Lethal Force, the Right to Life and the ECHR

Narratives of Death and Democracy

Stephen Skinner

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509946693
• eBook ISBN: 9781509929542
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

In its case law on the use of lethal and potentially lethal force, the European Court of Human Rights declares a fundamental connection between the right to life in Article 2 of the European Convention on Human Rights and democratic society. This book discusses how that connection can be understood by using narrative theory to explore Article 2 law's specificities and its deeper historical, social and political significance. Focusing on the domestic policing and law enforcement context, the book draws on an extensive analysis of case law from 1995 to 2017. It shows how the connection with democratic society in Article 2's substantive and procedural dimensions underlines the right to life's problematic duality, as an expression of a basic value demanding a high level of protection and a contextually limited provision allowing states leeway in the use of force. Emphasising the need to identify clear standards in the interpretation and application of the right to life, the book argues that Article 2 law's narrative dimensions bring to light its core purposes and values. These are to extract meaning from pain and death, ground democratic society's foundational distinction between acceptable force and unacceptable violence, and indicate democratic society's essential attributes as a restrained, responsible and reflective system.

1

Introduction: From Death to Democracy

On 6 March 1988 soldiers from a British military special forces unit were deployed to support the civil police in Gibraltar as part of an operation to apprehend a group of terrorists, who were thought to have planted a remote-controlled car bomb. When the suspects were located, the police called for military support to carry out the arrest. During the ensuing confrontation, the soldiers shot the suspects dead. Seven years later, and 45 years after the European Convention on Human Rights (ECHR) was signed, the incident resulted in the first judgment by the European Court of Human Rights (ECtHR) in a case about the right to life under Article 2 of the ECHR and the use of lethal force by a Member State of the Council of Europe.¹ This was the landmark ruling in McCann and Others v The United Kingdom (27 September 1995).

Article 2 establishes legal protection for the right to life, but that protection is not absolute, as the article makes allowances for the use of lethal force by the state in narrowly defined circumstances of absolute necessity. In McCann, the ECtHR faced the task of interpreting and applying this provision, not only for the first time but also in the context of a sensitive case involving one of the Council of Europe’s founding members and its response to terrorism. In the introduction to the main legal analysis stage of the McCann judgment, the ECtHR began by declaring the importance of the right to life and the scope of the legal protection it can provide, stating that Article 2 ‘ranks as one of the most fundamental provisions in the Convention’ and that (together with Article 3²) it ‘enshrines one of the basic values of the democratic societies making up the Council of Europe’.³ The ECtHR also declared that ‘in keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used’.⁴ That connection between Article 2 and democratic society was a foundational aspect of the ECtHR’s analysis in McCann and has been repeated in all subsequent judgments on the right to life and the state’s use of force. These have rapidly grown into an extensive body of case law, in which the ECtHR has enlarged Article 2’s protective scope to include not only a use of lethal but also potentially lethal force by state agents, as well as the state’s legal framework, its planning and control of operations and a duty to investigate deaths. Each of these aspects of the expanded interpretation of Article 2 sets criteria for assessing state compliance with the right to life, but the ECtHR has also interpreted Article 2 to allow a degree of flexibility for state action. As a result, despite the large number of judgments on Article 2 and the array of detail in decisions about what states can and cannot do when using force, the fundamental purpose of the right to life and of its conceptual connection with democratic society has not been evident in terms of core values or rigorous rationales. Rather, the law on the right to life seems to have become more a matter of deducing the technical consequences of proportionate compromise than a driving set of normative standards.

This book examines how the connections between the right to life and democratic society, as declared by the ECtHR, can be understood in Article 2 case law on uses of force in the context of situations like that in McCann, namely domestic policing and law enforcement operations involving civil and military agents of the state.⁵ This involves exploring why the right to life is said to be a fundamental provision in the ECHR and a basic value of the democratic societies in the Council of Europe, what the ECtHR means when it refers to ‘democratic societies’, and how the ECtHR uses the connection between the right to life and democratic societies when interpreting and applying Article 2. On that basis, the book considers what Article 2 and the case law on it can tell us about the nature of democratic society in relation to the deprivation and endangerment of life by the state, so as to identify fundamental values that can, it is hoped, be used to reinvigorate and strengthen the development of clear standards in this area of ECHR law.

