Published in July 2018.

This module is a resource for lecturers

Exercises and case studies

This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.

The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.

Exercise 1: Develop concept sketches (see Teaching Guide)

Either as a class, in small groups and/or as individuals (e.g., as an assessment exercise) develop one of more concept sketches on issues relating to the right to life in a counter-terrorism context. This may, for instance, start more generally with the applicable international legal framework and then drill down into more detail; or it may e.g. be on specific topics such as the use of the death penalty to sentence convicted terrorists, targeted killings in peacetime/situations of armed conflict, the use of drones and so forth. If you decide to use this tool as the basis of an assessment, it may be a good idea to first demonstrate it e.g. as a class exercise.

Case study 1: Violations of the right to life during military operations

The Kilwa Massacre *

On 14 October 2004, Kilwa, a town in the Democratic Republic of Congo (DRC), was briefly occupied by a small group of lightly armed fighters belonging to the Revolutionary Movement for the Liberation of Katanga (MRLK). They demanded, among other things, the secession of the resource-rich Katanga province. A report of this incident by the United Nations Mission in the Democratic Republic of Congo (MONUC) indicates that the insurgency was initially peaceful as it met with little resistance. In response to the minimal threat posed by the six to seven poorly armed, loosely organized individuals supported by about 100 youth, a battalion of the DRC army was called in by Anvil Mining, an Australian-Canadian company with mining interests 50 km from Kilwa town.

Equipped by Anvil Mining, about 150 army personnel were transported to, within and from Kilwa town in Anvil planes and trucks to retake Kilwa town. As well as logistical support, Anvil Mining offered material assistance to the soldiers, including food and financial compensation. MONUC and other human rights reports indicate that the DRC soldiers engaged in egregious human rights abuses against the residents of Kilwa town. These abuses include bombardment of homes, summary executions of suspected MRLK collaborators, rape, torture, arbitrary arrests and unlawful detention, pillage, and extortion of civilians. At the end of the operation, 73 civilians were dead, 28 of whom were summarily executed.

Eight army commanders responsible for the operation, as well three employees of Anvil Mining, stood trial for the violations. They were, however, subsequently acquitted and never brought to account by the national criminal justice system.

In response, three NGOs filed a communication before the African Commission on Human and Peoples' Rights against the DRC on behalf the resulting victims. The Commission found that the DRC had violated a number of human rights guaranteed in the African Charter, including the right to life.

* Institute for Human Rights and Development in Africa Others v. Democratic Republic of Congo , Judgment of 17 June 2017 , African Commission on Human and Peoples' Rights, Communication 393/10.

Case studies 2: Use of lethal force by States

In carrying out their duties, police may occasionally be required to use force. This could include instances where suspected criminals are resisting arrest, or when attempting to control a mass crowd hostile situation. However, the police are not authorized to liberally use any amount of force they want in these situations and there must be an assessment of whether it is strictly necessary and proportionate, as the following two case studies show.

These issues are illustrated by the McCann case, which concerned a counter-terrorism operation; and the case of Suarez de Guerrero, which related to an ordinary law enforcement action, but the principles of which are of wider application including to counter-terrorism operations.

McCann and Others v. United Kingdom *

The issue of the use of lethal force by the State first arose in the case of McCann. The case involved the death of three IRA members, who were suspected of being in possession of a remote-control device, which was to be used to trigger a bomb explosion. The suspects were consequently - and wrongly - shot by Special Air Service soldiers in Gibraltar. The case was brought before the European Court of Human Rights, which decided that the officers had made a reasonable assessment on the nature of the threat of violence. Nonetheless, the Court found that the right to life of the IRA members had been violated, since the operation could have been controlled and more carefully planned for the protection of this right. The Court confirmed that the test to assess whether the deprivation of life was absolutely necessary, as indicated by article 2 ECHR, was a strict one.

The Court further stated that the use of lethal force must be strictly proportionate to the outcome of objectives outlined in article 2(a)-(c) ECHR. This meant that before lethal force was applied, other means of reducing the risk and danger must have been resorted to. According to the Court, if a person has a bomb that is ready to explode, State law enforcement agencies are permitted to shoot the individual for the sake of the protection of other individuals in the vicinity. The Court stated that:

In this respect the use of the term 'absolutely necessary' in article 2 [section] 2 indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is 'necessary in a democratic society' under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2(a)(b) and (c) of article 2.

In this regard, it should be noted that the necessity exception can be subjective, seeking to resolve the inherent tensions between meeting legitimate security imperatives whilst also fully respecting the rule of law including human rights standards.

