In the European Convention on Human Rights (ECHR) the Right to Life is positively protected by the state, with the exception of deprivation of life which occurs by the 'use of force which is no more than absolutely necessary' in certain justifiable circumstances.
These circumstances include:
- The defence of another from unlawful violence;
- The prevention of an escape of a lawfully detained person;
- The lawful arrest of an individual; and
- Action lawfully taken in quelling a riot or insurrection.
Article 15, ECHR deals specifically with derogation in times of war or public emergency and clearly delineates the responsibility of the contracting State to depart from its obligations under the Convention only when strictly required by the situation. Measures adopted must remain consistent with all binding international law obligations and the Secretary General of the Council of Europe must be kept fully appraised of decisions made and the justificatory reasons. The restrictions applied cannot be used for any purpose other than that prescribed.
An act resulting in deprivation of life will not be regarded a breach of the ECHR if it meets the criteria of necessity and lawfulness, requiring a consideration of proportionality and legitimacy. Accountability is a key concern. The circumstances of the death need to be examined in detail, even in situations of armed conflict. The case of missing persons must be approached in a similar fashion. The circumstances of their disappearance must be examined in order to ascertain whether they have in fact been killed.
DISCUSSION PAPER: THE LEGAL OBLIGATION TO RECORD CIVILIAN CASUALTIES OF ARMED CONFLICT, p. 18