The book addresses these issues through a combined theoretical and doctrinal analysis. Theoretically, the book draws on narrative theory to provide a conceptual framework for its discussion of Article 2 and related case law. Narrative theory focuses on the ways in which human activity and experience can be represented in an account that is intended to make sense of them by organising their interpretation around a structuring theme in order to convey a particular meaning. Discussed further in Chapter 2, theories of interpretation in ECHR law have addressed the ECtHR’s analytical processes and the justification of its judgments in terms of fundamental principles and functional objectives, including democracy,⁶ and the concept of narrative itself has already received some attention in human rights scholarship.⁷ The aim here though is to complement and enhance these approaches to ECHR law by focusing in detail on a specific right and its interpretation and application by the ECtHR, developing and applying a method of analysis that goes further than those existing interpretive studies by adopting a broader, external and socially situated perspective on ECHR law that engages more closely with its construction and function as a form of narrative.⁸ This is undertaken in the context of what is perhaps the greatest challenge to legal reasoning in the human rights field, namely the deprivation of human life by the state in a democratic system.

The book bases its narrative analysis primarily on the work of Robert Cover and Paul Ricoeur. Cover’s influential jurisprudential argument was that law needs to be understood in relation to the narratives that locate it in a particular context and value matrix and so give it meaning.⁹ This is used here to bring to light the ways in which ECtHR judgments on Article 2 involve narratives about core values and competing interests in terms of democratic society, including both the wider socio-political narratives to which those judgments are connected and the narratives that those judgments constitute. Ricoeur’s hermeneutic theory of narrative as a human response to experience examined the layers of representation encompassed within fictional and historical narratives and how they support the production of meaning, as well as the shaping of identity.¹⁰ Ricoeur’s work is referred to here in order to deepen engagement with the explicit and implicit narrative components of ECtHR judgments, as well as their processes of configuration and communication of meaning, by using his primarily philosophical theory to develop a fresh (extra-legal) reflective perspective on the ECtHR’s decision-making processes. The book is inspired by elements of both theories, which it draws on in tandem to guide the discussion, rather than adhering strictly to the terms of each or seeking to bend ECHR law into either theorist’s specific theoretical framework. The main aims here are rather to explore the narrative dimensions of judgments on the right to life and state uses of lethal or potentially lethal force, and the overall significance of Article 2 law, in order to focus on the deeper values and meanings that can be derived from those judgments, and their significance for human rights law and democracy in contemporary Europe.

This turn to narrative theory is not intended to trivialise ECHR law by appearing to suggest that it is a mere linguistic fabrication or literary construction, abstracted to a remote conceptual dimension, and so the book’s theoretical reflection is rooted in an in-depth doctrinal analysis of Article 2 and state uses of lethal and potentially lethal force. As ECHR law constitutes the highest human rights system in Europe that responds to and influences concrete experience and practice, it reflects and shapes a reality beyond the text,¹¹ mediated through the interpretation and judgment of the ECtHR. The book therefore critically discusses the scope of Article 2, including its political, philosophical, historical and legal origins, its connections with other provisions of international law, and its application by the ECtHR. Through an extensive analysis of case law, the book examines how the ECtHR’s narratives have supported its extended interpretation of Article 2 to include substantive and procedural dimensions, which have been constructed around the inherent tension in that provision between protecting the right to life and allowing state action in the interests of society, as well as the ECHR requirements of effectiveness, proportionality and respect for subsidiarity. This analysis shows the importance of the ECtHR’s connection between Article 2 and democratic society in developing strong protection for the right to life, whilst making practical – and not unproblematic – provision for state conduct in the policing and law enforcement context.