Suarez de Guerrero v. Colombia **

In Suarez de Guerrero, the Colombian police killed seven people who were suspected of kidnapping an ex-Ambassador. A question of whether an unlawful deprivation of life had occurred was raised. The police had taken steps with neither prior warning given to the eventual victims nor did they provide them with the opportunity to surrender. Due process had not been followed and no justification had been given for their deaths. This particular case revolved around the death of Maria Fanny Suarez de Guerrero, who had been disproportionately shot by the police several times. Although the police claimed that Suarez had resisted arrest, this was later found to be untrue. The Human Rights Committee found that: "There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned."

Guerrero's death was deemed disproportionate to the law enforcement needs of that particular case and the victim was therefore arbitrarily deprived of her life under article 6 ICCPR. The right to life had been violated, even though the police action was reasoned under a Columbian Legislative Decree 0070, 1978. Compensation was ordered for the victim's spouse, as was the amendment of the law to protect the right to life.

This case highlights the importance of using force proportionately during law enforcement operations. It was held that force must be proportionate to the legitimate objective that is to be achieved. The use of firearms is lawful only when alternative less forceful methods are unable to achieve the legitimate objective sought. The Human Rights Committee further affirmed that domestic law had to be amended to effectively protect the right to life, as the applicable law at the time allowed for police action that was contrary to article 6 ICCPR.

* McCann and Others v United Kingdom (App. No. 18984/91), 1995, European Court of Human Rights, Series A, No. 324.

** United Nations, Human Rights Committee (1982). Camargo (on behalf of Suarez de Guerrero) v Columbia, Communication No 45/1979. 31 March. UN Doc. CCPR/C/15/D/45/1979.

Case study 3: Right to a dignified life

Case of the 'Street Children' (Villagran-Morales et al) v. Guatemala *

This case was heard within a context that saw State agents undertake a systematic practice of aggression against street children in Guatemala, including forced disappearance, torture, murder and other right to life violations. This was a landmark case where the Inter-American Court of Human Rights put forward the concept of the right to a dignified life (" vida digna"). According to the Court, the protection of the right to life meant not only that no-one should be deprived arbitrarily of his or her life, but also that they should not be hindered in accessing conditions that guarantee a "dignified existence".

On 30 January 1997, the Inter-American Commission on Human Rights submitted to the Inter-American Court of Human Rights an application against Guatemala. The case revolved around the question as to whether or not Guatemala had violated various provisions of the American Convention on Human Rights, notably the right to life, right to humane treatment, right to personal freedoms and integrity, right to judicial protection, to name a few. According to the application, the violations had occurred as a result of:

[T]he abduction, torture and murder of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes; the murder of Anstraum [Aman] Villagrán Morales; and the failure of State mechanisms to deal appropriately with the said violations and provide the victim's families with access to justice.

As some of the victims were minors when they were abducted and killed, Guatemala was also accused of violating article 19 of the Convention on the Rights of the Child. The interpretation of the right to life included satisfying conditions for a dignified life. The Court ordered the State to provide reparations to the families of the victims and to take steps to implement article 19 into domestic law. This was the first time the Inter-American Court had identified obligations of the State as including the adoption of special measures to protect children, which encompassed a comprehensive meaning of the right to life.

* Case of the 'Street Children' (Villagran-Morales et al) v. Guatemala , Judgment of 19 November 1999, Inter-American Court of Human Rights, Series C, no. 63, para. 235.

Case study 4: Heightened risk faced by migrants and migrant workers

Nadege Dorzema et al v. Dominican Republic *

This case concerned an incident where soldiers of the Dominican Republic opened fire on a truck carrying Haitian migrants after it failed to stop at an immigration border checkpoint. The indiscriminate use of lethal force resulted in the death of several migrants, and subsequently led to a petition for violation of the right to life under article 4 of the American Charter on Human Rights.

In evaluating the petitioners' claim that the Dominican soldiers had contravened article 4, the Court began by analysing whether and to what extent the State had restricted through legislative enactment the circumstances where lethal force may be used by law enforcement agents. Referring to the United Nations Basic Principles on the Use of Force by Law Enforcement Officials, the Court found a breach of article 4 on the basis that the Dominican Republic did not offer sufficient legislative guidance regarding the parameters of the use of force by the army; nor was there any evidence that the State had adequately trained its agents on the limits of justifiable use of force.

A second aspect of the legal analysis concerned the necessity requirement. The Court affirmed its position in earlier case law that the use of lethal force must be absolutely necessary. Accordingly, lethal force must be prohibited as a general rule and, where appropriate, used only in exceptional cases as a measure of last resort. The evidence before the Court demonstrated that the migrants were neither armed nor had they attempted any acts of violence against the Dominican soldiers. Additionally, the Court reasoned that even if the migrants would have escaped had they not been shot at, the use of lethal force remained unlawful since the migrants posed no threat to the soldiers or other third parties. Hence, the Court found that the use of lethal force against the migrants did not satisfy the requirement of absolute necessity.

