorous scrutiny. In this case, the Court was not
satisfied that the forcible administration of emetics had been indispensable to obtain the evi-
dence. The prosecuting authorities could simply have waited for the drugs to pass out of the
applicant’s system naturally, that being the method used by many other member states of the
Council of Europe to investigate drug offences.

The Court found that the authorities had subjected the applicant to a grave interference with
his physical and mental integrity against his will. They had forced him to regurgitate, not for
therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less
intrusive methods. The manner in which the impugned measure was carried out had been li-
able to arouse in the applicant feelings of fear, anguish and inferiority that were capable of hu-

378 World Medical Association, Declaration on Hunger Strikers, available at http://www.wma.net/e/policy/h31.htm.
379 “A measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in

principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving
the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless sat-
isfy themselves that the medical necessity has been convincingly shown to exist […] Furthermore, the Court must
ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in
which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a mini-
mum level of severity envisaged by the Court’s case law under Article 3 of the Convention”, ECtHR, Nevmerzhitsky
v. Ukraine, Application no. 54825/00, 5 April 2005, para. 94. See also ECommHR, X. v. the Federal Republic of Ger-
many, 1984, 7 EHRR 152 (“under German law this conflict ha[d] been solved in that it [was] possible to force-feed
a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and
the forced-feeding [was] even obligatory if an obvious danger for the individual’s life exist[ed]. The assessment of the
above-mentioned conditions [was] left for the doctor in charge but an eventual decision to force-feed [could] only
be carried out after judicial permission ha[d] been obtained”).
380 Op. cit., note 178, Situation of detainees at Guantánamo Bay, para. 82.
381 Op. cit., note 369, ECtHR, Jalloh v. Germany.

134 Countering Terrorism, Protecting Human Rights

miliating and debasing him. Furthermore, the procedure had entailed risks to the applicant’s 135
health, not least because of the failure to obtain a proper anamnesis beforehand. Although
this had not been the intention, the measure was implemented in a way which had caused the
applicant both physical pain and mental suffering. He had therefore been subjected to inhu-
man and degrading treatment contrary to Article 3.

Discrimination

The significance of protecting against discrimination in international human rights law can-
not be over-emphasized. This principle would apply in relation to any discrimination in con-
ditions of detention, as it does in all other matters. As has been stressed earlier in this manual,
difference of treatment that cannot be justified is likely to amount to unlawful discrimination
in such matters as evidence collection, interrogation techniques or conditions of detention.
In the counter-terrorism context, priority must be given to principles of non-discrimination.
It is also worth noting that severe forms of institutionalized racism can amount to inhuman
and degrading treatment.382

Positive obligations

States are required to put in place mechanisms to prevent torture, inhuman and degrading
treatment and punishment. As part of this positive obligation, treatment amounting to tor-
ture or inhuman and degrading treatment must be prohibited by criminal law, and criminal
laws must be implemented in such a way so as to ensure that the prohibition is effective. For
example, there have been a number of cases concerning failure to protect children at risk
of abuse.383 Also, the failure of the law to protect adequately against rape has been found to
violate Article 3 ECHR.384

A similar duty can be found to attach to Article 7 ICCPR. The Human Rights Committee’s
General Comment 20 emphasizes the obligation on states to proscribe Article 7 treatment by

382 Op. cit., note 264, ECtHR, Cyprus v. Turkey, paras. 302-311. The Court concluded that Article 3 ECHR had been
breached because of the discriminatory living conditions of the Greek Cypriots maintained by Turkey in the North
of Cyprus (isolation, restriction on freedom of movement, surveillance and little prospect of renewal or expansion
of their community).

383 ECtHR, Z. and Others v. UK, Application no. 29392/95, 10 May 2001, para. 74 (“[…] in the present case […] the ne-
glect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment
[…] This treatment was brought to the local authority’s attention, at the earliest in October 1987. It was under a
statutory duty to protect the children and had a range of powers available to them, including the removal of the chil-
dren from their home. These were, however, only taken into emergency care, at the insistence of the mother, on 30
April 1992. Over the intervening period of four and a half years, they had been subjected in their home to what the
consultant child psychiatrist who examined them referred as horrific experiences […] The Criminal Injuries Com-
pensation Board had also found that the children had been subject to appalling neglect over an extended period and
suffered physical and psychological injury directly attributable to a crime of violence […] The Court acknowledges
the difficult and sensitive decisions facing social services and the important countervailing principle of respecting
and preserving family life. The present case, however, leaves no doubt as to the failure of the system to protect these
applicant children from serious, long-term neglect and abuse”).

384 Op. cit., note 173, ECtHR, M.C. v. Bulgaria, para. 150 (“Positive obligations on the State are inherent in the right to
effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the
sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with
Article 8 in the sphere of protection against acts of individuals is in principle within the State’s margin of apprecia-
tion, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private
life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular,
are entitled to effective protection”).

Countering Terrorism, Protecting Human Rights

private persons.385 Additionally, the Committee has expressed concern about states’ failure
to proscribe domestic violence.386

In the counter-terrorism context, this issue links directly with impunity and the positive
obligation on behalf of the state to ensure that law and procedures exist to guarantee that
prosecutions can and do take place for ill-treatment. As part of these positive obligations,
all claims of torture, inhuman or degrading treatment must be properly investigated by an
independent tribunal.387

Investigation of claims of ill-treatment

The type of investigation required to satisfy the obligations in relation to protection from
torture is the same as that required for right to life. As such:

• it must be carried out by an independent body in public;
• it must be thorough, rigorous and prompt;
• it must be capable of imputing responsibility;
• it must enable effective involvement of the victim and their next-of-kin;
• there need to be proper and effective procedural safeguards;
• the investigation should be capable of leading to the identification and punishment of

those responsible; and
• it must be capable of bringing perpetrators to justice.

The criteria will not be met where there has been an inadequate forensic medical examina-
tion by medical professionals, brief or incomplete medical reports, and failure to take photo-
graphs or make analyses of marks on the body.

Failure to investigate allegations of torture or inhuman and degrading treatment suggests of-
ficial tolerance and therefore this may show systemic failure in protecting against torture.

The Human Rights Committee has stated “the right to lodge complaints against maltreatment
prohibited by Article 7 must be recognized in domestic law. Complaints must be investigated
promptly and impartially by competent authorities so as to make the remedy effective.”388
The Istanbul Protocol also spells out the principles for the effective investigation and docu-
mentation of torture and other cruel, inhuman or degrading treatment or punishment.389

385 Op. cit., note 336, HRC, General Comment No. 20, para. 13.
386 See HRC, Concluding Observations: Yemen, doc. CCPR/CO/84/YEM, 9 August 2005, para. 12 and HRC, Conclud-

ing Observations: Yemen, doc. CCPR/CO/75/YEM, 26 July 2002, para. 6.
387 “[…] Where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such

agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general
duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms
defined in [the] Convention’, requires by implication that there should be an effective official investigation. This
investigation, as with that under Article 2, should be capable of leading to the identification and punishment of
those responsible […] If this were not the case, the general legal prohibition of torture and inhuman and degrading
treatment and punishment, despite its fundamental importance […] 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”,
op. cit., note 343,ECtHR, Assenov and Others v. Bulgaria, para. 102.
388 Op. cit., note 336, HRC, General Comment No. 20, para. 14. See also HRC, Herrera Rubio v. Colombia, Communica-
tion No. 161/1983, doc. CCPR/C/31/D/161/1983, 2 November 1987, paras. 10.2-10.5.
389 UN, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment (New York and Geneva 2004). para. 73-117.

136 Countering Terrorism, Protecting Human Rights