Overall, the book argues that the connections among lethal force, the right to life and democratic society that are identified through its combined theoretical and doctrinal analysis of ECtHR decisions on Article 2 can and should be understood to form the core of this branch of ECHR law.¹² This core encompasses the objectives of fostering control of the state, seeking to prevent arbitrary killing, ensuring accountability under the rule of law, and supporting essential qualitative dimensions of state conduct in relation to state agents’ behaviour and the intangible implications of state practices. Addressing Article 2 law’s experiential bases in the loss of life and serious harm, the book shows how this body of law reflects and expresses democratic society’s (self-)defining distinction between acceptable force and unacceptable violence, and how Article 2 law’s core objectives can be used to articulate its underlying ethos, in terms of democratic society’s distinguishing attributes. Through a cumulative and inductive reading of the case law in narrative terms, the book argues that Article 2 law can ground a normative understanding of democratic society as a system that should be restrained, responsible and reflective. These attributes, it is suggested, can support the establishment of essential guiding principles in this area of ECHR law, to offset the emphasis on pragmatic compromise with a greater clarity of standards. The book thus analyses the role of the right to life in the relationship between death and democracy in the context of state law enforcement, and provides a new critical perspective on the content and contribution of Article 2 law through the lens of its narrative dimensions. To introduce this analysis, Part I of this chapter offers a preliminary outline of the main issues arising under Article 2 and the scope of the discussion, and Part II provides an overview of how the book is developed, chapter by chapter.

I.The Right to Life, Policing and State Power

Although Article 2 ECHR protects the right to life, in its textual formulation it appears to be predominantly about the state’s power to kill. The origins, application and significance of Article 2 are explored in depth in Chapters 3–6, but some key introductory points are necessary here to orient the discussion. This section sets out the scope of Article 2 in terms of deprivation of life by the state, the range of cases examined, and the importance of these matters in broader conceptual terms of state power and society.

A.The Right to Life in the ECHR in Outline

The right to life is the most fundamental right. It reflects belief in the paramount value of human life and its protection is the precondition for all other rights. As formulated in Article 2, it is the first substantive right established in the ECHR and, under Article 15, no derogations from it are permitted in peacetime.¹³ Textually the same today as it was when finalised in 1949, Article 2 ECHR has two parts:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when 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(1) declares that the right to life must be protected by law. This aspect locks the right into the ECHR’s fundamental focus and dependence on the rule of law. The wording of Article 2(1) also contains an allowance for the death penalty, which originally reflected ongoing support for capital punishment in the post-war era when it came into force. Under that provision, the only permitted circumstance in which an intentional deprivation of life by the state could be permitted was as a punishment following a criminal trial resulting in the application of a lawful penalty. Article 2(2) establishes that a deprivation of life will not breach the right to life if it is due to an absolutely necessary use of force in a limited range of narrowly defined circumstances. The terms of Article 2 thus involve both protection of the right to life and provision for killing, through capital punishment and law enforcement operations.

By the time of the McCann judgment the scope of Article 2(1) had evolved but the meaning of Article 2 was still unclear in the context of lethal force. With regard to Article 2(1), by 1995 most states in the Council of Europe had committed themselves under ECHR Protocol 6 to abolishing the death penalty, although states could still make provision for it in time of war.¹⁴ Consequently, at that stage for most states Article 2(2) indicated the only permissible grounds on which state agents could take life in peacetime. H...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Brief Contents
• Table of Contents
• List of Abbreviations
• Table of Cases
• Table of Legislation
• 1. Introduction: From Death to Democracy
• 2. Narrative and Human Rights Law
• 3. Lethal Force, the Right to Life and Democratic Society: Key Connections
• 4. Substantive Dimensions of the Right to Life and Democratic Society
• 5. Procedural Dimensions of the Right to Life and Democratic Society
• 6. Purposes and Values in Right to Life Case Law on Lethal Force
• 7. Narratives of Death and Democracy
• 8. Conclusion
• Bibliography
• Index
• Copyright Page