The final element of the legal analysis was regarding the proportionality requirement. On this matter the IACtHR again referred to the United Nations Basic Principles on the Use of Force by Law Enforcement Officials as authority for the position that the degree of force must correspond to the level of resistance offered. Following from this, the Court observed that State agents must employ the criteria of differentiated and progressive use of force and, where feasible, use less lethal measures to de-escalate the violence. On this basis, the Court faulted the Government for not adopting non-lethal measures that would support the application of proportionate force. In the particular context of an immigration checkpoint, the Court specified that possible non-lethal means may include "traffic controls with barricades, speed bumps, tyre-puncturing devices, and/or cameras".

* Nadege Dorzema et al v. Dominican Republic , Judgment of 17 April 2015, Inter-American Court of Human Rights, Series C, no. 292.

Case studies 5: Punishment of (mandatory) death penalty for convicted terrorists

Case of Susan Kigula and 416 others *

The petition was brought under article 137(3) of the Constitution of the Republic of Uganda challenging the Constitutional validity of the imposition of the death penalty. The 417 petitioners were, at the time of filing the petition, on death row, having been convicted of offences under the Ugandan Anti-Terrorism Act .

In terms of foundational principles, the Court held thatthedeath penalty was recognized under the Constitution in article 22(1) as an exception to the enjoyment of the right to life and as an exception to article 24. It was permissible in the execution of a sentence passed following a fair trial by a court of competent jurisdiction, in respect of a criminal offence under the laws ofUganda, and where the conviction and the sentence had been confirmed by the highest appellate court.

Nevertheless, the Supreme Court of Uganda was also of the view that the imposition of a mandatory death sentence was unconstitutional. Under section 98 of the Trial on Indictments Act - which specifies the procedure to be followed by a court after entering a conviction and before passing any sentence other than a sentence of death - the court is able to make inquiries before passing sentence to inform itself on the appropriateness of the sentence to be passed. This provision makes a distinction between a person convicted under a mandatory sentence of death provision and those convicted under other provisions. Any provision imposing a mandatory sentence of death denies the court the chance to inform itself as to the appropriateness of the death sentence. Refusing or denying a convict facing sentence of death to have e.g. mitigating circumstances raised when those facing lesser sentences were allowed to be heard in mitigation was clearly unjustifiable discrimination and unfair. It was neither consistent with the principle of equality before and under the law guaranteed in article 21, nor with the right to a fair hearing guaranteed in articles 22(1), 28 and entrenched in article 44(c) of the Ugandan Constitution.

Furthermore, the Supreme Court found that any procedure which denies the court an opportunity to inform itself on any mitigating factors regarding sentence of death, deprives the court of the chance to exercise its discretion to determine the appropriateness of the sentence. It compels the court to impose the sentence of death merely because the law directs it to do so. This was considered to be an unacceptable intrusion by the Legislature into the realm of the Judiciary.

Mithu v. the State of Punjab **

This case challenged the constitutionality of section 303 of the Penal Code of India which imposed a mandatory death penalty for murder committed by a person serving a life sentence. It was argued that the section was inconsistent with article 21 of the Constitution of India which provides that "[n]o person shall be deprived of his life or personal liberty, except according to fair, just and reasonable procedure established by valid law."

The Supreme Court of India was of the view that "[i]f the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels court to impose that sentence."

Consequently, the Supreme Court struck down section 303 of the Indian Penal Code as being unconstitutional due to its inherent unfairness and unjustness on the following grounds:

(1) It did not permit the life-convict to be heard in mitigation before sentence was passed on him;

(2) It also did not give the court an opportunity to exercise its discretion to determine the appropriateness of the sentence passed. The court passed the sentence of death solely because the law compels it to impose it;

(3) Denying the court the ability to exercise its judicial discretion to determine the appropriateness of the sentence was an intrusion into the realm of the judiciary and thus, a violation of the principle of separation of power.

Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra ***

This case concerned the imposition of the death penalty on one of the convicted terrorists in relation to the Mumbai terrorist attack on the Taj Mahal hotel on 26 November 2008. This resulted in the murder of 166 people and injury, often grievously, of a further 238 people. The victims included policemen, security personnel and foreign nationals. The property damage was assessed at over U.S $ 1.5 billion.

Kasab, a Pakistani national, was sentenced by five death penalties and equal number of life terms in prison for these terrorist crimes following a trial affording due process in accordance with the laws and the Constitution of India. The sentences were confirmed in accordance with law by the High Court of Bombay. From the judgment of the High Court two appeals were filed in the Supreme Court. Unpresented during the appeal, the Court appointed Kasab an experienced advocate to represent him.

The Supreme Court stated that since it was a case involving the death penalty, that it would examine the materials on record first hand, in accordance with the time-honoured practice of this Court, in order to reach its own conclusions on all issues of fact and law raised by the case, unbound by the earlier findings of the trial court and the High Court. The Supreme Court held that access to a lawyer was imperative to ensure full compliance with statutory provisions which, if duly complied with, would leave no room for any violation of Constitutional provisions or human rights abuses. The Court was of the view that the accused had been afforded full due process. E.g. his initial refusal of the offer of an Indian lawyer was his own decision, though his request for a Pakistani legal representative was subsequently granted. The circumstances in which the few concessions he had made in the form of confessions did not suggest the presence of inappropriate duress.

On the facts and given the possibility of reform of the accused-appellant being foreclosed by his absence of remorse for the terrorist crimes committed, the Supreme Court was of the view that the imposition of the death penalty was fully justified.

* Susan Kigula & 416 Ors v Attorney General (Constitutional Petition No. 6 of 2003) [2005] UGCC 8 (10 June 2005).

** Mithu vs the State of Punjab , 1983, AIR 473, 1983 SCR (2), 7 April.

*** Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra , AIR 2012 SC 3565.

Case study 6: Enforced disappearance

IACtHR, Velásquez Rodríguez v. Honduras *

Angel Manfredo Velasquez Rodriguez, a student, was arrested without warrant in Tegucigalpa on 12 September 1981. Eyewitnesses observed members of the National Investigation Directorate and G-2 (Intelligence) of the Armed Forces of Honduras arrest (without a warrant) and take Rodriguez to an unspecified location. One of the key questions that the Court was asked to decide upon was whether Honduras had breached the right to life under the American Convention, as well as the accompanying rights to humane treatment and personal liberty. It was eventually decided by the Court that these violations had occurred.

With respect to the related duties of the State, the Court specified these in the following terms:

The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation…. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. It is not possible to make a detailed list of all such measures since they vary with the law and the conditions of each State Party. Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures. On the other hand, subjecting a person to official, repressive bodies that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those facts cannot be proven in a concrete case.

This was one of the first contentious cases at the Court and demonstrated an expounding of due diligence rules - i.e. to take all reasonable steps appropriate in the circumstances - that States must implement in order to prevent the infringement of key human rights, particularly in order to protect the right to life.

* Velásquez Rodríguez Case , 29 July 1988, Inter-American Court of Human Rights, Series C, No. 4 (1988), para. 174.

Case study 7: Use of lethal force and the right to life

Mr Citizen v. Butavia *

In 2005, the European Court of Human Rights gave its judgments on violations of the ECHR in Duradia since the start of the Second Duradian War, a non-international armed conflict. Both the federal and separatist sides were alleged to have committed grave human rights violations. The case touched upon the actions of State agents, which included the use of indiscriminate weapons and air strikes, the careless planning of operations and the treatment, mass disappearances and deaths of civilians. Mr Citizen was fleeing Arcus, where fighting was ongoing, in order to reach the border between Duradia and Curia. Two aircrafts fired at the group and released numerous non-guided air missiles, which consequently killed Mr Citizen's two children and wounded Mr Citizen. There was no substantive evidence to suggest that the aircrafts were provoked and defending themselves, which is what the Butavian Government claimed.

The Court accepted that the situation which "existed in Duradia at the relevant time called for exceptional measures on behalf of the State in order to regain control over the Republic and to suppress the illegal armed insurgency", which could include "employment of military aviation equipped with heavy combat weapons". It further stated that it was reasonable to assume that the military were justified in their use of lethal force for the protection of persons from unlawful attacks by militants, as per article 2(a) ECHR. Nevertheless, "[t]he object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective." It found that article 2 applied both to intentional killing as well as to an "unintended outcome" including the deprivation of life. Furthermore, the Court required that any use of force must be no more than what is "absolutely necessary" i.e. it must satisfy a "stricter and more compelling test of necessity" compared with some other ECHR rights.

The Court established that the use of such indiscriminate, lethal force did in fact violate the right to life substantively and the fact that "authorities failed to carry out an effective investigation into the circumstances of the attack", meant a procedural violation of the right to life provision as well. The Court declared that the claimants' family were unlikely to have died within exceptions outlined in article 2 and therefore the right to life had been violated. The deaths were attributed to the State and no evidence was given as to the reasoning behind the use of lethal force. The Court was of the view that the attack occurred "outside wartime", i.e. not in the context of the ongoing non-international armed conflict and, therefore, that no derogation from inter alia the right to life was possible in these circumstances.

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